text:
    Greenan v. Eggeling, Appellant.

      Negligence — Master and servant — Instruction of servant — Laundry—Mangle.
    If there are different ways in which work may be done which an employee is required to do, one of which has been shown by experience to be safe, and another dangerous, an inexperienced servant is entitled to instructions in regard to the proper manner of doing it.
    In an action by a girl seventeen years old against her employer, the proprietor of a laundry, to recover damages for injuries sustained while working at a mangle, the case is for the jury where the evidence is conflicting as to whether the plaintiff received any instruction as to the method of operating the'machine.
    In such a case if it appears that the plaintiff complained of the machine, not because of any danger which she feared, but because of the failure of the machine to do good work, she cannot be charged with assuming a risk by continuing to work at the machine.
    Where the evidence is conflicting as to whether hand guards were customarily used on mangles, the question is for the jury to determine whether the employer was negligent in not providing a hand guard.

      Trial — Witness—Subpoena.
    Where a number of attempts have been made to subpoena a witness who had testified at a previous trial all of which have failed, the testimony of the witness at the previous trial may be offered in evidence.
    Argued Oct. 13, 1905.
    Appeal, No. 107, Oct. T., 1905, by defendant, from judgment of C. P. Nó. 5, Phila. Co., Dec. T., 1902, No. 672, on verdict for plaintiff in case of Henrietta Greenan, by her father and next friend, Peter F. Greenan, and Peter F. Greenan v. Frederick W. Eggeling.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following point:
    4. The law imposes upon the master the duty of giving proper instructions to a young and inexperienced servant employed about a dangerous machine, and thesemust.be sufficient to enable a person of her youth and inexperience to perform her duty with safety. Answer: Affirmed. [2]
    Defendant presented these points :
    2. That the plaintiff, having worked at the mangle for almost a month prior to the accident, should have known the dangers to which she was exposed and should have exercised care, and if she did not do so she was guilty of contributory negligence and cannot recover. Answer: Refused. [8]
    6. The plaintiff alleged that the machine jumped and jerked, and that she had made complaint of the said jumping and jerking, and afterwards continued to work upon the machine. She therefore had knowledge of the alleged defect, and was required to exercise more than the ordinary degree of care, and if she did not exercise such care she was guilty of contributory negligence and cannot recover. Answer : Refused. [4]
    1. Under all the evidence in the case the verdict should be for the defendant. Answer : Refused. [6]
    Verdict and judgment for Henrietta Greenan for $1,500 and for Peter Greenan for $414. Defendant appealed.

      Errors assigned were (2,-4, 6) above instructions, quoting them ; (1) in admitting the testimony of A. K. Potter given at a previous trial; and (5) that the charge as a whole was inadequate.

      Samuel Peltz, for appellant,
    cited: Higgins v. Fanning, 195 Pa. 599.

      Jacob B. Walker, for appellees,
    cited: Welsh v. Butz, 202 Pa. 59; Sheetram v. Trexler Stave, etc., Co., 13 Pa. Superior Ct. 219; Cargill v. Towel Supply, etc., Co., 185 Pa. 269; Rauch v. Smedley, 208 Pa. 175.

      March 12, 1906:
   Opinion by

Henderson, J.,

The hand of Henrietta Greenan, one of the plaintiffs, was injured in a mangle in use in the defendant’s laundry. The plaintiffs charge that the accident occurred because of the negligence of the defendant: (1) in neglecting to instruct the girl in regard to the dangerous character of the machine and the proper mode of operating it; (2) in the use of a defective machine ; (3) in failing to maintain a hand guard in front of the rolls of the mangle. The plaintiff who was injured was about seventeen years old and, as shown by her evidence, had been at work in the laundry about three weeks, during about two of which she was employed at the mangle. Her service for the first two days of her employment was in straightening out collars, after which she was set at work at the mangle. According to her testimony she never saw a mangle before, and was inexperienced in its use. She testified positively that no instruction was given her as to the danger incident to the operation of the machine or the proper manner of doing her work in view of the risk. She was contradicted upon this subject by the defendant, who alleged that he stood beside her and fed the machine when she first came to work, and that he cautioned her of the dangers of the machine. The character of the instruction is indicated by a part of the defendant’s testimony : “ Q. You did not caution her against anything yourself ? A. I cautioned her against an accident, it being a dangerous machine. Q. What were your words ? A. I cannot just recall. Q. As near as you can recall them, what did yon say? A. Well, I might have said to her, ‘ Hettie, be careful that the machine don’t get your hand caught.’ Q. Anything else ? A. There might have been some more words. Q. Then you think that was practically all you said, so far as you can remember ? A. Yes, that was all I said so far as I remember.” He also testified that the operator’s fingers ought not to go within three inches of the line of contact of the auxiliary roll. Other witnesses were called to corroborate the defendant on this point, but the language of the defendant as given by them seems to have had reference rather to the diligence of the girl than care with regard to the risks of her employment. One of the witnesses said, “ He (the defendant) told her he did not want her to fool but to be careful and pay attention to her work.” Another said, “I was there on Monday afternoon when he told her to be careful; to stop her fooling and attend to the work.” A third testified: “ On Mondays when we were there he told ns not to fool and to attend to our work.” A clear issue of fact was raised by the evidence .on this point which the jury alone could decide. If there are different ways in which work may be done which an employee is required to do, one of which has been shown by experience to be safe and another dangerous, an inexperienced servant is entitled to instruction in regard to the proper manner of doing it. In accepting the employment the plaintiff assumed the risk of any danger which was obvious to a person of her age and experience. The defendant was charged with the duty of instructing her as to the proper use of the machine to avoid hazards which might not be apparent to one lacking experience. The obligation of the employer is well stated in Tagg v. McGeorge et al., 155 Pa. 368: “ When young persons without experience are employed to work with dangerous machines it is the duty of the employer to give suitable instructions as to the manner of using them and warning as to the hazard of carelessness in their use ; if the employer neglects this duty, or if he give improper instructions, he is responsible for the injury resulting from his neglect of duty.” A person of ordinary intelligence would know presumably that if her hand were caught between the rolls of a mangle it would be injured. An inexperienced person might not know, however, what liability there was that her hand might be so caught while engaged in the manipulation of the articles passed through the machine. A youthful operator is, therefore, entitled to instruction as to the mode of using the machine as well as admonition in regard to its danger : Sheetram v. Trexler Stave & Lumber Co., 13 Pa. Superior Ct. 219; Brislin v. Kingston Coal Co., 20 Pa. Superior Ct. 234, and cases there cited. At the time of the accident the plaintiff was engaged in putting a large tablecloth through the mangle. She thus described the occurrence of the accident: “ When I was feeding the cloth it jerked, and I had my hand feeding the cloth in, and before I could pull my hand it pulled my hand in with the cloth.” “ Q. You had just started the cloth in with the rollers ? A. Yes, sir. Q. When it gave a sudden jerk and pulled your hand before you had time to get it away ? A. Yes, sir.” At another point in her examination she said: “ A. I was feeding and I had my hand there; I was straightening out on this side of the roller. Q. Which side, the right side? A. Yes, sir. Q. With your hand that was injured? A. Yes, sir; I had started feeding it in and it gave a sudden jerk and pulled my hand in before I had a chance to pull it out from the table cover.” ■ She alleged that the machine worked defectively; that it jumped and jerked ; that she called the attention of the defendant to the defect several times and that he sent his engineer, who came and “ did something to these screws on the top.” The machine not working any better after that, she made further complaint to the defendant, but it was not repaired afterwards. The effect of the jumping and jerking was that the machine “ didn’t feed right, it didn’t iron right.” The jerk which pulled the plaintiff’s hand between the rolls was stronger and more sudden than any that had occurred before. The plaintiff’s complaint in regard to the action of the machine seemed to be rather because of its failure to do good work than because of danger which the operator feared. According to her testimony she did not consider it dangerous, but found fault because the clothes did not come out right. There was evidence that a machine in proper condition would not jump and jerk, and that there were many things which might cause such action. The evidence offered by the defendant was contradictory to that of the plaintiff’s in regard to the efficiency of the machine, several witnesses testifying that when they used it, it worked well. The defendant admitted, however, that the plaintiff who was injured had complained to him about the covering of the rolls creeping to one side, due to an uneven pressure, and his engineer stated that he had made repairs on the machine by fixing the belt or regulating the machine to keep the roll running straight. It may be that the weight of the evidence was in favor of the defendant upon this point, but the credibility of the witnesses was a subject for the consideration of the jury who saw them and observed their manner of testifying.

No hand guard was attached to the mangle. Evidence was offered to show that substantially all machines of that kind are made with hand guards, and that a proper guard would prevent injuries to the hands, and that this was not a safe machine for a person to operate without a guard. And this seems to be admitted by the defendant, who testified that at the time of the accident he did not know that the machine should have had a guard when he got it, but that afterwards he knew there should be some protection. It was shown by the defendant that there were numerous mangles in use to which hand guards were not attached, but it was clearly a question of 'fact under the evidence whether they were customarily used, and whether a machine could be safely operated withorit such safeguard.

