text:
    West Lampeter Township Road.

      Road law — Laying'out road — Cities of the third class — Street commissioner — Quarter sessions — Jurisdiction—Bridges.
    1. The court of quarter sessions has no jurisdiction to order the street commissioner of a city of the third class to lay out and open a public road, including the construction of a necessary bridge in accordance with the report of a jury of view. The duties of such an officer are merely ministerial. He cannot, like supervisors, levy taxes, and therefore he is without ability to obey such an order if it were made.

      2. In such a case the local act of January 31, 1857, P. L. 9, applicable to Lancaster county provides the proper mode of proceeding.
    Argued Nov. 12, 1909.
    Appeal, No. 196, Oct. T., 1909, by Ernest Schaeffer, from order of Q. S. Lancaster Co., Jan. T., 1905, No. 514, discharging rule to show-cause why an attachment should not issue for contempt In re West Lampeter Township and Lancaster City.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for attachment for contempt.
    Landis, P. J., filed the following opinion:
    On January 16, 1905, a petition was presented, setting forth that the “petitioners labor under great inconvenience for want of a public road or highway to lead from a point in a public road near the Old Factory bridge, known as the Old Factory Road, to a point in East Hager street, at or near the Garbage Plant.” The court thereupon appointed viewers, and on- April 19, 1905, these viewers filed their report in favor of the road. This report was confirmed nisi, and the width of the road was fixed at thirty-three feet. On December 18, 1906, the report was confirmed absolutely, and thereupon an appeal was taken to the Superior Court. On February 28, 1908, that court affirmed the judgment of the court below. See Lampeter Twp. Road, 35 Pa. Superior Ct. 379. Thereupon orders were issued to the supervisors of West Lampeter township and to the street commissioner of the city of Lancaster, to open the said road, and it is admitted in the petition for this attachment that that part of the road lying in West Lampeter township has been duly opened by the supervisors; and the answer filed by the street commissioner, which is not contradicted, asserts that the order of the court has also been complied with in the city of Lancaster, in that said road is opened to the width set forth in the report of the viewers and the order of the court, with the exception that the petitioner himself has erected on the road in his pasture a fence across, obstructing and preventing passage thereon by vehicles and pedestrians.
    The point of controversy, however, seems to arise from the fact that it is asserted in the petition that the Conestoga creek, at the point at which the road was laid out by the viewers, is impassable without a bridge, and that no bridge has been erected or constructed by. the street commissioner. It is not claimed that the order specifically directs the street commissioner to build a bridge, and in point of fact we do not see how he could do so, even if he had been so directed. Supervisors of townships have authority to levy taxes, and, therefore, they can, whenever it is required, erect necessary bridges; but the street commissioner’s duties do not embrace any such authority. On pp. 90, etc., of the City Digest, his duties are defined by the city ordinances, and he is directed to keep open and in good order and repair the streets, lanes, alleys and highways of the city, and to superintend the digging down and filling up the same, according to the pitch and regulation of the street regulators, and to direct and appoint the depth of all wells, sinks or vaults for privies, hereafter to be dug in the city. He is also authorized and required, as often as the several streets, lanes and alleys shall be out of repair, or want' cleaning, to hire and employ a sufficient number of laborers; and the necessary carts or wagons, to work upon, amend, repair and cleanse the same. He is also directed to take care of the public property and all materials intended for improvement, and to see that all nuisances whatsoever be properly removed, and generally exercise a superintendence and care over the cleanliness of the city. He is not authorized to make contracts of any considerable amount, authority of that character being vested in the street committee and councils. In fact, his duties are ministerial. How, then, could he build a bridge over the creek in response to our order; and, if he, by reason of inability, has' failed to do so, should we, notwithstanding his lack of power to perform such a work, issue an attachment against him? Attachments are issued to compel persons to do that which they can do but will not; but, in a case of this character, it would be an attachment issuing against the street commissioner compelling him to do something which he cannot do.
    We are of opinion that, in the first place, the order issued by the court does not compel the street commissioner to buiíd a bridge, and, in the second, that such an order, in any event, could be considered as one improvidently granted.
    The Act of January 31, 1857, P. L. 9, sec. 1, enacts: “That hereafter, upon the final confirmation by the Court of General Quarter Sessions of the Peace of Lancaster County of a report of viewers, reviewers or re-reviewers, under an order of the said Court, laying out any street, lane or alley within the limits of the city of Lancaster, in said county, no order shall issue from the said Court for the opening of such street, lane or alley; but it shall be the duty of the clerk of the said Court to certify, under his official seal, the fact of such confirmation, with the width decreed in the premises, to the Select and Common Councils of the said city, for which service he shall be entitled to the like fees, and from the same source, heretofore allowed for orders to open from the Court. And whenever afterwards, the said Councils shall deem expedient, it shall be lawful for them, by joint resolution, to direct their Street Commissioner to open the premises described in such certificate, in the same manner and form as in similar cases he was heretofore required to do by the said Court, and according to the width which the said Court may decree.” Section 2 provides: “That so much of any law heretofore passed, as vests in the Court of General Quarter Sessions of the Peace of Lancaster County the right to direct the opening of any street, lane or alley laid out in the city of Lancaster, is hereby repealed.” The words “street, lane or alley,” as used in this act, include, we think, a road of this character, and, therefore, the act of assembly applies to it with full force. In re,East Grant Street, 121 Pa. 596, it is decided that streets and alleys in Lancaster city, not upon the city plan, are to be laid out and opened under the general road laws of the commonwealth, as modified by' the special Acts of April 13, 1854, P. L. 352; January 31, 1857, P. L. 9, and April 28, 1857, P. L. 338.
    We have concluded that no attachment ought to issue in this case, and, therefore, the rule is discharged.
    Rule discharged.

      Error assigned was order discharging the rule.

      William H. Keller, with him H. M. Houser, for appellant.
    Where a public road is laid out across a non-fordable street, building a bridge over the stream is a necessary part of laying out the road: Com. v. Johnson, 134 Pa. 635.
    The “streets, lanes and alleys” referred to in the local act of January 31, 1857, do not include a public road located partly within the limits of the city of Lancaster and partly in an adjoining township.
    The question was squarely raised in Somerset & Stoystown Road, 74 Pa. 61, and the Supreme Court held that by “streets and alleys therein,” under sec. 1 of the act of April 22, 1856, is meant such as begin and end in a borough and within its limits, not public roads.
    If the act of 1857 is not applicable to this road, the order to open was properly issued to the street commissioner: Bachler’s App., 90 Pa. 207.

      Isidor Rosenthal, with him L. R. Geisenberger, city solicitor, for appellee.
    The local act of January 31, 1857, in which the following words are used: “The laying out any street, lane or alley within the limits of the City of Lancaster in said County” are sufficient to divest the court of quarter sessions of any power to open a street, road, lane or highway in the city, no matter whether one of the termini begins in a point in an adjoining township and ends in a point in the city of Lancaster, or whether it is wholly within the city of Lancaster: West Liberty and Knoxville Roads, 20 Pa. Superior Ct. 586; Osage Street, 90 Pa. 114.
    July 20, 1910:
   Opinion by

Rice, P. J.,

The facts of this ease are clearly stated in the opinion of the learned judge of the quarter sessions and need not be restated. It is important, however, that the exact terms of the order which it is alleged the street commissioner of the city of Lancaster disobeyed should be brought clearly into view. It directs him “ to forthwith lay out and open for public use, of the width of thirty-three feet, said road, by removing all stumps, trees or other obstructions and in accordance with the courses and distances as given in the draft annexed, and the copy of said report of viewers, and according to law.” Taking for verity, as we must on this appeal, the undenied averments of Ms answer to the rule to show cause why an attachment should not issue against him for contempt, the street commissioner obeyed the specific directions of the order. But it is alleged that he is in contempt in not building a bridge across Conestoga creek, a nonfordable stream, at the point where the road as laid out by the quarter sessions crosses. It is argued that the expense of mailing and maintaining bridges ordinarily falls upon those municipalities which are charged with the making and maintaining of highways of which bridges are a part. But while this is the general rule,, it does not meet the precise question presented here, namely, the power of the court of quarter sessions to compel a street commissioner of the city of Lancaster to build bridges. Speaking of this subject, the learned judge points out the distinction between the powers of supervisors and the powers of the street commissioner, and says that the former have authority to levy taxes and therefore they can, whenever it is required, erect necessary bridges, but the street commissioner's duties do not embrace any such authority. He then points out what those duties are and shows quite clearly that he is not authorized to make contracts of any considerable amount, authority of that character being vested in the councils. His duties appear to be ministerial and it is difficult to see how, if the court had specifically directed him to build the bridge in question, he could have obeyed the order. It is reasonable to interpret the order as not including so extraordinary a matter as the building of an expensive bridge across a nonfordable stream. We agree with the learned j udge’s conclusion that the order issued by the court does not compel him to build a bridge and that such an order in any event could be considered as one improvidently granted. In view of the foregoing conclusion, it seems unnecessary to discuss at length the act of 1857; but we are not prepared to adopt the view of appellant’s counsel with regard to the construction of that act. It is part of a system of laws relating to the city of Lancaster, presmnably adapted to local conditions (In re East Grant Street, 121 Pa. 596), and the principle upon which the case of Somerset and Stoystown Road, 74 Pa. 61, wás decided does not in our judgment necessarily require a construction of the act, which would make it inapplicable to the present case. The case is so well considered in the opinion of the learned judge of the quarter sessions that we deem it unnecessary to add anything further in support of the conclusion that the attachment for contempt should not issue.

