text:
    Beck v. Germantown Cricket Club, Appellant.

      Negligence — Defective sidewalk — Evidence—Province of court and, jury.

    The happening of an accident on a sidewalk is not enough to establish negligence on the part of the person whose duty it is to construct and keep the sidewalk in repair.
    A mere depression of one-fourth of an inch in a board or plank sidewalk otherwise sound and in good condition, is not sufficient to carry the question of the negligence of the owners of the sidewalk to a jury. It is only requisite that the sidewalk should be maintained in a reasonably safe condition.
    Argued Oct. 16, 1908.
    Appeal, No. 77, Oct. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 4,910, on verdict for plaintiff in case of Alexander Beck and Mary Beck, his wife, v. Germantown Cricket Club.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts appear by the opinion of the Superior Court.
    Verdict for plaintiff for $2,900, upon which judgment was entered for $1,450, all above that amount having been remitted. Defendant appealed.

      Errors assigned (1-4) are quoted and stated in the opinion of the Superior Court.

      G. W. Pepper, with him Thomas Stokes and Bayard Henry, for appellant.
    A property owner is not liable for damages on account of an injury sustained by a person falling on a boardwalk where the board was not broken but contained a depression or unevenness a quarter of an inch deep: Morris v. Philadelphia, 195 Pa. 372; Lohr v. Philipsburg Borough, 165 Pa. 109; Mintzer v. Greenough, 192 Pa. 137; Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283; Reed v. Tarentum Borough, 213 Pa. 357; McCabe v. Philadelphia, 217 Pa. 140.

      Edmund Randall, with him M. J. McEnery and James A. Flaherty, for appellee.
    December 7, 1908:
   Opinion by

Morrison, J.,

The plaintiffs sued to recover damages caused by an injury to Mary Beck on the evening of May 10, 1906. The theory of the plaintiffs was that she stepped into a hole in a board walk in front of the defendant’s premises on Manheim street; that there was a hole broken through one of the boards and that this was the direct cause of Mrs. Beck’s injury. The plaintiffs offered sufficient evidence at the trial to carry the question of whether her injury was caused, as above stated, to the jury. In reply the defendant offered the evidence of several persons, whose business it was to know the condition of the sidewalk, who testified strongly and quite convincingly that there was no hole in the sidewalk, on that evening, from end to end, and especially at the place where the accident happened; that the walk was repaired and put in good condition two days prior to the accident. There was positive . evidence that the walk was in good condition, with the exception of a depression of about one-fourth of an inch caused probably by a soft board being worn that much more than the adjoining boards.

The happening of an accident on a sidewalk is not enough to establish negligence on the part of the person whose duty it is to construct and keep in repair said walk. In Lohr v. Philipsburg Borough, 165 Pa. 109, our Supreme Court said: “ It is essential to the plaintiff’s recovery in this action that she should show by competent evidence a defective and dangerous condition of the sidewalk which was the sole cause of the injury she received and of which the borough had actual or constructive notice before the accident.”

With the case in the condition above indicated, the learned counsel for the defendant presented the following points:

■ “1. If the jury find that the board walk was not broken, and that it was level except for a depression about a quarter or half an inch deep in one of the boards, then the verdict must be for the defendant.
“2. If the jury find that the boards were in good repair at the place where the plaintiff fell, but that there was a slight unevenness in one of the boards, the verdict must be for the defendant.
“3. If the condition of the board walk was such that it 'would not be natural or probable that a person should fall upon it, the defendant is not responsible for the accident and the verdict must be for the defendant.”

These points give rise to the first three assignments of error, as they were all Answered in the negative. There is also a fourth assignment of error which is an excerpt from the charge. As we view the law, under the evidence in this case, the learned court should have affirmed each of the defendant’s points. It is not the law in Pennsylvania, and perhaps nowhere else, that a depression of one-fourth of an inch in a board, plank, flagstone or brick sidewalk, otherwise sound and in good condition, is sufficient to carry the question of the negligence of the defendant to a jury. In the charge as quoted in the fourth assignment, the learned court erroneously submitted to the jury to find whether or not the one-fourth inch depression caused the accident, and that if it did, the plaintiffs were entitled to recover, unless Mrs. Beck was guilty of contributory negligence. But there was no question of contributory negligence on her part being pressed by the defendant, nor was there any question about the one-fourth inch depression, and, therefore, this was practically a binding instruction to find for the plaintiffs. There is an additional contention by the learned counsel for the defendant that there was no evidence to sustain a finding that the alleged hole in the sidewalk had been there any length of time prior to the accident and, therefore, the counsel argues that the court erred in submitting the case to the jury for that reason. But we cannot reverse on that ground for the reason that'all of the points submitted by the defendant’s counsel conceded that the case was for the jury as to whether or not the accident was caused by a broken or defective sidewalk. The question of actual or constructive notice of a defective condition of the sidewalk was not raised at the trial, and it would be unfair to the court to attach importance to that subject now in view of the points submitted by the defendant’s counsel.

It is contended by appellee’s counsel that the jury found in favor of the plaintiffs on the ground that there was a hole in the sidewalk. This is begging the question. Under the instructions from the learned court, it is quite probable that the jury convicted the defendant of negligence because a board in the sidewalk was a quarter of an inch lower than the adjoining boards.

It is true that defendant’s first point concedes that the depression may have been about a quarter or half an inch deep, but we have considered it as not more than' a quarter of an inch because there is not a particle of evidence that the depression was greater than that.

In Morris v. Philadelphia, 195 Pa. 372, the Supreme Court said: “The plaintiff, Mrs. Morris, trod upon a brick in a slight depression in the pavement, and it turned under the pressure of her foot sufficiently to cause her to fall. There was no evidence to show that the brick was out of its position then, or at any time before, but it had become slightly loosened, a circumstance which may easily happen at any time in any part of the city. To hold the city liable in damages for every trivial accident of this kind would be to adopt a measure of liability quite unheard of, and entirely too severe for the ordinary administration of municipal affairs.”

It is only requisite that sidewalks should be maintained in a reasonably safe condition: Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283.

In Reed v. Tarentum Borough, 213 Pa. 357, it is held that the duty as to side-walks is to maintain them in a reasonably safe condition, and it cannot be left to the judgment or caprice of a jury to establish any other standard. The standard in this case was whether the pavement was reasonably safe. This was to be determined by the standard of ordinary usage, and not by a standard the jury might set up. See also Borough of Easton v. Neff, 102 Pa. 474.

When we consider the standard of ordinary usage, in regard' to slight depressions in sidewalks and pavements, it was unreasonable for the court to consider so slight a depression in a sidewalk as a dangerous defect. The law does not require perfect sidewalks; the standard is reasonably safety.

We are compelled to sustain all of the assignments of error and reverse the judgment, but in view of the manner in which the case was tried, we will award a new venire.

The judgment is reversed with a venire facias de novo.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Pittsburg’s Redistricting.

      Constitutional law — Municipalities—Classification of cities — Local legislation — Act of April 24, 1905, P. L. 307.
    The Act of April 24, 1905, P. L. 307, relating to the redistricting of cities of the second class into wards is not unconstitutional, nor violative of sec. 7, art. Ill, of the constitution forbidding local or special legislation regulating the practice or jurisdiction of the courts.
    The division provided by the act is of a ministerial, and not of a judicial character, and the power conferred on the president judge of the county in which the city is situated to appoint a commission to divide the city into wards is a proper exercise of legislative authority with which the courts will not interfere.
    Argued Oct. 20, 1908.
    Appeal, No. 75, April T.., 1909, by A. G. Craig, from order of C. P. No. 2, Jan. T., 1907, No. 955, dismissing exceptions to report of commissioners in the matter of Redistricting the City of Pittsburg into wards.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal dismissed for want of jurisdiction.
    Exceptions to report of commissioners appointed to redistrict the city of Pittsburg into wards. Before Frazer, P. J.
    The only question involved in the case is the constitutionality of the Act of April 24, 1905, P. L. 307.

      Error assigned was in dismissing exceptions to report of commissioners.

      Chas. A. O’Brien, of O’Brien & Ashley, for appellants. —
    The act of April 24, 1905, for redistricting cities of the second class is in violation of sec. 7, art. Ill, of the state constitution:, Wheeler v. Philadelphia, 77 Pa. 338; Ayars’s Appeal, 122 Pa. 266; Ruan Street, 132 Pa. 257; Wyoming Street, 137 Pa. 494;. Chalfant v. Edwards, 173 Pa. 246; Knox Street, 12 Pa. Superior Ct. 534.
    The powers conferred upon the president judge were judicial: Mississippi v. Johnson, 71 U. S. 475; Flournoy v. Jeffersonville, 17 Indiana, 169; Cooper’s Case, 22 N. Y. 67.

