text:
    Edson v. Magee, Appellant.

      Contract — Sale—Rescission—Damages.
    1. Where a vendor of butter sets it apart in his cold storage rooms, and delivers a storage receipt to the vendee who is to withdraw the butter from time to time as his trade demands, the title to the butter when it is set apart in the storage room passes to the vendee, and a mere threat subsequently made by the vendor to cancel the contract, not carried into effect, is not a rescission, and the vendee cannot repudiate the contract by returning the storage receipt if the vendor does not assent to the repudiation; nor does delay by the vendor in enforcing his claim for the purchase money affect the right of action under the contract.
    2. In such a case where the vendor after waiting for several months for payment sells the butter in good faith and in the exercise of sound judgment, he is entitled to recover from the vendee the contract price with interest and storage charges less the amount received on the sale. The measure of damages is not the difference between the contract price and the market value of the butter at the time of the vendee’s attempted repudiation of the contract.
    Argued Dec. 15, 1909.
    Appeal, No. 205, Oct. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 2,291, on verdict for plaintiffs, in case of William D. Edson and Joseph S. McCullouch, trading as Edson Brothers, v. Horace L. Magee et al., trading as Magee Brothers.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Ralston, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $1,120.64. Defendants appealed.

      Errors assigned were (1-22) various rulings on evidence and instructions.

      William A. Glasgow, Jr., with him John H. Hall and Pennell C. Evans, for appellants
    A contract may be rescinded by the parties, whose intention to rescind may be inferred from their actions: Seanor v. McLaughlin, 165 Pa. 150; Steen v. Harris, 81 Ga. 681 (8 S. E. Repr. 206); Bryant v. Thesing, 46 Neb. 244 (64 N. W. Repr. 967).
    A failure to make a part payment is of the essence of a contract, so as to enable the other party to rescind: Rugg v. Moore, 110 Pa. 236; Reybold v. Voorhees, 30 Pa. 116; McGrath v. Gegner, 77 Md. 331 (26 Atl. Repr. 502); Dwinel v. Howard, 30 Me. 258.
    The measure of damages for failure of a vendee to receive and pay for goods, is the difference between the contract price of such goods and their market value at the time of the breach: Girard v. Taggart, 5 S. & R. 19; Andrews v. Hoover, 8 Watts, 239; Corser v. Hale, 149 Pa. 274; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Schnebly v. Shurtcliff, 7 Phila. 236; Gannon v. Baker, 14 Pa. Dist. Rep. 716; McCombs v. McKennan, 2 W. & S. 216; Cunningham v. Welsh, 1 W. N. C. 315; Hooper, Seving & Co. v. Bromley Bros. Carpet Co., 11 Pa. Superior Ct. 634; Pickering v. Bardwell, 21 Wis. 562.

      J. H. Shoemaker, for appellees.
    The contract was not rescinded: Foster v. Berg, 104 Pa. 324; Royal Ins. Co. v. Beatty, 119 Pa. 6.
    The defendants’ failure to make payment on July 21 of the amount which they were then to have paid, gave the plaintiffs no right to rescind the contract. Default in payment after goods have become the property of the vendee does not give the vendor the right to rescind unless the right is reserved in the contract: Rugg v. Moore, 110 Pa. 236; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Filby v. Miller, 25 Pa. 264; Martindale v. Smith, 1 A. & E. Enc. of Law (N. S.), 389; Robinson v. Pogue, 86 Ala. 257 (5 So. Repr. 685); Greaves v. Ashlin, 3 Campbell, 426.
    The prices realized from the resales of the butter, it is submitted, were admissible as evidence for the plaintiffs: Ballentine v. Robinson, 46 Pa. 177; Schnebly v. Shurtcliff, 7 Phila. 236; Dustan v. McAndrew, 44 N. Y. 72; Delaplaine v. Ammonia Co., 2 Pa. Superior Ct. 555.
    July 20, 1910:
   Opinion by

Henderson, J.,

There is no dispute in regard to the terms of the contract between the plaintiffs and the defendants. The evidence shows a sale of 500 boxes of June butter for $5,750. The boxes were in the plaintiffs’ warehouse and were set apart and put in one of their cold storage rooms in accordance with the contract, the defendants to withdraw butter from time to time as their trade demanded. At the same time a storage receipt was given by the plaintiffs and accepted by the defendants in which the butter was described as “Lot 5216” in the storage room at 263 South Second street. When the butter was thus set apart and the storage receipt accepted by the defendants the title passed to the latter and the transaction was in effect a delivery of the butter subject to the lien of the vendor for the price and for storage charges. • The appropriation by the vendor was equivalent to a delivery to the vendee and the assent of the vendee to take the property as shown by the acceptance of the warehouse receipt was equivalent to taking possession: 3 Sutherland on Damages, sec. 644. The defense to the action is that the plaintiffs rescinded the contract. This claim of rescission is based on a letter from the plaintiffs dated August 21, 1905, in which they called for a settlement for the butter. The letter contained this statement: “If we do not hear from you by Wednesday we shall cancel the charge.” On the twenty-ninth of the same month the plaintiffs wrote to the defendants stating that they were waiting for an answer to their letter of the twenty-first relative to the amount due on the contract and urging the defendants to send a check by return mail. No reply was made to either of these letters and on September 18, 1905, a third letter was sent by the plaintiffs requesting the defendants to state whether they intended to make settlement of the bill. On the following day the defendants wrote to the plaintiffs stating that they had decided not to handle .the butter, and with that letter they returned the warehouse receipt. Ón the twenty-first of that month the plaintiffs replied declining to accept the receipt and insisting on the payment of their bill. The proposal in the plaintiffs’ letter of August 21, to “cancel the charge” if the defendants did not settle within the' time named was not a rescission of the contract. It was a threat merely or the expression of an intention to act in the future; but it was not within their power to rescind the contract if they intended to do so,. for the title was then in the defendants and without their consent the plaintiffs clearly had no authority to set aside the contract: Unexcelled Fire-Works Co. v. Polites, 130 Pa. 536; Martindale v. Smith, 1 A. & E. (N. S.) 389. The mere silence of the defendants did not amount to assent for they owed no duty to the plaintiffs to speak. The plaintiffs could not talk away their title nor by a threat deprive them of that which the contract had already given them. Moreover, on August 29, the plaintiffs wrote to the defendants calling the attention of the latter to their bill and urged them to send a check by return mail. This was notice to them that whatever may have been the intention of the plaintiffs as expressed in the letter of August 21, they had not undertaken to rescind the contract and they had not released the defendants from their liability. Nor did the default of the vendees in making payment reinvest the title in the plaintiffs. Their right was one of lien but not a right to rescind the bargain. Nor was the act of the defendants at a later date in returning the warehouse receipt,a rescission, for the plaintiffs did not assent thereto. It was a repudiation of the contract and rendered them liable to the plaintiffs for the price agreed to be paid. The subject of the sale was a.specific article. The contract had been so far completed as to place the title to the thing sold in the defendants. The plaintiffs had done all they were bound to do and there is nothing in the facts to prevent them from recovering the price agreed on: Ballentine v. Robinson, 46 Pa. 177. Time is not ordinarily of the essence of the contract in a sale of personal property and mere delay in enforcing the claim does not affect the right of action. It is further contended that if the contract was not rescinded the court was in errpr in instructing the jury to return a verdict for the contract price of the butter with interest, storage charges, etc., less the amount received on the sale of the butter by the plaintiffs, for the reason that the defendants’ liability is to be determined by the difference between the contract price 'and the value of the butter at the time the contract was repudiated on September 19. The proposition which the appellants support by argument and authorities is that the measure of damages for failure of a vendee to receive and pay for goods is the difference between the contract price and the market value at the time of the breach. But this is not an action to recover damages growing out of the refusal of a vendee to accept the goods contracted for. The defendants’ contract was obligatory; the goods were in their constructive possession and under their control; they held the receipt of the plaintiffs for their storage and safe-keeping and the plaintiffs’ relation to the property was that of vendors with a lien for payment of the price. If there had been no delivery the vendors might have considered the property as their own after the breach of the contract by the defendants and have proceeded for damages for such breach, but they did not do this, nor in view of the manner in which the contract was executed by the plaintiffs could they have done so. Two courses were open to them: they could sell the property in a reasonable manner to satisfy the lien and then sue to recover for the unpaid balance, or they could have held the property in storage under the contract of bailment subject to the defendants’ order and then sued to recover the whole price called for by the contract of sale; Sands v. Taylor, 5 Johns. 395; McCombs v. McKennan, 2 W. & S. 216; 3 Parsons on Contracts, ch. 8, sec. 6; Dustan v. McAndrew, 44 N. Y. 72; Ballentine v. Robinson, 46 Pa. 177; Tiffany on Sales, 226. The sale must be fairly made and within a reasonable time. The market value on the day when the defendants refused to pay is not material in this view of the case. The question involved in this connection is the duty of the vendors with respect to the enforcement of their lien, and there is nothing in the testimony to show that they did not act in good faith and with reasonable discretion and sound judgment in disposing of the property. They were familiar with the state of the butter market and were entitled to the exercise of their own discretion in disposing of the property provided that they exercised reasonable diligence: Delaplaine v. Ammonia Co., 2 Pa. Superior Ct. 555; Dustan v. McAndrew, 44 N. Y. 72; McCombs v. McKennan, 2 W. & S. 216. There was evidence not contradicted that the butter could not have been sold to better advantage at an earlier time, and the court instructed the jury to determine whether the delay in selling was reasonable under the circumstances of the market and the verdict was in favor of the plaintiffs on that point. As there was no evidence to show want of good faith or that the sales of butter by the plaintiffs were not advantageous to the defendants there is no foundation which will support the appellants’ argument on this point. The offer of the market report was properly rejected. It appeared that the reports of September sales related to fresh butter and that which the defendants bought was of a different quality, known in the market as “June butter.” The price of one kind would not establish the value of the other and for this reason the reports were not competent if otherwise unobjectionable. The charge of the court presented the questions of fact to the jury clearly and concisely, and we do not find grounds for reversal in the charge or in the answers to .the points.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Hofford v. New York Central & Hudson River Railroad Company, Appellant.

