text:
    Letitia Pister v. The Keystone Mutual Benefit Association, Appellant.

      Evidence of court and jury — Misleading charge.

    Where the language of the charge was contradictory and misleading the ease will be sent back for another trial.

      Insurance — Forfeiture by reason of default in paying assessments.

    Where a forfeiture has inured under the terms of a policy of insurance by reason of nonpayment of an assessment due and demanded, the facts that the insured was also an employee of the defendant at the time of his death and that, at the time of the default, a fraction of a month had elapsed at the end of which a monthly salary would be due, do not warrant a submission to the jury of the question whether the defendant was at the time of the default indebted to plaintiff under instructions that if it be so found the plaintiff would be entitled to recover.

      Insurance — Master and servant — Appropriation of wages.

    If a sum of money be due to an employee of an insurance company as wages the company has no duty to apply such wages to the payment of an assessment due and demanded by and from such employee who was also insured in the company. There could be no duty unless there was a right to so appropriate.
    Argued Oct. 19, 1896.
    Appeal, No. 29, Nov. T., 1896, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March Term, 1895, No. 850, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit sur policy of insurance on life of plaintiff’s husband. Before Gordon, J.

      It appeared from the record and evidence that this was an action of assumpsit in the court below by Letitia Pister upon a policy of life insurance, No. 6109, issued by the appellant on August 6, 1893, insuring the life of Samuel H. Pister in the sum of $500 and promising to pay that amount to his wife, Letitia Pister within ninety days after notice and proof of death of the assured. Samuel H. Pister died on the 12th day of April, 1894, after a brief illness of but a few hours. The company had due notice and proof of Ms death. It was provided in the policy as follows: “ If any annual dues or mortality assessments on this policy shall not be paid when due, the consideration of this contract shall be held and deemed to have failed and this policy shall be null and void; and the only evidence of payment shall be the receipt of the Association, signed by the President or Secretary.”
    At the time the policy was issued and from that time to the day of Ms death, Samuel H. Pister was in the employ of the company as soliciting agent under a commission from the company, No. 578. For the month of February, 1894, he was to receive a salary of $16.00 per month; for the month of March $20.00 per month and for the month of April a like salary. On the 31st day of March, 1894, he settled his account with the company through T. H. Boyer, who was a general agent of the company in control of a large number of agents and who employed them for the company and who employed Mr. Pister. At this time he paid Mr. Pister $20.00, the full amount of his salary for the month of March. At the time of settlement, the company had levied a mortality assessment upon all its members amounting to $1.00, and at the time of the settlement Boyer offered to deduct the mortality assessment of $1.00 from Pister’s monthly salary,to which Pister objected, as he had rent to pay. According to the by-laws of the company and the notice served in pursuance thereof, Pister had until the 2d day of April in which to pay the mortality assessment. At that time he had earned $1.33&. He died on the 12th day of April at which time he had earned $8.00 and the company was then indebted to him in that amount. The company defended on the ground that he had not paid the mortality assessment due on the 2d day of April, the appellee contending that there was sufficient in the bands of the company to more than pay the mortality assessment which, the company had the right to appropriate for that purpose. Upon this narrow issue the case was submitted to the jury by the learned trial judge, resulting in a verdict for the plaintiff for the face of the policy and interest, amounting: to 1547.50.
    The court charged the jury, inter alia, as follows:
    It appears — and that is the only element in this case which enables the cause to go to the jury at all — that this plaintiff’s husband was also an agent or employee of the company, at a fixed salary of $20.00 a month. It appears, also, that he received, in March, a notice of an assessment for two deaths, by which he became liable, within thirty days, to pay $1.00 to the company; and it is admitted that he did not pay that sum of money. If he was a person unemployed and not related to the company, that would end this case. He would have been in undoubted default, as, under the terms of his policy, the failure to pay the assessments when they became due works a forfeiture. But, as I have said, he was an employee, and when he died, on the 12th of April, there was due to him as wages a sum of money, $8.00, or $9.00, as the case may be; it is not very important except that it was more than the amount of the assessment, $1.00. [When the plaintiff closed her case she showed that at the time this assessment was due there was due, also, to this insured man, at least a dollar, and, when he died, much more than that; and I permit this case to go to you on this single proposition, and this single proposition alone, which is, whether he had or not, at any time up to his death, refused to pay that assessment upon demand. If he had not, if the money was not specifically demanded and was not specifically refused, then I charge you as follows : That you may find that if there was a dollar due him by the company on the 2d day of April, that he appropriated that sum towards the payment of the assessment due, and hence he was not in arrear, and there was no default.
    I am obliged to send the cause to you upon that narrow point for this reason, that when the plaintiff’s case closed there was simply this state of facts exhibited: That an assessment was due by him on the 2d of April; that on the 31st of March the company paid him all it owed him, $20.00, and though at that time he probably might have paid a dollar, up to that point there was no evidence that there had been a demand on himj and he died with a still greater sum due him than the dollar.] [2]
    The defendant company contends, first, that when they paid him on the 81st of March the $20.00, he was asked to pay the dollar due by him for the assessment, and that he refused, and he said he had better use for his money. If, gentlemen of the jury, you find that to be so, then I charge you that you cannot find from the mere fact that the entire sum of money was paid that there was any continuance of the relation of debtor and creditor between him and the company by which accruing wages might afterward be equitably set off against the assessment which he might owe.
    It is in further evidence that on the last day, the 2d of April, when this money ought to have been paid, he again was asked to pay it, and again refused. If you find that to be so, and believe the testimony of the defendant on that point, I charge you that there was a default on this policy and a forfeiture, and it would make no difference then when he died what was owing to him, unless he had been reinstated according to the regulations of tbe company.
    Gentlemen of the jury, I do not know whether I have made that clear to you or not. Let me repeat, however, a word or two with reference to the relations of these parties, and then I will give the case to you for your consideration.
    I charge you that there is no evidence in this case sufficient for you to find that this agent waived the payment or extended the time for the payment, even if he had authority to do it, of which there is no evidence, — all the evidence of the defendant being that he had no authority upon the subject, and that the contract itself does not give him such an authority. Moreover, the testimony of this plaintiff and her daughter is not sufficient to show, even if he had the authority, that he extended the time, because the utmost that they testified to is that he expressed regret that this dead man had not paid his assessment when it was due, and said if it had been paid before 12 o’clock the policy would have been good. None of those conversations, none of that language, are sufficient to show a waiver as to time or an extension of time. [Hence, the case must turn 'upon the single point that I have given you. This company and this man being in the position of master and servant, employer and employee, if there was no demand made upon him other than the ordinary notice, and there were accounts between him and the company, and, by the condition of those accounts at the time this money became due, the company was indebted to him in the amount of the assessment, then I charge you that that may be. equitably set off against the assessment due, and hence that there was no default.] [B] But, if you believe the defendant’s witnesses, that they asked him first to allow them to take the dollar out of his March wages, and he refused, and afterwards, that on the 2d of April, they again demanded the dollar and he again refused, by that refusal on that day there was a forfeiture of the policy and there could be no recovery upon it, unless there was a reinstatement under the by-laws and regulations of the company, which, confessedly, there was not.
    [Therefore, the whole case really turns upon the credibility of the two witnesses for the defendant, Mr. Boyer and Mr. Lamont, and all questions of credibility are for the jury, and not for the court. You must say whether you believe their statements or not. If you do, then the plaintiff cannot recover. If you discredit it and believe that no demand was made upon him for the money, and there was no refusal on the 2d of April, then the plaintiff is entitled to your verdict.] [4]
    I have had some propositions handed to me by the plaintiff, which I am asked to specifically charge you upon, and the first is as follows:
    1. If the jury find from the evidence that the time for paying the mortality assessment of $1.00 mentioned in the defend- . ant’s notice to the insured, dated March 1, 1894, had been extended, and the insured died before the expiration of such extension, the plaintiff is entitled to recover. Answei•: I refuse that proposition. There is no evidence that there was an extension of time.
    2. If the jury find from the evidence that the defendant was indebted to the insured to an amount equal to or greater than the mortality assessment of $1.00 mentioned in the defendant’s notice to the insured, dated March 1, 1894, at the expiration of said notice, and remained so indebted to the death of the insured, the plaintiff is entitled to recover. Answer: That is so; if he had not refused to pay on the 2d of April, when the dollar was demanded; and remember, gentlemen of the jury, that on the 2d day of April — this demand was made on that day — there Avas not $1.00 due to this insured man, because he was paid all of his wages for March. The 1st day of April only had elapsed, and if the demand Avas made on the second day, there was not at that time due to him the sum of $1.00. [5]
    3. The defendant having failed to indorse upon the policy in suit a copy of its entire by-laAvs and articles of association, such by-laws and articles, or extracts therefrom so indorsed, are not evidence, and therefore there is nothing in the case from which it can be determined whether the mortality assessment of $1.00 mentioned in defendant’s notice to the insured, dated March 1, 1894, is lawful or not, and the plaintiff is entitled to recover. Ansiver: I refuse to só instruct you.
    4. Upon the whole evidence the jury should find for the plaintiff. Answer: I refuse that proposition, also.
    I am asked by the defendant to charge you that under all the evidence the verdict must be for the defendant. Answer: I refuse to so charge you. [1]
    Counsel for the defendant excepts to the answer of the court to the plaintiff’s second point, and to the refusal of the defendant’s point, and to the charge of the court in general on matters of law.
    Counsel for the plaintiff excepts generally to the charge of the court on matters of law.
    Verdict for plaintiff, $547.50. Defendant appealed.