      Lee C. Beatty, with him W. B. Rodgers, for appellees.
    The division of a municipality into wards is not a matter of a judicial nature: Com. v. Bell, 4 Pa. Superior Ct. 187; Com. v. Scouton, 20 Pa. Superior Ct. 503.
    The act of 1905 does not impose any judicial duties upon the president judge, but provides a commission for redividing wards of second-class cities: Com. ex rel. v. Collier, 213 Pa. 138; Truitt v. Philadelphia, 221 Pa. 331; Philadelphia v. Fox, 64 Pa. 169; State v. Hathaway, 115 Mo. 36 (21 S. W. Repr. 1081); Robey v. Prince George’s County, 92 Md. 150 (48 Atl. Repr. 48); Baltimore v. Bonaparte, 93 Md. 156 (48 Atl. Repr. 735); Esmeralda County v. District Court, 18 Nevada, 438 (5 Pac. Repr. 64).
    December 7, 1908:
   Opinion by

Morrison, J.,

The contest in this case arises in proceedings for the division of the recently enlarged city of Pittsburg, a city of the second class, into wards, in pursuance of the act of assembly entitled: “An act authorizing the creation, division and consolidation of wards, in cities of the second class; providing a method therefor and fixing the minimum number of inhabitants in each ward.”

Under said act the petition was presented to Hon. R. S. Frazer, president judge of the court of common pleas No. 2 of Allegheny county, in December, 1906, and he appointed a commission as provided in.the act, which commission, on June 25, 1908, filed its report, dividing said city into wards, and the same being confirmed by the judge nisi, with leave to any interested party to file exceptions to said report within fifteen days; appellants filed exceptions to the constitutionality of the said act, alleging that it was local and special legislation regulating the jurisdiction and practice of the courts. These exceptions and others involving questions of fact, were heard by the judge and dismissed, he holding, as to the constitutional objections, that they could not prevail because the authority and duties conferred were not judicial in character, but merely ministerial. From this order of the president judge we have this appeal. ■

The learned counsel for appellants state the question involved to be (a) “Is the Act of April 24, 1905, P. L. 307, relating to the redistricting of cities of the second class, unconstitutional, as violative of sec. 7, art. Ill, of the constitution, forbidding local or special legislation regulating the practice or jurisdiction of the courts?” (b) “Does the act of April 24, 1905, which affects as a classification act only two counties, Allegheny and Lackawanna, by investing the president judge of the common pleas with exclusive authority, violate sec. 6, art. V, of the constitution, which provides that the courts of common pleas of Allegheny county shall consist of three judges each?”

The assignments of error relate first’ to dismissing appellant’s exceptions to the report of the commission and sustaining said report; second, that the court erred in holding that the act of April 24, 1905, was constitutional, and that the jurisdiction conferred thereby was not judicial but ministerial; and, third, that the court erred in dismissing all of the exceptions to the commissioner’s report and confirming it finally and in causing to be transmitted to the mayor of the city of Pittsburg a copy of the commissioner’s report, together with a copy of the judge’s order, to be submitted by the mayor to the councils to prepare and adopt an ordinance for carrying the report as confirmed into effect, as provided by the Act of April 24, 1905, P. L. 307.

The view we take of this appeal only requires us to consider the constitutionality of the said act of 1905 as relating to cities of the second class and as to the question of whether it attempts to impose new judicial powers upon the president judges of the common pleas courts of the counties containing cities of the second class.

The Act of June 25, 1895, P. L. 275, divides the cities of the state into three classes with respect to their population. Sec. 1 thereof provides as follows: “That for the purposes of legislation, regulating their municipal affairs, the exercise of certain corporate powers, and having respect to the number, character, power and duties of certain officers thereof, the cities now in existence and those hereafter created in this commonwealth, shall be divided into three classes; . . . .”

In Com. v. Moir, 199 Pa. 534, the Supreme Court held, as stated in the syllabus: “Classification of cities is a legislative and not a judicial question, and if it is based on difference of municipal affairs, and relates to and deals with such affairs, the questions of where the line shall be drawn and what differences of system shall be prescribed for differences of situation are wholly legislative.” That decision had special reference to the act of March 7, 1901, entitled: “An act for the government of cities of the second class.”

In Beltz v. Pittsburg, 26 Pa. Superior Ct. 66, we held the Act of June 25, 1895, P. L. 275, dividing the cities of the commonwealth into three classes, with respect to their population, to be constitutional. That case was appealed to the Supreme Court, and on April 24, 1905, the judgment of the Superior Court was affirmed: Beltz v. Pittsburg, 211 Pa. 561. Those decisions expressly recognize the power of the legislature to enact laws applying only to cities of the second class.

In Wyoming Street, Pittsburg, 137 Pa. 494, the division of the cities of this state into three classes, by the Act of May 23, 1874, P. L. 230, was held to be constitutional. Since the subdivision of cities into classes, legislation in respect of such classes has been upheld. See Act of May 23, 1889, P. L. 277, which was upheld in Lackawanna Township, 160 Pa. 494, where it was expressly held not special legislation within the meaning of art. Ill, sec. 7, of the constitution of 1874 as it is applicable to all cities of the third class. We, therefore, hold that the act of April 24, 1905, is not local or special legislation because it is limited to cities of the second class.

.The remaining question is whether the division of a municipality into wards is of a judicial or ministerial character. We are clearly of the opinion that such division of a municipality is not of a judicial nature. The following, among other acts, illustrate the practice in this respect. Under sec. 8, of the Act of March 13, 1844, P. L. 98, the city of Allegheny is divided into four wards, described in the section in question. The Act of March 17,1869, P. L. 377, divides the township of Covington, county of Luzerne, into two wards, and describes the boundaries of the wards. The Act of September 8, 1873, P. L. (1874), 433, divides a borough into two wards, and describes the boundaries of the same. By Act of March 13, 1844, P. L. 98, the select and common councils of-the city of Allegheny were empowered to change the boundaries of the wards and to divide the said city into four or more wards or districts so as to make the number of taxable inhabitants of each ward of said city as nearly equal as may be.. Under the Act of March 31, 1870, P. L. 717, it is provided that the councils of the city of Allegheny shall have power from time to time to change the boundaries of wards and to create new wards. Under the Act of April 2,1872, P. L. 743, the councils of the city of Pittsburg are empowered to provide by ordinance for dividing and arranging the territory of said city into wards, in such manner as not to make more than forty wards in the whole of said city.

The above and other acts that might be referred to indicate, quite strongly, that the division of a municipality into wards is legislative and not judicial.

The learned judge below expressly held that his duties under the act of April 24, 1905, were ministerial and not judicial. In this we think he was right. It is not a new thing for the legislature to impose ministerial duties upon a president judge; see Act of April 10,1867, P. L. 62, entitled: An act for the better and more impartial selection of persons to serve as jurors, in each of the counties of this commonwealth.” The Act of March 24, 1887, P. L. 14, imposes ministerial duties upon the president judge. We held this act constitutional in Commonwealth v. Bell, 4 Pa. Superior Ct. 187, and Com. v. Scouton, 20 Pa. Superior Ct. 503.

Art. V, sec. 21, of the constitution provides that: “No duties shall be imposed by law upon the Supreme Court or any of the judges thereof, except such as are judicial, nor shall any of-the judges thereof exercise any power of appointment except as herein provided.” We are not aware of any constitutional provision against the imposition of ministerial duties by the legislature upon individual judges, except the judges of the Supreme Court.

In Commonwealth ex rel. v. Collier, 213 Pa. 138, it is decided that, “The provision in section 21 of article V of the Constitution, that judges shall be exempt from the imposition of non-judicial duties, applies only to judges of the Supreme Court.”

We cannot think that the delegation of power under the act of April 24, 1905, would have been doubted if instead of the president judge of the court of common pleas, the power to appoint a commission had been delegated to the governor of the state, the mayor of the city or the president of either branch of councils. We do not think, however, that the powers of the president judge, under the act in question, are any greater than powers which could be conferred by the legislature upon a mayor or any other competent person.

The legislature has for the purpose of providing civil service in cities of the first class (see Act of March 5, 1906, P. L. 83), and for cities of the second class (see Act of May 23,1907, P. L. 206), created a commission, which commission is appointed by the mayor of the city. The civil service act relating to cities of the first class was upheld in Truitt v. Philadelphia, 221 Pa. 331. It is well settled that the legislature has full power over the municipal subdivisions of the state and can prescribe such method as it chooses to provide for the internal arrangements of a municipal corporation or destroy it: Philadelphia v. Fox, 64 Pa. 169.

We view the act .of April 24,1905, as a mode of exercising the legislative power to subdivide the cities of the second class into wards. The proceedings therein authorized are not judicial, but purely ministerial. “A judicial act is one which determines the existing law in relation to existing facts, and which applies the law to the subject-matter before the court:'' White on Constitution of Penna. 297.