      Bailment — Carriers—Warehouseman—Degree of care — Burden of proof — Measure of damages.

    1. Where a railroad company accepts the baggage of an intending passenger and deposits it in the place provided by the company for the purpose of checking and for safe-keeping, and subsequently the passenger changes his mind as to making the journey, and without having bought a ticket, goes for his baggage which is not forthcoming, and it appears that the company in the course of its business charged storage where there was such a change of intention, the company is not a gratuitous bailee of the baggage, and the burden is upon it, whether it is in the position of a carrier or warehouseman, to show that the baggage was not lost through its own negligence. Mere proof that the baggage had been placed in a proper building, in charge of trusty servants, and properly guarded, is not sufficient to rebut the presumption of negligence arising from the nondelivery, of the baggage to its owner.
    2. In such a case the railroad company is in the position of a warehouseman under the laws of New York, and the law of New York approved June 6, 1907, and known as the “Public Service Commissions Law of New York,” limiting the amount of liability by a carrier for baggage to $150 has no application.
    3. Where baggage is left with a carrier in anticipation of a journey not about to be commenced, and to be called for and checked when the passenger is ready to begin his journey, the carrier is liable therefor as a warehouseman only.
    4. In a suit against á carrier for the loss of clothing contained in a trunk, the measure of damages is not the amount which the clothing would bring if put into the market and sold for secondhand clothing. The rule is the value of the clothing for use by the owner.
    Argued Dec. 15, 1909.
    Appeal, No. 241, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 4,980, on verdict for plaintiff in case of Mary A. Hofford v. New York Central & Hudson River Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Oready, Head, Beaver and Porter, JJ.
    Affirmed.

      Trespass to recover damages for the loss of a trunk and its contents. Before Magill,. P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Under my view of the law of New York, gentlemen, I charge you that the relation of the parties in this case was that of bailor and bailee and that the duty which the defendant owed to the plaintiff was that of a warehouseman, in view of the fact that the trunk was delivered to and received by the defendant to await further orders from the plaintiff before shipment, and not for immediate transportation for one who, by the purchase of a ticket, had established the relation of passenger over the defendant’s road.] [1]
    [If you determine that the plaintiff is entitled to a verdict and if you shall find further that the value of the trunk and its contents was less than $1,007.50 then the loss of the plaintiff having been- sustained in 1907, in August, and the money, if any, therefore due the plaintiff at that time by reason of the loss, she would be entitled to compensation for the delay, in the payment of the money. That is to say, if you shall find that the value of the property was $300, $500, $200 or any other sum, $700 or any sum less than $1,007.50, you would be entitled to add to that sum by way of compensation for delay in payment, something as such compensation, which, however, in no event should exceed the usual rate of interest for money. But if you shall find that the value is less than $1,007.50 and desire to add to that compensation for delay, in no event should the total amount which you award the plaintiff, if you find a verdict in her .favor, exceed the amount of her claim for which she sued, $1,007.50.] [2]
    Plaintiff presented these points:
    1. If goods are delivered to a carrier, not for immediate transportation (but to be retained by it) until further orders are received from the owner, the carrier becomes a mere depository or bailee until such further orders are given. If, therefore, you believe from the evidence that the plaintiff delivered her trunk to the defendant company, not for immediate transportation but to be retained by it, until further orders should be given by her, then the defendant received said trunk as a warehouseman. Answer: I have already stated that in my general charge and I affirm that point. [3]
    2. Where a bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee and makes him responsible for ordinary neglect. The maintenance of a baggage room for the baggage of persons using the railroad was an ordinary incident of the business in which the defendant company was engaged. If, therefore, you believe from the evidence that the defendant company failed to exercise ordinary and reasonable prudence in the care of plaintiff’s trunk, your verdict must be for the plaintiff. Answer: I affirm that point. [4]
    3. The defendant company, as bailee of the plaintiff’s trunk, is bound either to produce the same or account for its loss. The burden of proof is upon the defendant company to explain the manner in which the trunk was lost, and, if it cannot do so, the presumption is that it was lost through the negligence of the defendant company, or its servants. Answer: I affirm that point. [5]
    5. If you find for the plaintiff, she is entitled to recover the value of her trunk and also the full value of her clothing, contained therein for use by her and not what it merely could be sold for in money. Answer: That is affirmed. [6]
    Defendant presented these points:
    2. Under the law of New York, it was the duty of the plaintiff when delivering her trunk to the defendant, to disclose to the defendant its value. Unless she did so, she cannot recover in this case more than $150. Answer: That is the vital question in this case but I decline at this time to affirm that point. [7]
    3. Under the evidence in this case plaintiff cannot recover from the defendant more than $150. Answer: That I decline. [8]

      4. Under the law of New York, the only obligations assumed by the defendant with respect to plaintiff’s trunk were those of public common carriers. Defendant assumed no obligation as a warehouseman. Answer: That I decline. [9]
    Verdict and judgment for plaintiff for $1,007.50. Defendant appealed.

      Errors assigned were (1-9) above instructions, quoting them.

      James Wilson Bayard, with him John G. Johnson, for appellant.
    The appellant was not, under the law of New York, a warehouseman with respect to appellee’s trunk.
    Appellant was at most, under the law of New York, liable as a common carrier with respect to appellee’s trunk; and as such common carrier its liability, the value of the trunk and contents not having been declared, is limited to $150: Orange County Bank v. Brown, 9 Wend. 85; Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151 (78 N. E. Repr. 864); Hurwitz v. Packet Co., 56 N. Y. Supp. 379; Bell v. Drew, 4 E. D. Smith, 59; Nevins v. Steamboat Co., 17 N. Y. Super. Ct. 225; McCormick v. Hudson River R. R. Co., 4 E. D. Smith, 181; Baum v. Ry. Co., 108 N. Y. Supp. 265; Richardson v. Woolverton, 117 N. Y. Supp. 908.
    Appellant was in reality a gratuitous bailee of appellee’s trunk, and not having been shown guilty of any negligence, is free from liability for the loss thereof.

      A. L. Moise, of Sharp, Alleman & Moise, for appellee. — •
    Defendant was hable as a warehouseman: London, etc., Fire Ins. Co. v. Rome, etc., R. R. Co., 144 N. Y. 200 (39 N. E. Repr. 79); National Line Steamship Co. v. Smart, 107 Pa. 492; Moyer v. R. R. Co., 31 Pa. Superior Ct. 559; Murray v. International Steamship Co., 170 Mass. 166 (48 N. E. Repr. 1093); Goodbar v. Ry. Co., 53 Mo. App. 434; Fairfax v. R. R. Co., 67 N. Y. 11; Burnell v. R. R. Co., 45 N. Y. 184; Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297.
    July 20, 1910:
    The measure of damages was properly stated: Fairfax v. R. R. Co., 73 N. Y. 167.
   Opinion by

Rice, P. J.,

On the afternoon of August 2, 1907, the plaintiff, who was then temporarily stopping at the Imperial Hotel in New York city, sent her dress suit case and trunk to the Grand Central station of the defendant in that city. They were delivered to the defendant’s baggage agent, who gave separate receipts for each, and placed in the outgoing baggage room where trunks are ordinarily taken to be checked. No instructions were asked for by the defendant, nor any given by the plaintiff, either at the time the trunk and suit case were so delivered, or subsequently, as to their destination; nor had she instructed the express agent to put any value on the trunk or suit case, and no statement of value was given to or asked for by the defendant’s baggage agent. At the time the baggage was delivered to the defendant the plaintiff intended to go from New York city to a place called New Rochelle, which is on the New York, New Haven & Hartford Railroad, spend the night there, return to New York city the next day, and purchase a ticket and have the trunk checked to a place called Catskills, which is on one of the defendant’s lines. Nothing was said, however, to the defendant’s baggage agent of this intention, and she had not and did not afterwards purchase a railroad ticket from the defendant. During the same afternoon she changed her mind and abandoned her trips to New Rochelle and to Catskills. The next day she went to get her baggage. The dress suit case was delivered to her, but the trunk was not. Diligent search was made for it, but it was never found. The plaintiff then brought this action to recover the value of the trunk and its contents, which, as she stated them at the trial, aggregated $1,188.50. The learned trial judge charged the jury that under the law of New York the relation of the parties was that of bailor and bailee, and that the duty which the defendant owed to the plaintiff was that of a warehouseman, in view of the fact that the trunk was delivered to and received by the defendant to await further orders from the plaintiff before shipment and not for immediate transportation for one who by the purchase of a ticket had established the relation of passenger over the defendant’s road. He furthermore charged, in affirming plaintiff’s second point, that the maintenance of a baggage room for the baggage of persons using the railroad was an ordinary incident of the business in which the defendant company was engaged and that, therefore, if the jury believed from the evidence “that the defendant company failed to exercise ordinary and reasonable prudence in the care of the plaintiff’s trunk their verdict must be for the plaintiff.” The instructions upon the question of the defendant’s negligence did not end here, but by the affirmation of the plaintiff’s third point the jury were instructed that the defendant as bailee of the trunk was bound either to produce the same or account for its loss. “The burden of proof,” quoting from the point, “is upon the defendant company to explain the manner in which the trunk was lost, and if it cannot do so the presumption is that it was lost through the negligence of the defendant company or its servants.” The verdict was in favor of the plaintiff in the sum of $1,007.50, that being the amount claimed in the statement, and from the judgment thereon this appeal was' taken.