The order is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Keiser, Appellant, v. Reading Suburban Real Estate Company.

      Partition — Equity■—Answer—Findings of fact — Evidence—Impracticability of partition.

    1. Where on a bill in equity for partition the defendant’s answer avers that it was impracticable to make partition of one of the tracts consisting only of strips of land, and that it was valuable only as controlling future street lines and extensions, and plaintiff offers no evidence to contradict the answer, and the court finds that partition of the tract was impracticable, and that it would be inequitable to compel the defendants to pay the plaintiffs anything on account of the tract, a decree refusing partition of tlie tract in question will be sustained.

      Contract — Construction—Particular words — General words — Construction by parties — Partition.
    2. However general may be the words of one clause of a contract if, from other clauses of the same instrument, it is plainly and irresistibly to be inferred that the words could not have been intended to control in the disposition of a particular subject of the contract, the operation of such general words will be restrained.
    3. Wherever the terms of an agreement are equivocal or doubtful, or the language of the contract is ambiguous, the practical interpretation of it by the parties themselves in carrying it into effect is entitled to great, if not controlling, influence. This principle is applicable where parties agree to a partition of lands and the agreement is followed by an actual partition and an exchange of deeds followed by a period of four years without any controversy as to the construction of the agreement.
    4. The rule which allows extrinsic evidence to explain the extent of the subject of an agreement has no application where a subject-matter exists which satisfies the terms of the instrument. This rule applies to the construction of an agreement for partition of land where certain of the land is excepted, and the boundaries of such land, as described in the agreement, actually exist on the ground.

      Contract — Offer—Revocation^ of offer — Partition.
    5. Where certain of the parties to an agreement for partition of land make an offer, in modification of the agreement, upon a misapprehension as to the quantity of the land, such parties may revoke the offer, upon discovery of their mistake, before the offer has been accepted.

      Contract — Co-owners of land — Expenses of sale.

    6. Where several co-owners of land agree that three of their number shall sell the land and after deducting the “costs of collection” divide thé proceeds among the owners, the expenses of keeping up an office and the needful instrumentalities for attending to the business will be included in the “costs of collection;” but if it appears that the three owners used the office and the other instrumentalities partly in their own business, and there is evidence to show approximately that they ought to bear personally one-half of the expenses, the Superior Court will not review the action of the lower court in cutting down their claim for the whole expenses of the office and other instrumentalities, to one-half.

      Contract — Dissolution of corporation — State taxes.

      7. Where five persons owning all the stock of a corporation, and also owning lands as tenants in common, enter into an agreement by which two of their number are to surrender their stock in the corporation and receive therefor two-fifths of the company’s lands, and partition is to be made of the lands held in eommop, and it is agreed that the lands so held in common shall be sold by the owners of the three-fifths, and the proceeds divided equally among all the five owners, less the costs of collection, the owners of the two-fifths cannot be charged on final accounting with any portion of the stale taxes on corporate stock which had accrued' after the cancellation of their stock and the dissolution of the corporation; but they are chargeable with their proportion of attorneys’ fees accruing after the cancellation of the-stock, where it appears that such services were a benefit to all the parties in interest.

      Contract — Accounting—Depreciation of furniture. ^

      8. Where co-owners of land agree that three of then number shall sell the land and divide the proceeds, and further agree that other property, including certain office furniture and fixtures, shall be divided share and share alike, and the office furniture and fixtures are appraised at a certain sum at the time of the agreement, the persons selling the land should not be permitted in their final accounting to charge themselves with only one-third of the appraised value of the furniture and fixtures, without any proof of depreciation in value.
    Argued Nov. 12, 1909.
    Appeal, No. 216, Oct. T., 1909, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1906, No. 906, on bill in equity in case of David H. Keiser v. The Reading Suburban Real Estate Company, Thomas P. Merritt, Albert Thalheimer, Levi W. Men-gel and Hannah Keiser.
    Before Rice, P, J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Decree modified.
    Bill in equity for partition and an accounting. Before Endlich, P. J.
    The bill alleged that the plaintiff and the four individual defendants had been substantially the only stockholders of the Reading Suburban Real Estate Company each owning about one-fifth of the stock; that the corporation was the owner of sundry tracts of land; that the plaintiff and the four individual defendants also jointly owned other tracts of land, each owning one-fifth; that on May 31, 1901, the corporation and the five individuals entered into an agreement that all the lands owned by the corporation and by the individuals jointly should be parted (and the other small stockholders settled with at the joint expense) so that the plaintiff and Hannah Keiser should each own a divided fifth of the company’s lots and lands on surrendering their stock for cancellation, leaving the corporation the owner of the other three-fifths and that the plaintiff and Hannah Keiser should have a two-fifth share of thé lands held individually, and that the plaintiff and Hannah Keiser should each have also one-fifth of the moneys owing and other assets of the corporation on an accounting; that the agreement had been partially carried into effect by the plaintiff and Hannah Keiser surrendering their stock and receiving deeds for one-fifth each of part of the company’s lands in pursuance of a partial partition, and for a two-fifth share of the lands held individually, but that other tracts' remained to be parted and an accounting remained to be stated and prayed relief accordingly.
    Hannah Keiser appeared but did not answer.
    The answer of the corporation and the three other individual defendants admitted the main averments of the bill but alleged that some of the other tracts of which the plaintiff claimed partition were incapable of partition or were included in the description of the purparts already allotted to the three defendants. The answer admitted the right of the plaintiff to partition of other tracts and to the accounting.
    The agreement on which the bill was based, is as follows:
    “This agreement made the 31st day of May, a. d. 1901, by and between The Reading Suburban Real Estate Company, a corporation, and Thomas P. Merritt, Albert Thalheimer, Levi W. Mengel, Hannah Keiser and David H. Keiser, witnesseth:
    “Whereas, the individuals above named own nearly all the stock of The Reading Suburban Real Estate Company, which Company owns land situate in Spring Township, Berks County, and as individuals, own also a number of tracts of land, namely, the Yeager tract and the Yost tract, that is to say, the remainders of. the said tracts, part thereof having been sold, and
    “ Whereas, the said individuals own also a Water Plant located upon the property, aforesaid, and
    “Whereas, the said parties have determined to divide the said properties among them as hereinafter fully set forth;
    “Now therefore, it is agreed by and between the said parties as follows:
    “First. All the lots and land owned by The Reading Suburban Real Estate Company shall be divided by David H. Keiser into five equal parts, the portion of the Yost Farm situate west of Evans Avenue, containing about sixty-two (62) acres, shall not be embraced in the said division, and the said Hannah Keiser and David H. Keiser shall each of them take such one of the said one-fifth parts as the said Thomas P. Merritt, Albert Thalheimer and Levi W. Mengel shall indicate; in default of the said last named three parties indicating, then the said Hannah Keiser and David H. Keiser may severally choose one of the said 5 purparts.
    “The purparts so chosen shall be conveyed to the said Hannah Keiser and David H. Keiser, respectively, in fee simple, and moreover, the said Reading Suburban Real Estate Company shall assign, transfer and set over unto the said Hannah Keiser and David H. Keiser an undivided two-fifths of all moneys owing to the corporation for lots sold or otherwise and the undivided two-fifths of all other property or assets not otherwise hereinafter disposed of in this Agreement and the said corporation shall from time to time account for and pay to the said Hannah Keiser and David H. Keiser two-fifths of the net proceeds of moneys collected, as hereinafter more specifically set forth and upon said conveyance and assignment, the said Hannah Keiser and David H. Keiser shall surrender their holdings of stock in the said Reading Suburban Real Estate Company to the corporation for cancellation.
    “Second. There shall be made two parcels or purparts of certain of the remaining property of the said parties as follows:
    Purpart No. 1.
    Yost, 62 acres, $160, $9,300
    Mortgage $10,000, 10,000 - $700
    Yeager, 33 acres, $300, $9,900
    Chestnut, 10 acres, $10, 100 - $10,000
    $9,300
    Purpart No. 2.
    Water Plant, $6,000
    Endy House, 2,000
    Springmont House, $1,800
    Mortgage, 1,200 $600
    Hartgen House, $2,000
    Mortgage, 1,275
    $725
    $9,325
    “The said Hannah Keiser and David H. Keiser may elect to take either one of the said purparts named, that is to say, purpart No. 1 for $9,300, subject to the mortgage of $10,000, or purpart No. 2 for the sum of $9,325, and as the said Plannah Keiser and David H. Keiser have but a two-fifths interest as against a three-fifths interest of the remaining three parties, the said Hannah Keiser and David H. Keiser shall be charged with such sum as shall equalize the said parties.
    “Third. The said Hannah Keiser and David H. Keiser shall be entitled to receive each of them one-fifth of the moneys in the treasury of The Reading Suburban Real Estate Company and any other money on hand in the said enterprises and shall also receive each of them one-fifth of all moneys collected on account of lots or land already sold, but from the said moneys there shall be deducted before a division of them, the cost of collection and expenses of keeping up the streets and walks through the property of the said corporation.
    “Fourth. It is hereby covenanted and agreed that the present building restrictions shall be binding upon all of the said parties their heirs and assigns with reference to the property hereby disposed of and that all the parties to this Agreement, their heirs and assigns, shall be entitled to be served with water as to any and all of the property hereby disposed of through and by means of the said Water Plant upon equal terms, so that the parties, who under this Agreement, do not take the Water Plant, their heirs and assigns, shall have the same rights to be served with water, through and by means of the said plant as the parties taking the said Water Plant, their heirs and assigns.
    “Fifth. The said five individual parties hereby covenant with each other that all expenses, costs and damages incurred by or accruing from any litigation concerning past matters, including the appropriation of streams or parts of streams of water for the Water Plant, shall be borne equally by the said five individual parties, their heirs, executors and administrators.
    “Sixth. The shares of stock of The Reading Suburban Real Estate Company held by other than the individual parties to this Agreement, shall be purchased by, for and on account of the individual parties to this Agreement at such prices as shall be satisfactory to all of the said parties and the purchase money to be paid out of the funds of the Company and the interests of Hannah Keiser and David H. Keiser in the stock so acquired shall be surrendered with their other stock in accordance with the terms of Article First of this Agreement.