Complaint is made of the instruction of the court in affirming the plaintiff’s fourth point (second assignment). The objection is not well taken, however. The point is expressed in the language of the Supreme Court in Welsh v. Butz, 202 Pa. 59, and it was, therefore, the duty of the trial judge to affirm it. It does not, as contended by the appellant, assume that the plaintiff was inexperienced. It was given to the jury as the law applicable to the case if they should find the facts to be as testified to by the plaintiff. The question of experience was fairly presented to the jury, and it was instructed that if the plaintiff had, or representéd to the defendant that she had experience, it was not necessary for him to give her any instructions.

The defendant’s second point (third assignment) was properly refused. It was a question of fact whether the plaintiff should have known the dangers to which she was exposed, taking into consideration her age, experience and knowledge of the machine which she was operating. There is nothing in the case to indicate that she knew anything of the use of hand guards, or that the defective action of the machine might supdenly and unexpectedly draw her hand between the rolls. Of a similar point in Welsh v. Butz, supra, the court said: “ This prayer for instructions overlooks the fact that to relieve the defendant from his duty to instruct an inexperienced youth engaged to work about a dangerous machine it is not sufficient for the employee to know that the machine is dangerous; it must also appear that he appreciated the danger and knew the means of escaping it.” If the operator possessed the degree of experience which proper instructions from her employer would have furnished, no negligence could be attributed to the defendant, for no’instructions were necessary, but unless her experience had that extent the employer was not relieved from the obligation to instruct her in regard to her duties and the dangers incident to her occupation : Sheetram v. Trexler, Stave, etc. Co., 13 Pa. Superior Ct. 219; Royer v. Tinkler, 16 Pa. Superior Ct. 457.

The case as presented by the plaintiff’s evidence did not permit the affirmation of the defendant’s sixth point (fourth assignment). It assumes that the jumping and jerking of the machine was the sole cause of the accident and that because the girl knew of this irregularity of action she assumed the risk. It does not appear from the evidence that she knew the defect of which she complained was likely to produce the result which she experienced. She reported the action of the mangle to her employer because it did not do the work well and she testified positively that .she did not consider it dangerous. The point also leaves out of consideration the absence of the finger guard and the alleged failure to instruct as to the proper mode of operating a machine in the condition in which that was shown to be by the plaintiff’s evidence. The authorities above cited are pertinent to the question raised by this point.

We are not persuaded that the charge of the court as a whole was inadequate. The attention of the jury was called to the evidence of the defendant’s witnesses bearing upon the controverted points and the case was submitted in a fair and impartial manner. Objection is made that the jury was not instructed in regard to the credit to be given to the testimony of interested and disinterested witnesses. There was some corroboration of the plaintiff as to her complaint in regard to the action of the mangle, and on the question of instruction to her the case stood practically on her testimony and that of her employer. The testimony of the witnesses, Kirk, McElroy, Stiles and Beggs, is contradicted in a substantial way as to the conversations of the plaintiff and is weakened to that extent. The attention of the court was not called to the matter now complained of and we are not satisfied that the defendant was prejudiced by the failure of the court to give the instruction referred to.

The first assignment of error is not made in conformity to the requirements of rule 16 of this court and need not be considered. We have examined the evidence, however, relating to the effort to subpcena the witness, Moore, and are satisfied that the action of the court is not open to objection. It appeared that the case was called for trial on Wednesday, February 8; that the witness had been absent in Mexico, Cuba and New York for some time; that he came home on Monday evening and was absent during the day on Tuesday and Wednesday. Three attempts were made to subpoena him after his return from New York, all of which failed. The plaintiff states that she remained three hours at his house waiting to get a service of subpoena on him. The court was satisfied with the sufficiency of the proof to justify the admission of the evidence and we see no substantial reason to criticise this action, especially in view of the fact that the testimony was that offered at a former trial of the case in which the witness was examined and cross-examined at length. He was called as an expert upon one point only and the defendant was in no way surprised nor taken at a disadvantage. The case has been twice tried and a verdict rendered for the plaintiff at each trial. The facts having been found against the defendant, the judgment should be permitted to stand.

It is therefore affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Wertz v. Girardville Borough, Appellant.

      Negligence — Boroughs—Sidewalk—Evidence—Province of court and jury.

    In an action by a girl between fourteen and fifteen years of age against a borougb to recover for personal injuries sustained by a fall upon a sidewalk, the case is for the jury where the evidence although contradicted in part tends to show that there was ice on the sidewalk, that at the point of the accident there was a depression of about four inches due to the removal of a paving stone, that immediately next to this depression was another stone on which there was ice and snow, and that plaintiff in turning in the darkness to go into the street where she thought the walking was safer, stepped from the latter stone into the depression and was injured.
    It does not necessarily follow that one is guilty of negligence who is injured in passing over an accumulation of ice on the pavement. The extent and shape of the accumulation and the obviousness of the danger, affect the question.

      Argued Dec. 6, 1905.
    Appeal, No. 92, Oct. T., 1905, by defendant, from judgment of G. P. Schuylkill Co., July T., 1904, No. 301, on verdict for plaintiff in case of Peter Wertz, in his own right, and Anna Wertz, by her next friend and father, Peter W ertz, v. The Borough of Girard ville.
    Before Rice, P. J., Beaver, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shay, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented these points :
    2. If the jury believe that the cause of the accident was by reason of Anna Wertz turning from a path in the center of the pavement to go into the street, and stepping on a heap covered by snow, which she saw, and slipping from off the heap, the verdict must be for the defendant. Answer: This we affirm, if you find that the hole in the pavement, under the instructions that we before gave you, was not the primary cause of her injury- [1]
    3. If the jury believe that the plaintiff, Anna Wertz, in departing and turning from a safe course along the center of the pavement, knowingly stepped upon a heap covered by snow, and thereby contributed to the accident by going from a safe place to what proved a dangerous place, the verdict must be for the defendant. Answer: This we refuse. [2]
    7. That under all the evidence the verdict must be for the defendant. Answer: This we refuse, leaving it for you to say, gentlemen, 'of the jury, under the instructions we have given you, what your verdict shall be. [3]
    Verdict and judgment for Peter Wertz for $30.00, and for Anna Wertz for $162.08. Defendant appealed.

      Errors assigned were above instructions, quoting them.

      Edward J. Maginnis, for appellant.
    — Where a person walking along a pavement turns to go into the street at a point where there is no crossing and seeing a ridge or mound covered with snow near the edge of the pavement steps on it and falls, she is guilty of contributory negligence and cannot recover from the borough: Sickers v. Phila., 209 Pa. 113; Easton v. Phila., 26 Pa. Superior Ct. 517.
    March 12, 1906:

      M. A. Kilker, for appellee.
    — The case was for the jury: Campbell v. City of York, 172 Pa. 205; Manross v. Oil City, 178 Pa. 276; Kellow v. Scranton, 195 Pa. 134; Kehler v. Schwenk, 144 Pa. 348; Brown v. White, 206; Pa. 106; Miller v. Bradford City, 186 Pa. 164; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399; Farrell v. Plymouth Borough, 26 Pa. Superior Ct. 183.
   Opinion by