      Errors assigned were, (1) refusal of binding instructions for defendant; (2-4) portions of the judge’s charge, reciting same; (5) answer to plaintiff’s second point, reciting same; (6) charge of the court as a whole was inconsistent and inadequate; (7) in admitting the folloAving testimony of plaintiff.
    “Q. You heard Mr. Lamont and your husband have a conversation? Just state it to the jury.”
    Objection by Mr. Erdman. Objection overruled. Exception for defendant.
    “ A. In the house they spoke about it. My husband said he Avould pay it on Saturday. From what I understood, I thought it would be open for him until that time. Of course he died that Thursday night, between 11 and 12 o’clock.”

      (8) In admitting the following testimony of Margaret Davidson, offered by plaintiff, relating to a conversation between plaintiff and Lamont, collecting agent of defendant.
    “ Q. What was that conversation ? ”
    Objection by Mr. Erdman. Objection overruled. Exception for defendant.
    “ Be good enough to detail the conversation. A. He came in the morning after the death, and said it was too bad, but that my mother would not get anything. He said, ‘ Had it been paid at 12 o’clock the night before, or before 12, he would have got his money,’ but he said, as it was, he wouldn’t get anything.”

      Preston K. Erdman, with him Edward Harvey, for appellant.
    There was, therefore, no salary or wages due the insured when the assessments became due, whether we regard the assessments as coming due on March 81, or April 2. His salary was paid Mm for March 31, inclusive; April 1 fell on Sunday, and on Monday, April 2, there was no salary due him; whether any salary would become due to him at all depended upon his continuing to serve, without fault on Ms part, to the end of the month: Smith on Master and Servant, 220; Wilson v. Lyle, 23 W. N. C. 309.
    Under the undisputed evidence the court should have affirmed defendant’s point and directed a verdict for defendant: Freedman v. Fire Association, 168 Pa. 249.
    Regarding the duty of the defendant to apply wages, if there had been any due to the insured, to the payment of the assessments, there, of course, could have been no duty, unless there was a right to so appropriate: Megargee v. Ins. Co., 97 Pa. 15.
    By the act of May 20, 1891, P. L. 96, wages áre made payable in “ lawful money,” and are, therefore, not subject to set-off : Bosche v. Maurer, 5 C. C. R. 215.

      Jos. W. Hunsicker, for appellee.
    The act of May 20, 1891, P. L. 96, cited by defendant, only applies to the business of mining and manufacturing, and not to this case, and besides the act of June 29, 1881, P. L. 147, providing that all wages shall be paid in money or cash orders, was declared unconstitutional : Godcharles v. Wigeman, 113 Pa. 431.
    Where a mutual life insurance company has in its possession dividends belonging to a policy holder more than sufficient to pay an accruing premium when it falls due, the company has the right and is bound, if the premium is not paid, to make such an appropriation, and cannot declare the policy forfeited for failure to pay the premium in question: Megargee v. Mutual Life Ins. Co., 97 Pa. 15, 25, 26, 27.
    Assignments seven and eight are not according to rule XVII. in not quoting the full substance of the bills of exceptions.
    December 7, 1896.
   Opinion by

Willard, J.,

By the terms of a contract of insurance entered into on the 26th day of August, 1893, the appellants undertook and agreed to insure the life of Samuel H. Pister in the sum of $500, and to pay that amount to his wife Letitia Pister within ninety days after due notice and proof of death of Samuel H. Pister. Pister agreed on his part to pay to the company the sum of $5.00, certain annual dues, “ together with mortality assessments according to the charter, by-laws of the association and the terms stipulated in the application upon which the insurance is based.”

The evidence in this case is uncontradicted, that two mortality assessments amounting to the sum of $1.00 became due and payable according to the terms of the contract and stipulations of the parties on April 2, 1894. The evidence is also uncontradicted that Samuel H. Pister received notice of this mortality assessment as provided in the contract and by-laws of the association. It further appeared that Mr. Pister was in the employ of the company as soliciting agent at a salary of $20.00 per month, payable at the end of the month; that he settled his account for the month of March, 1894, on the last day of the month, received his full pay and refused to apply any part of it in payment of the assessment due April 2. There is no evidence that he paid or offered to pay the assessment on or before April 2, while there is evidence that he was requested to pay it on that day, but refused.

The contention here is that he had earned enough on account of his monthly salary to more than equal the amount of the assessment and it should have been so applied in order to prevent a forfeiture of the policy, but the evidence unfortunately shows that Mr. Pister made no such application of his earnings. The evidence also shows that the agents of this company did all in their power to induce Mr. Pister to pay the assessment in time to avoid a forfeiture, which he refused to do. The learned trial judge instructed the jury in answer to the plaintiff’s second point “ remember, gentlemen of the jury, that on the second of April — this demand was made on that day — there was not $1.00 due to this insured man; ” in his general charge, however, he said to the jury “ when the plaintiff closed her case she showed that at the time this assessment was due there was due also to this insured man at least a dollar, and when he died much more than that.” The jury evidently adopted the language of the judge last quoted, while the language first quoted was correct and should not have been qualified. The salary was dependent upon service and was payable at the end of the month. How could it be said, therefore, that any part of it was due on the 2d of April. The assured could not have maintained an action for it, nor could he have used it as a legal offset to an action for the assessment.

By the terms of the contract the assured covenanted on his part to pay the mortuary assessments within thirty days after due notice thereof. He had due notice of two assessments falling due April 2, 1894, he did not pay, them, and died on the 12th of the same month.

We have said that the evidence of the notice of the assessments as prescribed by the terms of the contract was uncontradicted, and that the trial judge stated in his charge “ that there was not one dollar due to this insured man because he was paid all his wages for March.” The learned judge, however, conceived the idea that because Pister was an employee of the company some other notice than that specified in the contract was required, and that the relation of employer and employee might create an indebtedness from the former to the latter, and further charged the jury, “ This company and this man being in the position of master and servant, employer and employee, if there was no demand made upon him other than the ordinary notice and there were accounts between him and the company, and by the conditions of those accounts at the time this money became due the company was indebted to him in the amount of the assessment, then I charge you that that may be equitably set off against the assessments due, and hence that there was no default.” The language of the charge was contradictory and misleading and tbe case must be sent back to tbe court below ¿for another trial.

Tbe question of extension of time and waiver is not before us; there was not only no evidence of a waiver, but the judge carefully excluded tbe question from tbe consideration of tbe jury.

There is no evidence that tbe company ever paid or tendered to Mrs. Pister any part of her husband’s wages from tbe 1st to tbe 12th of April. There is evidence that she received a gratuity of 17.00 from Mr. Boyer, the general agent of the company, soon after her husband’s death. If the company actually appropriated a part of Mr. Pister’s wages for the mortuary assessments in question, it would be conclusive evidence that they did not intend to forfeit the policy, and if such a state of facts existed, the widow should have the right to prove the same.

The second, third and sixth assignments of error are sustained, the other assignments are overruled, the judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    The Historical Publishing Co. v. H. G. Hartranft, Appellant.

      Promissory note — Accommodation indorsement — Loan of credit.

    An accommodation indorsement of a negotiable promissory note is, prima facie, a loan of the indorser’s credit and it is no defense to an action by a bona fide holder for value to allege and show that as between the indorser and the maker the note was without consideration and that this was known to the indorsee; for to permiit this would defeat the purpose for which he loaned his credit.

      Promissory note — Accommodation indorsement — Sufficient defense.

    It is not a sufficient defense to an action against an indorser to allege that the indorsee has in his possession property of the maker upon which lie has a lien for this and other debts, and that he has obtained judgment against the maker fcr those debts. He has a right to hold on to all his securities until he obtains satisfaction.

      Promissory note — Notice of protest.

    Notice of protest being duly alleged it is not sufficient for an indorser to deny in his affidavit that he received such notice; he must go further and state such facts as will justify the inference that no notice has been given nor due diligence used.

      Practice, O. P. — Affidavit—Allegation and denial of notice.

    Where the question is whether notice of dishonor has been sent to the indorser, an affidavit of defense which positively avers that he never received notice of any kind, in anyway, or from any person, and also avers facts from which a jury would be justified in finding that he would have received notice if the plaintiff had used due diligence in sending it, is sufficient to prevent judgment.
    Submitted Oct. 8, 1896.
    Appeal, No. 62, Nor. T., 1896, by-defendant, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1895, No. 306, in favor of plaintiff for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Appeal from magistrate. Assumpsit on a promissory note.
    It appeared from the plaintiff’s statement of claim that suit was brought on a promissory note for $85.40 drawn by Rufus C. Hartranft and indorsed by H. G. Hartranft. The statement further averred that the plaintiff was the holder of the said promissory note, and took the same in the usual course of business before it was due, for a valuable consideration, and that demand for payment was made on the maker, Rufus C. Hartranft, at the time the note fell due according to the terms thereof, and payment refused, and said note was duly protested for nonpayment, and notice sent to the indorser, the defendant in this suit.
    The following is a true copy of the protest paper attached to the said note:
    “ United States of America.
    “ $85.48 Philadelphia, June 3,1895.
    “ Sixty days after date I promise to pay to the order of H. G. Hartranft Esq., Eighty five 48/100 Dollars at No. 727 Sansom st. without defalcation for value received.
    “No. Due Aug. 25,
    “ (Signed) Rufhs C. Hartranft.
    “ (Endorsed) H. G. Hartranft.
    “ Historical Publishing Co.
    “H. S. Smith, Prest.
    “ Be it Known, That on the day of the date hereof, at the request of The Independence National Bank of Philadelphia, the holder of the original promissory note of which true copy is above written I, the undersigned, Notary Public for the Commonwealth of Pennsylvania, by lawful authority duly commissioned and sworn, residing in the City of Philadelphia, during the usual hours of business for such purposes, went with the same to the place of business of the maker, No. 727 Sansom Street, where it is made payable (at 4.15 o’clock p. M.), in order to demand the payment thereof, and found the same closed, locked and unattended, and no one there to answer respecting the note, or to pay the same.
    “ Whereupon, I, the said notary, at the request aforesaid, have protested, and do hereby solemnly protest, against all persons, and every party concerned therein, whether as maker, drawer, drawee, acceptor, payor, endorser, guarantee, surety, or otherwise howsoever, against whom it is proper to protest, for all exchange, re-exchange, costs, damages and interest, suffered and to be suffered for want of payment thereof. Of which demand and refusal I duly notified the endorsers.
    “ Thus done and protested, at the city of Philadelphia, aforesaid, the fifth day of August, 1895.
    “Wm. J. P. Allen,
    “ Notary Public.”
    The affidavit of defense averred that defendant was an accommodation indorser, also that plaintiff held certain other collateral belonging to the maker of the note sufficient to liquidate the claim against him, and specifically on the question of notice averred as follows:
    “ Deponent says that he never had or received any notice of protest from the plaintiff or from any other person of the nonpayment of said note at the time of its maturity, or that said note was presented to the maker, and that payment was by him refused, nor did he receive any notice of its nonpayment until the time suit was brought therein before magistrate Devlin; although deponent has been a continuous resident of the city of Philadelphia since 1851 and is well known as a member of the bar since 1860, having had a residence and office in said city near the courthouse during all of that time.”