The defendant contends on this appeal for three propositions: 1. The defendant was not under the law of New York a warehouseman with respect to the plaintiff’s trunk; 2. It was at most, under the law of New York, liable as a common carrier with respect to the trunk, and as such common carrier its liability, the value of the trunk and contents not having been declared, is limited to $150; 3. It was in reality a gratuitous bailee of the trunk, and not having been shown guilty of gross negligence is free from liability for the loss thereof.

Was the defendant a gratuitous bailee? In determining this question the fact must not be overlooked, although it was not expressly announced to the defendant, that the plaintiff was an intending passenger and that the place at which the trunk was delivered to and accepted by the defendant’s baggage agent was provided by the defendant for the reception and checking of baggage of intending passengers and for the storage of the same for the reasonable time that commonly intervenes before the passenger purchases his ticket and has his baggage checked. According to the testimony of the defendant’s witnesses the intending passenger who has delivered baggage at that place has twenty-four hours within which to obtain his ticket and have the baggage checked, without charge for storage. If the baggage is not checked within that time storage is charged, and in the ordinary course of business the same is done if the owner, having, changed his mind as to going upon the journey, calls to take the baggage away. We quote from the testimony of the station baggage master upon this subject: “Q. In your long experience as baggage master there you have had many cases where people have sent their baggage there to the road and then countermanded it and taken it away without sending it out on a ticket, haven’t you? A. It has been done; yes, sir. Q. Well, if a person sends baggage there to your road and it remains there for more than twenty-four hours and from a change of mind of the intending passenger they recall the baggage, it is customary to charge a storage, isn’t it? A. Yes, sir. Q. If they come with a ticket within twenty-four hours you do not charge storage. A. No. . . . Q. And in this particular case it has been testified that this plaintiff did not buy a ticket but carné there with, a cab and demanded her baggage. Now if the trunk had been found and had remained in your place more than twenty-four hours, you would unquestionably have charged storage upon it, would you? A. If it had been there over twenty-four hours; yes.” Where a bailment is one which is for the sole benefit of the bailor it is uniformly held that the bailee is obligated only to the exercise of slight care and is only answerable for gross negligence or bad faith: 5 Cyclopedia of Law and Procedure, 186; Story on Bailments, sec. 23. A bailee of this class is not bound to ordinary diligence, is. not responsible for that care which every attentive and diligent person takes of his own goods, but is “only liable for gross negligence, dolo proximus, a practice equal to a fraud;” it is that omission of care which even the most inattentive and thoughtless men take of their own concerns: Tompkins v. Saltmarsh, 14 S. & R. 275; First National Bank of Carlisle v. Graham, 79 Pa. 106. We cannot agree that this is the measure of defendant’s responsibility, because we cannot agree that the acceptance by a railroad company of the baggage of an intending passenger and depositing the same in the place provided by it for the purpose of checldng and for safe-keeping meantime constitute a bailment for the sole benefit of the intending passenger. No New York decision that such is the law of that state has been called to our attention, and we think it is infer-able, from the principles recognized and applied in the decisions of the courts of that state in analogous cases, that it is not the law. Therefore, the defendant’s third proposition above stated is not sustained.

Before discussing the other two propositions it is advisable to notice the question as to the burden of proof and the prima facie presumption of negligence, which is raised by the fifth assignment of error. In determining this question it is unimportant whether the defendant as to the trunk was responsible as carrier or as warehouseman. In either case the general rule would apply that an unexplained loss of the property in the hands of the bailee gives rise to a presumption of negligence, where the bailment is for the mutual benefit of the bailor and bailee and the duty of exercising ordinary care exists. See Hoyt v. Clinton Hotel Company, 35 Pa. Superior Ct. 297. In a New York case, where the defendant was at least subject to the duty and responsibility of a warehouseman, the court said: “When there is a total default to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee: Platt v. Hibbard, 7 Cowen, 497-500, note a; Schwerin v. McKie, 28 N. Y. Super. Ct. 404, and cases cited. It is claimed that the failure to produce the trunk, and the charge of negligence is fully met by the evidence produced on the part of the defendants, that the building used for storing baggage was safe and secure and in charge of trusty agents and servants, and properly guarded night and day. There was no evidence as to how this particular trunk got out of the possession of the Hudson river company. If it had been burned or stolen; without fault on their part, the defendants would not have been liable. The evidence certainly shows a commendable vigilance in the general arrangements to protect this class of property, but it fails to point out how; or by what means this trunk was lost. The inference that it was delivered to the wrong person by mistake is quite as legitimate as that it was stolen. To say that the servants were generally careful, does not establish as a question of law, that they were not careless in respect to this article. It was incumbent on the defendants to show that the loss of this trunk was not attributable to the want of care of their servants, and the evidence was such that the referee was justified in finding that they had failed to do it. If this trunk was delivered to the wrong person the circumstances should have been shown, otherwise it would have been presumed negligent, as no such delivery would be proper without the presentation of a duplicate check or satisfactory evidence of its loss, and of the ownership of the property. If the trunk had been delivered upon such evidence as vigilant, careful persons would regard as sufficient, the defendants might have been relieved from liability, but no evidence of this character was produced, and we think the finding of the referee was fully warranted:” Burnell v. New York Central Railroad Co., 45 N. Y. 184. The same principle is recognized in other New York cases, and amongst those cited is Fairfax v. New York Central & Hudson River Railroad Co., 73 N. Y. 167. Having determined that the defendant was not a mere gratuitous bailee, it follows from the application of the principles of these cases, that the court committed no error in affirming plaintiff’s third point and that portion of the second point quoted in the early part of this opinion. The effect of these instructions, taken in connection with what was said in the general charge, was not to bind the jury to find for the plaintiff, but to submit to the jury the question whether the defendant had failed to exercise ordinary and reasonable prudence in the care of the plaintiff’s trunk, with appropriate instructions as to the burden of proof. The verdict, therefore, implies that the loss of the trunk was due to the defendant’s neglect to exercise that degree of care and diligence.

We come then to the difficult question raised by the appellant’s first and second propositions, which may be considered together. The necessity of determining this question arises from the provisions of sec. 38, chap. 429, of the laws of New York, approved June 6, 1907, and known as the “Public Service Commissions Law of New York,” which was duly offered in evidence. The section is entitled “Liability for damage to property in transit.” As counsel for the defendant correctly say, the first three sentences of the section clearly relate to freight, and not to baggage. The fourth sentence relates to baggage and reads as follows: “Every common carrier and railroad corporation shall be liable for loss, damage and injury to property carried as baggage up to the full value and regardless of the character thereof, but the value in excess of $150 shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such liability in excess of $150 and for the carriage of baggage exceeding one hundred and fifty pounds in weight upon a single ticket. Nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” The scope of the article to. which sec. 38 belongs is thus defined in sec. 25: “The provisions of this article shall apply to the transportation of passengers, freight or property from one point to another within the state of New York and to any common carrier performing such services.” The clause would seem to relate to the liability of a common carrier as such, and perhaps, also, to its liability as a warehouseman, where its duty as a warehouseman grows out of the original contract of transportation, as, for example, where it has safely transported baggage to its destination but the baggage is not promptly called for and taken away by the passenger. See Burnell v. New York Central Railroad Co., 45 N. Y. 184. But in the absence of any authoritative decision by the courts of New York to the contrary, we venture the opinion that this clause of the statute cannot be construed to apply to a case where the railroad company assumed the duty of a warehouseman and did not assume a higher duty respecting baggage which was delivered to it and was lost through its neglect to exercise ordinary care. Is this such a case? It is argued by defendant’s counsel, citing Moore on Carriers, sec. 54, p. 722, that the carrier’s liability for the baggage of a passenger commences with the actual delivery of such to the carrier and its taking possession of the same, regardless of whether the passenger has procured a ticket or not, if he in good faith intended to become a passenger, and regardless of whether the baggage has been checked or not. But in the same connection the learned author says: “Except in cases where the delay in shipment is the fault of the carrier the carrier’s liability is that of warehouseman only for baggage brought to the station or depot and voluntarily deposited there, for safe-keeping and not for immediate transportation.” So, also, it is said in 6 Cyclopedia of Law-and Procedure, 670: “Where baggage is left with the carrier in anticipation of a journey not about to be commenced, and to be called for and checked when the passenger is ready to begin his journey, the carrier is liable therefor as warehouseman only.” The principle was recognized and applied in Murray v. International Steamship Co., 170 Mass. 166, as appears by the following excerpt from the opinion of Lathrof, J.: “The defendant received the plaintiff’s valise on Saturday, not for immediate transportation, but for the convenience of the plaintiff, as the steamboat was not to sail until Monday. The defendant on Saturday entered into no contract with the plaintiff to carry the valise, and by a rule of the defendant, which we consider a reasonable rule, the valise could not be checked until a ticket should be presented. No ticket was presented until Monday, at which time the valise could not be found. On the facts stated, we are of opinion that the Lability of the defendant was that of a warehouseman and not that of a carrier: Judson v. Western Railroad Corp., 86 Mass. 520; Barron v. Eldredge, 100 Mass. 455; Watts v. Boston & Lowell Railroad Corp., 106 Mass. 466.” No New York case has been called to our attention which decides the precise question presented here; but the principle seems to be well established by the decisions of the courts of that state, so far at least as freight is concerned, that a carrier is responsible as such only when goods are delivered and accepted by him for immediate transportation in the usual course of business. The subject is quite fully discussed in London & Lancashire Fire Ins. Co. v. The Rome, etc., Railroad Co., 144 N. Y. 200. We quote in part what was said by Earl, J., in that case: “The liability of a railroad company as a common carrier of goods delivered to it attaches only when the duty of immediate transportation arises. So long as the shipment is delayed for further orders as to destination of the goods, or for the convenience of the owners, the liability of the company is that of warehouseman. The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception when they are in a fit and proper condition and ready for immediate transportation. If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods. But, on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done or some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver until some change takes place will be résponsible only as a warehouseman.” In the earlier case of O’Neill v. New York Central & Hudson River Railroad Co., 60 N. Y. 138, the rule was stated thus: “A carrier is responsible as such only when goods are delivered and accepted by him for immediate transportation in the usual course of business. If delivered, awaiting further orders from the shipper before carriage, he is, while they are so in his custody, responsible as a warehouseman.” These cases, as appellant’s counsel correctly say, are not on all fours with the present, and we do not say that the principle is applicable, without qualification, to every case where baggage is delivered by an intending passenger at the place appointed by the carrier for the reception and checking of such baggage. But that there may be a case where the responsibility of the carrier as such does not arise until the intending passenger gives direction as to the destination of the baggage, we think there can be no doubt. The Massachusetts case heretofore referred to furnishes a fair illustration, and we think, upon full consideration, that this is such a case. If, after the plaintiff had changed her mind as to going upon the journey, the trunk had been lost or destroyed, without failure on the part of the defendant to exercise ordinary care during the reasonable time which, according to the course of business and usage of the company, she had to call for and take it away, it could 'scarcely be claimed that the company was liable for the loss. The more reasonable view to take of the case, under its peculiar and exceptional circumstances, is that during that time the company owed the duty of exercising ordinary care, but had not assumed the duty of exercising the extreme care devolving upon a common carrier. It follows that the case is not controlled by the provisions of the public service commission law of 1907; and it seems equally clear that the defendant was not a mere gratuitous bailee, but was liable as a warehouseman.