In State v. Hathaway, 115 Mo. 36, it was held: “A judicial duty within the meaning of the constitution is such a duty as legitimately pertains to an officer in the department designated by the constitution as judicial.” That case has an interesting opinion by Gantt, J., in which he quotes from the supreme court of the United States in United States v. Ferreira, 54 U. S. 40. In Robey v. Prince George's County, 92 Md. 150, McShekry, C. J., discusses the question of judicial and nonjudicial power in an interesting manner. In his opinion he says: “The mere fact that a judge is called on by statute to execute a certain function does not make the function a judicial function. Its character is dependent ón its qualities, not on the mere accident as to the person who has been designated to do it. The qualities of the -act and not the character of the actor must determine the nature of the act. As said in Ex parte Candee, 48 Ala. 399: 'It by no means follows that a duty is judicial because it is to be performed by a judge; if in its performance he does not exercise the powers that appropriately appertain to his judicial office, it is ministerial, and not judicial, although its performance requires the exercise of his judgment.' ”

In Baltimore v. Bonaparte, 93 Md. 156, the same chief justice said: “The function of assessing property for purposes of taxation is essentially not a judicial function, and it cannot be made a judicial function by being imposed upon or committed to the judicial department.” The learned judge then holds that an appeal would not lie on a question involving the accuracy of an assessment, although it had been made by the judicial department.

In Esmeralda County v. District Ct., 18 Nev. 438, it is held: “The action of a judicial officer in regard to matters which are exclusively executive or administrative in their nature, even when the act of the legislature requiring such duties to be performed is in violation of the constitutional provision, cannot be reviewed by certiorari.”

For a thorough discussion of the question see the United States v. Ferreira, 54 U. S. 40, where in an' interesting opinion by Chief Justice Taney, we find the following: “The powers conferred by these acts of congress upon the judge as well as the secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as on a commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the constitution to the courts of the United States.” Again, the learned judge says: “It would seem, indeed, in'this case, that the district judge acted under the erroneous opinion that he was exercising judicial power strictly speaking under the constitution, and has given to these proceedings as much of the form of proceedings in a court of justice as was practicable.” The learned chief justice concludes with an order dismissing the appeal for want of jurisdiction.

In the present case it is contended that the learned president judge below thought- he was acting judicially because he had a record made up of the proceedings in the ordinary manner of making such records in court and that he made a decree for the payment of the expenses and costs of the commission. But this does not determine the character of the proceeding. Moreover, the learned president judge expressly held that he was only acting ministerially, and the question of the decree or judgment for the payment of the expenses and costs is not raised by the assignments of error and we decline to give it consideration.

The appeal must be dismissed for want of jurisdiction, and it is so ordered.


author: Rice, P. J.,

text:
    Ruddy’s Estate.

      Executors and administrators — Appointment of administrator d. b. n. c. t. a.

    A petition for the appointment of an administrator d. b. n. c. t. a. in order to charge a money legacy on land devised to another is properly dismissed where the petition does not allege that any assets of the estate had been discovered after the executor filed his account, nor that the estate had not been fully administered, nor that there were any moneys, goods or assets remaining in his hands due to and belonging to the testator’s estate, nor that any promises had been made to him in his representative character upon which an action would lie, nor that any judgment obtained by or in the name of the executor remained unsatisfied. In disposing of such a petition the court may consider the nature of the legacy and pass upon the question whether it was a charge on the land devised.
    Argued March 5, 1908.
    Appeal, No. 10, 1908, by Mary Nallin O’Malley, from decree of O. C. Lackawanna Co., dismissing petition for administrator d. b. n. c. t. a. in Estate of Elizabeth Ruddy, deceased.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for appointment of administrator d. b. n. c. t. a.
    Sando, P. J., filed the following opinion:
    This proceeding is upon an appeal by Mary Nallin O’Malley from the decree of the register of wills dismissing a petition which 'prayed for the appointment of an administrator d. b. n. c. t. a. for the estate of Elizabeth Ruddy, deceased.
    Elizabeth Ruddy died on October 1, 1903, testate, her will was probated, and letters testamentary thereon were granted to E. J. Lynett. The estate was duly settled according to law and the fixed rules of procedure. The executor’s first and final account was confirmed finally on November 25, 1905, and subsequently a rule was entered on all persons interested to show cause why the executor should not be discharged; on January 27, 1906, the rule was made absolute and it was ordered, adjudged and decreed that E. J. Lynett be discharged from his trust.
    An examination of the will, dated February 18, 1899, attached to the petition, and a part of the same, discloses:
    1. A legacy, “to my daughter, Maggie Ruddy,” a piano.
    2. A legacy, “all the rest of my household goods,” etc., “to my daughters, Maggie Ruddy and Sarah Ruddy, share and share alike.”
    3. A legacy, “unto my niece, Mary Nallin, the sum of five hundred dollars.”
    4. A devise of a lot of land and the three-story brick building erected thereon, numbered and known as No. 306 Penn Avenue, “unto my three daughters, Maggie Ruddy, Nellie Lynett and Sarah Ruddy, share and share alike, their heirs and assigns forever.”
    5. No residuary clause.
    An examination of the account filed shows that there was an indebtedness of $594.78, to pay and discharge which there were personal assets ($7.97 in a bank and $150 due from the estate of M. J. Ruddy, deceased), amounting to $157.97. The balance necessary for the payment of the debts, viz., $436.81, was made up by the devisees of the real estate and paid by them.
    It is contended by the petitioner that her legacy should, at least, in part be paid, by an abatement of the other legacies.
    The. determination of the questions raised involve a consideration of an administration de bonis non, and the character and quality of the three legacies and the one devise.
    Administration is either general or special. General when it is unlimited as to duration, and it is of the whole of the decedent’s estate. Special when limited, either as to time, or as to the quantity of the decedent’s estate. Limited administrations are, during minority, during absence, pending suit, and de bonis non, or of goods not administered.
    An administration de bonis non is but a continuance of the original administration by another hand, and under a separate responsibility.' The Act of February 24, 1834, sec. 31, P. L. 70, provides that an administrator d. b. n., with or without a will annexed, shall have power to demand and recover from his predecessor in the administration, all moneys, goods and assets remaining in his hands.
    Administration d. b. n. is where one is appointed to administer the goods of an estate which has been partially administered by a former executor or administrator who has since died, been discharged, or removed: Scott, page 106. And it depends upon two principal facts: First, that there is a vacancy in the office of executor or administrator, for if there is none the grant of such administration is void; and, secondly, that there are assets remaining to be administered. This second fact, however, need not be conclusively established. If a prima facie case of assets is made out, it is sufficient for the appointment of such an administrator, and leave it to the common-law courts to settle title to the property.
    The administrator can claim nothing but the goods, etc., remaining in specie, unconverted and unchanged, and his. commission is for the administration of the goods and chattels, rights and credits which were of the decedent at the time of her death, and remain unadministered, that is, in specie, unaltered or unconverted, by any act of the first executor.
    What is meant by having administered a decedent’s personal estate is not barely that it had been converted into cash by the executor, but that he had also disbursed and paid out the same, together with all the assets of the estate, which at any time came to his hands, in the manner required by law.
    It has not been shown that there are any goods and chattels of the decedent which remained in specie, unadministered, in the hands of the former executor.
    Coming now to the consideration of the character and quality of the three legacies and the one devise. According to our view of the matter the gifts of the piano and all the rest of the • household goods, etc., are specific legacies; the devise of the property on Penn avenue, is a specific one; while the gift of $500 is nothing more or less than a general legacy.
    Legacies for all purposes of legal adjudication are of three lands: general, demonstrative and specific. A legacy is general when it does not amount to a bequest of any particular thing, or money, distinguished from all others of the same kind. When it is so given as not to amount' to a bequest of a specific part of a testator’s personal estate, as of a sum of money generally: 1 Roper on Leg. (2d Am. ed.), p. 365.
    A regular specific legacy may be defined:
    “The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a house, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” It differs from a general or pecuniary legacy in this respect, that if there be a deficiency of assets, the specific legacy will not be liable to abate with the general legacies: 1 Roper on Leg. (2d Am. ed.), p. 190. The specific legatees take their bequests in specie, and the specific devisees take the real estate directly under the will.
    These distinctions are all important to this inquiry, for a general legacy will abate until entirely consumed before the specific legacies can be compelled to abate.
    When the language of the bequest is such that neither by reference to any collateral thing can the money be distinguished from the testator’s other moneys, nor a clear intention be perceived to give a specific part of his personal estate, such a bequest will be general; it does not fall within the definition which has been given of a regular specific legacy. The legatee is unable to point out any particular sum of money that she can call her own. The legacy therefore must necessarily be general.
    Money may be the subject of a specific bequest, the test being, is it money separated from the testator’s other money and from his general personal estate, and described as in that condition, so that the intention is clear to give the identical and particular money and not a sum of like amount from the testator’s money generally: Gilchrist’s Estate, 9 Pa. Dist.,Rep. 249; Barrett’s Estate, 22 Pa. Superior Ct. 74.
    Having fixed the quality of these several bequests, the next question that arises is this: In the event of an insufficient fund to pay all of them, upon which does the loss fall? Our answer to the question is, upon the person who claims the general legacy.