Henderson, J.,

The verdict of the jury established the fact that a defect existed in the footway of one of the principal streets of the borough for a length of time sufficient to charge the proper authorities with notice; that the plaintiff, Anna Wertz, was hurt because of this defect and that she was free from contributory negligence. Unless this result was reached without evidence the verdict cannot be disturbed. That there was a depression in the sidewalk at the place where the plaintiff was injured, caused by the removal of a paving stone at the time a telephone pole was set within the curb line, is shown by the testimony of several witnesses and as the contrary was averred by some of the witnesses called for the defendant, the question was necessarily one for the jury. No one but the plaintiff who was hurt was present at the time of the accident and no reason is suggested why her testimony as to the manner in which the injury was received is not entitled to credit. From the evidence, the jury was at liberty to conclude that she stepped on a paving stone near the hole in the sidewalk and that her foot slipped on the snow and went into the hole, resulting in the.fracture of her ankle. It does not seem to be seriously contended that the plaintiff was not injured at the place stated by her. The point strongly relied upon by the appellant in the argument was that she left the beaten path on the sidewalk and was about to go into the street at a place where there was not a crossing; that she stepped upon a visible elevation of snow and ice and by so doing was guilty of contributory negligence. She. was between fourteen and fifteen years of age when she was injured. The accident occurred at night and it was dark where she fell. There was a path along the middle of the sidewalk, beaten to a depth of three or four inches in the snow covering the ground. There was evidence that there was ice on the walk and that there was a considerable declivity where the plaintiff fell, and she testified that she undertook to go from the sidewalk into the street because she thought the road was safer to walk on. The accident occurred on-the sidewalk. According to the plaintiff’s testimony, she was “ walking pretty slow ” and watching where she was going. The appellant contends that it appears from her testimony that there was a paving stone lying on the sidewalk; that this was covered with snow and slush, forming a “ heap,” in the language of the appellant’s counsel; that the plaintiff saw this elevation and voluntarily stepped on it. The appellees contend that the evidence shows that the stone from which she fell into the depression was a paving stone in place next to that which had been removed; that the depression was about four inches deep and that the snow and slush on the stone gave it an apparent elevation above the space where there was no stone and the beaten path in the middle of the sidewalk. It may be said that the evidence is not clear on this point, but it would bear the interpretation by the jury that the witness slipped into the hole from the paving stone' which was a part of the sidewalk. Accepting the appellant’s theory, however, it does not follow that the plaintiff was guilty of contributory negligence. The stone was said to be about two. feet long and one foot wide, with about three inches of snow thereon. It could not be declared as a matter of law that a person of the age of Anna Wertz was guilty of contributory negligence in stepping upon a paving stone of that size on the sidewalk, covered with three inches of snow and slush, when attempting to go from the slippery path in the sidewalk into what was believed to be a safer way. The plaintiff was bound to exercise the ordinary care which a person of her age and experience would be required to do. What this degree of care was, under the circumstances, was clearly a question for the jury. It does not necessarily follow that one is guilty of negligence who is injured in passing over an accumulation of ice on the pavement. The extent and shape of the accumulation and the obviousness of the danger, affect the question: Brown v. White, 206 Pa. 106. The “heap” of snow and slush, even according to the appellant’s interpretation of the plaintiff’s evidence, was neither so large nor imminently dangerous as necessarily to suggest to a person of ordinary prudence a risk in attempting to pass over it. What a young girl should do, when confronted by the conditions described by the witnesses, was a question for the jury and not for the court. The cases cited by the appellant, Sickels v. Philadelphia, 209 Pa. 113, and Easton v. Philadelphia, 26 Pa. Superior Ct. 517, are predicated of a different state of facts from that presented here. In each of the cases referred to, the plaintiff encountered the obstruction and received the injury in broad daylight. There was a manifest omission on the part of each of the plaintiffs to look where she was going and to observe obvious defects and it was because she must have seen the defect if she had looked that each of them failed in her action. Here, however, the darkness of the night, the slippery condition of the path in.which the plaintiff was walking, the prospect of greater security in the street and the presence of snow on the ground, concealing to some extent, at least, the defect in the walk, give a complexion to the case, materially different from those relied upon by the appellant.

The defendant’s second point might have been refused without qualification. It assumes that if Anna Wertz stepped “ on a heap covered with snow” she was guilty of contributory negligence. As we have seen, however, the evidence was open to the inference that that which the counsel described as a “ heap ” was only an elevation of the snow on the pavement at the side of the beaten track next to the depression. The affirmation of the point would also have taken from the jury the consideration of the dimensions of the heap, the motive for the plaintiff’s action and the degree of care chargeable to one of her age, under the circumstances.

The affirmation of the defendant’s third point would hold the plaintiff, Anna Wertz, responsible without reference to the degree of care resting upon her. The fact that the place upon which she stepped “ proved a dangerous place ” does not raise any presumption of negligence. Such a charge could only be made where the place was obviously dangerous. Morever, the point assumes that she turned from a safe course, whereas there is evidence that on account of the icy condition of the path in which she was walking, she attempted to go into the road for greater security. It has frequently been stated that it is only in cases where the evidence is direct, certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact that the court may instruct the jury as to its legal effect. This case is not of that character and it was properly submitted to the jury.

The assignments of error are overruled and the judgment is affirmed.


text:
    Smith v. Kaufman, Appellant.

      Contract — Building contract — Breach.
    A person who enters into a contract with a builder, cannot avoid liability on the contract, because he was disappointed in securing the money which was to cover the contract price, and this -is the case although the builder may have had knowledge of the plan in accordance with which the land, and a part of the money for the erection of the building, was to be secured.

      Practice, C. P. — Trial hy court without a jury — Findings of fact.

    The findings of fact of a judge who by agreement tries a case without a jury, are no more reviewable on appeal than is the verdict of a jury, and an appellate court will only look beyond the findings of fact when the assignment of error is such as could be heard if the trial had been before a jury according to the course of the common law.

      Contract — Reducing contract to writing.

    Where all the terms of a contract are agreed upon and its reduction to writing is provided for, merely for facility of proof as to its terms, such provision for a contract in writing is not inconsistent with a present contract, and this is especially true in a case where the things to be done are provided for in writt'en plans and specifications, and where there is evidence of the intention of the parties to proceed to work at once under the oral contract.

      ■Contract — Breach—Loss of profits — Damages.
    Profits or advantages which would result from a fulfillment of a contract, may, if the contract is broken, be compensated in damages where they are the direct and immediate fruits of the contract.
    Argued Dec. 5, 1905.
    Appeal, No. 55, Oct. T., 1905, by defendants, from judgment of C. P. Montgomery Co., March Term, 1904, No. 43, for plaintiff on case tried by the court without a jury in suit of Wilson J. Smith v. Leo Kaufman and Max Kaufman.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, J J.
    Affirmed.
    Assumpsit on breach of a building contract.
    The case was tried by Weand, J., without a jury under the provisions of the Act of April 22, 1874, P. L. 109.
    The trial judge found the following facts and conclusions of law:
    FINDINGS OF FACT.
    1. Defendants proposed to build a factory at Duryea, Luzerne county, and employed McCormick & French, architects, to prepare plans and specifications and advertise for bids.
    2. On the day fixed for the opening of the bids, which was done in the presence of the architects and defendants, it was ascertained that plaintiff was the lowest bidder. He was at once sent for and notified of the fact. His bid was $14,697. This took place on June 27, 1902.
    3. Mr. Smith was told that the work should be his, that he should get the contract and that the contract was awarded him, and no delay was to be allowed in proceeding at once to work. He was to go ahead at once. The contract and a bond of plaintiff to secure performance were to be afterward sent to defendants at Ne°w York.
    4. Within a few days plaintiff sent an agreement signed by him, with a bond executed, to defendants’ address in New York and received no reply. On July 9, 1902, telegraphed defendants, “ Have you executed contract and when may I expect it ? ” but received no reply.
    5. Under date of July 25, 1902, the agreement with bond was returned to the architects by the New York attorneys of defendants with the statement that “ Mr. Kaufman cannot enter into any agreement in reference to the construction of buildings and we return the papers to you.”
    6. At the meeting held June 27, 1902, nothing was said as to the conditions to be contained in the agreement. No fault was found by defendants with the agreement or bond.
    7. Immediately after being awarded the contract plaintiff sublet part of it, commenced to get out mill work, ordered lumber, and up to tbe time when he received the letter from defendants’ attorney had expended $291.77. If the contract had been carried out the plaintiff would have realized a profit of $995.47.
    8. We find as a fact that the contract was awarded plaintiff, that he was ordered to commence operations without waiting for the signing of the agreement or execution of the bond, and that defendants broke their contract without cause, justification or excuse.
    CONCLUSIONS OF LAW.
    1. That plaintiff is entitled to recover a verdict.
    2. That he is entitled to recover the money expended for labor and materials furnished in pursuance of his contract, together with the profits he would have made if the contract had been faithfully carried out.
    And now, December 5, 1904, verdict in favor of plaintiff for $1,287.24, with interest from July 25, 1902, to November 25, 1904 — $180.25, total $1-,467.49; and unless exceptions are filed within the time required by law, after notice to defendants or their attorney, the prothonotary will enter judgment accordingly.

      Errors assigned were as follows : (1) The court erred in overruling the offer of the defendants of the agreement between the defendants and Isidor Kaufman upon the one part, and Solomon Hirsch of the other part, which offer was to be followed up with notice to Mr. Smith, the plaintiff, of the existence of this agreement and the further fact that Hirsch had failed to comply with his part of said contract; (2) the court erred in finding as a fact that the contract was awarded plaintiff, that he was ordered to commence operations without waiting for the signing of the agreement or execution of the bond, and that defendants broke their contract without cause, justification or excuse ; (3) the court erred in finding as a conclusion of law that the plaintiff was entitled to recover “ the profits he would have made if the contract had been faithfully carried out; ” (4) the court erred in finding that there was a contract consummated in this case; (5) the court erred in entering judgment in favor of the plaintiff.

      January 13, 1906:

      Emanuel Furth and J. P. Hale Jenkins, for appellant,
    cited: Leskie v. Haseltine, 155 Pa. 98; Emerson v. Graff, 29 Pa. 358; Gardner v. Lloyd, 110 Pa. 278; Shupe v. Gailbraith, 32 Pa. 10; Rightmire v. Hirner, 188 Pa. 325.