The question raised by the sixth assignment of error, so far as it relates to the value of the plaintiff’s clothing contained in the trunk for use by her, as distinguished from what it could be sold for in the market, is answered by the decision in Fairfax v. New York Central & Hudson River Railroad Co., 73 N. Y. 167, where the court said: “The court did not err in charging the jury that the plaintiff was entitled to recover the full value of the clothing for use to him, in New York, and not merely what it could be sold for in money. The clothing was made to fit the plaintiff, and had been partly worn. It would sell for but little, if put into market to be sold for secondhand clothing, and it would be a wholly inadequate and unjust rule of compensation to give plaintiff, in such a case, the value of the clothing thus ascertained. The rule must be the value of the clothing for use by the. plaintiff. No other rule would give him compensation for his damages. This rule must be adopted because such clothing cannot be said to have a market price, and it would not sell, for what it was really worth.”

The judgment is affirmed.


author: Morrison, J.,

text:
    Commonwealth, Appellant, v. Gould.
    July 20, 1910:

      Practice, C. P. — Affidavit of defense — Appeal from order discharging rule — Doubtful case — Ejectment—Mesne profits — Bond.
    The appellate court will not reverse an order discharging a rule for judgment for want of a sufficient affidavit of defense, where the questions of law raised by the statement, of claim and the affidavit of defense. are close and doubtful. This rule is applicable to an action brought on an appeal bond in ejectment given in pursuance of the Act of May 19, 1897, P. L. 67, to recover mesne profits, where the right to recover such profits in an action on the bond is denied, and where the jurisdiction of the court in which the suit is brought is questioned.
    Argued Dec. 15, 1909.
    Appeal, No. 242, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 1,440, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Harry L. Randal v. Isador M. Gould and the National Surety Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      Stanley Folz, with him Leon H. Folz, for appellant.

      J. G. Kaufman, with him B. I. DeYoung and V. Gilpin Robinson, for appellees.
   Opinion by

Morrison, J.,

This was an action brought on a bond, dated December 22, 1908, given by the defendants on an appeal to the Supreme' Court from a judgment in a suit in ejectment against the said Isidor M. Gould in the court of common pleas No. 2 of Philadelphia county. After the affirmance of the judgment in that case, the present action was brought to recover the mesne profits on the real estate in controversy in the ejectment suit. The learned court below, on argument and consideration, refused to enter judgment in the present case for want of a sufficient affidavit of defense and the plaintiff appealed from the order of the court discharging his rule for judgment. The learned counsel for the plaintiff stated at bar in the argument of this case that the bond sued upon was given in pursuance of the Act of May 19,1897, P. L. 67, and that he did not contend that the bond was any broader than provided for in said act.

The affidavit t of defense denied the right of the plaintiff to recover mesne profits in the action on the bond in this case till after the amount of the said profits shall have been ascertained in the manner provided by the said act of May 19, 1897. It is further denied that the use plaintiff is entitled to recover more than one-half of the mesne profits for the reason that the title to the other half of the real estate in question has been vested in Brinah Rheinstrom since October 3, 1906, and the affidavit of defense avers that said Harry L. Randal so stated in an affidavit of defense filed by him in a certain suit of the Orient Building & Loan Association v. Harry L. Randal and others, said suit being in common pleas No. 5 of Philadelphia county at No. 3,457, June Term, 1909. The defendant’s counsel in the present suit take the position that it is not brought in the proper court, averring that under the rules of the courts of Philadelphia county, the suit on the present bond must be brought in common pleas, No. 2, where it was filed. It is further contended that no suit can be maintained on said bond to recover mesne' profits until after the amount of such profits shall have been ascertained by a suit in trespass. The act of May 19, 1897, under which the bond was given, contains the following: “That he will pay whatever mesne profits, accruing after the judgment shall be thereafter recovered against him, and all costs and damages awarded by the appellate court or legally chargeable against him.” The affidavit of defense further denies that the mesne profits amount to $700 as claimed by plaintiff.

In our opinion, the questions of law raised by the plaintiff’s declaration and the affidavit of defense are somewhat close and doubtful. And we do not deem it so clear a case of a mistake of law by the lower court as to justify a reversal and the entry of a final judgment. An appeal from an order refusing judgment for want of a sufficient affidavit of defense was first given by the Act of April 18, 1874, P. L. 64, and as early as 1876 in Griffith et al. v. Sitgreaves, 81* Pa. 378, our Supreme Court said: “The Act of Assembly authorizing writs of error to be taken when a court of common pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defense, was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Its effect is often to produce two writs of error in the same cause, instead of one, and is not to be encouraged.”

So far as we can learn the above doctrine has been adhered to by our Supreme Court from that time until the present. In Ensign v. Kindred, 163 Pa. 638, we find the Supreme Court reaffirming the same doctrine. Again, in Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, the Supreme Court said: “An order discharging a rule for judgment for want of a sufficient affidavit of defense, will not be reversed by the Supreme Court in doubtful and uncertain cases but only such as are very clear and free from doubt.” This court has many times followed the same rule. See Building Association v. Wampole, 6 Pa. Superior Ct. 238; Shea v. Wells, 8 Pa. Superior Ct. 511; Arnold v. Stoner, 18 Pa. Superior Ct. 537. We might multiply citations almost without number to the same effect, but it is unnecessary.

Notwithstanding the very able argument of appellant’s counsel, we feel constrained to allow this case to go to a trial before a court and jury, and the specifications of error are therefore dismissed.

The appeal is dismissed at the costs of the appellant without prejudice, etc.


author: Oblad y, J.,

text:
    House of Refuge v. J. T. Dyer Company, Appellant.

      Nuisance — Quarry—Dynamite—Injuries to buildings — Disturbance of rest.

    A quarry company which blasts between 5.30 and 7 o’clock in the morning and uses dynamite in such excessive quantities and in such a manner as to produce violent vibrations and concussions to the injury of buildings and lands, will be restrained by injunction from so conducting its business, where it appears that the quarry is in a residential neighborhood, that most of the person's affected owned their property for a longer period than the existence of the quarry, and that the continuance of the improper quarrying would impair the value of property in the immediate neighborhood.
    Argued Dec. 16, 1909.
    Appeal, No. 81, Oct. T:, 1909, by defendants, from decree of C. P. Delaware Co., Dec. T., 1906, No. 175, on bill in equity, in case of House of Refuge v. John T. Dyer Company et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding an injunction.

      William Taylor, O. B. Dickinson and L. N. Childs, for appellants.
    No legal injury arises from acts and operations which are confined to the land owned by a defendant and which are in the course and process wholly of a development of the natural products of the land: Penna. Coal Co. v. Sanderson, 113 Pa. 126.
    No injunction should go out against the continuance of a business unless and until the fact of nuisance has first been established by an action at law: Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18 (25 N. E. Repr. 246); New Castle v. Raney, 130 Pa. 546.