      When, the bequest is made in the form of a general legacy, and there are no expressions in, or inference to be drawn from, the will, manifesting an intent to give priority, the legacy is not exempt from abatement.
    If there is a deficiency of assets after payment of debts, expenses and specific legacies, the loss is borne entirely and proportionately by those pecuniary legacies which are in their nature general: Appeal of University of Penna., 97 Pa. 187,
    It is presumed to be the intention of the testator that the legatee should have the chattels and the devisee the lands: Grim’s Appeal, 89 Pa. 333. Real estate specifically devised cannot be resorted to for payment of a pecuniary legacy in case of a deficiency of personal estate: Martin’s Estate, 12 Lane. Law Rev. 359.
    A testator owned a farm which he devised to his son, and also made a bequest of a certain sum of money to one of his children, and there being no personal estate out of which to pay the same, and no direction that said bequest should be a charge on the real estate, held, that the said bequest must fall: Kreitz v. Raub, 3 Lane. Law Rev. 196.
    The specific legatees and devisees cannot be called upon to pay any portion of the general legacy of $500 to Mary Nallin O’Malley. There being no moneys with which to pay it, and as there is nothing in the will to indicate any intention upon the part of the testatrix to charge it upon the real estate devised, it must fall.'
    What remedy, under existing circumstances, the petitioner can have, for the recovery of her legacy, we are not bound to say; we are to decide whether the proceeding which she has brought be maintainable. Our opinion is against the proceeding.
    Now, December 17,1906, the petition of Mary Nallin O’Malley is dismissed and the appeal from the register is not sustained.
    ' Error assigned was decree dismissing the petition.

      A. A. Vosburg, with him G. W. Dawson, for appellant,
    cited: Eyster’s Est., 5 Watts, 132; Potts v. Smith, 3 Rawle, 361; Com. v. Strobecker, 9 Watts, 479; Maupay’s Est., 2 Brewst. 491.

      Cornelius Comegys, for appellees,
    cited: United States v. Perryman, 100 U. S. 235; Appeal of University of Penna., 97 Pa. 187; Grim’s App., 89 Pa. 333; Kreitz v. Raub, 3 Lanc. Law Rev. 196.
    December 7, 1908:
   Opinion by

Rice, P. J.,

This is an appeal by Mary Nallin O’Malley, a legatee under the will of Elizabeth Ruddy, deceased, from a decree of the orphans’ court dismissing her appeal from an order of the register of wills refusing and dismissing her petition for the appointment of an administrator de bonis non cum testamento annexo of the estate of Elizabeth Ruddy. At the foundation of the proceedings is the petition of the appellant which was addressed to the register. It set forth that Elizabeth Ruddy died on a date named, leaving a will, a copy of which was attached to the petition; that by the will a legacy of $500 was left to the petitioner, no part of which had been paid; that the executor filed an account which was approved by the court, and thereafter, bút without any notice to the petitioner (the allegation as to want of notice was denied in the answer), was discharged; and that the petitioner was informed that the other bequests and devises had been carried out, but that nothing had been paid to her. The petition did not allege that any assets of the estate had been discovered after the executor filed his account, nor that the estate had not been fully administered, nor that there were any moneys, goods or assets remaining in his hands due to and belonging to the testator’s estate, nor that any promises had been made to him in his representative character upon which an action would lie, nor that any judgment obtained by or in the name of the executor remained unsatisfied. What occasion then was there for the appointment of an administrator de bonis non? Doubtless, if the register had made the appointment, it could not be attacked collaterally. But the question here is not, whether it would be void for want of jurisdiction, but whether under the circumstances his action in refusing to make the appointment was erroneous and injurious to the petitioner. Counsel say that if this appeal is sustained, they propose to ask for the enforcement of the petitioner’s legacy by proceeding against the new administrator. But this seems to be a very unsatisfactory answer, unless more can be shown than is alleged in the petition, and looking at the case from the standpoint of the petition only, we discover no other answer to the question that is satisfactory.- Nor is a different conclusion reached by considering the case in the light of the facts recited in the opinion of the learned judge below, to which we refer for a full discussion of the questions arising out of the provisions of the will and the facts developed on the hearing.

Moreover, it appears that after the register had refused and dismissed her petition, the petitioner instituted another proceeding in the orphans’ court, which had for its object the striking off of the confirmation of the executor’s account, the review of his account and the vacation of the decree discharging him. The fact that the disposition of that proceeding was postponed, upon the application of the appellant, until after the proceeding now under review should be determined, does not furnish a valid reason why, in determining the latter, the court should not consider the nature of the legacies and pass on the question whether the appellant’s legacy was a charge on the land. Nor do we perceive any other reason for questioning the propriety of considering those matters, or for overturning the conclusions relating to them at which the learned judge arrived. We express no opinion upon the questions that have arisen or may arise in the second proceeding above referred to, further than to say that, so far as now appears, it affords protection to any right the appellant is in position to assert. The raising up of a new administration would not put her in any better position, but would be the cause of unnecessary circumlocution and expense. We find no error in the decree appealed from of which the appellant can justly complain.

The decree is affirmed, and the appeal dismissed at the costs of the .appellant.


author: Head, J.,

text:
    Hohenstein v. Perelstine, Appellant.

      Trade-mark — Unfair competition in trade — Fraud,—“Carter shoe.”

    The general rale is that anything done by a rival in the same business, by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another’s manufacture, would be in fraud of that other’s rights, and would afford just grounds for equitable interference.

      Appeals — Findings of fact — Equity—Review.
    Where the conclusions of fact reached by the trial court in an equity case rest upon sufficient evidence, and the record discloses no manifest error in their deduction from the evidence, the appellate court will not reverse the decree based upon the findings, and this is the case although the evidence may be conflicting.
    Argued April 27, 1908.
    Appeal, No. 37, April T., 1908, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 71, on bill in equity in case of Isaac Hohenstein and Louis Jacobson, trading at The Griswold Shoe Company, v. Abraham Perelstine et al.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Miller, J., specially presiding, filed the following opinion:
    The bill is to restrain the defendants from advertising and selling a shoe known as the Carter shoe, or the Captain Carter Foot Form Shoe, alleging that it is an attempt to infringe upon plaintiffs’ trade-mark, and an attempt to deceive by selling said shoe as the Carter shoe, the sole right of which belongs to the plaintiffs.
    The answer denies the infringement, and avers that the name used is separate and distinct from that used by plaintiffs; that there has been no deception and no intention to deceive the public in the sale of defendants’ shoes as those sold by the plaintiffs.

