pretation of Statutes, 4; Wilberforce's Stat-Ident's death was caused by an act of a third ute Law, 116.

KEYES et al. v. NEW YORK, O. & W. RY. affirmed by the compensation board, but re

(Supreme Court of Pennsylvania. May 21, by claimants.

Harold A. Scragg, of Scranton, for appel- to injure the employé because of reasons perlants. Charles B. Little and James E. Burr, both exception rests upon the party interposing it of Scranton, for appellee.

(108 A.)

Appeal from Court of Common Pleas, Erie County.

Bill in equity by A. H. Schaper, on behalf of himself and Mary Schaper, his wife, against the Cleveland & Erie Railway Company to enforce performance of a written contract. Bill dismissed, and plaintiff appeals. Appeal dismissed.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

currence, it would impose an unreasonable | of way, in consideration of receiving roundburden upon claimants, and defeat the benef- trip tickets and books of tickets at certain icent purpose of the act, to require them to rates, is subject to the state's power to change establish the negative proposition that the in- the rates in the future, in the exercise of govjury was not inflicted by a third person be- ernmental authority, and cannot be specifically enforced against the company. cause of some reason personal to the employé. The court below concludes, in effect, that the affirmative of the proposition should be presumed, as it was not suicide; but that view cannot be accepted. There is always a presumption of innocence, and we cannot assume that the wound was feloniously inflicted. It may have been accidental. No one heard the sound of a shot, or knows whence it came. It was in the dark, and may have been a random shot, discharged by some officer or other person for an innocent purpose and with no thought of harm. Probably not 1 shot in 20 fired upon the street is with felonious intent; so the fact that a man sustains a fatal bullet wound, while exposed at night, does not of itself prove an intentional homicide. To sustain defendant's contention we must presume a felonious homicide, and add to that the further presumption PER CURIAM. On August 23, 1902, the that it was committed because of some reason appellant, who, with his wife, then owned personal to the victim. Assuming a willful a farm in Erie county, granted a right of killing, it may have been because of the way across it to the Conneaut employment or from some other motive, en- Traction Company, the appellee's predecessor tirely aside from Mr. Keyes, and by a stran- in title. The railway extended from the city ger, or by one possessed of a homicidal mania, of Erie westwardly to the city of Conneaut, in which cases the employer would be liable. in the state of Ohio. In consideration of the Our act is broad, and embraces cases of in-grant, the street railway company agreed, jury sustained in course of the employment, for itself, its successors and assigns, to sell although not arising therefrom, and therein differs from enactments in many jurisdictions. See opinion of this court by Mr. Justice Moschzisker in Clark v. Lehigh Valley Coal Co., 264 Pa. 529, 107 Atl. 858, filed at this

term.

[2] As there was no hearing de novo by the board, the case rests upon the facts found by the referee (McCauley v. Imperial W. Co. et al., 261 Pa. 312, 104 Atl. 617), and it has been so considered at every stage.

The judgment of the court below is reversed, and the award of the referee, as affirmed by the compensation board, is reinstated.

(265 Pa. 109)

SCHAPER v. CLEVELAND & E. RY. CO.
(Supreme Court of Pennsylvania. May 21,
1919.)

CONSTITUTIONAL LAW 155-OBLIGATION OF
CONTRACT FOR TICKETS AT CERTAIN RATES

J. O. Wait and T. A. Lamb, both of Erie, for appellant.

W. Pitt Gifford, of Erie, for appellee.

& Erie

round-trip tickets and books of tickets at certain rates, which were observed by the appellee until June 5, 1916, when, under schedules filed by it with the Interstate Commerce Commission, the Public Service Commission of Pennsylvania and the Public Utilities Commission of Ohio, new rates or charges for round-trip tickets and ticket books became operative. The appellant subsequently filed this bill for the specific performance by the appellee of the contract of the Conneaut & Erie Traction Company, its predecessor in title, to sell tickets at the rates fixed by the agreement of 1902, granting the right of way to the original company.

The contract which the appellant would specifically enforce was valid when made, but the parties to it entered into it subject to the power of the state to change the rates in the future, in the exercise of its governmental authority. Vide Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 31

SUBJECT то STATE'S POWER ΤΟ CHANGE Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, and cases there cited.

RATES.

A landowner's contract with a railroad company, by which he granted to company a right

.

Appeal dismissed, at the costs of the appellant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Where contract for construction of city reservoir provided a certain payment for rock excavation, and assumed that enough would be excavated to make facings and riprap for inner slope, for which contract fixed a certain price, and it was insufficient, and contractor was required to blast rock elsewhere at additional expense, the city's contention that work was covered by the extra work clause, defining extra work or material as that for which no definite unit price was fixed in contract, was correct, and contractor had no right to abandon work because city refused to accept his construction that he was entitled therefor to price of rock excavation.