      “The terms of this Agreement shall be fully carried out and executed within thirty days of the time of the division of the lots by David H. Keiser, as hereinbefore provided, and the Reading Suburban Real Estate Co. shall promptly furnish to the said David H. Keiser such data as he shall ask for and require to enable him to make the said division.
    “Witness, the corporate seal of the said Reading Suburban Real Estate Company and the hands and seals of the parties hereto the day and year first above written. “The Reading Suburban Real Estate Co. [seal]
    “Thos. P. Merritt, Pres’t.
    “Thomas P. Merritt [seal]
    “Albert Thalheimer [seal]
    “Levi W. Mengel [seal]
    “Hannah Keiser [seal]
    “David H. Keiser [seal]”
    Other facts appear by the opinion of the Superior Court..

      Error assigned was the decree of the court which sufficiently appears by the opinion of the Superior Court.

      Isaac Hiester, for appellant.a
    The rule which allows extrinsic evidence to explain the extent of a subject sold has no application when a subject-matter exists which satisfies the terms of the conveyance: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Wusthoff v. Dracourt, 3 Watts, 240; Harvey v. Vandegrift, 89 Pa. 346; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Light v. Miller, 38 Pa. Superior Ct. 408; Blackborn v. Edgley, 1 P. Wms. 600; Messer v. Rhodes, 3 Brewster, 180; Brendlinger v. Brendlinger, 26 Pa. 131.
    It is not within the province of the court to place upon a contract a construction at variance with the plainly expressed intention of the parties whether the contract be reasonable or not: Nelson v. Von Bonnhorst, 29 Pa. 352; Phila. v. River Front R. R. Co., 133 Pa. 134.

      July 20, 1910:
    A liquidating partner is entitled to charge for any proper and reasonable expenses connected with such liquidation but not for anything expended in carrying on the business upon his own account since the dissolution of the firm: Meskill v. Stratton, 7 Phila. 395.
    Where the articles are -carried into execution without a survey there in general the contract is considered as closed except in extreme cases showing misapprehension of fraud. The court refused to open the settlement in the following cases: Dagne v. King, 1 Yeates, 322; Smith v. Evans, 6 Binn. 102; Boar v. McCormick, 1 S. & R. 166; McLelland v. Creswell, 13 S. & R. 143; Haggerty v. Fagan, 2 P. & W. 533; Cronister v. Cronister, 1 W. & S. 442; Dickinson v. Voorhees, 7 W. & S. 353; Bailey v. Snyder, 13 S. & R. 160; Coughenour v. Stauft, 77 Pa. 191.

      J. Snyder, of Snyder & Zieber, with him J. Fred Hartgen, for appellee.
    The acts and declarations of the parties under an agreement are to be taken as a guide to their understanding and intentions in giving a construction to the writing: Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429; Pratt v. Campbell, 24 Pa. 184; Marshall v. Berridge, L. R. 19 Chanc. Div. 233; Wald’s Pollock on Contracts, *451; Schlegel v. Herbein, 174 Pa. 504; Dist. of Columbia v. Gallaher, 124 U. S. 505 (8 Sup. Ct. Repr. 585).
   Opinion by

Rice, P. J.,

Adopting substantially the language of appellant’s abstract, the bill alleged: that the plaintiff and the four individual defendants had been substantially the only stockholders of the Reading Suburban Real Estate Company, each owning about one-fifth of the stock; that the corporation was the owner of sundry tracts of land; that the plaintiff and the four individual defendants also jointly owned other tracts of land, each owning one-fifth; that on May 31, 1901, the corporation and the five individuals entered into an agreement that all the lands owned by the corporation and by the individuals jointly should be parted (and the other small stockholders settled with) at the joint expense, so that the plaintiff and Hannah Keiser should each own a divided fifth of the company’s lots and lands on surrendering their stock for cancellation, leaving the corporation the owner of the other three-fifths; that the plaintiff and Hannah Keiser should have a two-fifths share of the lands held individually, and should each have also one-fifth of the moneys owing and other assets of the corporation on an accounting; that the agreement had been partially carried into effect by the plaintiff and Hannah Keiser surrendering their stock and receiving deeds for one-fifth each of part of the company’s land in pursuance of a partial partition, and for a two-fifths share of the lands held individually, but that other tracts remained to be parted and an account remained to be stated; and prayed relief accordingly.

1. Amongst the tracts of which the plaintiff claimed partition there were, as described in the bill, certain strips of ground situated on the east side of Trent avenue bétween Lafayette avenue and the Bernville road. As to these the defendants answered that on account of proposed street extensions and exchanges with the adjoining property holders on the east it was impracticable to divide them. In the judge’s findings they are described as a number of short and narrow strips of land along the east side of Trent avenue, between it and the eastern boundary of the company’s land, which, he says, are valuable or useful for no purposes other than those of controlling street lines and extensions and exchanging with other property holders on the east. He finds that “for these purposes they may have a prospective value to the suburban enterprise as a whole” but that present partition is impracticable. In his opinion overruling the plaintiff’s exceptions to his findings, he points out that Trent avenue is not an opened but a projected street, and that its eventual opening, as well as that of the continuations eastwardly of the streets approaching from the west, in harmony with the entire plan of Wyomissing, depends upon the control of these strips, themselves without appreciable value, in the interest of the proposed suburb. We quote his language: “It is not enough that plaintiff recognizés the streets in question. It is necessary that the company be in a position to insure recognition of them by its eastern adjoiners. With a view to the integrity and success of the whole project, the strips are as necessary for the good of the entire settlement as the items (1) to (4), conceded not to be liable to partition. The difficulty of their partition is not, of course, an obstacle. But their retention in ■their present'shape by the company for the purpose indicated and the only possible use that can be made of them are and will be beneficial alike to the plaintiff and to the defendants. Hence neither ought they to be parted nor would it be equitable to compel the defendants to pay the plaintiff for them.” It is further to be noticed that no evidence was given by the plaintiff specifically contradicting the averment of the answer as to these strips of land, and that on the trial of the case counsel for plaintiff said with regard to the clause of the bill embracing them, “It being conceded upon the hearing by the defendants that Trent avenue shall be opened as laid out upon the plot of the east addition to Wyomissing already offered in evidence we have no further testimony to submit.” In view of the state of the pleadings and the proofs, we conclude that the learned judge was right in refusing to decree partition of these strips of land. The first assignment of error is overruled.