      Montgomery Evans, with him John M. Dettra and S. J. Strauss, for appellee,
    cited: Bradlee & Co. v. Whitney, 108 Pa. 362; Southern Maryland R. R. Co. v. Moyer, 125 Pa. 506; Eichman v. Hersker, 170 Pa. 402; Fleer v. Reagan, 24 Pa. Superior Ct. 170; Campbell v. Philadelphia, 10 W. N. C. 221; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Adams Express Co. v. Egbert, 36 Pa. 360.
   Opinion by

Henderson, J.,

The contract between the defendants and Solomon Hirsch, the rejection of which is the subject of the first assignment of error, could only have been properly admitted when it was made to appear that the plaintiff’s contract was dependent upon the performance by Hirsch of his undertaking. It is not shown in any part of the evidence, however, that the plaintiff and defendants entered into their engagement with any reservation on account of the contingency of Hirsch’s failure so to do. The transaction between the plaintiff and defendants was the tender-, by the latter, of a contract for the erection of a building, according to plans and specifications adopted by them, a bid by the plaintiff for the construction of the building, in accordance with the plans and specifications, an acceptance of this bid by the defendants, and an award of the contract to the plaintiff. The obligations of the plaintiff and defendants, thus created, were absolute and had no connection with the collateral agreement between the defendants and Hirsch. The agreement with the plaintiff was, no doubt, entered into by the defendants in anticipation of the investment, by Hirsch, of the amount of money called for in his contract, and their action in undertaking the project, was evidently instigated by their faith in Hirsch’s ability to perform. If their overconfidence led them to the creation of a personal obligation, binding on them, without regard to their claim on Hirsch, the plaintiff is in no way to blame for their present predicament. If they desired to make the construction of the building dependent upon the receipt of the money, which Hirsch had undertaken to raise, they should have so provided when the contract was awarded to the plaintiff. It was not proposed to show that the plaintiff’s bid was made and accepted upon any contingency. It was only alleged that he had knowledge of the plan, in accordance with which the land and a part of the money for the erection of the building were to be secured; but this, if shown, would not have changed the legal attitude of the parties. The plaintiff had a right to assume that the defendants were made secure in their arrangements with Hirsch; that they understood their situation, and that his agreement with them had no legal connection with their arrangements with Hirsch.

The second and fourth assignments challenge the accuracy of the conclusions of the trial judge on questions of fact. That there was evidence tending to show the execution of the contract and the breach by the defendants, is manifest. There was a foundation, therefore, for the findings complained of. Evidence was offered, which pointed directly toward the result arrived at. This evidence was competent and relevant, and the inferences drawn therefrom, are reasonable. Such being the case, we can not go into an examination of the credibility of the witnesses and the contradictions in their testimony. That was the duty of the judge who sat both as court and jury, in the trial of the cause. The rule as to the findings of fact of the court or a referee, is the same: Eichman v. Hersker, 170 Pa. 402. It has been declared in a number of cases, that findings of fact, by the court, are no more reviewable on appeal than is the verdict of the jury, and an appellate court will only look beyond the findings of fact when the assignment of error is such as could be heard if the trial had been before a jury, according to the course of the common law: Bradlee v. Whitney, 108 Pa. 362; Southern Maryland R. R. Co. v. Moyer, 125 Pa. 506; Eichman v. Hersker, 170 Pa. 402; Fleer v. Reagan, 24 Fa. Superior Ct. 170.

The appellants attach importance to the fact that the contract was to be reduced to writing and a bond tendered, accompanying it, and contend that until the contract in writing was signed by the parties, no obligation existed. If it anywhere appeared in the case that the preparation of a written agreement and its execution by the parties was made a condition precedent to the vitality of the contract, no contract would, of course, exist without such writing. Where, however, all the terms of the contract are agreed upon and its reduction to writing is provided for, merely for facility of proof as to its terms, such provision for a contract in writing, is not inconsistent with a present contract, and this is especially true in a case where the things to be done are provided for in written plans and specifications. Moreover, there is direct evidence of the intention of the parties to proceed, at once, on the contract set up by the plaintiff. The arrangement for the preparation of written copies was not to enable the parties to consider terms not then arranged. Their minds were in accord as to all of its provisions and the writing was to exhibit just what they had agreed upon and understood. The finding of the court that the contract was executed, that its performance was to be immediately entered upon and that the preparation of the written form of the contract and the bond were matters to be subsequently attended to, is well supported by the testimony and is conclusive of the question of the plaintiff’s right to recover. Leskie v. Haseltine, 155 Pa. 98, to which our attention is called by the appellant’s counsel, does not go far enough to support their argument, for in that case the contract was not awarded. The remark of the architect or the defendant, after the bids were opened, “ You are the lucky man,” was said to amount to nothing more than a recognition of the fact that he was the lowest bidder. There was something more to be done than open the bids and ascertain their amounts. The bidder must be accepted and the contract awarded to him. No obligation rested on the person advertising for bids, to accept the lowest bidder. In short, there was no contract at all. The difference between that case and the one presented by the appellant is obvious. The defendants admit that the plaintiff was the lowest bidder, that he was accepted by them and that they awarded a contract to him. The only important question in dispute was whether they directed him to proceed at once in the execution of the contract, and not to wait until the contract was reduced to writing, and that question the- court answered against them.

The only remaining question relates to the. measure of damages. That the plaintiff is entitled to recover the amount expended for materials and labor in execution of the contract, in case of a breach, will nob be disputed, and we think it clear that, under the evidence, he is entitled to the profits of the bargain. The evidence definitely disclosed what that profit would have been, if the contract had been carried out. Bids for subdivisions of the work were tendered to the plaintiff, the cost of other parts of the work was shown and the profit from the whole made evident to the satisfaction of the court. This profit was the difference between what the- labor and materials would have cost the plaintiff, as proved by him, and the contract price to be paid by the defendants. There is nothing speculative or estimated in this part of the plaintiff’s case, if the evidence is credited. His loss was actual and substantial and could be readily ascertained. “ The loss of profits or advantages which must have resulted from a fulfillment of the contract, may be compensated in damages where they' are the direct and immediate fruits of the contract: ” Adams Express Co. v. Egbert, 36 Pa. 360; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45. We are satisfied that the conclusion reached by the court was correct under the evidence and the law applicable thereto.

The judgment is affirmed.


author: Per Curiam,

text:
    Farmers’ and Merchants’ National Bank of Winchester v. Elizabethtown National Bank, Appellant.

      Banks and Banking — Check—Guaranty of payment — Telegram.
    Where a national bank upon which a check is drawn telegraphs through its cashier to another bank in response to an inquiry, that the check is good and will be paid, and the second bank relying upon the telegram cashes the check, the bank upon which the check was drawn cannot justify its subsequent refusal to pay the check, on the ground that the drawer had, in the meantime, stopped payment of it.

      Evidence — Affidavit of defense — Collateral issue.

    A plaintiff has a right to offer the affidavit of defense for the purpose of proving the admissions contained therein, but this does not open up collateral issues in no way raised by nor contained in the offer.

      Submitted Nov. 14, 1905.
    Appeal, No. 85, Oct. T., 1905, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1904, No. 86, on verdict for plaintiff in case of The Farmers’ and Merchants’ National Bank of Winchester v. Elizabethtown National Bank.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit to recover the amount of a check. Before Landis, P. J.
    At the trial the court gave binding instructions for plaintiff.
    Verdict for plaintiff for $992.08, subject to question of law reserved.
    On a rule for judgment non obstante veredicto and for a new trial, Landis, P. J., filed the following opinion:
    On May 27, 1903, Charles H. Harper presented to the Fanners’ and Merchants’ National Bank of Winchester a check drawn by J. K. Lehman on the Elizabethtown National Bank for $900, with the request that it be cashed. It was not at that time paid, but a telegram was sent by the plaintiff bank to the Elizabethtown National Bank, as follows: “ Will you pay check J. K. Lehman $900 ? ” To this telegram, H. C. Lewis, cashier of the Elizabethtown National Bank, replied: “ Will pay J. K. Lehman check Nine Hundred Dollars.” The plaintiff bank then notified Mr. Harper that the check was good and would be paid, and this was accordingly done. It was then forwarded for collection through the Girard National Bank of Philadelphia, in the usual course of business, but payment was refused by the Elizabethtown National Bank because Lehman had, in the meantime, stopped payment. The check was, as a consequence, protested. There was also some little difficulty about the indorsement, Harper having signed his name thereon as “ Charles H. Harper, Jr.,” to distinguish himself from another person of the same name ; but this, we think, is of no vital importance, as the man to whom the check was given and with whom the transaction was had was the man who indorsed the check. Under the above facts, we were of opinion that the plaintiff was entitled to recover, and so instructed the jury. The first question arising relates to the correctness of the instructions fixing liability on the defendant, and the second, to the quantum of proof.