      July 20, 1910:
    The court found as a fact that none of the complainants had sustained any damage except on two occasions in November, 1906. Because of such a damage it must be conceded equity would not interfere. The complaint, therefore, is confined to the annoyance from noise and concussions not accompanied with physical injury and which affect generally all persons within the circle of its reach, and such effects being common to all alike, although in varying degrees, no one or more persons could maintain a bill therefor: Sparhawk v. Railway Co., 54 Pa. 401.
    A business will not be enjoined unless the results to others are real and substantial injuries: Price v. Grantz, 118 Pa. 402.

      George T. Butler, with him N. Dubois Miller, for appellees.
    That a bill in equity asking for an injunction to restrain interference with private property will lie, in such cases as the present, without a previous action at law, is settled beyond all dispute. See Walters v. McElroy, 151 Pa. 549; Booher v. Browning, 169 Pa. 18; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649; Sullivan v. Steel Co., 208 Pa. 540.
    Everything that disturbs in an unreasonable degree the quiet enjoyment of a home or dwelling house is a nuisance: Wallace v. Auer, 10 Phila. 356; Stokes v. R. R. Co., 214 Pa. 415; Sullivan v. Steel Co., 208 Pa. 540; Hauck v. Pipe Line Co., 153 Pa. 366; Payne v. McGranor, 49 Pitts. L. J. 96; Bennington v. Klein, 6 W. N. C. 281; Frazier v. Pennypack Trap Rock Co., 17 Montg. 105; Ladies’ Decorative Art Club’s App., 22 W. N. C. 75; Seligman v. Talking Machine Co., 63 Atl. Repr. 1093.
   Opinion by

Oblad y, J.,

The complainants, a number of property owners, filed this bill in equity against the defendant, an incorporated quarrying company, whose business is conducted in the immediate vicinity of their properties, in order to restrain it from blasting in its quarries before seven o’clock in the morning; and to prevent such excessive blasting with dynamite as had produced certain violent vibrations and concussions that had jarred their grounds and injured their buildings, and had cast upon their premises and over a public highway a large quantity of stones, earth, etc. An answer was filed, and after a large amount of testimony had been taken by both parties, the court directed an injunction to issue in substantially the same form as prayed for.

The defendant owns and operates extensive quarries at Locksley for the manufacture and sale of crushed stone, which have been opened for about fifteen years, and have been owned by the defendant for about seven years. The operation represents an investment on the part of the defendant of about $140,000, and gives employment to 150 men. A public highway is located about 800 feet, and a railroad about 600 feet, from the face of the quarries. Nearly all the complainants owned their properties before the defendant purchased the quarries. The blasting is performed by the use of dynamite which it is customary to discharge in the mornings between the hours of 5:30 and 7 o’clock, and at noon between the hours of 12 and 1 o’clock. The most important findings of fact, which are fully sustained by the testimony, are as follows: the face of the quarry is thrown down by heavy charges of dynamite which is placed in deep holes that are drilled into the front of the rock and, when discharged, cause large blocks of rock to be detached and thrown into the bed of the quarry. These bowlders or masses of rock are then broken into smaller pieces by two methods so as to enable them to be placed readily in the heavy crushers, the first being a mud capping process, which consists of laying several sticks of dynamite on the top of a rock and covering them with mud and quarry dirt, having first attached to the dynamite a fuse about four feet in length. A large number of these charges are exploded at the same time by a number of men lighting the fuses as rapidly as possible so as to produce nearly a simultaneous discharge. The second process is known as block holing, which is done by drilling holes into the masses of detached rock and in these pieces of dynamite, one to one and a half inches in length, are inserted and exploded by fuses. The noise and concussion produced by the mud capping is at least ten times greater than that caused by the other method. There is practically no difference between the two systems from the commercial view-point either in cost or effectiveness, except that the mud capping requires less time but produces more noise and concussion; while by the block holing there is greater danger from flying spalls, because of concealed fissures in the rock. The vibrations and concussions of the air caused by the mud capping were so extensive at these quarries that buildings on adjoining and nearby properties were visibly shaken; windows were broken; electric wiring and connections were disturbed; plastering in the houses was shattered and the walls cracked; the roofing on some of the houses was damaged; and the market value of some of the properties was impaired; the rest and peace of residents in the near neighborhood was disturbed from 5:30 to 7 o’clock a. m., on account of the noise and vibration; and stones were thrown by the blasts onto the public highway 800 feet distant. The complainants’ ninth request for findings of fact with the answers thereto are as follows: “The manner in which the defendant operates its quarry at Locksley is unreasonable, negligent and reckless, in that the blasts are unnecessarily loud and severe.” Answer: “Not found as to general operation of the quarry, but found as requested at certain times when mud blasts were set off.” It was urged by the complainants that the defendant has gradually become more reckless and the blasts more violent as shown by this finding. The defendant contends that its system of blasting is the one best adapted to its purposes and is generally in use in such industries, and the methods were the most practical because they were the most efficacious; and urged that to enjoin the present methods would seriously interfere with the commercial success of the business. The answer to this is found in the findings of fact by the court and after a thorough examination of the whole record we find abundant authority for the conclusion reached. Whether the business as conducted by the defendant was a nuisance at all depended wholly upon the proof: Gavigan v. Refining Co., 186 Pa. 604. While it is conceded that the business is prima facie a lawful one and is not necessarily attended with dangerous results, before it can be enjoined it must be shown by affirmative proof to be conducted in such a careless manner as to become a nuisance. The character of the business, the manner in which it is conducted, its location and relation to other property are all to be considered in determining the question as to whether it is a nuisance or not a nuisance: Evans v. Fertilizing Co., 160 Pa. 209; Kiser v. Kerbaugh, 40 Pa. Superior Ct. 163.

From the record it is apparent that the extreme blasts of dynamite, of which complaint has been made, are either the result of recklessness in the use of a dangerous explosive, or that the defendant uses such heavy charges merely for its financial benefit. In either light it is an unwarranted act and should-be restrained. The argument of the appellant and the authorities it relies upon are so fully and conclusively disposed of in Sullivan v. Steel Co., 208 Pa. 540, and 222 Pa. 72, that it is not necessary to repeat them here.

It is not suggested that the defendant should abandon its quarry, but the law requires that it shall conduct its business in such a manner as not to endanger life, disturb the peace of residents and depreciate the market value of private property in its immediate neighborhood. Many of these complainants were first on the ground, their properties were developed and improved in this attractive, suburban location, which is rapidly becoming residential in character. The House of Refuge, which adjoins the defendant’s property, is an important public institution with more than seven hundred inmates. While this quarry has been in active operation, for a number of years another one of like character in the immediate neighborhood has been so operated as not to cause such results as are complained of in this case.

The facts found and admitted make out a proper case for regulation by the courts of the manner in which even this lawful business shall be conducted. If this severe blasting, which affects so large an area of country, is not restrained, it will naturally’ and inevitably result in the lowering of values in this suburban settlement to the standard of a mere quarry district. The defendant admits that the blasts from 5:30 to 7 a. m. are made as a pure matter of financial advantage, and such alarming detonations at 5:30 a. m., during the hours devoted to rest, must have a higher warrant for their continuance than the mere commercial advantage of an individual operator.

The decree entered is a reasonable one under all the facts of the case, and it is affirmed.


author: Head, J.,

text:
    Baile, Appellant, v. Robinson.

      Trusts and trustees — Conveyance of property — Breach of trust.

    Where in. an action of trespass it appeared that the plaintiff, a contractor for a building operation, agreed in writing to take a note from the owner, for work to be done with the equity in one of the houses of the operation as security for its payment, and it also appears that on the very day of the written agreement, the owner conveyed the building in question to a third person without consideration, and such person conveyed to the defendant also without consideration, and with full knowledge of the written agreement, and the defendant conveyed the property to an innocent purchaser for value who held it without any record or actual knowledge of the agreement, but it does not appear at what time the work was finished or that the plaintiff had ever demanded an assignment to him of the equity, or that the owner was insolvent at any time prior to the bringing of the suit, the plaintiff has no standing to recover damages from the defendant on the theory that the latter held the title in trust for the plaintiff and that he committed a breach of trust in making the conveyance which he did.
    Argued Dec. 17, 1909.
    Appeal, No. 240, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 3,976, for defendant on demurrer to statement in case of Robert Baile, to use of Robert Baile Company, Incorporated, v. Alexander D. Robinson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for an alleged' breach of trust.
    Demurrer to statement.
    The court in an opinion by Wiltbank, J., sustained the demurrer and entered judgment for defendant.

      Error assigned was the judgment of the court.

      Charles Kuni, Jr., for appellant.
    It is well settled in Pennsylvania, that a conveyance of real estate as security for a debt is a mortgage: Mellon v. Lemmon, 111 Pa. 56, and as the clause in the contract is an agreement to “set aside” a specific property as “collateral security” for the deferred payment, it is an agreement to give a 'mortgage.
    Said agreement to give a mortgage raises a trust. This will clearly appear from the principle stated in the case of Bridgeport Electric & Ice Co. v. Meader, 72 Fed. Repr. 115.
    McBride, holding title to said premises in trust as collateral security in favor of the plaintiff for the deferred payment, when Fetter and Robinson, respectively, took title to said premises from and through him, as volunteers and with notice of said agreement, they held said title subject to the same trust: Coble v. Nonemaker, 78 Pa. 501.