2. Counsel on both sides discuss the second, fourth, fifth and ninth assignments under one head, and we will pursue the same course. They relate to lots designated in items (11) to (15) of the bill, which it is claimed by the defendants belonged to the Yeager farm and were taken by them in the former partition as part of that farm. On May 31, 1901, all the parties to the bill entered into a written agreement in which they recited that they owned nearly all the stock of the Reading Suburban Real Estate Company, which company owned lands in Spring township, and as individuals owned also a number of tracts, “namely, the Yeager tract and the Yost tract, that is to say, the remainders of the said tracts, part thereof having been sold;” that as individuals they owned also a water plant located on the property; and that they had determined to divide the properties among them as thereinafter fully set forth. It was therefore agreed: 1. That “all the lots and land owned by the Reading Suburban Real Estate Company” should be divided by David H. Keiser, this plaintiff, into five equal parts and that he and Hannah Keiser should each take such one of the one-fifth parts as Merritt, Thalheimer and Mengel should designate, and in default of their designating then Hannah and David H. Keiser might severally choose one of the five purparts. 2. That there should be made two parcels or purparts of certain of the remaining property of the parties, the first of which purparts should embrace “Yost 62 acres,” “Yeager 33 acres,” “Chestnut 10 acres,” and that Hannah Keiser and D. H. Keiser might elect to take either one of the two purparts. 3. That the terms of the agreement should be fully carried out and executed within thirty days of the time of the division of the lots by David H. Keiser, and that the company should promptly furnish to him “such data as he shall ask and require to enable him to make the said division.” The bill alleged that the agreement had been so far carried into effect that the shares of stock in the corporation, owned by the other parties, were purchased as provided in the agreement, and that the lands referred to in the agreement were amicably parted and divided substantially as provided therein, with certain exceptions, amongst which alleged exceptions are the lots referred to in the assignments of error immediately under consideration. No facts- furnishing a reason for not embracing these lots in the partition made by the plaintiff are alleged in the bill. As already stated, the defendants averred in their answer, that they are all parts of the Yeager tract, being treated under the agreement as part of purpart No. 1. It is admitted that, in the division that was made by the plaintiff, purpart No. 2 was taken by him and Hannah Reiser, and that purpart No. 1 fell to the other-defendants. The question is, whether they took as part of it the lots in question. The words “Yeager 33 acres,” used in the agreement, are manifestly inadequate of themselves to define the limits of that tract. They may be read, and doubtless were intended to be read in connection with the preceding words “the Yeager tract and the Yost tract, that is to'say, the remainders of the said tracts, part thereof having been sold.” The lots in question were part of the Yeager tract that had not been sold and, according to the defendants’ testimony, had not been plotted. If there were nothing further to indicate an intention to exclude them there would be scarcely room for doubt that the intention was to include them in purpart No. 1.' But it appears that at the date of the agreement the legal title to them was in the company, and therefore, it is argued, it could not have been intended to include them in purpart No. 1, but it must have been intended to include them in the first paragraph of the agreement under the comprehensive description, “all the lots and land owned by the Reading Suburban Real Estate Company.” If this view be adopted, it will be necessary to construe the clause relating specifically to the Yeager tract to mean the part only of that tract which the parties owned as individuals. If that was their meaning, it seems remarkable that they used language which in its ordinary sense indicates a plain intention to dispose of the tract as ah entirety. Further, regard must be had to the position of the parties and the nature and condition of the subject contracted about. See opinion of our Brother Head in Trexler v. Reynolds, post, p. 168, and the cases there cited. Having this principle in view, doubt is cast on the construction that would exclude these lots from purpart No. 1 by the fact, shown by abundant evidence, that the whole of the unplotted remainder of the Yeager farm, including these parcels (11) to (15), was leased and farmed as an entire tract. Moreover, as the parties in their arrangement for partition were dealing with the entire property devoted to the enterprise in which they were concerned, both as individuals and as members of the corporation, it is not improbable, indeed it seems probable, that they overlooked the exact status of the legal title to the different parts of the Yeager farm (as they certainly did the status of the legal title to the Yost farm when they spoke of it as being owned by them as individuals), or deemed it an unimportant matter; the important and prominent thought in their minds being that the unplotted remainder of the Yeager tract which at the time of the agreement the parties treated as an entirety should be treated in the same manner in the partition that was to be made. If this construction of the agreement, so far as it specifically relates to the property included in purpart No. 1, brings it in conflict with the general provisions relating to the lots and land the legal title to which was in the company, it would seem to be a case for the application of the general principle of construction, that however general may be the words of one clause of a contract, if, from other clauses of the same instrument, it is plainly and irresistibly to be inferred that the words could not have been intended to control in the disposition of a particular subject-of the contract,, the operation of such general words will be restrained. We have further very material aid in arriving at the intention of the parties in the evidence as to the manner in which the agreement was performed. It contemplated a complete division so far as it could be made at that time. The division was to be made and was made by the plaintiff, and the court has found, on sufficient evidence, that the necessary data, including the accepted map or plan of Wyomissing, were furnished to him. No facts are shown which furnish a satisfactory reason for his omission to include these lots in his division of the lots of the company referred to in the first paragraph of the agreement. He admits that he did not forget them and that he had the map before him when he made the division. Within a short time after it was made he received deeds for the shares taken by him, and the defendants went into possession of the Yeager tract, including the portions of the tract in controversy, and have'retained possession to this time. This bill for a further partition was not filed until nearly four years after-wards. Wherever the terms of an agreement are equivocal or doubtful, wherever the language of a contract is ambiguous, the practical interpretation of it by the parties themselves in carrying it into effect is entitled to great if not controlling influence: Straus & Sons v. Wanamaker, 175 Pa. 213, 231; Topliff v. Topliff, 122 U. S. 121. As shown by other cases cited in appellee's brief, this principle has frequently been applied, and no case has come to our notice in which it was more pertinent than in the consideration of this contention as to what was intended to be embraced in the Yeager tract. It was incumbent on the plaintiff to show satisfactorily that what he did, and the other parties acquiesced in, did not fully carry out the actual intention of all of them, and this he has not done. These assignments are overruled.