      FINDINGS OF FACT.
    1. The plaintiffs are at present doing business under the name of The Griswold Shoe Company, the same being the retail shoe business at No. 217 Smithfield Street, Pittsburg. Hohenstein, one of the plaintiffs, for a number of years before carried on the same business in the basement of the Marine National Bank, No. 303 Smithfield street, being on the opposite comer from that now occupied by the plaintiffs.
    2. The defendants conduct the retail shoe business at present in the basement of No. 301 Smithfield street, formerly occupied by the plaintiffs, into which place they moved April 1, 1901, and from which the plaintiffs removed February 1, 1901.
    3. For a number of years one David Carter had been in the shoe business on Fifth avenue, near Wood street, and had made a speciality of a peculiar shaped broad toed shoe which he advertised as the Carter shoe, made for comfort and tender feet. These shoes were made by lasts which Carter designed. When Carter retired from the shoe business some four or five years ago, he sold and assigned to Hohenstein, one of the plaintiffs, the lasts upon which this peculiar shoe known as the Carter shoe was made and manufactured, and also gave him the right-to sell and advertise said shoe as the Carter shoe, in the same manner as he, Carter, had done when in business. Hohenstein made a speciality in his business of this broad toed Carter shoe, and adopted the word “Carter” as a trade-mark. He made special efforts and spent large sums of money in advertising said shoe, and by reason thereof established an extensive sale or business therefor.
    4. After the plaintiffs had removed from 301 Smithfield street and defendants moved in, the latter advertised and sold a broad toed shoe similar to that described in the third finding of fact, marking the ribbon used for pulling on the shoe with the name on the inside “The Captain Carter Foot Form Shoe,” whereupon the plaintiffs caused notice to be given defendants and other shoe dealers that they had the sole right to manufacture and sell this shoe under the name of the Carter shoe, and that they had made application for and had been granted the right to register said name as their trade-mark under the Act of June 20, 1901, P. L. 582; this trade-mark consists of the word “Carter” preferably arranged below the picture of a carter driving an animal; this trade-mark grant provided that the same as registered was intended to be appropriated to dealings in boots, shoes and footwear; that the grantee has the right to use the same, and that no other person or persons, copartnership or corporation has a right to such use either in the identical form or in any other such near resemblance thereto as may be calculated to deceive. The defendants subsequent to notice from the plaintiffs and to notice of the registry of plaintiffs’ trade-mark, on September 14, 1905, twelve days after the last notice, sold to two customers who went in defendants’ place of business for the purpose of buying a pair of shoes, who, after looking at several pairs, stated to the clerk that what they desired was a broad easy shoe, whereupon the clerk replied, “Yes, I know what you want, the Carter shoe,” and produced a shoe with the tag or ribbon marked Captain Carter Foot Form Shoe, and sold the same to them. There was also evidence that they sold shoes under said name as the Carter shoe to a man by the name of Tillbrook. The further fact is found that the defendants at No. 301 Smithfield Street exhibit and advertise with the picture hereinafter described, and sell a shoe similar in all appearance to that sold by the plaintiffs, which is marked on the ribbon as hereinbefore described, the Captain Carter Foot Form Shoe.
    6. The defendants and one Carter, a steamboat pilot or captain, entered into an agreement that Carter’s photograph should be taken holding this style of shoe in his hand, and that the same should be exposed in their show windows among the shoes which were tabbed or marked as' hereinbefore set forth the Captain Carter Foot Form Shoe.
    CONCLUSIONS OF LAW.
    1. The use of the words the Captain Carter Foot Form Shoe on the defendant’s ribbon attached to their shoes, taken in connection with their oral representations in making sales that said shoes were the Carter shoes, is an infringement of plaintiffs’ right to the name “Carter,” and an imitation of plaintiffs’ trade-mark to that extent; it is the use of such a likeness or imitation thereof as is calculated to deceive, and was used by the defendants with intent to deceive the general public, and to deprive the plaintiffs of their right thereto to that extent.
    2. An injunction will be granted restraining the defendants from advertising or selling their broad toed shoes under the name and with the label of the Captain Carter Foot Form Shoe, or representing the same to be in any way the Carter shoe.
    3. The penalty fixed by the trade-mark act of 1901, will not be imposed; but this without prejudice to the plaintiffs to bring suit in a court having jurisdiction, of an action for a fine or penalty.
    4. The plaintiffs are entitled to an accounting from defendants of all shoes sold under the name of the Captain Carter Foot Form Shoe, or qí the Carter shoe.
    5. The defendants must pay the costs of these proceedings.
    OPINION.
    David Carter originated, manufactured, stamped with his name and sold this special broad toed shoe so designed according to his own ideas, built from lasts of his own invention; for the sale of these shoes thus manufactured and advertised, he built up an extensive trade.
    Hohenstein by permission and purchase from Carter acquired all the rights Carter exercised or claimed. The reputation and sale of the Carter shoe was well established, and Hohenstein as Carter’s successor had the exclusive privilege and a valuable asset. So far as it was possible he protected his right and property by obtaining from the state a recognition of said right under the trade-mark provision of the act of 1901. The reputation of the name and of the shoe itself being thus established and having acquired a large sale, when Hohenstein moved from the basement of 301 Smithfield street, and Perelstine moved in, the latter desired to hold or make trade for what might be passed off as the Carter shoe. To carry it into effect he devised the scheme upon which his defense is based, to wit: the arrangement with a steamboat pilot as to the photograph and the use of the name Captain Carter Foot Form Shoe found on the inside of the tag or strap used to pull on the shoe. Defendants’ contention that this was not intended to infringe upon plaintiffs’ sale of the well-established Carter shoe is not borne out by the facts, in view of the testimony that in at least two instances they sold shoes not as the Captain Carter Foot Form Shoe, but as the Carter shoe. By this deceitful practice defendants imposed upon the public to the prejudice of the plaintiffs. The manner of marking and advertising the so-called Captain Carter Foot Form Shoe is calculated to deceive the incautious and unwary, and thereby deprive the plaintiffs of their just gains and profits: Colton v. Thomas, 2 Brewster, 308.
    The similarity amounted to false representation that defendants’ shoes had the same origin and that they are of the same manufacture as plaintiffs’: Dixon Crucible Company v. Guggenheim, 2 Brewster, 321.
    The name “Carter” stamped upon the soles of plaintiffs’ shoes, coupled with the manner in which the manufacture and the use of the same began and so continued, distinguishes their origin and make, and protects an infringement thereof, and is within one of the principles deduced by Upton, and affirmed in the case last cited.
    The defendants have pirated from plaintiffs’ trade-mark, that which gives it its chief value, to wit: the name “Carter,” and is using it in connection with the other words on their shoe. This name is the distinguishing feature; eliminate it from the trademark and its distinctive characteristic is gone: Ayer v. Hall, 3 Brewster, 509.
    The registry of plaintiffs’ trade-mark and the grant of the commonwealth to use the same was notice to the world of a property right therein; of this defendants had specific notice and therefore proceeded at their peril.
    While the defendants’ imitation or use of the name “Carter” is only partial, containing such additions or variations as to be readily disclosed on comparison, yet it is manifest that a resemblance exists; the use of the name “Carter” was designed to mislead and did mislead; and when it came to the actual sales found in the findings of fact no attempt was made to impress on the purchaser the fact that the shoe sold was any other than the well-known Carter shoe.
    The current of authority is that no premium or encouragement will be given “to the cunning and crafty” to exercise their ingenuity to accomplish by cheating, skillfully executed, that which they would not be allowed to do by a direct and undisguised .piracy: Colton v. Thomas, 2 Brews. 308.
    The conclusions heretofore reached are amply sustained by the application of the principles announced in Heinz v. Lutz, 146 Pa. 592; Van Stan’s Stratena Co., Limited, v. Van Stan, 209 Pa. 564; Paul on Trade-Marks, p. 210.

      Error assigned was the decree of the court awarding injunction.

      Marcus W. Stoner, for appellants.
    The decree was not justified by the evidence: Dixon Crucible Co. v. Guggenheim, 2 Brewst. 321; Ferguson v. Davol Mills, 2 Brewst. 314; Collins Co. v. Cowen, 3 Kay & Johnson, 428; Corwin v. Daly, 20 N. Y. Super. Ct. 222; Desmond’s App., 103 Pa. 126; Heinz v. Lutz, 146 Pa. 592.

      Jas. T. Buchanan, for appellees.
    For a discussion and statement of the principles of law applicable to the facts of this case the court is respectfully referred to the following: Ferguson v. Davol Mills, 2 Brewst. 314; Laughman’s App., 128 Pa. 1; Hoyt v. Hoyt, 143 Pa. 623; Dixon Crucible Co. v. Guggenheim, 2 Brewst. 321; Colton v. Thomas, 2 Brewst. 308; Crawshay v. Thompson, 4 Man. & Gr. 357; Gillis v. Hall, 2 Brewst. 342; Ayer v. Hall, 3 Brewst. 509; Van Stan’s Stratena Co., Ltd., v. Van Stan, 209 Pa. 564; Fulton v. Sellers, 4 Brewst. 42.
    December 7, 1908:
   Opinion by

Head, J.,

In reviewing the record of an appeal from a decree in equity it is not our province to find, for ourselves, the facts from the testimony as it appears on the printed pages of the paper-books. When we have ascertained that the conclusions of fact reached by the trial court rest upon sufficient evidence and the record discloses no manifest error in their deduction from the evidence, our duty in this respect has been fully discharged.

There was evidence that one David Carter had been engaged, for perhaps twenty-five years, in the retail shoe trade in the city of Pittsburg. That he had especially sought to secure the patronage of those who desired a comfortably fitting shoe, easy for tender feet, rather than of those who required that their footwear should conform to the latest mode of the fashion. To accomplish his purpose he selected a shoe, somewhat unusual in appearance because of its marked width across the toe; had them manufactured in such qualities of material as suited his trade; had them stamped “The Carter Shoe,” and under that name extensively advertised and sold them.

When he retired from business, a few years before the filing of this bill, the plaintiffs, or one of them, secured from him such rights as he could give to continue the advertisement and sale of the same shoes marked with the same stamp and under the same name that had been used by him. >

That the business, owned by the plaintiffs at the time the bill was filed, had been carried on by Hohenstein, one of them, for some years prior to 1901, in a room or rooms, on the corner of Smithfield street and Third avenue, in the city of Pittsburg. That in the spring of that year he removed to the opposite corner of the same streets, and the premises vacated by him were then occupied by the defendants, also engaged in the retail shoe trade.

There is evidence, although it is contradicted, that the defendants began to sell broad toed shoes, resembling those handled by plaintiffs, advertising them in their show windows and on the exterior walls of the building as “The Carter Shoe.” The plaintiff, Hohenstein, then sought the protection of the Act of June 20, 1901, P. L. 582, and registered, as his trademark, the word “Carter,” with the device described in his certificate, and upon receipt of the latter, notice was given to the defendants. The use of the public signs, already mentioned, was then abandoned, but the defendants continued the sale of the same shoes having first had them marked, on the ribbon or strap attached to each shoe, “The Captain Carter Foot Form Shoe.” But there is evidence, although again it is contradicted, that in making sales, the employees of the defendants continued to describe and designate, to purchasers, their shoes as “The Carter Shoe.” This bill was then filed.