      Errors assigned were, (1) entry of judgment for plaintiff; (2) in not holding affidavit of defense sufficient to send the case to a jury, on the questions of fact as to the note in question being an accommodation note, and as to the question of notice to the defendant of nonpayment on the part of the maker.

      W. T. Aldrich and H. G. Hartranft, for appellants.

      JS. W. Cooper, for appellee.
    December 7, 1896:
   Opinion by

Rice, P. J.,

An accommodation indorsement of a negotiable promissory note is, prima facie, a loan of the indorser’s credit and it is no defence to an action by a bona fide holder for value to allege and show that as between the indorser and the maker the note was without consideration and that this was known to the indorsee; for to permit this would defeat the purpose for which he loaned his credit: Philler v. Patterson, 168 Pa. 468, 483; Peale v. Addicks, 174 Pa. 543, and cases there cited.

Nor is it a sufficient defense to an action against an indorser to allege that the indorsee has in his possession property of the maker upon which he has a lien for this and other debts, and that he has obtained judgment against the maker for those debts. He has a right to hold on to all his securities until he obtains satisfaction. Neither of these defenses requires further discussion.

The only question of any difficulty raised by the affidavit of defense is as to notice to the defendant of the dishonor of the note.

Where, in an action against an indorser of a promissory note, the.plaintiff files with his statement of claim a copy of the notary’s certificate of protest, and avers that all the steps were taken which are necessary to fix the liability of an indorser— such as due presentment, demand of payment at the proper time and place, and notice of dishonor — -it is not sufficient for the defendant to say in his affidavit of defense that he has not received notice. For it may be true that he did not actually receive notice and yet the holder may have done all that was necessary to give him notice. “ He must go further and state such facts as will justify the inference that no notice has been given or due diligence used: ” McConeghy v. Kirk, 68 Pa. 200; Moore v. Somerset,.6 W. & S. 262. But while the certificate of a notary in respect to the dishonor of commercial paper, and of notice to the drawers, acceptors, or indorsers thereof is prima facie evidence of the facts therein stated, it is not conclusive, but may be contradicted by other evidence: Act of January 2, 1815, 6 Sm. L. 238; Act of December 14, 1854 (P. L. 1855), 724. The defendant’s averment, that he never received notice of any kind, in any way or from any person is as strong as language could make it, and if he were to swear as positively on the trial of the case, a jury would be warranted in finding that he did not receive actual notice. Indeed the plaintiff does not aver that he had such notice, but only that notice was “ sent to the endorser.” But it may be said, it is not necessary to give the indorser actual personal notice; it is sufficient to hold him if notice was mailed to him or was delivered by messenger at his residence or office. Let this be conceded, and still it does not follow that the defendant is not entitled to have the question of fact as to the sending of the notice decided by a jury. Proof that notice of dishonor was not received is not conclusive evidence that it was not mailed, but where the question of fact is, whether the notice was duly mailed, how is the defendant to meet the issue except by proof that it was not received ? When it appears further, that he is a well known person, and has a well known and long established residence and office, in a city where there is a regular postal delivery, would not the fact that he did not receive notice — although living in the same city as the maker and indorsee — be some evidence on the trial that it was not sent? Undoubtedly it would be. Where the issue is, whether a letter was received, the fact that it was duly addressed, stamped and deposited in the mail is evidence from which a jury may infer that it was received by the person to whom it was addressed. This is so because there is a natural probability or natural presumption founded in common experience that it reached its destination. But before this natural presumption or probability arises the fact of the mailing of the letter must be established satisfactorily, and the fact that the letter was not received bears directly upon that question, because of the probability that if it had been duly mailed it would have reached its destination.

This probability may be strong or weak according to the circumstances of each particular case, but, as it is a presumption or inference of fact and not of law, the question is generally for the jury. Here the question is whether notice of dishonor was “sent to the endorser.” The defendant was obliged to meet that specific allegation and we may assume that, if notice was sent to him in any authorized way, the fact that it did not actually come to his hands would not be a defense. But was the notice sent, did the plaintiff use due diligence ? On the one hand we have the notary’s certificate that he “ duly notified the endorsers ” and the plaintiff’s averment that notice was “ sent to the endorser,” without stating how, or when, or to what place, the notice was sent, and on the other hand the defendant’s positive denial that he either had or received notice. If we were to scrutinize the affidavit with the same strictness as if it were a special plea, it would require no great strain to hold that a denial that he had notice is equivalent to a denial that he was notified. Thus viewed the denial of notice is as definite as the plaintiff’s affirmation of it. But it is unnecessary to quibble over the legal signification of such an averment standing alone. This general and positive denial that he either had or received notice is coupled with an averment of facts from which a jury might find that he would have received notice if the plaintiff had used due diligence in sending it. This fairly brings the case within the rule laid down by Judge Sbarswood, in Mc-Coneghy v. Kirk, supra. If the plaintiff had stated specifically how, when, and to what place, notice was sent, a different question would be presented. As was intimated in McPherson v. Allegheny Nat’l Bank, 96 Pa. 185, a more specific denial might then have been required. Be that as it may, viewing the affidavit in the light of the indefinite averment in the statement, it is sufficient to prevent judgment and to put the plaintiff to proof; it raises an issue of fact which the defendant is entitled to have submitted to a jury.

We all concur therefore in the conclusion that it was error to enter judgment against him.

Judgment reversed and a procedendo awarded.


author: Ermentrout, P. J.

text:
    Edward Schuldt v. Thomas Herbine, Appellant.

      Will — Construction—Trusts and trustees — Fee simple estate.

    Under the will of the testator the following devise was held to pass a fee simple estate: “ I give and bequeath to my son Edward the income of the following described properties, viz. . . . and I hereby direct the Reading Trust Co. to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of income therefrom in monthly payments to my son Edward, for support of himself, wife and children.”
    Argued Nov. 14, 1896.
    Appeal, No. 150, Nov. T., 1896, by-defendant, for judgment of C. P. Berks Co., Aug. T., 1896, No. 47, in favor of plaintiff on case stated.
    Before Rice, P, J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Case stated to determine title to land.
    Edward Schuldt, by articles of agreement between himself and Thomas Herbine, executed on June 1,1893, agreed to sell and convey by deed to Thomas Herbine the premises No. 8151-Cherry street in the city of Reading for the consideration of $1,000. On June 26, a deed sufficient in form was executed and acknowledged by Schuldt and wife and duly tendered to Herbine, who admitted that the deed was sufficient in form but refused to pay the purchase money, alleging that Schuldt had only a life interest in the property.
    Schuldt derived title to the premises under the will of his father, Frederick Schuldt, duly probated and recorded in the register’s office of Berks Co. The clause of the will relied upon as vesting title in Edward Schuldt is, viz : “ I give and bequeath to my son Edward Schuldt the income of the following described properties, viz: 816 Penn Street, 915, 919 and 921 Franklin Street and 815^ Cherry Street, Reading, Pa. and I hereby direct the Reading Trust Co. to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of the income therefrom in monthly payments to my son Edward, for the support of himself, wife and children.” To determine the controversy a case stated was entered into between the parties and filed to No. 47, August term, 1896j in the court of common pleas of Berks county. Wherein, after stating and agreeing upon the facts it was 'stipulated in art. 4 of the agreement: “ 4. If the Court shall be of the opinion that under said item of the said will of the said Frederick Schuldt, deceased, the estate devised to Edward Schuldt in the said property is a fee simple, and that his conveyance of the same, joined in by his wife, makes a good and legal title to the fee of said property, judgment shall be entered for the plaintiff in the sum $1000.00.
    “If the court shall be of the opinion that the estate of the said Edward Schuldt under said devise, is not a fee simple, but is simply a life estate, judgment to be entered for the defendant with costs.”
    Upon the case stated the court entered judgment for the plaintiff in the sum of $1,000, the defendant appealed, assigning for error the entry of judgment in favor of the plaintiff.
    The case stated in full is as follows:
    The following facts are agreed upon and admitted by the plaintiff and defendant in the above issue to be submitted to the court in the nature of a case stated for its consideration, determination and judgment.
    1. Frederick Schuldt of the city of Beading, Berks county, Pennsylvania, died, having made his will and testament which has been duly approved in the register’s office of Berks county, and which directs, inter alia, as follows:
    “ Second. I give and bequeath, to my son Edward Schuldt the income of the following described properties, viz: 816 Penn Street, 919, 915 and 921 Franklin Street, and 815^- Cherry 'Street, Reading, Pa.; and I hereby direct the Reading Trust Company, to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of the income therefrom, in monthly payments to my son Edward for the support of himself, wife and children.”
    2. At the time of said devise, and at the time of the death of said testator, he was the owner in fee simple of the properties described in said paragraph of his will, one of them, No. 815^ Cherry street, in the city of Reading, Pa., is more particularly described as follows, to wit: “ All that house and lot of ground on which the same is erected, situate on the North side of Cherry Street, in the City of Reading, Pa., between Eighth and Ninth Street, being No. 815 bounded on tbe South by Cherry Street, on the East by property of Agnes Woomer, on the North by property of Agnes Woomer and on the West by property of Agnes Schuldt. Containing in front, on Cherry Street, fifteen feet, and in depth sixty feet, more or less, with the appurtenances.” The testator left no debts that have not been paid. Edward Schuldt has not aliened said house and lot of ground nor put any incumbrances thereon.
    3. On the 1st day of June, 1896, articles of agreement were entered into between Edward Schuldt, the plaintiff in this action, of the one part, and Thomas Herbine of the other part, all of the city of Reading, Berks county, Penna., for a sale of one of said properties, to wit: All that certain house and lot of ground on which the same is erected, situate on the north side of Cherry street, in the city of Reading, Pa., between Eighth and Ninth streets, being No. 815^ Cherry street; bounded on the south by Cherry street, on the east by property of Agnes Woomer, on the north by property of Agnes Woomer, and on the west by property of Agnes Schuldt; containing in front, on Cherry street, fifteen feet and in depth sixty feet, more or less, for $1,000, payable on June 27, 1896, on the delivery of the deed. The said Edward Schuldt and Christina, his wife, tendered to the said Thomas Herbine a deed, sufficient and correct in form, for the above described premises, on said June 27,1896, and demanded the purchase money, $1,000, according to the agreement, which the said Thomas Herbine declined and refused to pay, admitting that the deed was sufficient in form but averring that, under the will of Frederick Schuldt deceased, the estate of the said Edward Schuldt was a life estate and not a fee simple, and that he and his wife could not make a legal conveyance in fee simple of the said premises.
    4. If the court shall be of the opinion that under said item of the said will of the said Frederick Schuldt, deceased, the estate devised to Edward Schuldt in said property is a fee simple, and that his conveyance of the same, joined in by his wife, makes a good and legal title to the fee of said property, judgment shall be entered for the plaintiff in the sum of $1,000.
    If the court shall be of the opinion that the estate of the said Edward Schnldt, under said devise, is not a fee simple, but is simply a life estate, judgment to be entered for the defendant with costs; each party reserving to himself the right of appeal, writ of error and certiorari to the appellate court.”
    October 17, 1896.
   OPINION OF THE COURT BELOW.