      July 20, 1910:
    The defendant holding title to said premises thus impressed with a trust in favor of the plaintiff, committed a breach of trust and a fraud, when he conveyed said premises to Oettinger, and he is liable to the plaintiff for the damages so sustained, in an action of trespass.

      Wayne P. Rambo, with him Ormond Rambo, for appellee.
    Even/ a written defeasance signed by the grantee, but unacknowledged and unrecorded, though contemporaneous with the execution and delivery of a deed absolute on its face will not be admitted to convert such deed into a mortgage: Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325; Crotzer v. Bittenbender, 199 Pa. 504; Lohrer v. Russell, 207 Pa. 105; Safe Dep., etc., Co. v. Linton, 213 Pa. 105; Sterck v. Germantown Homestead Co., 27 Pa. Superior Ct. 336.
    That the statement does not show any declaration otrust in writing, as required by sec. 4 of the Act of April 22, 1856, P. L. 532.
    No trust ex malificio arises, for the conveyance was absolute and nothing subsequently said by a grantee will turn an estate that has passed absolutely from the grantor into a trust: McCloskey v. McCloskey, 205 Pa. 491.
   Opinion by

Head, J.,

The judgment from which this appeal is taken was entered on a demurrer to the statement of claim. The material facts therefore must be gathered from the averments of the statement and the written article of agreement which is made part of it. It appears that one McBride had undertaken to improve thirteen lots in the city of Philadelphia by the construction of buildings thereon. These lots were in two separate parcels. Four of them fronted on the south side of Walnut street east of Fifty-second and nine of them fronted on the north side of Chancellor street east of Fifty-second, all being in the twenty-seventh ward. We think we may safely assume from the record, although it is not so specifically stated, that the legal title to all of the lots was then in McBride. Whatever may have been the condition of the remaining lots, it clearly appears that the one which is the subject of this controversy was incumbered, as he held it, to the extent of $1,800.

The plaintiff entered into a written contract with him to furnish the labor and material necessary to do the heating and range work in all of these thirteen buildings for the sum of $875. The agreement provided that $500 was to be paid in cash from time to time as the work progressed, and that the plaintiff would accept the note of McBride at three months for $375, the remainder of the contract price. This note was given when the work was completed and the plaintiff agreed that he would renew it once for a further period of three months upon the payment of the. discount by McBride. The contract further provided that the plaintiff should not enter a mechanic’s lien against the property, and the owner in turn stipulated that “as collateral security for the payment of the said note the said McBride agrees to set aside the equity in No 6 upon the plan of the operation subject to an encumbrance of $1,800.” The agreement contained no other description of the lot referred to except that in the language quoted. This agreement is not dated except as to year, to wit, 1905. The statement of claim, however, avers that it was executed and delivered on or about August 11, 1905.

On that very day McBride and his wife executed and delivered to one Fetter a deed for one of the thirteen lots covered by the agreement, which, according to the averment in the declaration, was the same lot specified as No. 6 in the agreement. This deed was duly recorded on the next day, August 12. Fetter held the title thus conveyed to him until March 17, 1906, when, by a deed of that date, he conveyed the lot to Alexander D. Robinson, the present defendant. This deed was recorded on September 18, 1906. Robinson, by a deed dated September 7, 1906, and recorded on September 18 of the same year, conveyed the same lot to Aaron Oettinger. It is agreed on all hands that this last-mentioned conveyance was made to an innocent purchaser for value and that he thereby took such a clear title to the lot as removed it entirely from the scope of this inquiry.

The plaintiff, however, alleges that both Fetter, the immediate grantee from McBride, and his grantee Robinson, the present defendant, were mere volunteers. That neither one of them paid any consideration for the respective conveyances to them, and that every remedy that would have been available to the plaintiff as against McBride is equally available as against Robinson, the present, defendant.

The plaintiff’s theory, on which he bases his right to recover in this action, may be thus stated: McBride in his written agreement undertook “to set aside the equity in No. 6 as collateral security” for the payment of the note provided for in the agreement. That this undertaking amounted to a covenant- to execute a second mortgage upon that lot. That as between the parties, equity will regard that as done which was agreed to be done. Although the mortgage was never in fact executed or the equity set aside in the language of the contract, McBride thereafter held that equity impressed with a trust for the benefit of the plaintiff to the extent of the credit he gave. That McBride, being thus a trustee of the legal title for the benefit of the plaintiff, Robinson, who took that title from him as a volunteer, with notice of the agreement, took it impressed with the same trust. That when Robinson, so holding the title in trust to that extent for the plaintiff, sold the lot to an innocent purchaser, he committed a willful breach of the trust and made himself liable in damages in an action on the case, now trespass, to his cestui que trust, the plaintiff, and must answer for the loss which the plaintiff has sustained by that breach of trust.

The argument is plausible and at first blush the conelusion drawn from it cannot be escaped without some difficulty. As we view it, the plaintiff’s contention cannot be directly answered by invoking the Act of June 8, 1881, P. L. 84, denying effect to parol or unrecorded defeasances intended to convert a deed absolute on its face into a mortgage. The plaintiff does not allege that the present defendant or his predecessor in title, or McBride, the common ancestor, had lent money and taken the title to secure its repayment. There is no attempt here to cut down any one of the conveyances referred to from a deed absolute on its face to a mortgage. Nor do we think the theory of the plaintiff, if otherwise sound, could be answered by the interposition of the Act of April 22, 1856, P. L. 532, on the subject of trusts. The reason is that if the trust for which the plaintiff contends exists at all, it was créated by the written agreement of August 11, 1905, and results from the construction which the law puts on the covenant in that agreement which we have quoted. This trust, therefore, if it- exists at all, exists by implication or construction of law, and is manifested by a writing.

But if, as the record stands, we are obliged to assume that every averment of fact in the statement is established, we have the further right to assume that the plaintiff has stated his case as strongly as he can. Especially is this true where, as in this case, the legal sufficiency of his statement is attacked by demurrer and he does not undertake to amend. It is also true that although neither one of the two acts of assembly cited will overthrow the plaintiff’s claim, their significance as illustrative of the general policy of our law, is neither to be overlooked nor forgotten.

The present defendant holds a recorded deed purporting on its facé to convey to him a fee simple title for the ground which it describes, subject only to such incumbrances as are mentioned in it or duly evidenced by the records at the time he took his conveyance. If the plaintiff’s contention be sustained, that deed it is true will not be declared to be a mortgage, but in fact it will be cut down in quantity and value by making the estate therein conveyed subject to a trust not referred to in the deed and not evidenced by any of -those records from which a grantee ordinarily ascertains to what extent, if any, the estate which he takes is burdened or incumbered.

When the plaintiff therefore seeks to impress upon real estate conveyed to Robinson, the defendant, by a deed absolute on its face, a secret trust, not evidenced by any recorded writing, the burden is clearly on him to exhibit a case showing affirmatively every fact that would require the law, on well-settled principles, to declare and enforce the trust which the parties themselves have not adequately provided for.

Now it is clear, according to the statement, that even if the lot which McBride conveyed to Fetter and the latter conveyed to Robinson is the same lot referred to in the agreement between the plaintiff and McBride — and this does not clearly appear from the statement — there was no impediment to the conveyance by McBride to Fetter. This conveyance was made on the same day as the agreement. The lot was not then impressed with any trust because the agreement provided only for a future subjection of it to the alleged trust. The plaintiff had not done any work. He might never do it. McBride had not yet asked for "the credit which the agreement provided he might ask for. Of course, it was his privilege to pay the plaintiff in cash on the completion of the work, and if he had done so, then the alleged trust never would have arisen. The statement does not aver when the work was completed and we therefore do not know when the plaintiff’s right to have his note accrued. The record does not show in whose hands the legal -title to the lot was, when the work was completed and when the plaintiff had a right to demand not only the note but the collateral security for it mentioned in the agreement. There is no averment that the plaintiff was ignorant of the various transfers of the title as they were evidenced by the record, nor is there any that when the time had arrived for the giving of the note that McBride was insolvent or that the plaintiff was unwilling to accept his personal obligation for the deferred payment. There is no averment that the plaintiff ever demanded from McBride, when he gave the first note evidenced by the record or any renewal thereof, the collateral security which the original agreement called for. So far as the record shows, McBride never sought or obtained credit to the extent provided for in the written agreement. There is no evidence that he gave any note earlier in date or for a greater amount than the note of August 22,1906, for $300. This was a note for thirty days and was renewed on September 21 for a like amount at three months. That renewal note was in turn renewed on December 24, 1906, again for a period of three months, falling due in March, 1907.

As already stated, there is no averment as to the financial condition of McBride, save only the one that at the time suit was brought he was financially unable to pay his note. The declaration does aver that both Fetter and Robinson had notice of the original agreement between Baile and McBride dated in August, 1905. That agreement, even if read by either or both, would not necessarily bring home to them knowledge of the fact that the lot which McBride conveyed was the same lot referred to in his agreement with the plaintiff. Indeed the fact that his conveyance to Fetter and agreement with the plaintiff were dated on the same day would lend color to the conclusion that the lot he conveyed was not the one which he had agreed to set aside to secure the plaintiff. But even with this knowledge Fetter had a right to take a conveyance from McBride and rely on the propositión that he would discharge the Covenant in his agreement when and in the manner he was therein required to do. If, when settlement time came, McBride increased his cash payment, and thereby diminished the amount of his note, and if, instead of asking three months’ credit he averred his ability to pay in thirty days, the plaintiff could, if he chose, accept this personal obligation. But he undoubtedly had the right to insist on his agreement being performed according to its terms. When McBride offered his note for $300 at thirty days, the plaintiff had a right to insist that he should furnish the collateral security which his agreement provided for. If he was unable or unwilling to do so, the dependent covenant of the plaintiff not to file a mechanic’s lien fell, and he was at liberty to avail himself of every remedy offered him by law to secure the balance of the money due him.