All of these facts have been found by the learned court below, and in so far as the appellants complain of such findings, their complaint is answered by the following language taken from the opinion of Mr. Justice Stewart in the recent case of Portuondo Cigar Mfg. Co. v. Cigar Mfg. Co., 222 Pa. 116, — where the whole subject of the infringement of trademarks was extensively considered, viz.: “It maybe conceded that some of the specific facts found by the court are fairly disputable; but none are without support in the evidence, certainly none which might be regarded as material. The findings with respect to those disputable are not open to review, except as manifest error is shown, and that is not the case with respect to any of them.”

A consideration of the entire line of conduct pursued by the defendants, as manifested in the facts found, can hardly fail to leave the impression that they persistently sought to secure, for themselves, some of the benefits, real or fanciful, which they must have assumed attached to the use, in some form, of the word “Carter,” in connection with the sale of the shoes they desired to put upon the market.

As to the law applicable to the facts found, we think it sufficient to say that, in our judgment, the opinion filed by the learned trial judge and the authorities therein cited, vindicate the conclusions he has reached and the decree he has entered. His position is still further strengthened by the following language taken from the latest utterance of the Supreme Court, in the case last cited, viz.: “The general rule is that anything done by a rival in the same business, by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another’s manufacture, would be in fraud of that other’s rights, and would afford just grounds for equitable interference.”

An examination of the whole record disclosing no reversible error, the assignments must all be dismissed.

Decree affirmed. .


author: Henderson, J.,

text:
    Hoffman’s Estate.

      Practice, O. C. — Appeals—Adjudication—Redistribution—Paper-books —Quashing appeal.

    Where a decree of the orphans’ court is sustained on appeal, and a redistribution is made by the lower court in accordance with the order of the appellate court, a party in interest cannot on exceptions to the distribution, without presentation of any claim or offer of evidence, raise questions which were passed upon in the original adjudication, a,nd as to which no exceptions had been filed, or appeal taken.
    In such a case where an appeal is taken from the order of redistribution, but the appellant fails to print the evidence in the first appeal, and it also appears that the appellant failed to present any claim in the readjudication proceedings, the appeal will be quashed.
    Argued Nov. 11, 1908.
    Appeal, No. 222, Oct. T., 1907, by J. W. Hoffman, from decree of O. C. Lancaster Co., May T., 1905, No. 39, dismissing exceptions to redistribution in Estate of John Hoffman, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beavér, JJ.
    Appeal quashed.
    Exceptions to redistribution. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exception to redistribution.

      B. F. Davis, for appellant.
    ' W. H. Keller, of Coyle & Keller, with him H. B. Lutz, for appellee. . ■; .

      December 7, 1908:
   Opinion by

Henderson, J.,

The estate of John Hoffman was the subject of distribution proceedings in the orphans’ court of Lancaster county, in which a decree was entered by that court. From'that decree Margaret B. Gross, a creditor, appealed to this court. That appeal was sustained (Hoffman’s Estate, 32 Pa. Superior Ct. 646). The effect of the .decree of the Superior Court was to entitle her to participate in the distribution of the estate of the decedent on a .note signed by the decedent payable to J. W. Hoffman, which he had indorsed to Margaret B. Gross as collateral security for a note which he owed her. No other person appealed from the adjudication referred to. On the return of the record from this court to the orphans’ court a distribution was made to Margaret B. Gross as a creditor’ of the estate of the decedent. To this last adjudication the appellant excepted as a son and heir of the decedent, and also as a creditor, because of the refusal of the court to award him one-sixth of the estate as an heir, and to allow him certain claims, as follows:

The difference between the amount awarded to Margaret B. Gross, on account of her. claim against the appellant, and the whole amount of the collateral note on which she participated in the distribution of the decedent’s estate, amounting to $154.03;

■ Also the difference between the amount awarded on an attachment and judgment of one Harry S. Kerns and the amount of a note of the decedent indorsed by the appellant to Kerns as collateral security, amounting to $84.50;

Also the difference between a debt due the Ephrata National Bank and the amount of a note of the decedent indorsed by the appellant to the bank as collateral security, amounting to $12.63.

The court overruled these exceptions and from that action this appeal was taken. It does not appear, however, from the record that the appellant presented any claim at the redistribution, or that the court rejected any claim presented.

The appellant did apply to the orphans’ court to open the first adjudication to permit him to present his claims in that proceeding. This the court refused to do, but no exception was taken to that action.

We are asked now in effect to review the first adjudication, which was finally settled except as to the appeal of Margaret B. Gross, and to make a new distribution awarding to the appellant claims which he did not present in that proceeding, and that, too, without the evidence necessary to sustain them.

The Gross appeal only established the right of the appellant and did not open the case for the introduction of questions settled in the court below and not appealed from: Commonwealth v. McDonald, 170 Pa. 221.

If the rights of the appellant were not secured in that distribution- it was his duty to except and appeal. Having failed to do so we cannot now review the action of the orphans’ court.

The further objection that the .appellant has not brought up the record necessary to a determination of the'complaints which he presents is well founded. The evidence in the first appeal is not before us; it is not printed in the appellant’s paper-book. All of the record of the former case now presented is the docket entries, a part of the adjudication, and the will of the decedent.

Rule 27 of this court requires an appellant from the orphans’ court to print in his appendix such documentary or other evidence as may be necessary. An inspection of the appellant’s’paper-book makes it clear that it would be necessary to resort to some other evidence than that exhibited therein to enable the court to grant the relief which he seeks.

The appellees have moved the court to suppress the paper-book and quash the appeal, and as it does not appear from the record that the appellant presented any claim in the re-adjudication proceeding which was rejected by the court, the motion to quash the appeal is sustained.


author: Portee, J.,

text:
    Smith, Appellant, v. Levy.

      Contract — Sale—Executory contract — Goods sold and delivered — Tobacco.

    In an action to recover for tobacco sold and delivered, it appeared that the defendant agreed in writing to purchase the plaintiff’s present crop of tobacco, wrappers to be paid for at fifteen and one-fourth cents per pound and fillers at five cents per pound, “no fillers to be stripped in the wrappers.” It was also provided that the tobacco should be well assorted and in good merchantable order, and delivered at defendant’s warehouse. Plaintiff delivered one lot, which was received and paid for. Shortly thereafter he delivered the remainder, which the defendant rejected on the ground that it had not been properly assorted, but that fillers had been mixed with wrappers, and that the tobacco was not in good merchantable condition. At the time of the written contract, the tobacco was hanging in plaintiff’s barn, and before it could be delivered it had to be cured, stripped and assorted. The evidence was conflicting as to the condition of the second lot of tobacco when it was delivered. Held,

    (1) That the burden was on the plaintiff to show that the tobacco tendered and rejected was well assorted, and in good merchantable order.
    (2) That the acceptance of one lot of tobacco did not relieve the plaintiff of the covenants of the contract as to the toba.cco which he subsequently tendered.
    (3) That the contract was executory and title to the tobacco did not pass at the time the contract was made.
    (4) That it was competent for the defendant to establish by the testimony of witnesses expert in such matters what was the condition of the tobacco at the time of the alleged delivery, and it was not necessary that the plaintiff should have-had notice that such witnesses were to make such examination.
    (5) That it was proper for the defendant to show that the plaintiff had been notified to remove the tobacco from defendant’s warehouse after it had been rejected.
    (6) That evidence of the market value of the tobacco actually tendered, but which was not what the defendant had agreed to buy, was not admissible; and
    (7) That the whole case was for the jury and that a judgment and verdict for defendant should be sustained.
    Argued Nov. 12, 1908.
    Appeal, No. 53, Oct. T., 1908, by plaintiff, from judgment of C. P. Lancaster Co., March T., 1907, No. 20, on verdict for defendant in case of R. C. Smith v. M. Levy.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for tobacco alleged to have been sold and delivered. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.
    After Christian E. Herr had testified, the following motion was made:
    Mr. Davis: I ask that all the testimony of this witness be stricken out, because it is an alleged examination of the tobacco without notice to the- plaintiff or his presence, to know whether it was his tobacco or not.
    Objected to by the defendant.
    The Court: That is disallowed.
    Plaintiff excepts. [6]
    Alfred Kendig, a witness called by the defendant, was asked this question: “Q. How did you find that tobacco, with reference to its being sorted or not?”
    Mr. Davis: I object.
    The Court: Let him answer.
    Plaintiff excepts, [7]
    Amos B. Denlinger, a witness called by the defendant, was asked this question: “Q. You tell the court and jury, just in your own way, what examination you made of that tobacco, or what was made of it, and what condition you found it in.”
    Mr. Davis: I object, if the court please.
    The Court: Let him answer.
    Plaintiff excepts. [8]

      “A. I examined the tobacco and found that probably half of it would have been wrappers; that the rest was fillers of different colors, sandy and not sized up. That is about the whole of it. Not lengthened up all nicely; lengthened the way we do, the way you size tobacco, it wasn’t.”
    Mr. Coyle: “Q. I can’t hear you. A. It wasn’t sized up even. Q. Then it was in that condition before the buyer looked at it hanging up in the barn-, wasn’t it?”
    Mr. Coyle: That is objected to as immaterial.