Ermentrout, P. J.

The case stated presents for decision but one question, “ Did the testator devise to his son, Edward Schuldt, a life estate or a fee simple ? ” The first portion of the second item, “ I give and bequeath, to my son, Edward Schuldt, the income of the following described properties, namely, 816 Penn Street, 919, 915, 921 Franklin Street, and 815½ Cherry Street, Reading, Pa.,” if standing alone, undoubtedly would pass the fee. It is well settled that a devise of the rents and profits or of the income passes the land itself: Drusadow v. Wilde, 63 Pa. 170. But since the act of 1833, all devises of real estate pass the whole estate of the testator in the premises devised unless it appear by a devise over or by words of limitation or otherwise in the will that the testator intended to devise a less estate: And, as was said in Kiefel v. Kepler, 173 Pa. 181, “ starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator.”

We fail to discover anywhere in the will of the decedent that the testator intended to devise a less estate than a fee simple. The scheme of disposition is well defined. He intended to dispose of his whole estate. He starts with a bequest of 140,000 personalty to his wife. The second item is a disposition of what he conceived to be a proper share to his son Edward. The avowed object and purpose expressed in this item is to place the income in the hands of the son and under his sole control, so that he, as the head of the household, might provide for the support of himself, wife and children. He is not made a trustee of any fund for the wife and children, but he is made the absolute, uncontrolled disposer of anything that he may receive. The third item disposes of the share to his daughter Agnes. The fourth item disposes of the share to his grandchildren Agnes and Louise. The next item changes the bequest of the first item to his wife, directs the fund to be invested, and, in express and apt words, makes of this fund an estate in trust, the interest payable to the wife during life, and, after death, to grandchildren.

After appointing a guardian for grandchildren in the next two items, and disposing of his picture, looking-glass, bedding and furniture in the last item, presuming that some of the personalty, moneys that he might die possessed of, might remain after the payment of just and legal debts, he makes what may be termed a residuary clause, disposing of all the money that might be left. The evident intention of the testator to dispose of his entire estate, the existence of a residuary clause as to the money, and the absence of any residuary clause as to the realty, emphasize the fact that the testator presumed he had made a complete disposition by will of his entire estate.

The first clause of the second item in the will standing by itself devising a fee, this item should not be construed to pass a less-estate, unless apt and express words require it to be done, or the clearly ascertained intention of the testator to reduce the fee to a life estate is shown to exist. That he trusted his son Edward appears from the fact that the entire income is placed in his hands at his absolute disposal, and this demonstrates that the direction with regard to the Trust Company was not inserted from any want of confidence in his son. Why it was added is not clear, except the direction be considered either in the light of a recommendation, or it be declared nugatory on the ground of its being an ineffectual attemptto limit the fee already granted.

The estate is not devised to the Trust Company in trust. No duration of any trust is prescribed, no limit as to when it shall cease. Even if by implication it should be held to cease at Edward’s death, it would leave the fee of the real estate undisposed of. To hold that he devised a life estate, is to say that, notwithstanding the avowed object of the devise is to furnish support to Edward, his wife and family, his intention was to deprive the family of his bounty at Edward’s death. If a life estate, he died intestate as to the fee, and the houses devised to Edward for their support are to be frittered away amongst heirs in general under the intestate law. If such a result can be avoided, we are bound to do so. It never is presumed that a testator intended to die intestate as to any part of his estate if a contrary intention can be fairly deduced from the language of his will. The whole frame of the will shows an intention to dispose of the entire estate, and this intention, once ascertained, must control. Roland v. Miller, 100 Pa. 47; Miller’s Appeal, 113 Pa. 459.

Fitz-Daniel Ermentrout, for appellant.

Ermentrout & Ruhl, for appellee.

Being, therefore, of the opinion that the estate devised, is a fee, judgment is entered in accordance with the case stated in favor of the plaintiff for the sum of $1,000.

Error assigned was entering judgment in favor of plaintiff.

Opinion by Willard, J., December 7, 1896:

On a careful consideration of the will of Frederick Schuldt it is evident that the testator intended to dispose of all his property and leave none of it to be distributed under the intestate laws of the commonwealth. Such intent, and that only, can be deduced from the entire will without violating the rule laid down by our Supreme Court in Rolland v. Miller, 100 Pa. 47, and Miller’s Appeal, 113 Pa. 459.

By the second item of the will all of the income of the property mentioned, including 815^ Cherry street, is specifically devised to Edward Schuldt. Considering the language used in the first part of this item without reference to that which follows in the same clause, a fee was vested in Edward Schuldt; for it is settled beyond controversy that a devise of the income passes the land itself: Drusadow v. Wilde, 63 Pa. 172..

The act of April 8, 1833, is not without force in determining the question before us. It provides that “ All devises of real estate shall pass the whole estate of the testator in the premises devised — unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.”

There is no devise over, nor are there, in our opinion, sufficient words of' limitation to change an intended fee simple estate to one for life only.

Bearing in mind then the well established rules, 1st, that “ it never is presumed that a testator intended to die intestate as to any part of his estate, if a contrary intent can be fairly deduced from the language of his will; ” 2d, that a devise of the rents and profits, or of the income passes the land itself; 3d, that by the provisions of the act of April 8, 1833, “all devises of real estate pass the whole estate of the testator in the premises devised unless it appear by a devise over or by words of limitation or otherwise in the will that the testator intended to devise a less estate; ” we .have no difficulty in disposing of this case, unless by the 2d clause of the 2d item of the will, the Reading Trust Co. became an active trustee under the language used by the testator, viz, “And I hereby direct the Reading Trust Co., to take charge of these houses, collect the rents, keep them in repair, pay the taxes, and pay the balance of the income therefrom, in monthly payments, to my son Edward, for the support of himself, wife and children.” In disposing of this question the learned judge pertinently said, “ The estate is not devised to the Trust Company in trust. No duration of-any trust is prescribed, no limit as to when it shall cease. Even if by implication it should be held to cease at Edward’s death,' it would leave the fee of the real estate undisposed of.” This direction of the testator vested no title in the Trust Company. It provided that the entire income should be paid to Edward, not to his wife or children; the whole was his to do with as he saw fit. No time was fixed for the trust in its operation to begin or end. It was but a direction which did not limit the estate granted in the first part of the clause. Thus construed, there was devised by the second clause of the will to Edward Schuldt a perfect fee simple estate to the premises in question. In Willard v. Davis, 3 Pennypacker, 86, the second clause of the ■will of Robert H. Davis, inter alia, was, viz: “ I give and bequeath to my son, M. Swift Davis, sixteen one hundredths GW) °f ^he total amount of my estate, consisting of real estate and personal property of whatsoever kind and wheresoever situated and found. ... I hereby constitute and appoint my friend John Irwin, Jr., as trustee, to whom shall be given in charge by my executors the share of my son as above. Said trustee shall collect the proceeds of said share and shall pay it over to my said son in quarterly payments, the principal not to be impaired by paying him more than what it may yield. . . . The share here bequeathed to my son aforesaid shall not be liable for any indebtedness of his.” After the death of Robert H. Davis, M. Swift Davis, by contract, agreed to sell a part of the real estate thus devised by articles of agreement to L. H. Willard;