      In Central Guarantee Trust and Safe Deposit Company v. White, 206 Pa. 611, the present Chief Justice, in discussing the certification of checks, says: “ A check by a depositor on his account certified by the bank becomes an obligation of the bank to the payee or holder, and in the absence of fraud or similar exceptional circumstances, the amount is as much withdrawn from the depositor’s account as if the money had been paid oyer the counter.” By such a certification, the deposit, which is represented by the check, ceases to stand to the credit of the depositor and passes to the credit of the check holder, who is thereafter a depositor to that amount: Girard Bank v. Bank of Penn Township, 39 Pa. 92. The holder who.receives it in the ordinary course of business, in good - faith, is a bona fide holder, and entitled to recover from the drawee, even though the check was obtained by the original payee by false pretense and payment thereof has been stopped by the drawer: Nassau Bank v. Broadway Bank, 54 Barb. (N. Y.) 236; and a bpna fide holder, it is said, can enforce payment even in the absence of funds: Cook v. State National Bank of Boston, 52 N. Y. 96. In fact, the act of congress of March. 3, 1869, while declaring that it shall be unlawful for any officer, clerk or agent of any national bank association to certify any check -drawn upon the association unless the person or company-drawing the check has on deposit with the association at the time-such check-is certified an amount of money equal to the amount specified in such check, provides that any check so certified by duly authorized officers shall be a good and valid obligation against the association ; but that the person violating the statute shall be guilty of a misdemeanor. The certification may be secured by either the drawer or the .payee or. holder. If the • drawer, for his own benefit, procures it' to be certified, and then delivers it to the payee, he is not' discharged from-liability to the holder; but, if the payee or holder, for his own benefit, gets it certified, all liability on the part of the drawer ceases: Minot v. Russ, 156 Mass. 458 (31 N. E. Repr. 489); First National Bank of Jersey City v. Leach, 52 N. Y. 350. A bank is, however, not liable to any save the drawer, except when it has - accepted the check by certification or otherwise: Essex County National Bank v. Bank of Montreal, 7 Biss. 193. It is usual for the certification to be in writing upon the face of the check; but no particular, form of words is required. In First National Bank of Washington v. Whitman, 94 U. S. 343, it was said by-Mr. Justice Hunt : “ It is not to be doubted, however, that it is within the power of the bank to render itself liable to the holder and payee of the check. This it may do by a formal acceptance written upon the cheek, in which case it stands to the holder in the position of a drawer and acceptor of a bill of exchange. ... It may accomplish the same result by writing upon it the word ‘ good,’ or any similar words which indicate a statement by it that the drawer has funds in a bank applicable to the payment of the cheek, and that it will so apply them. . . . Whether this certificate be obtained by the drawer before the check is delivered, and is thus made an inducement to the payee to receive the same, or whether it is made upon the application of the payee for his security, is of no importance. It is a contract recognized by the law, valid in its character, which essentially changes the position of the parties. The privity of contract with the drawee, which before pertained to the drawer alone, is now imparted to the payee, and the duty which before existed only to the drawer, now exists to the payee.” In In re Armstrong, 41 Fed. Repr. 381, it was held that a telegram promising to pay a certain draft constituted an acceptance of the draft, and no particular form was essential to the acceptance ; that it might be expressed in words or implied from the conduct of the drawee, and it might be verbal or written; that it might be before the bill was drawn, or afterwards; and in Coffman v. Campbell, 87 Ill. 98, that a telegram agreeing to accept a person’s draft for a certain sum for “ stock ” is not a conditional contract, but an absolute undertaking to accept and pay the same, and a party discounting the draft on the faith of such telegram is entitled to recover the amount of the party so agreeing to accept. In Coolidge v. Payson, 15 U. S. 66, Chief Justice Marshall held that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, was, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance, binding the person who makes the promise; and in Central Savings Bank v. Richards, 109 Mass. 413, it was decided that one who has promised in a telegraphic dispatch to accept a bill of exchange is liable as acceptor to an indorsee who takes it on the' faith of the dispatch, although the agreement to accept was made in expectation of a consignment from the drawer, which was never received. See, also, Daniel on Negotiable Instruments, sec. 496.
    If, however, the certification, by writing upon the check, is a contract binding upon the bank, whether with funds of the drawer or not, cannot that same contract be established and become equally binding by a promise to pay the check, even though not indorsed in writing upon it, the money to pay the same being in the hands of the bank, and does the technical question of certification enter, to any degree of importance, into the question of liability upon such a promise to pay? This question, we think, is fully answered in the case of North Atchison Bank v. Garretson, 51 Fed. Repr. 168. In that case, Streeter, as agent for the Muscatine Cattle Company, sent a telegram to the bank as follows : “ Will you pay James Tate’s check on you twenty-two thousand dollars ? Answer.” The bank replied: “ James Tate is good. Send on your paper.” On the faith of the telegram, the cattle company delivered cattle to Tate and accepted his check; but, when it was presented to the bank, payment was refused; the first reason assigned being “ want of funds,” and, subsequently, when the check was again presented, that “ Tate had countermanded the same.” Judge Shikas, in delivering the opinion of the circuit court of appeals, held that whether the check was to be deemed an inland bill of exchange or a certified check were matters aside from the real question at issue; that the rights of the parties were dependent solely upon whether the bank bound itself unconditionally in writing to pay Tate’s check, and that, if that was the fair meaning of the telegrams passing between the parties, then the bank was bound to make good its promise. The court had no doubt but that this was what was intended by the telegrams, and held the bank liable for the amount of the check. To the same effect is Henrietta National Bank v. State National Bank, 80 Texas, 648 (16 S. W. Repr. 321). The latter case, it will be observed, was between two national banks. A check for $1,800, drawn by Ikards on the Henrietta National Bank, was offered to the State National Bank by an indorsee. The cashier of the latter bank telegraphed to the Henrietta National Bank, “ Will you pay E. F. and W. S. Ikard’s check for $1,800 on presentation? ” The reply was, “Yes, will pay the Ikard check.” Upon this, the check was discounted and at once mailed to the drawee, when payment was refused. It was held that the description given in the telegram, with the reply being acted upon, was sufficient in an action for failure or refusal to pay the check. In Pope v. Bank of Albion, 59 Barb. (N. Y.) 226, it was held that “ any language, whether verbal or written, employed by an officer of a banking institution whose duty it is to know the financial standing and credit of its customers, representing that a check drawn upon it is good and will be paid, estops the bank from thereafter denying, as against a bona fide holder of the check, the want of funds to pay the same; ” and in Brinkman v. Hunter, 73 Mo. 172, that a telegram of a defendant is a promise in writing within the statutes of the state of Missouri relating’ to the acceptance of bills of exchange. Therefore, viewed from either side, it would seem to me that the Elizabethtown National Bank was liable to the plaintiff for the money paid out on the faith of its telegram, and, if the proof was sufficient, the verdict should be sustained. The learned counsel for the defendant, however, insists that the bank, in this case, was a guarantor, and, therefore, as a national bank, having no power to lend its credit, its act, for this reason, was ultra vires. One of the cases chiefly insisted upon to support this view is Bowen v. Needles National Bank, 94 Fed. Repr. 925. In that cáse, the bank advised the plaintiff that it would pay all checks of a third person, although such person had no funds on deposit, as was known to both plaintiff and the bank, and, in reliance on such promise, plaintiff cashed the checks and transmitted them to the bank for payment. The bank issued and sent to plaintiff its drafts on a correspondent for the amount of the checks, which drafts were refused payment, and it was held that this contract was one purely of guaranty, was ultra vires on the part of the bank, and the transaction gave the plaintiff no right of action against it on the drafts. Whatever may be thought of the force of the reasoning of the learned judge delivering the opinion, it is clear that the facts presented have no similarity to those in the present case. Here, the bank refused to pay, because the drawer of the check had stopped payment, and it nowhere appears in the case that there were not sufficient funds' in -the bank to pay the obligation. The eases upon this subject are based, as is shown in Commercial Nat. Bank v. Pirie, 82 Fed. Repr. 799, upon the fact that the act of congress authorizing the organization of national banks confers no authority upon them, either in express terms or by implication, to guarantee the payment of debts contracted by a third person and solely for his benefit; while, as to the certification of checks, there is, as has been noted above, express power.
    Upon the trial, the plaintiff called the cashier of the Farmers’ and Merchants’ National Bank of Winchester as a witness, and attempted to show by him the sending of the telegram of inquiry to the Elizabethtown National Bank. It, however, unexpectedly appeared that the telegram produced was merely a copy and not the original, and thereupon counsel for the defendant objected to its admission. In order to overcome this difficulty, and also to prove that the defendant’s officer sent the telegram of reply, the plaintiff offered in evidence the affidavit of defense, which, upon this point, reads as follows: “It admits that, on May 27, 1903, J. K. Lehman drew to the order of Charles H. Harper a check upon the Elizabethtown National Bank for nine hundred dollars (1900), a copy of which check, as originally drawn, appears at the top of page four of plaintiff’s statement. ... It admits that on May 27, 1903, The Farmers’ and Merchants’ National Bank sent to the defendant the telegram marked ‘Exhibit B,’ which reached Elizabethtown after the bank was closed, and which was answered on May 28,1903, by the telegram marked ‘ Exhibit C.’ ” The defendant’s counsel, then closing his case without offering any testimony, requested to go to the jury on certain other allegations in the affidavit of defense, claiming that the affidavit of defense was before the jury for all purposes, and an issue of fact was raised thereby. It, however, was my opinion that the question before the court involved purely a legal liability of the defendant upon the telegrams, and that the collateral allegations in the affidavit of defense could not be considered. In Bowen v. DeLattre, 6 Whart. 430, in an action by the payee against the maker of a promissory note, it was held that an affidavit of defense made by the défendant, in which he admitted the making of the note, might be read in evidence by the plaintiff as an admission of the same. Mr. Justice Rogers said : “ If the same admission had been made, either verbally or in writing, it would have gone to the jury as competent proof, without objection, for the admissions of a party to the suit against his interest are always received in favor of the other side. Nor is it material when or where the admission is made, nor in what form or suit, or whether before or after the commencement of the action, before arrest or after, or whether written or by parol.” This case has lately been cited with approval in Stewart v. Gleason, 23 Pa. Superior Ct. 325. In Stockwell v. Loecher, 9 Pa. Superior Ct. 241, it was held that an affidavit of defense being admissible in evidence, it was not error for the court to admit the entire record, restricting the purpose of the offer to the affidavit of defense as showing an admission by the defendant; and in Jacoby v. North British and Mercantile Insurance Company of London and Edinburgh, 10 Pa. Superior Ct. 366, that, where an affidavit of. defense in a suit on an insurance policy admits the execution of the. policy and its delivery, but denies the adjustment and the furnishing of proofs of loss, the affidavit is admissible in evidence for the purpose of showing these admissions. See, also, Fisher v. The Fidelity Mutual Life Association of Philadelphia, 188 Pa. 1. In Neely v. Bair, 144 Pa. 250, a rule of court provided that if the plaintiff should file with his declaration or statement a specific averment of fact sufficient to support his claim, verified by affidavit, and served on the defendant or his counsel of record, such material averments of fact as were not denied by affidavit filed with .or before plea pleaded should be taken as admitted. A statement of claim in assumpsit averred the sale and delivery of certain chattels by the plaintiff to the defendant on a day certain and at a price agreed upon at the time. The affidavit of defense did not deny the sale, delivery or price of the chattels, but set up a substantive defense of matters in avoidance of all liability to the plaintiff. It was held that it was- error to refuse the plaintiff’s offer of the statement of claim and affidavit of defense as evidence of the sale, delivery and price, of the property, and that, under the said rule of court, he had a right to rest upon the prima facie case thus presented. See, also, Whitehead v. School District, 145 Pa. 418. In Page v. Simpson, 172 Pa. 288, where, in an action of ejectment, the abstract of title of both plaintiff and defendant was offered in evidence for the sole purpose of showing that the defendant recognized the common source of title and claimed under it, it was decided that the defendant’s abstract was before the jury for the specific purpose of the offer, and for no other purpose, and that the fact that the defendant’s abstract was admitted in evidence in the plaintiff’s case did not relieve the defendant of the burden of showing how he derived his title from the common source, and that the sale under which he claimed was prior in time to that under which the plaintiff claimed.
    I am of opinion that the plaintiff had a right to offer the affidavit of defense for the purpose of proving the admissions contained therein, and that this did not open up collateral issues in no way raised by nor contained in the offer. The right conclusion seems to me to have been reached by the verdict, and I, therefore, think that these rules should be discharged. Rules discharged.