      The Court: Disallowed. It is not cross-examination either.
    Plaintiff excepts. [9]
    George Herr, a witness called by the defendant, was asked this question on cross-examination: “Q. You were there when he brought his first lot, were you? A. I was working in the cellar, yes, sir. Q. How many bales of wrappers were there at that time, and how many fillers?”
    Mr. Coyle: That is objected to as not cross-examination.
    The Court: He did not testify about that. ' That is disallowed. That is paid for. It is immaterial. The whole dispute is about this second lot.
    Plaintiff excepts.. [10]
    Morris Levy was asked this question: “Q. Will you tell us how many bales there were in the first delivery on January 18? ”
    Mr. Coyle: That is objected to as not cross-examination and not material.
    The Court: That is disallowed. Plaintiff excepts. [11]
    “Q. Did you ever send word or notice to Mr. Smith that you were going to have any of these men there to examine this tobacco?”
    Mr. Coyle: It is objected to as immaterial.
    The Court: It is disallowed. That does not make any difference.
    Plaintiff excepts. [12]
    “Q. Did you ever give notice to Mr. Smith that you were going to have anybody there to inspect this tobacco?”
    Mr. Coyle: That is objected to as immaterial.
    The Court: Disallowed. It is wholly immaterial.
    Plaintiff excepts. [13]
    W. W. Bones, a witness called-by the defendant, was asked this question: “ Q. Will you please tell the court and jury how you found that tobacco, as to its being in merchantable order and well sorted and free from damage?”
    Objected to by plaintiff. Allowed. Plaintiff excepts. Bill of'exceptions signed. [14]

      “A. It didn’t impress me favorably. With all due respect to my friend, the farmer, I couldn’t say — ”
    Mr. Davis: Never mind about that. Just tell us how it was.

      “A. It wasn’t put up merchantably.”
    Mr. Coyle: I offer in evidence, if your honor pleases, “ C. I. L. No. 6,” the copy of the letter dated February 20, 1907, from Mr. Levy to Mr. Smith; and the registry return receipt, marked “C. I. L. No. 7,” dated February 22, 1907, signed by R. C. Smith.
    Mr. Davis: Objected to: First, because it is argumentative and self-serving; second, written after suit brought and an appeal taken to court.
    Admitted in evidence.
    , Plaintiff excepts. [15]
    Mr. Coyle reads “C. I. L. No. 6” to the jury.
    Copy of “C. I. L. No. 6:”
    “2-20 7
    “Mr. R. C. Smith,
    “Dear Sir: I desire to notify you again, as I notified you verbally at the time your tobacco was delivered at the company’s warehouse, that the tobacco is not according to contract, and I cannot accept or receive the same. The tobacco is at the warehouse, corner Prince and Lemon Sts., where you left it, subject to your order and at your risk.
    “Yours truly,
    “ Morris Levy,
    “Agent United Cigar Manufacturing Co.”
    Mr. Davis: I want to call Mr. Smith to prove that the value of his tobacco was equal to the amount of the sale, and was worth that in the market at the time.
    Objected to by the defendant as immaterial and irrelevant.
    The Court: That is disallowed. He sued on the contract.
    Plaintiff excepts. [16]
    The court charged in part as follows:
    [There is no other testimony upon this point, and it seems, to me that it would not be unfair to assume that it is still there, and it belongs, we'say to you, to the plaintiff'or the defendant, as you shall determine this suit. If the tobacco was delivered in proper condition to Mr. Levy and he is obliged to pay for it by your verdict, it is, of course, then his tobacco. If your verdict is for the defendant, then you will have ascertained that the tobacco was not in good condition, and was not received, and then, of course, it belongs to the plaintiff.] [1]
    [The whole question may, therefore, be summed up as follows: If you believe that the plaintiff performed his contract by delivering his tobacco substantially in accordance with its terms, then the defendant had no right to reject it, and your verdict should be in favor of the plaintiff for the full amount of his claim, with interest from January 31, 1907. If, on the other hand, he did not substantially perform his contract, if the tobacco was not properly assorted, by reason of fillers being mixed with the wrappers, or if there was damaged or rotten tobacco in the crop, or if it was not delivered in a good merchantable order, as was stipulated for by the contract, then your verdict should be for the defendant.] [2]
    [You will consider this question fairly and impartially. This you have sworn to do. If Mr. Smith carried out his contract, he is entitled to his money. . If he has not substantially done so, the defendant should not be asked to pay for this tobacco. The parties stipulated that it should be delivered in a certain way, and if the plaintiff failed to-comply with his agreement, he is not entitled to recover the value of the tobacco.] [3]
    [Concerning the most of these facts, you will have no trouble. The contract is in writing. It is the law between the parties and must govern their rights and conduct. The plaintiff was bound to deliver his tobacco to the defendant in the manner and in the condition stipulated in the contract, and upon his doing so, the defendant was equally bound to pay the plaintiff the contract price. A failure on the part of either released the other from his undertaking.] [4]
    [In addition to the defendant and his two sons testifying as to the condition of this tobacco at the time of its delivery, there were called, on his behalf, three men who were working in the warehouse at that time, — George Herr, Gorman and Shaub, — and nine farmers or tobacco dealers, — I think seven farmers and two tobacco dealers, — who examined a lot of tobacco in the warehouse with tags on marked “Smith.” The three workmen said it was Smith’s tobacco — at least, Shaub and Herr did; I am not quite certain about Gorman. These farmers were shown it by Mr. Levy, they say, on either the first or second day of February, 1907. He and his son, and George Herr and Shaub, testified that the tobacco that was shown to these men was the Smith tobacco; it was the Smith tobacco that they examined.] [5]
    Verdict and judgment for defendant.. Plaintiff appealed.

      Errors assigned were (1-15) above instructions) quoting them; (6-15) rulings on evidence, quoting the bill of exceptions.

      B. F. Davis, for appellant.

      William H. Keller, with him John A. Coyle, for appellee.
    December 7, 1908:
   Opinion by

Portee, J.,

The plaintiff brought this action to recover for a lot of tobacco, which he alleged in his statement had been delivered to the defendant under the- following contract: “Copy of C. I. L. No. 1:1672. No Fillers to be stripped in the Wrappers.

“Lancaster County, Oct. 15th, 1906.
.“This is to certify that I have bought of Mr. R. C. Smith his present crop of tobacco; amounting to two acres,--pounds.
Best Wrappers at 15| Cents per pound
Short Wrappers at — “ “ “
Seconds at — “ “ “
Fillers at 5 “ “ “ '
“The same to be well assorted, free from frost, pole sweat and white veins, or any other damage, and to be delivered in good merchantable order, at our warehouse, 544 Charlotte St., Lancaster, Pa., on or before —--.
“M-. Levy. ■
“Will not.receive Watered Tobacco.
“Per Brubaicer.”

On the back of the contract was indorsed the words: “Trash at 2 cts.” It was not at the trial disputed that this indorsement was a part of the contract and-that the grade of tobacco •known as trash was to be paid for at the rate of two cents per pound. The plaintiff for his own convenience delivered the tobacco at the warehouse of the defendant in two lots; the first lot having been delivered on January 18, 1907, was accepted and paid for. The second lot, which is involved in this action, was by the plaintiff taken to the warehouse of the defendant, on January 31, 1907, in bales which were marked “Wrappers” or “Fillers,” respectively, according to the assortment which had been made by the plaintiff. The defendant rejected this lot of tobacco upon the ground that it had not been properly assorted, that fillers were mixed in all the bales which were marked “Wrappers,” that all the bales contained ■ pole-burnt, dry-rot and damaged tobacco, and that the tobacco was not in good merchantable condition, or according to the contract. The plaintiff admitted that the •defendant, upon examination, rejected this lot of tobacco and refused to pay for it. The defendant testified that the plaintiff asked permission to leave the tobacco at the warehouse, saying that he must go to see -a sick sister, and that he would return within a short time and take the tobacco away and have it properly assorted. The plaintiff did not return for the tobacco and the defendant sent him a letter, which plaintiff admitted that he received, notifying him to come and take the tobacco away and that it would remain at the warehouse at plaintiff’s risk. The plaintiff never returned for the tobacco and it still remains at the warehouse of the defendant. The plaintiff subsequently brought this action, averring that the tobacco had been well assorted and was in good condition, and demands the full price for the same. The plaintiff testified, and was corroborated by other witnesses, that the tobacco had been well assorted and was in good condition. The defendant produced a number of witnesses who testified that the tobacco was not well assorted, that wrappers and fillers were mixed together, in the bales marked wrappers, that. there was in every bale pole-burnt and ■ damaged tobacco, and that the tobacco which plaintiff had tendered at the warehouse of the defendant was not in good merchantable condition. ■ The learned judge of the court below held that the parties stipulated, in their contract, that the tobacco should be delivered in a certain condition, and instructed the jury that if they found, under the evidence, that the plaintiff had performed his contract by delivering the tobacco substantially in accordance with its terms, then the defendant had no right to reject it, and the verdict should be in favor of the plaintiff for the full amount of his claim; but if,' on the other hand, they found that he did not substantially perform his contract, and that the tobacco was not properly assorted and that the bales contained damaged and rotten tobacco and that the tobacco, when tendered, was not in good merchantable order, as stipulated for by the contract, then the defendant was not bound to receive it and the verdict should be in his favor. The jury under these instructions found a verdict in favor of the defendant, and the plaintiff appeals.