A deed was duly tendered to the latter, who refused to pay tbe 'purchase money, alleging that the will of Robert H. Davis only vested a life estate in M. Swift Davis. Upon a case stated,wherein M. Swift Davis was plaintiff and L. H. Willard defendant, in disposing of the case the president judge in the court below decided, viz : “ A trust in lands is, in general terms, where one holds the legal title for the benefit of another. In this will the third section vests a fee simple absolute in M. Swift Davis; Apt words in a succeeding part of the will might avoid or modify tins devise. But the fourth section of the will does not put any title in John Irwin. It but directs that be shall control the property — the terms might be held to apply to the personal estate only in the hands of the executors, and for that it would be good. If there be a trust; for how long does it continue ? There is no 'direction to pay proceeds to the children of Davis. There is no attempt to create a trust for the children or heirs of the devisor. If there be a trust in Irwin, it is either, but for the life of M. S. Davis with a right in the trustee to retain the property for himself after Davis’ death, or the trust is but for life, with the fee simple in Davis after his own dealth. The attempt is, after granting a fee simple absolute to M. S. Davis, to appoint a guardian to talce charge of the property for the life of the devisee, and to declare the property free from liability for the debts of the owner. This cannot be done. It is inconsistent with the grant, and especially it cannot be done without the use of apt words, which are wanting in this will.

“ And now, September 18,1882, after argument and upon con-, sideration, the court being of the opinion that the law is with the plaintiff, judgment is entered upon the case stated in favor of plaintiff for one hundred and sixty dollars ($160) and costs of the-suit.”

The judgment was affirmed in the Supreme Court by a per curiam opinion.

In view of the foregoing authorities and the evident intention of the testator to vest in his son Edward a fee simple estate to the land in question, and upon the able opinion of the learned judge in the court below, the judgment is affirmed.


author: Willard, J.,

text:
    Samuel Beaumont and William Beaumont, trading as Beaumont Bros., to the use of Merchant & Co., Appellants, v. Barry D. Lane, Owner or Reputed Owner, and Joel Lane, Contractor, and F. A. Mitchell, intervening.

      Practice, O. P. — Stipulated issue — Finding of facts and entry of judgment.

    Where parties, stipulating for themselves, have framed the issue to be tried and stated what facts should explicitly be found in order to entitle the plaintiffs to their judgment, and the facts having been found in favor of the plaintiffs, there is nothing left for the referee and the court but to enter judgment according to the express stipulation of the parties.

      Mechanic's lien — Equitable assignment — Building contract.

    An order, given by B., the subcontractor, directed to the owner of a building, “to pay to M. $180.00 and charge same to our account for material and labor on houses, per contract,” of which L. and the main contractor had notice, although not accepted byL., is an equitable assignment of B.’s claim. The subsequent admission by L., garnisheed under attachment execution on a judgment against B. obtained by another creditor, of indebtedness dueB., is no defense to a sci. fa. sur mechanic’s lien brought by B. to use of M.
    Argued Nov. 19, 1896.
    Appeals, Nos. 86 and 87, Nov. T., 1896, by plaintiffs, from judgment of C. P. Delaware Co., Dec. T., 1896, Nos. 97 and 98, in favor of defendant, on report of referee.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Amicable scire facias sur joint apportioned mechanic’s lien. Before Clayton, P. J.
    It appears from tbe testimony and the record that Barry D. Lane contracted with Ms father, Joel Lane, for the erection of certain buildings on his property. Joel Lane contracted with Beaumont Bros, to do the tmwork on said houses. Beaumont Bros, became indebted to Merchant & Co. in a large amount for materials furnished Beaumont Bros, by Merchant & Co. from time to time. The houses were constructed and the part of the work assigned to Beaumont Bros, under their contract for tinning was complete. A short time before its completion Beaumont Bros, gave an order upon Barry D. Lane for the payment of the sum of $180. The order is, viz:
    “ Chester, Pa., June 5,1894.
    “ Mr. Barry D. Lane, Chester, Pa.;
    “ Dear Sir: In consideration of one dollar in hand paid, pay to Merchant & Co. the sum of one hundred and eighty dollars ($180.00) and charge the same to our account, for material and labor on houses, per contract.
    “ Yours Truly,
    “Beaumont Bros.”
    “ I accept above order payable at completion of work.”
    Barry D. Lane and Joel Lane had notice of this order on the day it was drawn. It was not however accepted by either of them. On July 7, 1894, F. A. Mitchell, upon a judgment against Beaumont Bros., issued an attachment in execution and summoned Joel Lane as garnishee. Joel Lane answered that he owed Beaumont Bros, the sum of $180, whereupon judgment was entered against him. Subsequently Beaumont Bros, filed two apportioned liens against the property of Barry I). Lane, naming him as owner and Joel Lane as contractor. These liens were marked for the use of Merchant & Co. They were filed January 10, 1895. Upon these liens an amicable action of scire facias was entered in the court below, which is fully set forth upon the record. Among other things it was stipulated in said amicable action, viz : “ If the jury shall find that the said assignment of Beaumont Bros, to Merchant & Co. was made lawfully and in good faith before the right of the said Frank A. Mitchell accrued under the judgment and attachment in execution herein above referred to, and that at the time the right of the said Mitchell accrued, as aforesaid, the said Merchant & Co. were in good faith the owners of the said claim, then the verdict shall be rendered in favor of the plaintiffs and against the defendants for the sum of $90.00, with' interest from July 1,1894, in each of the above entitled cases; or if the jury shall find that the said Merchant & Co. were not lawfully and in good faith the owners of the said claim at the said time, then the verdict shall be entered in favor of the defendants and against the plaintiffs in each of the said cases.” After the filing of the amicable action on the 16th of December, 1895, the case was referred to George M. Booth, Esq., referee. On the trial of the case the referee was asked to find as matter of fact, viz: “ The referee is asked to find as a fact that the assignments by the said Beaumont Bros, to Merchant & Co. of the claim against Barry D. Lane; upon which claim the said mechanic’s lien is based, was made lawfully and in good faith before the attachment in execution, referred to in the agreement filed, issued; and that Merchant & Co. were in good faith owners of said claim before that time-.” The referee so found but entered judgment in favor of the defendant, and the court below affirmed the judgment. Plaintiffs appealed.

      Errors assigned (1-11) were in substance, to the action of the court in dismissing exceptions to the referee’s report, and holding that the order by Beaumont Bros, directed to Barry D. Lane in favor of Merchant & Co. did not operate as an equitable assignment of the sum designated therein, and in dismissing the following exception of plaintiffs to the report of referee:
    Exception: The issue of fact agreed upon in the above case having been found by the referee in favor of appellants and against the defendant, the referee erred-in concluding from these facts as matter of law that the plaintiffs were not entitled to recover.

      O. B. Dickinson, for appellants.
    After all the parties have agreed to submit their claims to the determination of one issue we must earnestly ask this court to protect us from being switched off to some other issue which we did not agree should •terminate our rights.
    An order, right or act, which makes an appropriation óf a fund, amounts to an equitable assignment of that fund: Clemson v. Davidson, 5 Binn. 397; Patten v. Wilson, 34 Pa. 299; Spott’s Est., 156 Pa. 281; Dale v. Land Co., 3 Phila. 328.
    An assignment of demands which rests on expectancy only is valid in equity: Lumber Co. v. Marsh, 91 Pa. 96.
    The form of assignment is immaterial so there be a clearly expressed intention of the immediate transfer of the right to the assignee: Moeser v. Schneider, 158 Pa. 412.
    In order to complete an assignment as against the assiguor or Ms attachment creditor, the assignee need not give notice of the claim: Bispham’s Equity, sec. 168; Noble v. Brown, 79 Pa. 354.
    It has been expressly ruled that the act of May 10,1881, P. L. 14, does not apply to assignments: Trumbower v. Ivey, 2 Pa. C. C. 470.

      Ward R. Bliss, for appellee.
    It is the duty of an assignee to be diligent in perfecting his title, and, if guilty of laches, he may be postponed to a subsequent purchaser who has been injured thereby: 6 Am. & Eng. Ency. of Law, 663. The plaintiffs are pursuing an equitable remedy, and in equity the lapse of much less than the legal limit of time may be fatal laches, where the interests of third persons have intervened. Gring’s Appeal, 89 Pa. 336; Evans’ Appeal, 81 Pa. 278; Ashhurst’s Appeal, 60 Pa. 290.
    An assignee who does not give notice to the debtor until judgment has been rendered against him in an attachment by a creditor of the assignor loses his priority: Richards v. Griggs, 16 Mo. 416.
    An assignee who lies quiescent until a subsequent assignee has proceeded to judgment, loses his priority: Judson v. Corcoran, 17 How. (U. S.) 612; Ins. Co. v. Corcoran, 1 Gray (Mass.) 75.
    December 7, 1896:
   Opinion by

Willard, J.,

Under the terms of the amicable action and statement of facts therein contained and the issue made up by the parties, it requires more than ordinary ingenuity to determine just how judgment could have been entered for the defendant in the court below. It was agreed explicitly that if the assignment from Beaumont Bros, to Merchant & Co. was made lawfully and in good faith before the attachment in execution was issued by. Frank A. Mitchell, and that Merchant & Co. were in good faith the owners of said claim, then judgment should be entered in their favor for the sum of 190.00 in each case. And.it was further agreed that if the said Merchant & Co. were not lawfully and in good faith the owners of said claim at that time, then judgment should be entered against the plaintiffs in each case. As matter of fact the referee found that the assignment was made lawfully and in good faith, and that Merchant & Co. were in good faith the owners of the said claim before the issuing of the attachment by Mitchell. Having found this fact under the terms of the submission there could be but one judgment, no matter what the character of the assignment was, and that judgment should have been in favor of the plaintiffs in the court below; and these judgments must be reversed for the reason that the parties have stipulated for themselves, framed the issue to be tried and stated what facts should explicitly be found in order- to entitle the plaintiffs to their judgments, and the facts having been found in favor of the plaintiffs there was nothing left for the referee and the court but to enter judgments according to the express stipulations of the parties.