3. The third assignment alleges error in refusing to award partition of land embraced in items (5) and (6) of the bill. The learned judge describes this land in his fourth finding as unplotted portions of the Yost farm east of Evans avenue as projected on the plan, containing the house, the barn (partly within the lines of Evans avenue) and orchard thereof, and at the time of the agreement and since leased and used in connection therewith. As already noticed, purpart No. 1, which fell to the defendants, was according to the agreement to embrace “Yost 62 acres,” and in the preamble of the agreement the fact was recited that the parties “as individuals” owned a number of tracts of land, “namely, the Yeager tract and the Yost tract, that is to say, the remainders of the said tracts, part thereof having been sold.” Substantially the same reasons that have led us to the conclusion that the unplotted portions of the Yeager farm were intended to be embraced in purpart No. 1 are urged in support of the defendants’ contention that these parts of the Yost farm, referred to in the bill and in the judge’s fourth finding as items (5) and (6), were also intended to be included in that purpart. And we would not be convinced that different results ought to be reached as to the two tracts were it not for the first clause of the agreement. We have already referred to it, but it seems important to quote it, as well as part of the second clause, in this immediate connection. “First. All the lots and land owned by the Reading Suburban Real Estate Company shall be divided by David H. Reiser into five equal parts, the portion of the Yost farm situate west of Evans avenue, containing about sixty-two (62) acres, shall not be embraced in the said division.” Then, after certain matter not necessary to be noticed now, occurs the second' clause. “Second. There shall be made two parcels or purparts of certain of the remaining property, of the said parties as follows: purpart No. 1 Yost 62 acres,” etc. The portion of the Yost farm in controversy lies east of Evans avenue, and the whole farm was conveyed to the company in 1896. Recurring to the language of the agreement, it is seen that in framing the first clause the parties had directly in mind the unsold portion of the Yost farm and the division of it by Evans avenue. Both parts being owned by the company would, unless a different intent were shown otherwise, be included in the general and comprehensive description “all lots and land owned by” the company. So that, it is argued, the words relating to the portion of the farm west of Evans avenue must be regarded as excepting it, but leaving the general clause to apply to the other part. The case may also be stated in this way: considering the two clauses together and noticing the identity in name and number of acres, it is evident that the Yost tract, which was to be embraced in purpart No. 1 under the second clause, was identical with the portion of the Yost farm excepted from the division to be made under the first clause, and as the latter was specifically limited by the parties as to its eastern boundary by Evans avenue, the same limitation and restriction applied to purpart No. 1 and therefore the land in controversy was not included in. that purpart, but was embraced in the property that was to be divided into five purparts. Confining attention strictly to the terms of the agreement, we are unable to avoid the conclusion that the foregoing is the true construction; indeed, it seems to be the plain and irresistible construction and not even open to doubt. This being so, the extrinsic fact that the orchard and some of the farm buildings are east of Evans avenue, while giving rise to speculation as to the reason for not including them in purpart No. 1, does not furnish an adequate reason for departing from the plain terms of the agreement. Observe, it is not “the Yost farm,” but a “portion of the Yost farm,” that is excepted from the division to be made under the first clause. Much less does the fact that the portion of the Yost farm described does not contain sixty-two acres, but only fifty-seven acres, warrant us in setting aside the monument called for, namely, Evans avenue, in determining its location. “Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract:” Lacy v. Green, 84 Pa. 514; Meigs v. Lewis, 164 Pa. 597. We have been guided by this well-understood principle in construing the agreement as to the Yeager tract, but, as seen from the above statement of it, it is applicable only to ambiguous contracts. It is equally well settled that the rule which allows extrinsic evidence to explain the extent of the subject of an agreement has no application where a subject-matter exists which satisfies the terms of the instrument: Harvey v. Vandegrift, 89 Pa. 346; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Light v. Miller, 38 Pa. Superior Ct. 408. The distinction is well shown by Mr. Justice Trunkey in Hughes v. Westmoreland Coal Co., 104 Pa. 207, thus: “If a written contract relates to a house or a tract of land, and it be proved by parol evidence that there are two houses, or two tracts, alike within the description, the fact must be determined by the jury. But when the location of the land described in the deed is certain, it needs not a jury to distinguish it from another tract. If it be admitted that the boundaries of a tract of land actually exist on the ground, as named in the deed, a jury shall not interpret the deed, or determine that the land is in another place.” Great importance is attached by appellee's counsel to the fact that in making the division under clause one the plaintiff did not include this land. If the terms of the agreement were equivocal or doubtful, or if its language were ambiguous, this would be a highly important fact, because, as already shown in discussing the Yeager tract, it would tend to show the practical construction which the parties themselves placed upon the agreement in carrying it into execution. But as the terms of the agreement are not equivocal or doubtful, the mere fact last alluded to can have no controlling weight in their construction, particularly as it is conceded in the answer that other lots plainly intended by the agreement to be partitioned were not included in the first partition, but are to be in this. But it is asserted in the answer that the reason why the lots referred to in this assignment were not divided under clause one was because “they were a necessary part of the farm and it was agreed that they should be taken as part of the farm.” This averment, if it was intended to relate to the written agreement, is not sustained, as we have already seen. It doubtless was intended to relate to some agreement arrived at in the course of the actual partition, and we have carefully examined the evidence to ascertain whether, in that view, it is sustained, and we are constrained to hold' that it is not. The plaintiff’s testimony directly negatives it, and the defendants’ testimony leaves it wholly to conjecture, as the following excerpts will show. Mr. Mengel, being asked what was done with regard to the Yost tract at the time of the division as indicating what was intended to be covered by it, answered: “Well, you know that was a thing which had to be turned over to Mr. Merritt; we had discussed the matter in the office, but Mr. Merritt had direct negotiations.” Mr. Thalheimer testified: “Q. What was said? A. There was not anything said. All those transactions were gone through by Mr. Merritt. We held our meetings in the office and read the letters from Reiser’s attorney and it was entirely in charge of Mr. Merritt.” The testimony of Mr. Merritt is no more definite. Being asked to state, from anything that was said, why it was that the plaintiff did not include these lots in the division, he answered: “Well, there was nothing said. He didn’t do it, and of course we considered he shouldn’t do it.” Without further elaboration we conclude, first, that the terms of the agreement, so far as they relate to thse Yost farm, are plain and unambiguous, and under them the lots in question were not intended to be embraced in purpart No. 1, but were intended to be divided under clause one; second, that there is no sufficient evidence to sustain a finding that during the actual course of partition the parties mutually agreed to a modification of the terms of the written agreement which would result in making these lots part of purpart No. 1; third, that nothing transpired after the execution of the written agreement which precludes the plaintiff from claiming partition of these lots in accordance with its terms. It follows that the third assignment must be sustained.

4. It is alleged in the eleventh assignment that the court erred in refusing to reduce the plaintiff’s owelty of $937.50 to $367.50 by allowing for eleven acres excess acreage of the Yeager farm. In order to a correct understanding of the question raised by this assignment it is important to have in view the entire second clause of the agreement, which we prefer to quote in full rather than attempt to summarize its provisions. "Second. There shall be made two parcels or purparts of certain of the remaining property of the said parties as.follows:

Purpart No. 1.
Yost, 62 acres, $150, $ 9,300
Mortgage $10,000, 10,000 $700
Yeager, 33 acres, $300, $9,900
Chestunt, 10 acres, $10, 100 $10,000
$9,300
Purpart No. 2.
Water Plant, ' $6,000
Endy House, 2,000
Springmont House, $1,800
Mortgage, 1,200 600
Hartgen House, $2,000
Mortgage, 1,275 725
$9,325

The said Hannah Keiser and David H. Keiser may elect to take either one of the said purparts named, that is to say, purpart No. 1 for $9,300, subject to the mortgage of $10,000, or purpart No. 2 for the sum of $9,325, and as the said Hannah Keiser and David H. Keiser have but a two-fifths interest as against a three-fifths interest of the remaining three parties, the said Hannah Keiser and David H. Keiser shall be charged with such sum as shall equalize the said parties.” Adding the valuations placed in the agreement upon the two purparts, dividing the aggregate by five, and subtracting the quotient from one-half of the valuation of the second purpart, the difference to be paid by the plaintiff is ascertained to be $937.50, and in the statement of the account adopted by the court the plaintiff was charged with this difference. The court has found that when the defendants came to write up the plaintiff’s account in the books they discovered that the Yeager farm was fifty-one acres instead of thirty-three acres. They proposed to the plaintiff that they would charge themselves with the price of fifty-one acres, but at $250 per acre, which would result in reducing the charge for owelty from $937.50 to $367.50. He objected to the charge of the price per acre, but submitted, and the books were written up in that way. Subsequently the defendants found that in the fifty-one acres they had included from seven to eight acres used by the railroad and concluded that they would allow the plaintiff nothing for the eleven acres which they had gained. He contended that as the defendants were getting forty-four acres which, at $300 per acre, would amount to $13,200 instead of thirty-three acres worth $9,900, or an increase of $3,300, the court should at least allow the books to stand whereby they only sustained a surcharge of $2,850. The court sustained the defendants’ contention that the owelty as fixed by the agreement should stand. In support of this conclusion the court said: "The understatement as to the Yeager farm was discovered by. defendants, who, not taking into account the railroad appropriation, were willing to make an equitable allowance to plaintiff for the'whole of the eighteen acres — not at the rate of $300 per acre, because part of the land was not worth it, but by figuring the entire acreage at $250. Without securing from him his consent to a modification of the agreement of May 31, 1901, in this respect, they made the entry upon their books according to their own notions of what was right and fair— the total charge being based upon an estimate again involving a misapprehension concerning the quantity of land they were really getting, because they failed to deduct the area covered by the railway. Surely there is no principle of equity which would bind them to the terms of an entry thus mistakenly made, without previous negotiations and agreement with the plaintiff. It was simply in the nature of an offer to him, which, both according to the civil law, Schuster, Principles, etc., p. 97, and according to ours: Butler v. Kemmerer, 218 Pa. 242; Sav. & Trust Co. v. Chadwick, 223 Pa. 70; Clements v. Bolster, 6 Pa. Superior Ct. 411, could not ripen into a contract until accepted by him, and until then was revocable. The defendants’ offer in this case never was accepted by the plaintiff. When the parties came to negotiate about it defendants had discovered their error and in effect withdrew their offer except on condition that the land covered by the railway be deducted from their estimate. This plaintiff refused, and defendants thereupon insisted upon the terms fixed by the written agreement, the only subsisting contract between the parties. It is difficult to see why they had not the right to do so, or wherein a recognition of their right to do so works inequity to plaintiff. The case is not one in which a party buys from another the whole of a tract at so much per acre, figuring the total upon the basis of the entire acreage of what was known to belong to it, and it is subsequently found that the tract includes other land not known to belong to it. It is a case where one buys a tract known to cover such and such territory at a lumped sum assumed to be equal to so and so much an acre, and it is found that the land known to be embraced in it foots up a greater number of acres than supposed. If the defendants were justly held to payment of the whole figure put upon the Yost tract although they got less land than all the parties understood they were getting — and there is no question made of that — it would seem but fair to hold them entitled to the whole of the Yeager tract at the price agreed upon although they got more acres by it than originally estimated. To require anything else of them would be not to enforce the contract the parties made, but to make a new contract for them.” It is further to be noticed in the same connection that the testimony shows that the field of eighteen acres was worth only about one-third of the value of the land facing the railroad, and if this excess be valued at $100 and the seven or eight acres of land occupied by the railroad company be deducted, no substantial injustice was done to the plaintiff. It is still further to be noticed that if a change should be made in the acreage of the Yeager tract, a similar correction should be made in the acreage of the Yost tract, where the appellees, in any view of the case, got considerably less than it was estimated to contain in the agreement. The appellees’ counsel correctly argue that if a court of equity is to make a readjustment of this matter it ought to include'a readjustment of the price with which they were charged for the Yost tract. After a careful consideration of the question in all of its aspects, it is not clear that the result would be changed favorably to the plaintiff, and for that reason as well as those set forth in his opinion we are of opinion that the conclusion reached by the court should not be disturbed. The eleventh assignment is overruled.