But if, knowing the situation as it was evidenced by the record — and he does not aver that he did not know it— he chose to accept the personal obligation of McBride without requiring any collateral security, we feel unable, in the light of the acts of assembly referred to and the general policy of the law, to hold that the lot of ground conveyed to this defendant was impressed with a secret trust and that the defendant can be held to answer any damages for the alleged breach of that trust.

The defendant; therefore, having no contractual relation whatever with the plaintiff, and having committed, as we view it, no willful breach of a trust seated upon the property he conveyed, was not liable to answer to the plaintiff in this action, and the learned court below was right in entering judgment on’ the demurrer in favor of the defendant.

Judgment affirmed.


text:
    Feingold, Appellant, v. Katz.

      Evidence — Examination of witness — Offer of proof — Failure to make offer.

    Where an assignment of error is to the rejection of an offer, made at the proper time, to prove relevant and material facts by a competent witness, it must be assumed by the appellate court that if the evidence had been admitted it would have come up to the offer; but where a question insufficient in itself, is not accompanied by an offer, and the court overrules it, there is nothing before-the appellate court by which it can determine whether the party asking the question had been injured, and the assignment of error will be overruled. In such a case it is the duty of. the party to make a proper offer so as to show the relevancy of the question. The fact that if the question had been more specific, it would have been objectionable as leading, is not an excuse for failing to make a proper offer.
    July 20, 1910:
    Argued Dec. 17, 1909.
    Appeal, No. 261, Oct. T., 1909, by plaintiff, from decree of,C. P. No. 1, Phila. Co., March T., 1909, No. 5,464, dismissing bill in equity in case of Max Feingold v. Louis Katz.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity to declare a sale void and for a receiver for partnership assets. Before Brégy, P. J.
    The opinion of the Superior Court states the case.
    The court entered a decree dismissing the bill.

      Errors assigned are stated in the opinion of the Superior Court.

      E. Spencer Miller, for appellant.

      John Weaver, for appellee.
   Opinion by

Rice, P. J.,

The learned counsel for the appellant states the question involved as follows: "Whether equity will intervene for the relief of a partner who is the victim of fraud in the course of dissolution of the partnership, whereby the other partner has become possessed exclusively of the assets of the firm, which he acquires on the. footing of an agreed interpretation of ambiguous words in the stipulated plan of dissolution, which agreed interpretation such other partner repudiates after he has gained possession of the assets?” This may be taken as a sufficient statement of the general scope of the bill, if coupled with the explanatory statement that the stipulated plan of dissolution was in writing and included the submission of each, and all manner of disputes, differences and controversies of whatsoever nature between the parties to the “award, order, final end, decision and determination” of two persons named as arbitrators, who were given power, in case of their disagreement as to any matter, to refer the same to an umpire to be selected by them.' On the trial of the case the plaintiff called one of the arbitrators as a witness, who, after he had testified to certain preliminary matters, was asked the question which is quoted in the first assignment of error; but as no exception was taken to the ruling excluding the question, we need not discuss that assignment. Thereupon the plaintiff asked the witness the question embraced in the second assignment, which we quote: “Please state whether the parties, Mr. Feingold and Mr. Katz, joined orally in any modification of the terms of the written agreement during the sessions of the arbitrators, and agreeing between themselves on a point not contained in the agreement of arbitration and dissolution.” To this a general objection was interposed, which the court sustained and the plaintiff excepted. The plaintiff then introduced the award of arbitrators in evidence and rested without making any other offer or introducing any other evidence. The question for decision, before coming to the question as stated by counsel, is whether under the circumstances above stated error was committed which materially injured the plaintiff. This, it seems to us, is left by the record to mere surmise. Where an assignment of error is to the rejection of an offer, made at the proper time, to prove relevant and material facts by a competent witness, it must be assumed by the appellate court that if the evidence had been admitted it would have come up to the offer. But here there was no formal offer accompanying the question. The question was objectionable in that it called for the witness’s conclusion upon a mixed question of law and fact. But apart from this objection and assuming, for the purposes of this discussion only, that it would have been a legitimate question to ask in support of a clear and distinct offer to prove relevant and material facts, the objection remains that, by reason of the plaintiff’s omission to make such offer, we are left wholly to conjecture as to whether the answer of the witness would have been in the affirmative, and, if so, as to whether the point concerning which the oral agreement was made was one involved in this issue. It may be said that if the question had been more specific it would have been objectionable as leading. But that furnishes no reason for not accompanying the question by a clear and distinct offer showing the facts which the plaintiff proposed to prove; the trial court and this court would then have had a clear view of the legal question to be decided. In Piper v. White, 56 Pa. 90, it was said: “It is the duty of a party in making an offer of evidence to state its purpose in such manner that the court may perceive its relevancy.” In Germantown Dairy Co. v. McCallum, 223 Pa. 554, the rule was reiterated and its application enforced where the admissibility of the offer was challenged, and the same was done in Lieb v. Painter, 42 Pa. Superior Ct. 399. In Hentzler v. Weniger, 32 Pa. Superior Ct. 164, the appellant complained of the action of the court in sustaining the objection to his offer to testify to what the testatrix said to him, at the time he drew her will, with reference to the bequest to the plaintiff and with reference to the treatment which she received at the hands of the plaintiff and his wife. But the offer did not set forth the substance or purport of those declarations so as to enable us to determine whether they were favorable or otherwise to the appellant, and we said that according to the ruling in Harris v. Tyson, 24 Pa. 347, this, of itself, would be a valid reason for overruling the assignment. So in Kittanning Borough v. Garretts Run Gas Co., 35 Pa. Superior Ct. 167, it was said that an offer of evidence should aver with reasonable distinctness and certainty the facts sought to be proved, because, without this, the appellate court is not able to say that the rejection of the offer caused any injury. What we said in Kershner v. Kemmerling, 24 Pa. Superior Ct. 181, is not in conflict with the foregoing; it recognizes the right of the opposing counsel to call for an offer where the relevancy of a question put to a witness does not appear in the question itself or in anything that has preceded. But that does not imply that it is not incumbent on the party making the offer to make it sufficiently broad and sufficiently explicit to enable the appellate court, in case of its rejection, to determine whether the ruling injured him or not. Whether the question embraced in the second assignment be regarded merely as such, or as an offer to prove the facts alluded to in the question, it is not apparent that the ruling harmed the plaintiff, and therefore this assignment is overruled.

The third and fourth assignments need not be elaborated upon, because, in the absence of any evidence sustaining the allegations of the bill, the decree was clearly right.

The decree is affirmed at the costs of the appellant.


text:
    Jack, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Relief department — Former judgment.

    A widow who as administratrix of her deceased husband recovers a judgment in New Jersey against a railroad company for the negligent killing of her husband, and collects such judgment, is precluded from bringing an action in Pennsylvania as beneficiary under a certificate of membership of her husband in the relief department of the railroad company, where the regulations of the relief department provide that a judgment in a suit for damages against the company shall preclude any claim upon the relief fund for benefits on account of injury or death.
    Argued Dec. 17, 1909.
    Appeal, No. 253, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., Sep,t. T., 1907, No. 2,686, discharging rule for judgment for want of a sufficient affidavit of defense in case of Margaret M. Jack v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover death benefits.
    The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.

      Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      Horace M. Bumsey, with him Bleakly & Stockwell, for appellant.
    The contract and release are insufficient in law to bar recovery by plaintiff: Goldey v. Penna. R. R. Co., 30 Pa. 242; Penna. R. R. Co. v. Henderson, 51 Pa. 315; Penna. R. R. Co. v. Butler, 57 Pa. 335; Grogan v. Express Co., 114 Pa. 523; Burnett v. R. R. Co., 176 Pa. 45; Hughes v. R. R. Co., 202 Pa. 222; N. Y. Cent. R. R. Co. v. Lockwood, 84 U. S. 357; Penna. R. R. Co. v. Hughes, 191 U. S. 477 (24 Sup. Ct. Repr. 132).
    The plaintiff cannot be deprived of her right of recovery by reason of the alleged release: Chicago, etc., Ry. Co. v. Healy, 76 Neb. 783 (107 N. W. Repr. 1005); Boulden v. R. R. Co., 205 Pa. 264; Kober’s Est., 17 Pa. Dist. Rep. 184; McKeering v. R. R. Co., 65 N. J. Law Repr. 57 (46 Atl. Repr. 715); Cowen v. Ray, 108 Fed. Repr. 320.