This case might well rest here without going into the questions discussed by the referee and court below, but, notwithstanding the findings of law by the referee and their approval by the court, we are by no means convinced that the order of June 5,1894, from Beaumont Bros., upon Barry D. Lane was not an equitable assignment of the sum of $180 to Merchant & Co. What were the relations of the parties ? Barry D. Lane was the owner of the houses in process of construction. Joel Lane was his paramount contractor. Beaumont Bros, were the independent contractors for the tinwork under Joel Lane, and by virtue of their contract had a right of lien against the houses of Barry D. Lane for the payment of their debt of $180. The houses stood as surety for the payment of this debt. Barry D. Lane had a right, as soon as the work was done, to pay Beaumont Bros., and either deduct the amount from the contract price, or if they had already paid, proceed at once against Joel Lane, the contractor, to secure his reimbursement. Sharswood, J., in Hill v. Witmer, 2 Phila. 72. There is no merit in the statement that he was misled or that Merchant & Co. were guilty of laches in giving notice of their order. The testimony of Samuel Beaumont is that “Joel Lane and Barry Lane had notice of the assignment the very day it was given.” What then was the effect of this assignment ? Barry D. Lane’s house, as before stated, stood surety for the payment of this debt. He had the right to pay it the moment the order was given, if he saw fit, and charge the amount to Joel Lane. In case it was not paid by Joel Lane or by him, the lien subsequently filed could have been enforced against his property. His house was debtor to the full contract price and to the claim of Beaumont Bros. If it was, there was a fund capable of equitable assignment by Beaumont Bros, to Merchant & Co. “Equity will support assignments of contingent interests and expectancies; things which have no present actual existence, but rest in mere possibility, not indeed as a present, positive transfer, operative in preesenti, for that can only be of things in esse: ” East Lewisburg L. & M. Co. v. Marsh, 91 Pa. 96. In this case it was not only possible that Barry D. Lane would have to pay Beaumont Bros.’ claim, but it was probable. Barry D. Lane then being the owner of the property and being liable to pay this mechanic’s lien, and having in his power the right to pay it and funds for that purpose, why did not the equitable assignment of Beaumont Bros, to Merchant & Co. pass to them the right of the former to the fund in his hands ?

Looking at the character of this order of June 5, 1894, it was sufficient as an equitable assignment of the claim; it was drawn upon an account for material and labor on houses of Barry D. Lane as per contract, the amount was specific, to wit: 1180, and he could not have been misled thereby. We do not agree with the learned court below in designating this order as a commercial draft or that it was simply an unaccepted draft, or that having been dishonored, it was of no further commercial value. Had it been an order, in form a perfect bill of exchange not specifying the fund out of which it was to be paid, it would not have been an equitable assignment of the fund. But it did specify the fund out of which it was to be paid, to wit, the fund in his hands for materials and labor done, and furnished on his houses. It was therefore an equitable assignment of that fund. In Oakes v. Oram, decided by the Supreme Court in March, 1867, reported in the Legal Intelligencer in vol. 48 page 520, it was decided that “an order issued by A upon B to pay to C a sum ‘out of moneys which may become due from coal sold and delivered’ in a month subsequent to the date of the order unaccepted by B but left in his possession, is an equitable assignment of so much of the fund in B’s hands as is specified in the order.” In this case Oram was a coal operator, sold his coal to a railroad company, receiving his pay each month for coal mined and delivered during the preceding month. He drew orders in favor of various parties upon the R. R. Co. The orders in question were drawn payable in the future upon monthly payments not yet earned. The paymaster refused to accept the orders, but kept them in his office for convenience. Oakes, a judgment creditor of Oram, issued an attachment in execution and summoned the R. R. Co., as garnishee. The attachment was issued subsequent to the date of the orders. It was held that the orders were an equitable assignment of the fund pro tanto and entitled to preference over the attachment in execution.

It is strenuously urged that Joel Lane was the only debtor of Beaumont Bros., while strictly speaking this may be so, still the fact remains that Barry D. Lane’s houses were surety for the debt and he was the custodian of the fund that must pay for their construction. It mattered not to him whether he had paid the amount to Joel and by Joel it was paid to the Beaumonts or to Merchant & Co., on their order. Neither he nor Joel suffered in the least by the transaction. He was the person who had to pay for the construction, and we think the order upon him, under all the circumstances, was an equitable assignment of the $180, for which his buildings were surety. If with full notice of this transaction, Joel afterwards saw fit to answer Mitchell’s interrogatories, as he did, and allow judgment to be entered against him, he alone is to blame and must suffer the consequences.

We cannot agree that Merchant & Co. were guilty of laches as to the notice of the assignment (if notice was required). Samuel Beaumont, a witness for the appellee, before the referee stated explicitly that Joel and Barry D. Lane both had notice of the assignment the very day it was given. Judgment was entered against Joel in the attachment execution at the suit of Mitchell on July 16, 1894. The referee found as matter of fact that, on July 26, Joel and Barry D. Lane both had full notice of the assignment. Joel did not see fit to appeal from the judgment entered against him at the suit of Mitchell, but allowed it to become final.

So far as the equities of this case are concerned they are, in our opinion, with the appellants, and while we could have decided this case as intimated in the former part of this opinion, without regard to the equities of the parties, in reversing the judgment we are satisfied that no rule of equity has been violated.

The assignments of error are sustained, judgments reversed and judgments are here entered in favor of the plaintiff for the sum of ninety ($90.00) dollars in each case, with interest from July 1, 1894, and costs, including the costs of this appeal.


author: Reeder, J.,

text:
    Assigned Estate of Michael Hamill.

      Assignment for creditors — Liability of assignee.

    An attachment execution having been issued, the garnishee by consent of the parties paid over the money to the plaintiff in the attachment who agreed to apply it in a manner specified by defendant, it being agreed that plaintiff should discontinue the attachment; the application specified proving impossible the defendant substituted other directions assented to by plaintiff. Some time later the defendant in the execution assigned to the plaintiff in the execution. Held, that the assignee was not bound to account for moneys received by him as the proceeds of the fund attached and applied in accordance with the agreement under which they were received.
    Argued May 14, 1896.
    Appeal, No. 88, April T., 1896, by judgment creditors, from the judgment and decree of C. P. Mercer Co., March T., 1896, No. 9, sustaining exception of assignee to the auditor’s report, surcharging the assignee.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exception to auditor’s report in re assigned estate for benefit of creditors.
    Michael Hamill made an assignment to R. S. Johnston for the benefit of’ creditors on January 4,1894. From the report of the auditor it appeared that the said R. S. Johnston in his capacity as president of the First National Bank received the sum of $790.79 on the 29th of August, 1893, being money belonging to Hamill which had been attached on the part of the bank and which by consent of the parties had been voluntarily paid to said Johnston and applied by him to indebtedness of Hamill to the bank. The auditor surcharged the assignee with this amount and exceptions being filed by the assignee to such surcharge the exceptions were' sustained by the court below, Miller, P. J.
    The facts more fully appear from the opinion of the Superior Court.

      Errors assigned were in sustaining the second exception of the report of the auditor, which exception was as follows :
    “ Second. The auditor erred in sustaining the first and second exceptions to the assignee’s account and in surcharging the assignee, under said exceptions, with the amount of money received by the First National Bank of Greenville in Venango county.”

      S. R. Mason and L. Kuder, for appellant.
    In the face of the evidence, we submit that it is absurd to argue that this money was not secured and paid on the attachment and to be applied as a credit on the judgment.
    The principle stated by the learned judge is no doubt correct, that where a creditor has a lien on real estate and a levy on personal property, he may abandon his levy on the personalty and rely for his security oir his lien against the real estate. But suppose, as in this ease, he has made his money out of the personalty, then he must apply it as a credit on the judgment. There is no difference between an execution and an attachment in execution; they are both execution processes. One seizes and sells property, the other arrests the money of the debtor in the hands of third parties. The application of the money is the same.
    The effect of an attachment execution, served wherever it lies, is to place the attaching creditor in the same relation to the garnishee as that occupied by the debtor before the attachment was laid: In re Baldwin’s Estate, 4 Pa. 248.
    The attachment is an equitable assignment of the thing attached, a substitution of the creditor for the debtor to tbe latter’s rights against the garnishees : Reed v. Penrose Executors, 36 Pa. 229 ; Roig v. Tine, 103 Pa. 117.
    The attaching creditor, therefore, in this case having secured $790.79 by virtue of his attachment, the garnishee having paid the money because of the attachment, we submit the same must be credited upon the judgment as óf date of November 9,1893, as directed by the learned auditor.