5. The sixth assignment relates to the action of the court in not striking from the credits claimed in the account submitted by the defendants all of the payments made on account of office rent, secretary’s salary, contingent fund, telephone rentals, re-lettering sign, typewriter supplies and repairs, city directories, and lamp, making in the aggregate $4,154.30, and in allowing one-half of these credits, $2,077.15, to stand. The clauses of the agreement necessary to be noticed in the consideration of this assignment, as well as the seventh, eighth, tenth and thirteenth assignments, are, “the said corporation shall from time to time account for and pay to the said Hannah Reiser and David H. Reiser two-fifths of the net proceeds of moneys collected as hereinafter more specifically set forth,” and the said parties shall be entitled to receive “each of them one-fifth of all moneys collected on account of lots or land already sold, but from the said moneys there shall be deducted before a division of them, the cost of collection,” etc. The learned judge correctly found that the expenses referred to in this assignment were properly incurred in keeping up an office and the needful instrumentalities for attending to the business thus devolved on the company, but because of the fact that the defendants were at the same time and by the same means serving their own purposes he cut down the claim one-half. Regarding the plaintiff’s contention that no part of it ought to have been allowed beyond ten per cent of the aggregate collected, which, according to some testimony, is the usual allowance for the collection of money, he said: “It is insisted that the agreement for the deduction of the cost of collection before division must be taken to mean the usual cost in such cases. But the agreement does not say so, and the ‘cost’ of a thing-does not primarily or ordinarily mean that. It means the actual expenditure involved: see Webster, adverb.; Standard Die., ad verb., the word ‘actual’ in reality adding nothing to what, without it, is implied in the term ‘cost’: see State v. Price, 12 Wash. 653 (42 Pac. Repr. 120); State v. Hamilton (Miss.), 10 So. Repr. 57. Especially would this seem to be so in an agreement whose purpose was an amicable division of assets between parties regarding themselves as co-owners, part of which assets were outstanding and had still to be got in, while certain other operations were to be continued for the benefit of all the parties in interest.” We concur in this conclusion. A more difficult question is raised by the defendants’ contention that the testimony is insufficient to enable the court to determine the proportion between the business in which the plaintiff was interested and that in which the defendants alone were interested. The learned judge appreciated the difficulty, but says that while the testimony does not show the precise proportion, “it does show that both ought to contribute to the expense of the office, etc., maintained for the benefit of both; it shows that the collections upon past transactions amounted to a substantial sum; and it shows what remained to the defendants as the basis of the business conducted for their exclusive benefit. The allowance objected to is founded upon these considerations — not by way of bare conjecture, which is not legitimate, but by way of approximation which may be. As was said by Mr. Justice Dean in Yoders v. Amwell Twp., 172 Pa. 447, Approximate certainty in the administration of justice, on evidence in an issue, is all we can hope to attain to.’ ” This is certainly true in the determination of such a question as is presented here. It could not be expected that the proportion could be determined with scientific precision. But having as a basis the facts alluded to by the learned judge the proportion could be determined with approximate certainty; it was largely a question of fact, and we are not convinced that the finding was so unsupported by competent testimony as to be a mere guess. After deliberate consideration of the objections urged against the finding, we conclude that it ought not to be disturbed. The sixth assignment is overruled.

6. The seventh assignment alleges error in charging the plaintiff with a share of the' state tax on the capital stock of the company after the plaintiff had retired and his shares were canceled. This charge was sustained as part of the cost of collection. But it is apparent from the opinion of the learned judge that he would not have sustained it had it not been for the fact that when a dissolution of the corporation was attempted the plaintiff objected and the proceedings were not carried to a successful completion. The evidence as to this subject is exceedingly meager and consists of the testimony of Mr. Hartgen that in January, 1903, “the company filed a petition for dissolution, and then later on Mr. Reiser filed a remonstrance, and it has been held up since then.” If his objection or remonstrance was sufficient in law, having regard to the agreement, to prevent dissolution of the corporation, we fail to see how his action furnishes a reason for estopping him from objecting to this charge, when, as correctly conceded by the learned judge, the charge for taxes paid on the capital stock prior to that time was not a proper one. It is to be borne in mind that the agreement plainly provided that the corporation should from time to time account, and this implied that it should be kept alive for that purpose. Necessarily, if it was kept alive, the state tax on the shares of capital stock would be a burden which would have to be borne by the company, and it is to be presumed that this was understood by all t'he parties. The plaintiff has been charged with his share of all the taxes on the property remaining undivided and it is far from clear that he should be charged also with the tax on the capital stock after he had surrendered his shares. As the counsel for appellant well says, the state tax is a tax on property: Commonwealth v. Delaware, etc., R. R. Co., 165 Pa. 44, and the property on which this tax was levied was the property of the defendants, in which the plaintiff has no interest. The argument whereby he is made to contribute to the reimbursement of the corporation for the taxes thus paid is not convincing. It requires too severe a strain of the terms of the agreement to hold that this is a proper charge under the head of cost of collection. This assignment is sustained, as is also the thirteenth assignment, so far as it relates to the credits allowed upon exceptions to the decree for payment of state taxes on capital stock. So far as the thirteenth assignment relates to the other credits claimed and allowed, it is..overruled. As is well said by the learned judge, to refuse their allowance would be to refuse that which had been decided to be proper for allowance and for the bringing in of which there had been no previous opportunity. "The procedure in equity is sufficiently elastic to provide an escape from such a result.”

7. The eighth assignment allegés error in not striking from the credits attorney fees paid by the company, not in this litigation, amounting to $375. The learned judge found as a fact that these payments were made for the benefit of all the parties, and in accord with the practice antedating the agreement of May 31, 1901, and in his opinion overruling the exceptions he well sustained his conclusion, that these expenditures ought to be borne equally by all in proportion to their interests, by these pertinent remarks, which we adopt as a sufficient answer to this assignment: "The circumstance that the agreement provides that 'all expenses, costs and damages incurred by or accruing from any litigation concerning past matters .... shall be borne equally by the .... five individual parties’ cannot be looked upon .as decisive against an allowance, as part. of the common expenses, of the accustomed annual retainer paid to counsel for services beneficial alike to all the parties interested. Considering the scope and purposes of the arrangement made by them and their common and continuing interests to be served by it, it on the contrary appears to be a reasonable conclusion that they intended, at least as long as the corporate organization was kept up, the employment of the machinery and outside agencies employed at the time and the inclusion of the expense thereof as part of the cost to be shared by all.” The eighth assignment is overruled.

8. The tenth assignment alleges error in allowing the defendants to take the office furniture and fixtures at the estimated value set forth in then' account of $150. The agreement provides, inter alia, that the company shall set over to Hannah Keiser and David H. Keiser “the undivided two-fifths of all other property or assets not other- ■ wise hereinafter disposed of in this agreement.” These were assets of which or the value of which the plaintiff was entitled to one-fifth. It is undisputed that by an appraisement agreed to at the time of the execution of the agreement they were valued at $480. The defendants in addition to the $150, their estimated value at the time of the statement of the account, charged themselves with $23.97 received for certain of them which they had sold. Prima facie, they should have charged themselves with the appraised value less the amount with which they had charged themselves for the goods sold, or $456.03: Reiff’s App., 2 Pa. 256. But it is contended that as the goods had been used in the business they had been used for the benefit of the plaintiff as well as of the defendants and therefore the depreciation in such use should be borne proportionately by the parties interested. The learned court took this view, and we are not prepared to say that it is erroneous. It would seem to be supported by the considerations alluded to in the discussion of the sixth assignment. The difficulty in the case'is that'there is no evidence to sustain the defendants’ contention that their value had decreased to $150 between the date of the appraisement and the date of stating the account. If they had depreciated to that extent, the fact was susceptible of satisfactory proof, and we think that the court was in error in assuming the burden of deciding the extent of the depreciation in dollars and cents, without other proof than the mere fact that the goods had been in use for that length of time. We are constrained, therefore, to sustain this assignment and to hold that the decree should be corrected accordingly.