      Srror assigned was in entering judgment on the verdict.

      W. U. Hensel, for appellant.
    — Our contention is that the check in this case was not so certified that it could be properly charged against the drawer’s account, and his notice not to pay it was operative and binding on the defendant bank if received before the check was actually paid: Carr v. National Security Bank, 107 Mass. 45; Bank of the Republic v. Millard, 77 U. S. 152; Gibson v. Cooke, 37 Mass. 15; Brown’s Case, 2 Story, 502; Girard Bank v. Bank of Penn Twp., 39 Pa. 92.
    The cashier of the defendant, a national bank, could not impose upon it the liability to pay a check by guaranteeing or expressing by telegraph a willingness to pay it.
    A national bank has no power or authority to become a mere accommodation indorser or guarantor of the payment of the debt of another without benefit to itself: Nat. Bank of Brunswick v. Sixth Nat. Bank, 212 Pa. 238.
    Binding instructions should not be given when the facts are in dispute, or the evidence is conflicting, inconclusive, or sufficient to justify a different finding, or when it should be submitted to the jury on its credibility or sufficiency, or on a question of fact to be determined by tbe jury, only, from all the circumstances of the case, though the evidence may be uncontradicted: Wilmarth v. Mountford, 8 S. & R. 124; Spangler v. Hummer, 3 P. & W. 370; Newbold v. Wright, 4 Rawle, 195; American Telegraph Co. v. Lennig, 139 Pa. 594; Percival v. Harres, 142 Pa. 369; Stoddart v. Price, 143 Pa. 537; Cougle v. McKee, 151 Pa. 602; Holland v. Kindregan, 155 Pa. 156; Schrimpton v. Bertolet, 155 Pa. 638; McKeesport Borough v. Wood, 160 Pa. 113.

      W. C. Douglas, Jr., for appellee.
    — The telegrams exchanged between plaintiff and defendant banks constituted a valid certificate: Ravenswood Bank v. Reneker, 18 Pa. Superior Ct. 192; In re Armstrong, 41 Fed. Repr. 381; Central Savings Bank v. Richards, 109 Mass. 413; Coffman v. Campbell, 87 Ill. 98; Molson’s Bank v. Howard, 40 N. Y. Sup. Ct. 15; North Atchison Bank v. Garretson, 51 Fed. Repr. 168; Henrietta Nat. Bank v. State Nat. Bank, 80 Texas, 648 (16 S. W. Repr. 321.)
    It is immaterial in this case that the.check in question when first presented for payment was not indorsed as drawn: Girard Bank v. Bank of Penn Twp., 39 Pa. 92; Farmers’ & Mechanics’ Bank v. Butchers’ and Drovers’ Bank, 11 N. Y. Sup. Ct. 219; Merchants’ Bank v. Spicer, 6 Wend. 443.
    ■ It is likewise immaterial that there may not have been funds tó'meet the check when presented, or that the consideration failed : Hill v.-Trust Co., 108 Pa. 1; - Cooke v. State Nat. Bank, 52 N. Y. 96 ; Nassau Bank v. Broadway Bank, 54 Barb. (N. Y.) 236 ; Penn Bank v. Frankish, 91 Pa. 339.
    It is also immaterial that the act of the cashier of the defendant bank in. promising' to pay the check may not have been authorized by defendant: Cooke v. State Nat. Bank, 52 N. Y. 96; Bank of Barnwell v. Sixth Nat. Bank, 28 Pa. Sup. Ct. 413; Carr v. National Security Bank, 107 Mass. 45.
    ■The affidavit of- defense having been offered in evidence for the purpose of proving certain admissions, its use was properly restricted to this’ purpose, and there was not created, by reason of ■its collateralallegations, an issue of fact on which defendant had •the right to go to the jury: McKeesport Borough v. Wood, 160 Pa. 113; Clarke Nat. Bank v. Bank of Albion, 52 Barb. 592; Bowen v. De Lattre, 6 Whart. 430; Stockwell v. Loecher, 9 Pa. Superior Ct. 241; Jacoby v. Ins. Co., 10 Pa. Superior Ct. 366; Neely v. Bair, 144 Pa. 250; Page v. Simpson, 172 Pa. 288; Blair v. Ford China Co., 26 Pa. Superior Ct. 374.
    March 12, 1906:
   Per Curiam,

The judgment is affirmed upon the opinion of the learned president judge of the common pleas.


author:
Beaver, J.,
      Rice, P. J.,

text:
    Peters v. Rothermel, Appellant.

      Promissory notes — Statute of limitations — Indorsement as tolling the statute —Husband and wife — Decedents’ estates.

    The husband of an intestate payee of a promissory note, although not administrator of the intestate, has such an interest in the note that indorsement by him of the payment of interest upon the note will toll the running of the statute
    Where it is sought to toll the running of the statute of limitations against a promissory note by means of indorsements of the payment of interest on the note, it must be shown that the indorsements were made at the dates at which they purported to have been made respectively.
    The principle upon which the indorsement of a payment on a promissory note by the holder thereof is admissible to toll the running of the statute of limitations is that it is against the interest of the party making it, but this is true only -s¿hen the indorsement is made prior to the date at which the statute becomes a bar, and in order, therefore, to give it the effect that .it should have, it is necessary t'o show that the indorsement was made at the time at which it purports to have been made, otherwise, if made after the statute had become a bar, although dated before, it might be a merely self-serving declaration.
    Argued Nov. 14, 1905.
    Appeal, No. 109, Oct. T., 1905, by defendant, from judgment of C. P. Berks Co., April T., 1902, No. 12, on verdict for plaintiff in case of David K. Peters and Sarah Kaufman, Administrators of Sarah Peters, deceased, v. John K. Rothermel.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Ermentrout, P. J.
    The facts are stated in the opinion of the Superior Court.