      John Hampton Barnes, for appellee.
    -The contract made by the decedent in his lifetime with the defendant was not against public policy, but was valid: Johnson v. P. & R. R. R. Co., 163 Pa. 127; Ringle v. Penna. R. R. Co., 164 Pa. 529.
    There does not appear to be reported any Pennsylvania case in which the facts were exactly similar to those disclosed by this record. It has been held in this state that a person who accepts benefits cannot maintain an action for personal injuries: Johnson v. P. & R. R. R. Co., 163 Pa. 127; Ringle v. Penna. R. R. Co., 164 Pa. 529; Boulden v. R. R. Co., 205 Pa. 264; Oyster v. Burlington Relief Dept., 65 Neb. 789 (91 N. W. Repr. 699); Donald v. C., B. & Q. Ry. Co., 93 Iowa, 284 (61 N. W. Repr. 971); Fuller v. B. & O. Employees’ Relief Association, 67 Maryland, 433 (10 Atl. Repr. 237).
    July 20, 1910:
   Opinion by

Morrison, J.,

The plaintiff, Margaret M. Jack, is the widow of William C. Jack who was an employee of the defendant railroad company at the time of his death on February 9, 1906. On July 13, 1906, the plaintiff, as administratrix of the estate of William C. Jack, deceased, brought an action against the West Jersey & Seashore Railroad Company in the Circuit Court of Camden county, New Jersey, to recover damages for the death of the said William C. Jack, and judgment was recovered by her in said suit on December 7,1906, for $7,500 which has since been paid to said administratrix by said railroad company.

On October 17, 1907, the said Margaret M. Jack brought the present suit against the Pennsylvania Railroad Company for $500 for death benefits alleged to be due her as the beneficiary of the said William C. Jack under a certificate of membership in the Pennsylvania Railroad Voluntary Relief Department, a beneficial organization maintained by the said Pennsylvania Railroad Company, which embraces in its system the West Jersey & Seashore Railroad Company, for the benefit of its employees, in accordance with certain rules and regulations of said relief department.

The plaintiff’s right to recover in this suit would hardly be questioned if she had not brought the former action and recovered and collected the said judgment of $7,500. One of the regulations governing the Pennsylvania Railroad Voluntary Relief Department is the following:

“58. Should a member or his legal representative make claim, or bring suit, against the company, or against any other corporation which may be at the time associated therewith in administration of the Relief Departments, in accordance with the terms set forth in Regulation No. 6 for damages on account. of injury or death of such member, payment of benefits from the Relief Fund on account of the same, shall not be made, until such claim shall be withdrawn or suit discontinued. Any compromise of such claim or suit, or judgment in such suit, shall preclude any claim upon the Relief Fund for benefits on account of such injury or death, and the acceptance of benefits from the Relief Fund by a member or his beneficiary or beneficiaries, on account of injury or death, shall operate as a release and satisfaction of all claims against the company and any and all of the corporations associated therewith in the administration of their Relief Departments, for damages arising from such injury or death.”

The defendant in its affidavit of defense in the present case set forth the above regulation and alleged that the recovery by Margaret M. Jack, administratrix, of $7,500 from the West Jersey & Seashore Railroad Company, as damages on account of the death of William C. Jack, precluded a suit by her in her individual capacity as beneficiary named in the application of the decedent to the Pennsylvania Railroad Voluntary Relief Department, and that on account of this suit and recovery therein, the plaintiff was not entitled to recover the said sum of $500. The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense, and on January 11, 1909, the court below made the following order:

“We are of opinion that this case is ruled by the case of Johnson v. Phila. & Reading Railroad Company, 163 Pa. 127. The rule for judgment is therefore discharged.”

The assignments of error simply allege reversible error based on this order.

It must be conceded that if said rule 58 is enforceable as to all of its provisions, the court below did not err in discharging the rule for judgment. The Johnson case cited by the court expressly decided, as stated in the syllabus:

“Where a railroad company has contributed to the funds of a relief association composed of its employees, an agreement by a member of the association that the acceptance of benefits from the relief fund 'for injury or death shall operate as a release of all claims for damages against said company,’ is not contrary to public policy, and does not violate the rule that a common carrier cannot make a valid contract against his own negligence. In such a case there is no waiver of any right of action that the person injured may thereafter be entitled to. It is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release. The injured party therefore is not stipulating for the future, but settling for the past; he is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby.”

That case was followed by Ringle v. Penna. R. R. Co., 164 Pa. 529, where the same doctrine is recognized and enforced in an opinion by Mr. Justice Mitchell. The first paragraph of the syllabus of that case is as follows:

“A contract between employer and employee which preserves to the latter all his rights of action, in case of negligence, until after the facts have occurred and are known to him, is not against public policy. In such a case it is not the signing of the release, but the acceptance of benefits after the accident, that constitutes the release.”

These cases settle the law that the provision that the acceptance of benefits from the relief fund “for injury or death shall operate as a release of all claims for damages against said company,” is not contrary to public policy, and does not violate the rule that a common carrier cannot make a valid contract against its own negligence.

It is contended, however, that the doctrine of those cases does not apply where a suit at law is first brought against the railroad company and damages recovered for the unlawful injury or killing of an employee of the company. It is difficult for us to see why the principle should not apply in the latter case. Rule 58 specifically provides that a judgment in a suit brought for damages'shall preclude any claim upon the relief fund for benefits on account of such injury or death. Counsel for appellant contends that the plaintiff can recover in the present suit on the authority of Boulden v. R. R. Co., 205 Pa. 264. But the exact point decided in that case was that the payment of the benefits by the relief association was to the mother of the decedent and she was not the person entitled to bring suit under the New Jersey statute and she was not named as a party to that action. In that case Mr. Justice Mestrezat, speaking for the court, said:

“It has also been expressly decided by this court in a case arising under the New Jersey statute in question here, that the only proper plaintiff in such action in Pennsylvania is the individual in whom the right of action is vested by the laws of the state where the injuries were inflicted: Usher v. West Jersey R. R. Co., 126 Pa. 206. The New Jersey statute provides that the ‘ action shall be brought by and in the names of the personal representatives of such deceased person.' This action was brought, in compliance with statute in the name of the personal representative of Frank R. Boulden, the deceased, and the statement avers that the damages are recoverable for the exclusive benefit of his widow and next of kin."

The first action under which the present plaintiff, as the personal representative of William C. Jack, deceased, recovered the $7,500, was brought under the New Jersey statute above referred to by Judge Mestrezat. But the marked distinction between the two actions is that in the Boulden case the beneficiary under the relief association was not the personal representative of the deceased, while in the other case the present plaintiff was the personal representative of the estate of William C. Jack and she is also the beneficiary named in the certificate of the Pennsylvania Railroad Voluntary Relief Department.

The appellant cites McKeering v. Penna. R. R. Co., 65 N. J. L. 57. In that case McKeering was in the service of the railroad company and he was a member of the relief department. In his application to that department he had named his sister as beneficiary and after the death of McKeering his said sister had received $500 from the'relief fund and had given the usual acquittance. The decedent left a widow, Katherine McKeering. A suit for damages was brought by the widow as administratrix of Cornelius McKeering, deceased, against the Pennsylvania Railroad Company. The defendant contended that the release by the sister was binding upon the administratrix. In disposing of this contention Mr. Justice Van Sickle said, among other things: “That vested statutory right cannot be defeated by the release of Nora McKeering nor by her acceptance of the provision under the relief fund.1 No act on her part, unauthorized by the other next of kin, can bar their right of recovery.” In that ease, if the suit had been brought by Nora McKeering it is not probable that it could have been sustained.

In Cowen v. Ray, 108 Fed. Repr. 320, cited by appellant, the deceased was killed on the railroad, while on duty as a fireman, and left a widow and two minor children. He was a member of the railroad company’s relief department, which had a rule that in case of the death of a member, benefits would not be paid until the parties entitled to sue had executed a release to the company for all claims to damages. It was held: that the execution of a release by the plaintiff as the widow and beneficiary of the decedent, and an acceptance of $1,000 as benefits in said relief department, did not bar an action by her as administratrix. This was doubtless because of the interest of the minor children in the damages caused by the death of their father.

In Railway Co. v. Healy, 76 Neb. 783, cited by appellant, it was held, as we understand the case, that the widow as administratrix could maintain thé action for the benefit of her children, her right being barred by the benefits she had already received. Oyster v. Burlington Relief Dept., 65 Neb. 789, seems to sustain the position of the defendant in the present case. In Graft v. Railroad Co., 8 Atl. Repr. 206, the plaintiff was not allowed to recover benefits.

It being conceded that the plaintiff collected the full amount of the $7,500 judgment, of course we may assume that she retained her share of that money, because-the New Jersey statute, under which she sued and recovered, provided that the damages, in such case, are recoverable for the exclusive benefit of the widow and next of kin, and the present plaintiff was the widow in that case. It seems quite clear, under the authority of Johnson v. Phila. & Reading R. R. Co., 163 Pa. 127, and Ringle v. Pennsylvania R. R. Co., 164 Pa. 529, that if the plaintiff here had accepted the benefits under the certificate which her husband had secured in the relief department she could only have maintained a suit at law for damages caused by the death of her husband in the interest of his next of kin. The suit in such case probably could have been carried to judgment to fix the amount of damages as a basis for remunerating the next of kin, but no part of such judgment, it seems, could have gone to the present plaintiff. Now having brought suit and recovered judgment and collected the same, for her full legal damages caused by the death of her husband, and the present suit being in her own right to recover on the benefit certificate, we cannot see how the plaintiff can recover. In carrying on the latter suit she is in flat violation of the rule of the relief department, under which her husband had secured the benefit certificate. And she assumed this position after having elected, with full knowledge of the facts, to pursue her remedy' at law, for her full legal damages, against the railroad company whose negligence caused the death of her husband. The present suit is not brought in a representative or fiduciary capacity but it is in her sole personal interest.

The assignments of error are overruled and the appeal is dismissed without prejudice.