9. The twelfth assignment of error relating to the charge of $200 against the plaintiff on account of the Thalheimer lot is not sustained. If the defendants’ testimony as to this matter is to be believed, the charge was a proper one. There was a conflict of evidence which it was for the trial judge to decide, and his decision will not be set aside except for manifest error, and that does not appear. As to the legal proposition that if the plaintiff paid for something he bought for himself with something that belonged to the defendants he ought when he comes into equity •for an accounting to stand ready to reimburse them to the extent that the fixed price of the lot exceeds his proportionate interest in it, we think there can be no serious controversy.

The decree is modified and amended in the following particulars, and in all other particulars is affirmed.

1. The first paragraph of the decree is modified and amended by inserting therein immediately before the words “in manner following,” the words, “(e) All that certain tract or piece of ground bounded on the north by a fifteen foot alley, on the south by Park avenue, on the east by Orchard lane, and on the west by Evans avenue; (f) All that certain irregular piece of ground, with the buildings , thereon erected, bounded on the north by Park avenue, on the east by property .described in item (1) of the bill, on the south by Wyomissing creek and property of Hannah Evans, and on the west by Evans avenue; these being the lands described in items (5) and (6) of the bill.”

2. The second paragraph of the decree is modified and amended, and the amount for distribution is corrected accordingly, (a) by striking out the credits allowed for state taxes paid upon capital stock, (b) by charging the defendants with the portion of the amount of the valuation of the office furniture and fixtures with which they are not charged in the decree.

The record is remitted to the court below, with direction to carry this decree as modified and amended into effect.

And it is further ordered, adjudged and decreed that two-fifths of the costs of this appeal be paid by the appellant and three-fifths by the appellees.


text:
    Goldstein v. East Fallowfield Township, Appellant
    (No. 1).

      Negligence — Damages—Evidence of physician.

    1. Where a physician has observed in his treatment and examination the condition of a plaintiff in an accident case, he may testify as to the probabilities of such a condition continuing.

      Negligence — Townships—Dangerous road — Absence of guard rail.

    2. Where an ordinarily safe and tractable horse takes fright apparently at a large piece of roof tin painted red lying either on the roadbed or near it, and immediately backs over an unguarded precipice at the side of the road, the question of the negligence of the township in which the road is situated is for the jury. In such a case it is also for the jury to say whether the presence of the tin where and as it was, was or was not in character an unusual incident to travel upon the public highway.

      Trial — Evidence—After-discovered evidence — Discretion of court.

    3. The appellate court will not reverse a judgment because the lower court refused a new trial asked for on the ground of after-discovered evidence, where it appears that the lower court properly found that due diligence upon the part of the defendant would have discovered the evidence before the trial, and that the evidence itself would not legitimately require or even probably procure a different verdict.
    Argued Nov. 17, 1909.
    Appeal, No. 183, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., April T., 1909, No. 27, on verdict for plaintiff in case of Esther Goldstein v. East Fallowfield Township.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    The opinion of the Superior Court states the case.
    At the trial Dr. D. P. Rettew was asked this question:
    “Q. You have heard Abraham Goldstein describe the accident that he suffered there on the road on the 12th of October, 1907, when he and his daughter went down over this embankment into the Brandywine, and he has detailed to you the circumstances of that fall. Now, from your observation of the daughter the day following the accident, from the manner that she acted, and the way she complained to you, from that time on down to the present, and from the examinations that you have made, the observations that you have made from time to time, and the examination you have made a week ago, you say the girl is suffering from inflammation of the hip, is that it? A. Yes. Q. Can you tell whether or not that is the result of the accident which the girl suffered? ”
    Objected to.
    The Court: Ask him whether this condition is consistent with the accident in which the girl had a fall and struck those parts?
    “A. It is.”
    Mr. Hause: I desire to object to that.

      The Court: The objection is overruled. To which ruling counsel for defendant excepts and prays the court to seal a bill of exceptions thereto, which is done accordingly.
    Mr. Sproat: “Q. Your answer is that it is?”
    The Court: “Q. It. is consistent with violence to that part? A. Yes.”
    Mr. Sproat: “Q. What are the prospects of this girl’s becoming cured or becoming better or becoming worse? ”
    Objected to on the same ground.
    The Court: “Q. Taking her condition just as it is and as you have observed it, what are the prospects of her getting better or worse?”
    Mr. Hause: I object to that. I do not think he can be asked a hypothetical question on a condition of affairs that he has not described himself or anybody else has described.
    Objection overruled. To which ruling counsel for defendant excepts and prays the court to seal a bill of exceptions thereto, which is done accordingly. [1]
    The Court: The question is, taking her present condition as he has observed it.
    Mr. Sproat: “Q. What are the prospects of this young girl’s recovering, if any? A. I would say there are no prospects of a complete recovery.”
    The court charged in part as follows:
    I repeat, if the horse frightened at the tin and went over the declivity because of the absence of a guard rail, the absence of the guard rail was the efficient, immediate cause of the accident, and the presence of the tin, if the tin, where and as it was, was in character a not unusual incident to travel upon the public highway.
    Verdict and judgment for Esther Goldstein for $1,000 and for Abraham Goldstein for $650.50.

      Errors assigned were (1) ruling on evidence; (2) portion of charge as above, quoting it, and (3) refusal of new trial.

      July 20, 1910:

      J. Frank E. Hause, for appellant,
    cited: Vallo v. Express Co., 147 Pa. 404; Schaeffer v. Jackson Twp., 150 Pa. 145; Herr v. Lebanon, 149 Pa. 222; Kieffer v. Hummelstown Boro., 151 Pa. 304; Trout v. Waynesburg, etc., Turnpike Road, 216 Pa. 119; Quinn v. Phila., 224 Pa. 176.

      Granville L. Rettew, with him Harris L. Sproat, for appellee,
    cited: Davis v. Snyder Twp., 196 Pa. 273; Hey v. Phila., 81 Pa. 44; Pittston Boro. v. Hart, 89 Pa. 389; Scott Twp. v. Montgomery, 95 Pa. 444; Burrell Boro. v. Uncapher, 117 Pa. 353; Sturgis v. Kountz, 165 Pa. 358; Yoders v. Amwell Twp., 172 Pa. 447; Bitting v. Maxatawny Twp., 177 Pa. 213; Boone v. Twp. of East Norwegian, 192 Pa. 206; Curry v. Luzerne Boro., 24 Pa. Superior Ct. 514.
   Opinion by

Rice, P. J.,

In order to give a correct understanding of the question raised by the first assignment of error, it should be stated that the witness, Doctor Rettew, had previously testified in the case that he was called to attend the plaintiff and her father, Abraham Goldstein on October 12, 1907, which was the date of the accident; that the plaintiff complained of pains in her back and limbs; that he visited her at frequent intervals; that within two weeks she complained of pain in her hip; that he directed a continuation of the applications he had first ordered,' and advised that she be not allowed to do much walking and that she be taken from school; that a week before the trial he made an examination in which he found that there was an enlargement and thickening over the hip joint and some shortening of the right leg; that the medical term for her condition was “coxitis,” inflammation of the hip joint. In the course of his examination the court asked a question relative to the cause of the condition, to which counsel for the defendant objected upon the ground that there was no testimony by the doctor or anybody else on which to base it. The court then said: “The witness has been called out of order and I was putting the question to the witness as a hypothetical one, assuming that she had a fall, and if they do not prove that she had a fall it goes for nothing. But I think you had better withdraw this witness and call him after the other witnesses have laid proper ground. The doctor has described the condition of the girl and an inflammatory condition of the hip which he says, in his judgment, has arisen from outside violence, and unless the plaintiff shows that this little girl was subjected to outside violence at that point the doctor’s testimony goes for nothing.” To this the counsel for the defendant suggested that that was throwing open wide the door. Whereupon counsel for plaintiff said: “May we have the doctor’s testimony stricken out at this time?” To this counsel for defendant said, “I have not objected to any part of his testimony except that based upon the hypothetical question.” Thereupon the court said, “We will consider it stricken out so far as the little girl is concerned.” The witness was then withdrawn, and, after the accident had been described by Abraham Goldstein, the doctor was recalled, and what took place is fully set forth in the assignment of error. The evident purpose of the first question put on his re-examination was to summarize the essential features of the testimony he had previously given, without taking up time in repeating it in detail. No objection was made to that question. Then followed the question which was objected to. It is spoken of in the objection as a hypothetical question, but we do not understand it in that way. It was a a question seeking to bring out the professional opinion of the physician who had attended tire child and knew her condition, upon the prospects of her recovery from the condition he had observed. Thus understood we can see no valid ground for holding that the question was incompetent. Whether that condition resulted from the injuries that she had received in the accident was another question. Whatever testimony the witness gave upon that subject is not complained of in this assignment of error. The witness had observed in his treatment and examination of the child certain conditions; he was competent by reason of his experience to testify upon the probabilities of those conditions continuing. The first assignment is overruled.