The contract upon which the plaintiff relies fixed the price of wrappers at fifteen and one-fourth cents per pound and the price of fillers at less than one-third that amount, or only five cents per pound, and in the printed heading of the com tract was the express provision that no fillers were to be stripped in the wrappers. The purpose of this provision was manifest. To place fillers in the same bale with wrappers and then mark the whole bale “Wrappers,” would be to require the purchaser to pay for the fillers more than three times the price which had been agreed upon for that class of tobacco by the parties. The evidence established that at the time the contract was made the tobacco was hanging on the poles in plaintiff’s bam, in the process of drying, before it could be ready for delivery under the provisions of the contract it had to be completely cured, the leaf stripped from the stem, properly assorted and baled; all these things the plaintiff was required to do under the terms of his contract. The defendant did not covenant to pay for any specific quantity of tobacco nor for the entire crop at a fixed rate per pound. What he did agree to pay for was the wrappers and fillers in the entire crop, at the rates specified in the contract, when well assorted, free from damage and delivered in good merchantable order at his warehouse. The contract was, in these respects, executory and the burden was upon the plaintiff to establish by evidence that the tobacco which he tendered was well assorted and in good merchantable order. The fact that the plaintiff delivered one lot of tobacco, which was accepted and paid for, did not abrogate the covenants of the contract as to the tobacco which he subsequently tendered. Whether the contract was entire or several is a question which it is not necessary to determine, the plaintiff was in either case bound to perform it according to its terms before he could recover for that part of the tobacco in question. The case as presented at the trial did not involve an attempt upon the part of the defendant to rescind the contract, he was only insisting upon its being performed according to its terms. The question submitted to the jury, under sufficient evidence, was whether the plaintiff had performed, not whether the defendant was relieved from performance of his covenants. The contract being executory and the plaintiff being bound to put the property in a certain condition before delivering it, the title did not pass at the time the contract was made. The defendant agreed to pay for the property after the plaintiff had put it into a specified condition and the former could only have become bound to accept and pay for the tobacco after it had been put in that condition. He was not required to accept what he had never agreed to buy or pay for. Whether the tobacco was in the condition required by the contract was, under the evidence, a question of fact for the jury, and that question was submitted under instructions by the court below of which the plaintiff has no just cause to complain. The first five specifications of error are dismissed.

The question of fact upon which the jury was required to pass was the condition of the tobacco at the time the plaintiff tendered it to the defendant. It was, therefore, competent for the defendant to establish by the testimony of witnesses, who had experience in such matters and had actually examined the tobacco, what its condition was at or about the time of the alleged delivery, and it was not necessary that the plaintiff should have had notice that such witnesses were to make such examination. The 6th, 7th, 8th, 9th, 10th, 13th and 14th specifications of error are overruled. The condition of the tobacco delivered on January 18, 1907, which had been accepted and paid for was not in issue in this proceeding and testimony upon that question would have been irrelevant. The eleventh specification of error is dismissed. The evidence which established that the plaintiff had been notified by the defendant to remove the tobacco in question from the warehouse of the latter was properly admitted, and the fifteenth specification of error is without merit. The defendant could not be called upon to accept tobacco which was not of the character specified in his contract and, therefore, evidence of the market value of the tobacco tendered, which was not what the defendant had agreed to buy, was not admissible. The sixteenth specification of error is dismissed.

The judgment is affirmed.


author: Porter, J.,

text:
    Papajian, Appellant, v. Scott.

      Broker — Real estate broker — Commissions—Contract—Modification— Question of fact — Conflicting testimony — Case for jury.

    In an action to recover commissions for sale of real estate where it appears that the commissions were to be paid as certain installments of the purchase money were received, the case is for the jury, where the evidence although contradicted tends to show that after certain installments had been paid, the original contract between the seller and the purchaser had not been abrogated, but had been modified and in the modified form had been executed.
    Argued Oct. 9, 1908.
    Appeal, No. 13, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1906, No. 984, on verdict for defendant in case of Martin H. Papajian v. John H. Scott.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover commissions on sale of real estate. Before Ralston, J.

      The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Paul Reilly, for appellant.

      George Bradford Carr, for appellee.
    December 7, 1908:
   Opinion by

Porter, J.,

The plaintiff seeks to recover upon a written contract, executed by E. V. Brennan as manager for the defendant, covenanting to pay to the plaintiff the sum of $450, to be paid as one Dominico Ditaro should make payments on a certain contract for the purchase of land from the defendant, one-half of the amounts so received to be paid to the plaintiff, until he had received the sum specified. The contract sued upon contained a provision that if Ditaro should discontinue the said contract for the purchase of the land nothing more was to become due to Papajian. At the trial in the court below, after the parties had produced their evidence, the learned judge gave binding instructions in favor of the defendant, and the plaintiff appeals.

The evidence produced at the trial in the court below established that Brennan, as manager for the defendant, had entered into the agreement to pay the plaintiff the sum stated as compensation for his services in assisting to effect the sale of certain lots to Ditaro. The agreement upon which the plaintiff founds his action was dated July 26, 1905, the same day upon which the written contract for the sale of the lots to Ditaro bore date. The plaintiff on that day received from Brennan the sum of $30.00 on account of the agreement, being one-half the cash payment made by Ditaro. The testimony at the trial disclosed a dispute Between the parties as to two material facts. First, did Brennan have authority to bind the defendant by the agreement' upon which the plaintiff relies? Second, was the agreement for the sale of the lots to Ditaro discontinued by the parties to that contract?

The plaintiff testified that he had been employed as a salesman by Scott, the defendant, who was a licensed real estate broker, and that he was compensated for his services by the payment of a commission on such sales as he had effected; that the defendant had repeatedly told him that Brennan understood everything, and that he was the sole manager of the sales. He testified that the agreement in question had been submitted to the defendant on the same day that it was executed and that the defendant had authorized Brennan to sign it. This testimony was, it is true, contradicted, but it was sufficient to carry the question of Brennan’s authority to the jury.

The written contract for the sale of the lots to Ditaro provided for the payment of a consideration of $1,800, of which amount $60.00 was paid at the execution of the agreement and the balance was to be paid in monthly installments of $10.00 each. The plaintiff testified that a short time after this contract was executed he carried on negotiations between the defendant and Ditaro, with a view to the making of a larger cash payment by Ditaro and the closing of the transaction by the execution of a deed and mortgage; that the defendant had signified his willingness to execute a deed upon the payment of $300 in cash and the execution of a mortgage for the balance of the purchase money, and that after some delay Ditaro had agreed to these terms, and that he, the plaintiff, had notified the defendant of this fact, early in October. The defendant produced evidence strongly contradictory of all this, and tending to establish that the original contract for the sale of the property to Ditaro had been abandoned by mutual consent prior to October. The agreement for the sale of the property to Ditaro contained a covenant that it should be binding upon the parties, their heirs and assigns. On October 16, the defendant and Henry J. Scott executed deeds conveying the lots to William J. Flynn, who two days afterwards executed two deeds conveying the lots to Ditaro, and Ditaro on the latter date, October 18, executed two mortgages, aggregating $1,500, to the defendant and Henry J. Scott. Ditaro testified that he had never seen Flynn and had no negotiations with him; that he paid the $240, required to make up the total cash payment of $300, to Brennan, the agent of the defendant. These facts, taken in connection with the testimony of the plaintiff, were sufficient to sustain a finding that the original agreement for the sale of the property to Ditaro had by mutual agreement been modified, as to the terms of payment, but had, as modified, been carried into effect. The question whether the original agreement had been discontinued and a new and distinct contract of sale been entered into was, therefore, for the jury. The weight of the evidence upon these disputed questions may have been decidedly against the plaintiff, but the evidence in support of the contention of the plaintiff amounted to more than a scintilla, and the court below fell into error in giving binding instructions in favor of the defendant.

The judgment is reversed and a venire facias de novo awarded.