      Q. A. Gordon, with him Gillespie & Pettit, for appellees.
    The money was received by the bank, according to the facts as found by the court, as security for all the notes owing to it by Hamill. There is no claim that these notes have all been paid, or that this fund is sufficient to pay them, or even those for which the bank holds no other security of any value whatever. The application can be made at any time by the bank. The appellant has no right to make it, and never had. If it is left to the law to make it, the fund will be applied to the notes that have no other security: Borland v. Murphy, 92 Pa. 91, and cases there cited.
    There is no pretense of any notice to the bank not to release the money attached, or any warning to deal with its two securities so as to preserve or promote the security of the appellant’s judgment. Without such notice or warning, it is settled beyond all question that the creditor having the lien upon the two funds may safely release either and hold the other : Mc-Ilvain v. Mutual Assurance Co., 98 Pa. 30; Snyder v. Crawford, 98 Pa. 414. Constructive notice is not sufficient; it must be actual, and must precede the release.
    December 7, 1896:
   Opinion by

Reeder, J.,

There is but one question raised by the assignment of error. Hamill was indebted to the First National Bank of Greenville for $5,000, which was secured by transfer, as collateral security, of some whisky in a bonded warehouse (this indebtedness, however, does not enter into our consideration of this case); for a note for $2,000, to secure which lie gave to R. .S. Johnston, president of the bank, a deed to a hotel property owned by him, which, although absolute on its face, was actually given as collateral security; and for two notes, one of $300 and one of $567.94, for which the bank held no security except a note of one M. P. Kelly, for $350 not yet due at the time of the last hearing before the auditor. Judgment was confessed by Hamill on the $2,000 note in Crawford county, on August 28, 1893. Prior to this, there had been a payment of $500 made upon the $2,000 note, leaving a balance of $1,500 still due.

.. After the bank entered this judgment in Crawford county, and on, the same day, viz : August 28, 1893, on an exemplified record, they entered judgment in Venango county and issued an attachment execution, naming the International Bank of Franklin and C. W. Gearing as garnishees. This- attachment wab served on the day following the entry of the judgment.

The amount of money in the hands of the garnishees, belong-' ing to Hamill, was $790.79. After the attachments had arrested the money in the possession of the garnishees, Hamill agreed with Johnston, the president of the bank, that he would give-him an order on the International Bank to pay over the- money in the International Bank, if he, Johnston would apply it to theClift judgment, the first lien upon the hotel property, and would add to it an amount sufficient to pay the Clift judgment. Johnston agreed to this, and the money, $790.79, made up of a balance due Hamill of $190.79, and the proceeds of three notes, for $200 each, given to Hamill' by Gearing was paid over- by the-bank to Johnston, he agreeing to save them harmless, discontinue the attachments, and pay the costs.

This payment was made November 9, 1893. Afterward, on December 4,1893, Hamill made an assignment for the benefit of creditors to R. S. Johnston. At the time of the assignment, the $790.79 was not in the possession of Johnston as an individual, it having been paid over to him as the president of the bank, upon an agreement between the bank and Hamill that it should be used for the purpose of paying the Clift judgment/ This they offered to do, but Mrs. Clift refused to accept the money and assign her judgment. Hamill then agreed that the money should be applied to any shortage there might be on any notes of his, due to the First National Bank.

These are the facts as they are found by the court below, and there is no finding by the auditor which is in opposition to it. This finding is moreover fully justified by the evidence.

Subsequently on June 6, 1894, it was agreed in writing by all the parties in interest, including this appellant, that Johnston should declare in writing a defeasance of the deed to the hotel property as assignee under an order of the court and “ that after said property had been sold the proceeds thereof shall be first applied to the balance due upon a note of $2,000 for which said property was conveyed .... and the balance of the proceeds of the sale of said Hamill hotel property to go into the general fund for distribution among the creditors of the said Hamill according to priority of liens.”

This was done, and the property was sold for $1,975. When the assignee filed his account, he deducted the balance due on the $2,000 note from the proceeds of the sale. The appellant claims that the $790.79 paid after the attachment executions had issued, ought to have been first credited on the balance due on the $2,000 note, and then the amount still due should have been deducted from the proceeds of the sale of the hotel property. He therefore seeks to have him surcharged with that amount.

This the court below refused to do, and this is the only question raised before us by this assignment of error.

If this money had been made upon the attachments, the position of the appellant would be incontrovertible. When this money was paid by the International Bank to the First National Bank, viz: November 9,1898, no interrogatories had been filed, no judgment obtained. If the bank had discontinued all proceedings, as it had the right to do, no claim could have been made against the .bank by any creditor because of its having done so. The learned auditor properly admits that the bank could have abandoned its attachment and permitted the parties named as garnishees to pay over this money to Hamill, without incurring any liability as to the other creditors; but he contends, as the bank did not do so, but only agreed to dissolve the attachments, without actually dissolving them prior to the payment of the money, and although the money was to be devoted to a specific purpose when paid to the bank, and was then paid only upon the order of the only parties in interest, the plaintiff and the defendant in the judgment, the garnishees having no interest, being mere stakeholders, the money must be regarded and treated as having been made upon the attachments in execution, and must be credited upon the judgment.

We agree with the learned court below, that this is an erroneous conclusion. Suppose the agreement between the Bank and Hamill had been carried out, and the money applied to the purchase of the Clift judgment, could Johnston, as assignee, have been surcharged with this money because he did not apply it to the bank judgment, on the application of creditors who had been injured by such payment ? Yet if it was made upon the attachments, he would have been bound to apply it as a credit upon the bank judgment no matter what agreement he might have made with Hamill. The attachments created a lien upon the funds, but when the money was paid over to the bank, in consequence of an agreement between Hamill and the bank that the attachments should, be dissolved and the money appropriated to a specific use, it was an abandonment by the bank of their attachment just as much as if it had been entered of record. It was such an abandonment as any court would have enforced upon this statement of facts upon a petition to dissolve the attachments; and when the money could not be used for the purpose agreed upon, Hamill had the power to direct that it should be appropriated by the bank to any purpose which' he saw fit.

There is but one more question left for our consideration. The unsecured notes that the bank held against Hamill, to the payment of which they claim the right to appropriate this $790.79, amount to $867.94. As collateral security to these notes, they hold a note of M. P. Kelly for $350. If this note is paid, and the $790.79 plus the $350 exceed the amount due the bank from Hamill, the balance must be paid to Johnston as assignee and distributed by him. The fact however that the bank holds this Kelly note as collateral security to Hamill’s note does not oblige, as the appellant seems to contend, the bank to credit Hamill with the amount of the Kelly note. They have the right to appropriate all the money in their hands to the payment of the Hamill notes, and, if that extinguishes Hamill’s liability to the bank, the Kelly note, or its proceeds, must be turned over to Hamill’s assignee.

The exceptions are dismissed, and the decree of the court below affirmed.


text:
    Peter Stewart v. Chester & Darby Telford Road Company, Appellant.

      Negligence — Evidence—Turnpikes—Question for jury.

    Whether it was a proper and necessary precaution to hang a light upon a toll gate at night in order to protect travelers from coming in contact with.the end of an unprotected pole is a question properly for the jury, and the fact that upon an old gate the same gate keeper and the same company had hung a light for that purpose was certainly evidence of the necessity Of siich a protection at.the old gate and therefore properly admissible as evidence of the necessity for the same kind of protection at a new gate recently established across the road.

      Negligence — Contributory negligence — Turnpikes—Instructions of the court.

    The question of negligence of a turnpike company, in leaving on a dark night the exposed end of its gate unlighted, having been properly left to the jury, it was proper for the court to instruct the jury on the question of contributory negligence, as follows: “If there was any negligence conr ti'ibutory to the accident on the part of the plaintiff he cannot recover. But I do' not say that he was bound to carry a lantern on a dark night. He would be bound to walk carefully wherever he was going and to avoid known obstructions, and if he knew the gate was there, then it would have, been his duty to use more care than usual to avoid it,” and in the general charge the jury was told “ he must use all necessary precaution to avoid a collision or accident when walking on a dark night along a public road. ... To enable him to recover you must find that there was negligence upon the.part of the defendant and no contributory negligence upon the part of the plaintiff.”

      Province of court and jury — Correction of mistake in charge.

    A judge has a right to correct a mistake made on the trial under a mis? apprehension of the facts without being charged with encouraging a verdict for either party.
    Evidence— Competency of witnesses — Arbitrators.
    Arbitrators before whom a case had been tried are competent to testify to the physical condition of a plaintiff after an injury.
    Argued Nov. 17, 1896.
    Appeal, No. 51, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., June T., 1894, No. 286, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Trespass to recover for injuries arising from the erection and maintenance of a certain toll gate upon land of the turnpike operated by defendant. Before Clayton, P. J.
    The appellant was incorporated under the act of April 29, 1874, and by purchase became possessed of the rights and franbhises of the Darby & Chester Plank Road Company, incorporated by the act of April 14, 1851, subject to all the provisions of the act of January 26, 1849. Under its charter the appellant was authorized to construct and operate a turnpike road, and construct and maintain suitable gates thereon for the collection of toll.
    About 8 o’clock on the evening of April 23, 1894, the appellee was lawfully walking upon the turnpike in company with a friend. The evening was dark and misty and it was with great difficulty that objects could be seen at any distance. Hearing-wagons approaching on the turnpike the appellee stepped to' ■ one side to avoid them and was struck in the eye by the end of a pole used as a gate. The pole at the point of contact was about four and one half inches square. It was located on the north side of the roadbed and at the time was parallel therewith. .Between the gate and the watchhouse on the south side of the roadbed the distance was between twenty-three and twenty-four feet. On the north side of the gate was the track of a trolley road. The gate was within the limits of the turnpike. It was about eleven feet long and capable of being-thrown across the road so as to allow.but one team to pass the watchhouse at the same time.
    On the night in question, at the time of the injury, there was no light at the gate or watchhouse, no guard at the end of the pole against which the appellee struck. The end was raised about five and one half feet from the ground. The trial judge left the question of the appellant’s negligence and of the appellee’s contributory negligence to the jury.
    There was a verdict for the plaintiff of $750. Defendant appealed.