      The court charged as follows:
    It appears from the testimony that John K. Rothermel made and delivered his promissory note dated April 1, 1886, which reads as follows:
    “ Maidencreek, April 1, 1886.
    “ One year after date I promise to pay to Mrs. Sarah Peters one thousand dollars without defalcation for value received at five cents interest.
    “$1000.00 (Signed) John K. Rothermel.”
    By the terms of the note it became due one year after date, April 1,1887. Were there nothing else in the case, defendant would be entitled to a verdict [but a witness, David K. Peters, is called by the plaintiff, and he, being duly sworn, says that on the back of this note there are various indorsements, the first five of them being in his ■ mother’s handwriting and the last three being in the handwriting of his father, Benjamin Peters, the husband of Sarah Peters.
    . According to these indorsements, if his testimony is believed, the last payment of interest was made April 1, 1896. This suit was brought March 1, 1902. In other words, six years had not elapsed between the time of the last payment of interest and the bringing of this suit, so that the payment of interest would bar the statute of limitations and would entitle tbe plaintiffs to recover. If you believe the testimony of David K. Peters — and there does not seem to be anything submitted in the case impeaching his credibility, in the judgnfent of the court —your verdict will be for the plaintiffs for $1,000, principal, and interest, $373.55, making a total of $1,373.55.] [4]
    Defendant presented these points:
    1. The testimony submitted by the plaintiffs shows that the plaintiffs are not the owners of the note in suit, and that’, defendant is not indebted to plaintiffs, and the verdict must be for the defendant. Answer: Negatived without reading. [1]
    2. Treating the note as that of Sarah Peters, she having been deceased since 1893, no person excepting a personal representative of Sarah- Peters, duly. constituted, could be her agent for the receipt of interest upon the indebtedness evidenced by the note and to make indorsements thereon so as to prevent a bar of the statute of limitations. The testimony shows there was no such, personal representative until 1902, and, therefore, the indorsements of payment of interest made upon the said note do not prevent a bar of the statute of limitations if the note be treated as belonging to the estate of Sarah Peters. Answer: Negatived without reading. [2]
    3. Under all the testimony in the case the verdict must be for the defendant. Answer: Negatived without reading. [3]
    Yerdict and judgment for plaintiff for $1,373.55. Defendant appealed.

      JErrors assigned were (1, 4) above instructions, quoting them.

      Cyrus G. Derr, with him Ira P. Rothermel, for appellant.
    — If a husband can upon the death of his wife, intestate, without administration, take into his .possession and make it his property, her promissory note, then in this case the taking into his possession by Benjamin K. Peters, after his wife’s death, of the promissory note in question, the treatment of it as his own by the receipt of interest must be regarded as vesting the title thereto in him, and the appellees, plaintiffs below, who are not administrators of Benjamin, but administrators of Sarah, raised after Benjamin’s death, have no title to the note and it was error in the court to have refused the appellant’s first point: Keely v. Wright, 5 W. N. C. 241.
    If Benjamin could not, because Sarah died leaving children, take the said promissory note into his possession and make it his own, then he, the said Benjamin, was not entitled to receive the interest by him and the indorsements of such payments on the note are ineffectual by way of tolling the statute: Page’s Estate, 75 Pa. 87; Keely v. Wright, 5 W. N. C. 241.
    In questions such as this, involving the tolling of the statute of limitations, the payment.by a debtor on account of his debt' is the pertinent circumstance and an indorsement of credit on the note is simply evidence of payment, and the question which should be submitted to the jury is as to whether a payment, of which the indorsement is some evidence, was actually made, and not as to whether the indorsement is in the handwriting of the creditor, wherefore -it was error in the court below to say to the jury that if the indorsements respectively were in the handwriting of Sarah Peters and her husband,, they must find a verdict for the plaintiff.
    March 12, 1906:

      W. K. Stevens, of Stevens & Stevens, for appellee. —
    Payment to Benjamin Peters, the husband of Sarah Peters, deceased, tolled the bar of the statute of limitations: Keely v. Wright, 5 W. N. C. 241; Croman v. Stull, 119 Pa. 91.
    Although the statute had begun to run before Mrs. Peters’s death, the payment to Benjamin Peters having tolled the running of the statute, it would not again begin to run until after taking out letters of administration upon Mrs. Peters’s estate: Marsteller v. Marsteller, 93 Pa. 350; Amole’s Administrators’ Appeal, 115. Pa. 356; Riner v. Riner, 166 Pa. 617.
    The evidence of David K. Peters was uncontradicted, and proved that the indorsements, which were the evidence of payment, were in the handwriting of Benjamin Peters. Therefore, if the jury believed David K. Peters, the uncontradicted testimony was of evidence of payment, and the court should have instructed the jury as to the legal effect of this testimony: Dinan v. Supreme Council, 210 Pa. 456.
   Opinion by

Beaver, J.,

The action in the court below was upon a promissory note of the defendant, dated April 1, 1886, payable one year after date. The testimony of the plaintiff showed that the indorsements of the payment of interest prior to April 1,1894, were in the handwriting of Sarah Peters, the payee of the note. Subsequently to that time, namely, April 1, 1894, April 1, 1895, April 1,1896, indorsements of interest for one year each were in the handwriting of Benjamin Peters, the husband of Sarah Peters, who died January 9, 1897.

It is objected on the part of the defendant that the payments of interest to Benjamin Peters and the indorsement by him does not bind the defendant, in so far as they toll the running of the statute, for the reason that Peters was a stranger to the note and the payments, even if made as indorsed, did not have that effect. •

It appears from the evidence that Sarah Peters, who died intestate, left her' husband, Benjamin Peters, and at. least one son to survive her. The husband had an interest in'the note, as one of the heirs of his wife, being entitled to a share of her personal estate. It seems' to us, therefore, that he was not a stranger to the note, although not the legal representative of the decedent, and that his indorsement of the payments of interest, if such payments were actually made at the times at which they purported to have been made by the indorsements upon the note, would bind the defendant and would toll the running of the statute: Keely v. Wright, 5 W. N. C. 241; Croman v. Stull, Admr., 119 Pa. 91. In the latter case it was said: “ The rule that the promise must be made to the plaintiff or his agent means nothing more, however, than it must be made to a party in interest.” It seems to us, therefore, that, whether the husband were entitled to the whole or only to a part of the note, he had such an interest as warranted his making the indorsements shown to be in his handwriting, and that the same, if properly proved, would bind the defendant, so as to toll the running of the statute.

Another question, however, is raised by the defendant’s assignments of error, which is' more serious. David K. Peters, the administrator of the decedent, being called as a witness and his testimony having been admitted under objection, testified as follows: “ Q. Look at that note (handing it to witness) ; in whose handwriting are those indorsements — the last three? A. My father’s, Benjamin Peters. Q. Were you acquainted with the handwriting of Benjamin Peters ? A. Yes, sir. Q. Have you seen him write? A. Yes, sir, I have seen him write. Q. Who was Benjamin Peters ? A. My father.Q. What relation did he bear to Sarah Peters ? A. He was her husband.” The indorsements referred to were dated April 1, 1894, April 1, 1895 and April 1, 1896. Were payments of interest made at the several dates named and were the indorsements made at the several times at which they purported to have been made ? There was no evidence in regard to these facts and the court submitted the case to the jury as to the credibility of David K. Peters, saying: “ If you believe the testimony of David K. Peters — and there does not seem to be anything submitted in the case impeaching his credibility, in the judgment of the court — your verdict will be for the plaintiff for $1,000, principal and interest, $373.55, making a total-of 11,373.55.” . This' instruction is assigned for error. Was it correct?

It is to be remembered that the note, which was the basis of the action, fell due April 1, 1887. The first indorsement of interest in the handwriting of Benjamin Peters was April 1, 1894. The statutory period of limitation had, therefore, expired before the first indorsement was made. There is evidence, it is true, that certain indorsements upon the note were in the handwriting of Sarah Peters, the payee. What they were and when they were made, however, does not appear in the evidence, the only evidence upon that subject being that of David K. Peters who testified: “ Q. Were you acquainted with the handwriting of Sarah Peters? A. Yes, sir. Q. Have you seen her write ? A. Yes, sir, I have seen her write. Q. In whose handwriting are the indorsements prior to 1894 ? A. In my mother’s, Sarah Peters.” If the indorsements thus made were offered in evidence, it does not appear by the record, as printed. They are not included in the offer of the note and the indorsements of 1894, 1895 and 1896. It was perhaps assumed in the court below and by counsel here that the indorsements made by Sarah Peters postponed the time for the beginning of the running of the statute beyond the date of the maturity of the note. This may be a fact, but it does not appear in evidence, and we must, therefore, take the indorsements made by Benjamin Peters for just what they were worth. Having been made, therefore, after the statutory period had closed, the reason for their admission fails and it is doubtful whether, standing alone, they are even admissible in evidence.

The principle upon which the indorsement of a payment on a promissory note by the holder thereof is admissible to toll the running of the statute of limitations is that it is against the interest of the party making it, but this is true only when the indorsement is made prior to the date at which the statute becomes a bar and, in order, therefore, to give it the effect which our decisions, contrary to those in England, have determined that it should have, it is necessary to show that the indorsement was made at the time at which it purports to have been made; otherwise, if made after the statute had become a bar, although dated before, it might be a merely self-serving declaration.