At the point where the accident took place the roadbed was sixteen feet wide from the edge of the sloping bank on one side to the edge of the nearly perpendicular declivity on the other to Brandywine creek. The distance from the top of the latter to the water of the creek was about fifteen feet. According to the testimony of Abraham Goldstein, he was driving a single horse and market wagon and had his child, the plaintiff, on the wagon with him, and when he came to that place the horse became frightened and started to back; whereupon he jumped from the wagon seat, seized the horse by the bridle, but was unable to prevent him from backing the wagon over the bank. To quote his language: “I was driving a single team and had mine child on the wagon with me and when I came to that place where the accident was the horse got scared and started to back and I jumped down from the wagon and took him from the bridle, but I did not have a chance to. I jumped down from the seat and took the horse by the bridle, but I did not have the chance in a minute I shall be able to turn him around and the hind wheels went over the back and the horse after it and I after the horse, and mine child was on the seat and she went under the wagon and the boxes on her.” It is an undisputed fact that there was no guard rail at this place and had been none for a long period of time. The testimony was undisputed that the horse was eight years old, safe, and had not been known to take fright before. There was evidence that a piece of roof tin, about five feet long and painted red, lay either on the roadbed or near to it, and Goldstein inferred that it was that piece of tin that frightened the horse. The weight of the testimony tends to show that the tin was lying partly on the roadway and partly on the embankment. But it is argued that a jury would have been warranted in finding that it was not within the limits of the road but was upon the embankment; and the question is whether the township could be held liable if the jury found the latter to be the fact. In the determination of this question it must be conceded that the evidence would not sustain a finding that the township was responsible for the piece of tin being at the place it was. But it is contended by the plaintiff that the township was negligent in not guarding the dangerous precipice on the east side of the highway at this point and its negligence in that respect was the real, efficient and proximate cause of the accident. It would serve no good purpose to review all the cases wherein the fright of horses has entered into the question of the liability of municipalities and townships for injuries occasioned by going over unguarded embankments along public highways. A leading case upon the subject is Yoders v. Amwell Township, 172 Pa. 447, and the doctrine of that case would fully sustain a finding that the failure to place a guard rail at such a point as is described in the testimony in this case was negligence and was the proximate cause of the injury, and not the fright of the horse, even though the object at which the horse took fright was not within the limits of the road. In that case, Justice Dean, after reviewing the authorities and considering the case from the standpoint of principle, stated the rule which should have been applied in the trial as follows: “The township authorities were bound to foresee and reasonably provide against a common danger to ordinary travel on that highway; it is well known that one of such dangers arises from the habit of fright in the horse, and it is just as well known that when affrighted no one can foretell his conduct; the presence of guard rails would have been a protection from the danger of going over the bridge, no matter what the movement of the horse; therefore, the habit of the horse being known, they ought to have put up the guard rails, and their neglect of duty in this particular was the proximate cause of the injury. Or to express it in another form: The fright of the horse was ordinary, and to be expected; that his conduct when in fright would be unreasoning, insane and unlooked for, was also to be expected; if it were otherwise, it would have been extraordinary, because contrary to common observation; the township authorities should have guarded against that which was to be expected, and it will not excuse the negligence of the supervisors or make that negligence the remote cause, to assert, they could not foresee the particular freak of conduct in a terrified horse.” This ruling was followed in the case of Bitting v. Maxatawny Township, 177 Pa. 213; and in Boone v. Township of East Norwegian, 192 Pa. 206, -it was said, that it must be considered as the settled law in all cases in which it is applicable to the facts. It was held not applicable to the case of a balking horse, in Cage v. Franklin Township, 11 Pa. Superior Ct. 533, upon the ground that tendency to take fright is common, whilst the disposition to balk and back without cause is exceptional. “ Whether it proceeds from inherent badness of nature from bad breaking when a colt, or from bad treatment afterwards, it is a vice. It is not a common trait nor a common habit of the ordinary horse, and we do not understand it to be the law that the country roads must be made safe against every possible freak of a horse, and that the township is liable for the resultant injury, no matter at what distance from the defective place it takes possession of him.” The case of Davis v. Snyder Township, 196 Pa. 273, is closely analogous in its facts to the present case and was decided upon the principle above stated in Yoders v. Amwell Township. It is true, as we said in Russell v. Westmoreland County, 26 Pa. Superior Ct. 425, there are cases in which it has been held to have been the duty of the court to declare as matter of law that the negligent omission to provide a guard rail at a point like that in question, although concurring with the fright of the horse, was not the proximate cause of the injury. Many of these cases are collected in Card v. Columbia Township, 191 Pa. 254. For the most part they were decided upon the ground that it appeared in the presentation of the plaintiffs own case that the accident was produced by an intervening or independent or unrelated cause, the hap-' pening of which the defendant could not reasonably be expected to foresee and provide against, as for example the breaking of traces, Willis v. Armstrong County, 183 Pa. 184; Card v. Columbia Township, 191 Pa. 254; the giving way of hold-back straps, Habecker v. Lancaster Township, 9 Pa. Superior Ct. 553; the choking of the horse by a too small collar, Chartiers Township v. Phillips, 122 Pa. 601; or his fright from an extraordinary cause at a point distant from the place of the accident, Schaeffer v. Jackson Township, 150 Pa. 145. None of these cases, however, goes to the extent of deciding as an abstract proposition of law, to be applied without regard to the circumstances, that the action of an ordinarily safe and tractable horse suddenly becoming frightened at the very place where the highway is negligently left in a dangerous condition and backing over the unguarded precipice, is always to be regarded as one of those extraordinary occurrences which the public authorities cannot reasonably be expected to foresee and provide against. On the contrary, in Herr v. City of Lebanon, 149 Pa. 222, which belongs to this class of cases and fairly illustrates the practical distinction between them and the case at bar, Mr. Justice Williams, speaking for the court, said: “If, therefore, in the ordinary use of the street one had been crowded over the bank by the volume of travel, by the sudden shying of his horse, or by reason of an accumulation of ice upon the roadbed, the absence of the barrier might justify a recovery if the plaintiff was not guilty of contributory negligence, and so in part the author of his own misfortune. Such accidents may be said to be a probable result of the neglect complained of. If so, the city was bound to anticipate and provide against them, and its failure to do so was negligence.” The duty of a municipality, whether township, borough, city or county, having control of the highways, is to keep them reasonably safe for ordinary travel by the ordinary horse. It is under no obligation to provide for everything that may happen upon them, but only for such things as ordinarily exist or such as may be reasonably expected to occur. Applying these principles, it does not necessarily follow that if the object at which this horse took fright was not within the limits of the highway the plaintiff could not recover. As was said in Davis v. Snyder Township, that may be Treated as a mere incident of the cause, the same as the blowing of a leaf or the casting of' a shadow upon the road, at either of which a horse might have taken fright. The court properly left to the jury the question, whether the presence of the tin where and as it was, was or was not in character an unusual incident to travel upon the public highway. The learned trial judge in his charge clearly pointed out the resemblance of the case to the case of Davis v. Snyder Township, and to have instructed the jury in accordance with the defendant’s contention would have been in direct conflict with the principle upon which that case was decided. We have carefully considered all of the cases cited by appellant’s counsel and are of opinion that the foregoing conclusion is not in conflict with the points actually decided in them.

The third assignment of error is to the refusal of the court to grant a new trial upon after-discovered evidence. The evidence taken upon the rule was heard by both judges of the court, and in- their opinion refusing the motion they said: “Both members of the court are decidedly of the opinion that a new trial should not be granted on the ground of after-discovered evidence. Assuming it to be honest testimony we are persuaded that due diligence upon the part of the defendants would have discovered it before the trial, and we are also of the opinion that this evidence would not legitimately require or even probably procure a different verdict.” This conclusion was based on the application of familiar and well-understood rules governing the granting of new trials upon the ground of after-discovered evidence, and after, a careful reading of the evidence submitted upon the motion we are all of opinion that the discretion vested in the trial court in such matters was not abused, but was wisely exercised.

The judgment is affirmed.


text:
    Goldstein v. East Fallowfield Township, Appellant
    July 20, 1910:
    (No. 2).
   Opinion by

Rice, P. J.,

This appeal was argued with the appeal in the case of Esther Goldstein against the same defendant, ante, p. 158. For the reasons there given the judgment is affirmed.