      'Errors assigned were, (1, 2) in admitting evidence as to whether an old gate of the company at another point than where the accident occurred, and maintained but abolished prior thereto, was lighted at night; (3) in admitting evidence of-those who were not physicians but were two of the arbitrators before whom the case was originally tried, as to the condition of the plaintiff’s leg; (4) in admitting evidence to prove that by examination of the records of the court of quarter sessions, nothing appeared to show that the defendant had complied with the act of 1874, giving the right to erect gates; (5-13) answers to points and instructions of the court on the question of negligence of defendant and contributory negligence of the plaintiff; (14,15) in charge of the court as a whole in that it was alleged imperatively to impute negligence to defendant; (16) entry of judgment against defendant.

      Frank R. Savidge, with him O. B. Dickinson, for appellant.
    —As to the reasonable and established rule of responsibility for turnpikes see Kieffer v. Hummelstown Borough, 151 Pa. 311; Fruh v. Phila., 1 Dist. Rep. 248; City v. Fischer, 111 Pa. 13. A sufficient portion of the middle of the turnpike only is kept in smooth condition and safe and convenient for travel. The rest is often left dangerous by reasons of ditches and obstructions of various kinds: Perkins v. Inhabitants of Fayette, 68 Maine, 152; Com. v. King, 13 Metc. 115; Blake v. Newfield, 68 Maine, 375; Keyes v. Village of Marcellus, 50 Mich. 439; City of Scranton v. Hill, 102 Pa. 378. A traveler cannot pass upon the side of the road with the same protection as is given in its center; City v. Gilliam, 30 P. L. J. 461. See also Elliott on. Roads and Streets, 76. In cases involving obstructions, like the one at bar, it is held that cities are not liable for omitting to light their streets : Am. & Eng. Ency. of Law, title Highways, 380, note 1; Elliott on Roads and Streets, 458; Randall v. Railway Co., 106 Mass. 276; Freeport v. Isbell, 83 Ill. 440; McCamber v. Taunton, 100 Mass. 255. On the question of contributory negligence, see Robb v. Connellsville Borough, 26 W. N. C. 517; Phila. v. Smith, 23 W. N. C. 242; Beach on Contributory Negligence, sec. 77, p. 258. In all the testimony there was no doubt of plaintiff’s knowledge of the new gate. If so, he could not recover: Winner v. Oakland Township, 158 Pa. 405. But whether he had knowledge of the gate or not he was guilty of contributory negligence: Corbalis v. Newberry Township, 25 W. N. C. 184;

      J. B. Hannum, for appellee.
    As to the responsibility of a turnpike company to warn travelers of danger threatened by obstructions and by suitable devices to direct them in a proper route, see Lancaster Ave. Co. v. Rhoads, 116 Pa. 377; Born v. Plank Road Co., 101 Pa. 336. It was proper to submit the question of contributory negligence of the plaintiff to the jury, as was done in this case : Merriman v. Phillipsburg Borough, 158 Pa. 78. What is and what is not negligence in a particular case is generally a question for the jury and not for the court. It always is when the measure of duty is ordinary and reasonable care: Kreider v. Road Co., 162 Pa. 537. The plaintiff was not bound to exercise extraordinary care: Fee v. Columbus Borough, 168 Pa. 382; Ringrose v. Bloomsburg, 167 Pa. 621.
    December 7, 1896:
   Opinion by

Willard, J.,

The appellants were the successors of another road company possessing the right to collect tolls and erect gates. That company had maintained a gate on the other side of the roadbed about one hundred feet distant from the new gate. The old gate had been taken down by the appellants and a new one erected but a few months before the injury, and the same person had charge of both gates. Whether it was a proper and necessary precaution to hang a light upon the gate at night in order to protect travelers from coming in contact with the end of the unprotected pole was a question properly for the jury, and the fact that upon the old gate the same gate keeper and the same company had hung a light for that purpose was certainly evidence of the necessity of such a protection at the old gate, and if so, why was it not evidence of the necessity of the same kind of protection at the new gate across the road? It was evidence to show that, but a short time before the injury, the company deemed it essential to display the light, and if deemed essential then, it was proper evidence to guide the jury in determining the question of the necessity of the light as a proper safeguard’and protection at the time and place of the injury. The evidence was properly admitted.

Two of the arbitrators were called to prove the physical condition of the appellee after the injury. We know of no rule excluding such testimony, and as the whole question of erysipelas was excluded by the court from the consideration of the jury, the appellant was not harmed. The fact that the witnesses were arbitrators' certainly did not render them incompetent.

. The admission of the testimony of the clerk of quarter sessions of Delaware county to prove that the appellant had not complied with the act of 1874 by obtaining the necessary authority through the said court to enable it to erect gates did not harm the appellant’s case. Proof was offered and admitted that the appellant had purchased and was the owner of the-rights and franchises of another company formerly occupying the same road, and under its charter the right was granted to locate and erect gates, and the appellant was in the enjoyment- of these rights and franchises. It is unnecessary, however, to pursue the' subject. The court put the appellant in such position that the evidence was entirely, immaterial, and charged the jury that the turnpike company had a perfect right to erect the gate.

The sixth and fifth assignments of error raise the important question in this case. As to the location of the gate, we do not think, it was a question for the court- or jury to decide. The • right of location was vested by the legislature in the directors, of the road, and this right having been committed to their discretion, they and they alone were the proper judges, and it was not the province of the judge or jury to say that it should have-•been located three feet or three inches to the right or left. ■ Had the learned judge refused to affirm the appellant’s first point, we would promptly reverse the judgment. His first-answer to the point, as put, was entirely erroneous, but he answered it under a misapprehension of its meaning, and when properly enlightened by counsel and convinced of his error, he promptly affirmed the point. There is no merit in the appellant’s contention that the inadvertent language of the judge in his answer influenced the jury. A judge certainly has a right to correct a mistake made on the trial under a misapprehension of - the-facts without being charged with encouraging a verdict for either party.

The'.-location of the gate- and the use of proper precautions to render it safe when erected are different questions. The law on ■ the' latter subject is well defined by Mr. Elliott in his work on. Roads .find Streets, at page '78: “ The obligation resting on the. turnpike company is to make it reasonably safe to travel its road.- This means more than that the traveled part of the way shall be kept safe, for where barriers or warnings are necessary to prevent a traveler, who exercises ordinary care and prudence, from going into danger alongside of and near the way, such barriers must be provided or such warnings given.” The text above quoted is sustained by an array of most respectable authorities.

In this case we have a traveler on a dark night lawfully upon a turnpike road approaching its toll gate. The end of the gate or bar extended eleven feet from its pivot longitudinally along the road and in the direction of the approaching traveler. The end thereof is four and one half (40 inches square, resting five and one half (50 feet from the ground; the gate and watch house without a light- or person in charge and the end of the gate or pole without a barrier or protection of any kind. The appellee, to avoid approaching vehicles, steps to one side and suddenly in the darkness comes in contact with this obstruction and is seriously injured. Whether the appellant was guilty of the want of ordinary care under the circumstances was for the jury to determine under proper instructions. In his general charge the learned judge instructed the jury “ now, it will be for you to say, whether the .constrúetion of this turnpike gate at the place where' it- -was constructed was an unreasonable construction, a dangerous one, and whether extra precautions' ought to have been taken to guard it.” We think there was no error in the submission of the appellant’s negligence to the jury. As to the negligence of the appellee contributing to the injury, his duty was correctly stated in the answer to the appellant’s third point, and the jury were instructed that “ if there were .any negligence contributory to the accident upon the part of the plaintiff he cannot recover.. But I do not say that he was-bound to carry a lantern on a dark night. He would be bound to walk carefully wherever he was going and to avoid known-obstructions, and if he knew the gate was there, then it would have been his duty to use more care than, usual to avoid it,” and in the general charge the jury were told “ he must use all necessary precaution to avoid a collision or accident when walking on a dark night along the public road. ... To enable him to recover you must find that there was negligence upon the part-of the defendant and no contributory negligence upon the part of the plaintiff.” The defendant’s fourth point was, viz: “ It was the duty of the plaintiff to carry a light or to take extra precaution in venturing upon a public road on a dark night, and for his failure to do so in the present case he is properly chargeable with contributory negligence and the verdict should be for the defendant.” The judge answered, “ This seems to be in the disjunctive. So far as the taking of extra precaution is concerned, I affirm it. The other part I disaffirm, that which says he was bound to carry a light.” The defendant’s fifth point was, viz: “ From the plaintiff’s knowledge of the road and its gate he took the risk of passing it upon a dark night, and cannot complain of an injury even if the result of the company’s negligence, to which he contributed, and the verdict should be for the defendant.” The judge answered, “ As to his knowledge of the road I decline to say that he had or had not. He said he had no knowledge of the gate being there; at least, that is my recollection. He said he knew the old one. But, as I said before, if this accident was the result of negligence on his part he cannot recover.” We think the answers to these points, together with the general charge on the subject, was a sufficient instruction to the jury as to what constituted contributory negligence on the part of the plaintiff.

Soon after the injury the appellee was visited by Dr. Evans, who said in his testimony that he found him suffering from an attack of traumatic erysipelas. Testimony of other physicians was admitted as to the continuation of this disease for a long time. To the admission of this testimony the appellant’s counsel did not object on the trial and the judge explicitly charged the jury to disregard every -word of the testimony on that subject in arriving at their verdict. This ought to have been sufficient without further comment.

We deem it unnecessary to consider all of the assignments of error as there are really but two questions in this case, first, was the question of the negligence of the defendant properly submitted to the jury; second, was the question of contributory negligence on the part of the plaintiff properly submitted; and having decided these two questions in the affirmative, itis unnecessary to pursue the question further. In considering the remarks of counsel upon the attitude of the trial judge during the trial, which we deem uncalled for and unwarranted, we do not hesitate to say from an examination of the entire record that the case was fairly and impartially tried and properly submitted for the consideration of the jury. The judgment is affirmed.