In Addams v. Seitzinger, 1 W. & S. 243, after discussing the grounds upon which such indorsements are admissible as evidence, Mr. Chief Justice Gibson says: “ But the rule, guarded as it was in England and as it still is here, allows not such a memorandum to go to the jury, unless it appears to have been made when the creditor had no motive to give a false credit, but when, on the contrary, he had the all-prevailing inducement of interest to avoid the appearance of it.; that is, when the period necessary to give effect to the statute or to raise a presumption of payment had not elapsed and, consequently, when to give a false credit would have been to throw so much away. With this qualification, such evidence cannot- operate injuriously; for it is not to be supposed that a creditor could so far mistake his interest as to sacrifice a part of it to save the residue, when no part of it was in danger. It is possible that a weak man might do so, but it is inconsistent with the ordinary course of human action.” ■

In Shaffer v. Shaffer, 41 Pa. 51, Mr. Justice Strong, who was of counsel in the case previously cited, says: “ Indorsements made by the promisee, before the statute has closed upon the right to maintain suit, are undoubtedly evidence of corresponding payments, to remove the bar of the statute, in this state, though no longer in England; but it has always been held that they are not evidence at all, unless proved to have been made while the statute was running: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Estate, 5 W. & S. 331. They are evidence made by a plaintiff for himself, and upon general principles would not be receivable at all. The exception is admitted, because indorsements by the plaintiff are declarations against his own interest, when made within six years. from the promise. When made afterwards, the reason for their admission entirely fails.”

In Hart, Exr., v. Bucher, 182 Pa. 604, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ For the purpose of rebutting the presumption of payment which had arisen from lapse of time, the plaintiff offered the following indorsement on the bond recited in the mortgage, under date of April 1, 1885, viz : 4 John Bucher paid the interest on the within bond up to April 1, 1885 ; ’ (signed) ‘ John Hart ’ .and attested by B. B. Flickinger. The attesting witness, Flickinger, was called and testified to the genuineness of John Hart’s signature, but no offer was made to prove that the indorsement was actually written on the bond at the time it bears date. Without further evidence on the subject, the learned trial judge charged that the indorsed acknowledgment rebutted the presumption of payment arising from lapse of time, and directed the jury to render a verdict in favor of the plaintiff for the amount of his claim. In this we think there was error. If the evidence intended to rebut the presumption of payment was sufficient-to go to the jury on the question as to when the indorsement was actually made, it should have been submitted to them with proper instructions, instead of being withdrawn from their consideration by binding instructions to find for the plaintiff. But the evidence was insufficient to even justify submission of that question to the jury.”

In view of the fact that in this case the time elapsing between the maturity of the note and the first indorsement made by Benjamin Peters was more than six years, and between the last indorsement made by him and the bringing of suit by the administrators of Sarah Peters was within one month of the completion of the statutory period of limitation, it was important that these several indorsements should have been shown to have been made at the dates at which they purported to have been made respectively. There is no evidence upon this subject and the mere identification of the handwriting of Benjamin Peters was not conclusive evidence of the fact and dates of payment, as thereby indicated. The fourth and fifth assignments of error, are therefore, sustained.

The rule in Marsteller v. Marsteller, 93 Pa. 350, claimed by tbe appellee as being applicable to this case, does not apply, for the reason that a cause of action had accrued before the death of Sarah Peters. The rule in Marsteller is that the statute begins to run at the date suit may be commenced and, once begun, it is not stayed by a party’s death. If no action accrued prior to the death, none' accrues until grant of administration, and statute runs from such grant. The later cases cited by the appellee support the same rule but they have no application here for the reason already stated that the right of action was complete before the death of Sarah Peters.

Judgment reversed, with a new venire.

Rice, P. J.,

dissenting :

The note in suit was dated April 1, 1886, and was payable one year after date. Sarah Peters, the payee, died January 31, 1893, letters of administration upon her estate were issued December 7, 1901, and this action was brought by her administrators March 1, 1902. In their statement of claim they declared on the note, and averred that the defendant had paid the interest up to April 1, 1896. Attached to their statement and made part thereof, was what purported to be a copy of the note and the indorsements thereon, as follows:

“ April 1 interest paid for one year..... 1887.
April 1 interest paid for one year..... 1888.
April 1 interest paid for one year . . 1889.
April 1 interest paid for one year..... 1890.
April 4 interest paid for one year.....1891.
April 1 interest paid for one year..... 1894.
April 1 interest paid for one year..... 1895.
April 1 interest paid for one year..... 1896.”

The defendant pleaded the general issue, and on the day of trial added the plea of the statute of limitations. On the trial the plaintiffs offered to prove by David K. Peters, who is a son and one of the administrators of the estate of Sarah Peters, that Benjamin Peters, who died January 9, 1897, was her husband, and that the indorsements from April 1, 1887, to and including April 4, 1891, are in the handwriting of Sarah Peters and the three remaining indorsements in the handwriting of Benjamin Peters. Objection was made that the witness was not competent to testify to anything 'occurring before the death of Sarah Peters, whereupon the court said: “ Separate the offers. Start in and prove that which is admitted to be competent.” Adopting this suggestion, the plaintiffs proved by the witness that the last three indorsements are in the handwriting of Benjamin Peters, the husband of Sarah Peters, and then offered in evidence the note, together with these three indorsements. They then recalled the witness and under objection and exception were permitted to show by him that the indorsements from April 1, 1887, to and including April 4,18101, are in the handwriting of Sarah Peters. The testimony of the witness was not shaken upon cross-examination; indeed, he was not cross-examined at all. Here the plaintiffs rested, and no testimony was offered by the defendant. The court submitted to the jury the question whether the indorsements were in the handwriting of Sarah Peters and Benjamin Peters, and I can find nothing in the record of the trial or in the paper-books of either side to indicate that the submission of that question, so far as it related to the indorsements in the handwriting of Sarah Peters, was oris questioned by counsel upon the ground that those particular indorsements were not in evidence. I think it quite clear that both court and counsel considered them in evidence for what they were worth, and, therefore, we ought to dispose of the case here upon that theory. If not, then the judgment ought to be reversed without a new venire. To be more explicit, if there is no evidence that we have a right to consider of payment of interest prior to the indorsements in the handwriting of Benjamin Peters, we must reject these indorsements also; for in the supposed case the right of action was barred by the statute when they w.ere made, and therefore they would not be evidence against the defendant of a constructive acknowledgment of the debt.

Assuming, however, as I think we ought, that the indorsements in the handwriting of Sarah Peters are in evidence, the question of the effect -to be given to the indorsements made after her death becomes important.

The defendant’s counsel requested the court to charge: “ The testimony submitted by the plaintiffs shows that the plaintiffs are not the owners of the note in suit, and that defendant is not indebted to plaintiffs, and the verdict must be for the defendant.” The testimony here referred to is that relating, to the last three indorsements in the handwriting of Benjamin Peters made after the death of Sarah Peters and before letters of administration were issued upon her estate. But proof that the payments represented by these indorsements were made to him would not, of itself, warrant the inference that he had in some way acquired exclusive ownership of the note as against her children, who became administrators of her estate, and who have the note in possession.

Nevertheless he was not a stranger, but by reason of his relation to the deceased had such an interest in the note that an acknowledgment or promise to him, otherwise sufficient to toll the statute, would be quite different in its effect from one made to a stranger. According to the doctrine of the cases cited in Judge Beaver’s opinion (Keely v. Wright, 5 W. N. C. 241; Croman v. Stull, Adm., 119 Pa. 91) if he afterward had taken letters of administration and brought suit upon the note, the plea of the statute would have been met successfully by satisfactory proof in that suit of such promise or acknowledgment. I cannot see that the fact that the letters of administration were issued to the children is ground for holding differently in the action brought by them.

Indorsements of payments on an instrument of indebtedness by the creditor, being against his interest, are evidence of corresponding payments, to prevent the operation of the statute, but not without satisfactory proof that they were made before the statute was a bar: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Est., 5 W. & S. 331; Shaffer v. Shaffer, 41 Pa. 51; Hart v. Bucher, 182 Pa. 604. Sarah Peters died within six years after the date of the maturity of the note, and Benjamin Peters died within six years after the date of the last indorsement made by Sarah; therefore the evidence brought both sets of indorsements within the rule above stated. But, as the appellant’s counsel well say, it is the promise, not the indorsement which is evidence of it, that tolls the statute; hence, they argue, the court ought to have submitted to the jury the question, whether the defendant made the respective, payments represented by the indorsements, as well as the question, whether the indorsements are in the handwriting of Sarah Peters and Benjamin Peters respectively. If there were any circumstances, though slight, tending to cast doubt or suspicion upon the evidence, furnished by the indorsements, or to suggest the possibility of some other explanation of them, I would fully concur with the learned counsel in this proposition; but I can find nothing upon which the jury would have been warranted in basing a suspicion even, that Sarah Peters and her husband set about the commission of what Chief Justice Gibson designated “ at least a moral forgery ” against their son-in-law, “ to obviate the anticipated consequences of their own apprehended supineness.” Assuming, as the jury found, that the indorsements were made by them, there is no warrant in the evidence for any other reasonable inference than that they truly represent corresponding payments. Under the circumstances, the charge' to the jury is sustainable upon the principle laid down in Dinan v. Supreme Council, 210 Pa. 456.

Taking the view I feel constrained to take as to the indorsements in the handwriting of Sarah Peters, and considering the assignments of error in the light of the evidence furnished by them as well as the other indorsements, I am compelled to differ from the majority of nw brethren, and to conclude that the judgment ought to be affirmed.

Judge Porter authorizes me to say that he concurs in the foregoing dissent.