6. APPEAL AND ERROR 1120-AFFIRMANCE WITHOUT PREJUDICE.

On affirming a judgment against a contractor in assumpsit to recover a balance alleged to be due from city for construction of a reservoir, the appellate court would do so without prejudice to his right to proceed by a proper action in law or equity for such moneys as might be due him.

Appeal from Court of Common Pleas, Blair County.

Assumpsit by Robert L. McKallip, surviving and liquidating partner of Charles J. Carothers, trading as the Carothers Contracting Company, on their behalf and in part for the use of the South Side Trust Company of Pittsburgh, against the City of Altoona, to recover a balance alleged to be due for the Construction of a reservoir. Verdict for defendant on binding instructions, judgment thereon, and plaintiff appeals. Affirmed,

2. MUNICIPAL CORPORATIONS 359-APPLI- without prejudice to plaintiff's rights.

CATION OF DOCTRINE OF SUBSTANTIAL PER-
FORMANCE OF CONTRACT.

Where a city reservoir was not completed
until the facing and riprap on the slopes were
in place, until which time even a small part of
the reservoir might not be used, the doctrine
of substantial performance had no place, in as-
sumpsit to recover balance alleged to be due by
contractor, who refused to complete contract.
3. MUNICIPAL CORPORATIONS 354-WAIVER
OF OPTION TO RESCIND FOR DELAY NOT WAIV-
ER OF FORFEITURE FOR OTHER CAUSE.

Where a city waived its option to rescind or annul a contract for construction of a reservoir,

because it was not completed within time limit

ed, it did not thereby deprive itself of future right to annul or suspend contract for unsatisfactory work, and where contractor refused to do certain required parts of work it was not estopped from declaring a forfeiture, annulment, or suspension for sufficient cause other than the time of completion.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Thomas H. Greevy, of Altoona, John E. Laughlin, of Pittsburgh, and J. F. Sullivan, of Altoona, for appellant.

Thomas C. Hare, of Altoona, for appellee.

KEPHART, J. The Carothers Contracting Company entered into an agreement with the city of Altoona for the construction of a large reservoir, and the National Surety Company, of New York, became surety for the contract. Various parts of the work were separately set out, but the plans and specifications, as a whole, called for a completed reservoir. As the separate parts relate to the question now before the court, provision was made for a core wall to be built on solid foundation, against this core wall, on the inner and outer sides, embankments were to Where a contract of suretyship for perform-be placed, and on the inner embankment a ance of a municipal contract provided that on top covering of riprap and stone facing. The principal's default all moneys due him from details were clearly set forth. In the progcity should become payable to surety, the prin- ress of the work, certain excavation was cipal, suing in assumpsit against city for balance necessary; that is, earth was to be removed alleged to be due, could not claim the retained percentage on ground that surety had not col- to secure proper foundation for the core percentage on ground that surety had not col-wall, depth for the pipe trenches leading from lected and might never collect it.

4. MUNICIPAL CORPORATIONS
374(1) -
RIGHT OF SURETY TO PERCENTAGE RETAINED

ON CONSTRUCTION CONTRACT.

the reservoir and elsewhere, and for the em

5. MUNICIPAL CORPORATIONS 374(1)-Ac-bankments. In making the excavations, all COUNTING BY SURETY FOR FAILURE TO COL-rock encountered was to be taken out; boulLECT RETAINED PERCENTAGE ON CONTRACT. ders over a certain size and strata formaWhere retained percentage on city construc- tion were to be blasted. Approximately 500,tion contract was by terms of contract of surety-000 cubic yards of earth were moved from ship assigned to surety, and it was bound to the borrow pits, inside the flow lines of the collect it, less any claim of city against it, its failure to collect it after proper notice would reservoir, to the embankment. All rock blastmake it liable to an accounting for net balance ed under these circumstances was to be paid due by the city and for any balance due on last for at a unit price of $2 per yard. It was, estimate paid to surety. however, expected there would be enough

(108 A.)

loose stone from the borrow pits and other [rected against the plaintiffs; hence this apexcavations to make the facing and the rip- peal. rap for the inner slope of the embankment next to the core wall. Compensation for this was fixed at 30 cents per yard, as embankment. It was constructed as follows:

When the earth placed against the core wall on the inside, reached a specified slope, it was protected by a covering of rock at least 4 feet deep from the bottom to an elevation where the slope paving began, and from thence a 2-foot backing was required. There was not sufficient loose stone from the various excavations to finish the work of riprap and facing. The contractor at no time denied its obligation to provide the material for this work. It was necessary to go outside the flow lines to get it, at an additional expense, by blasting the rock from the hillside. The contractor claimed it should be paid rock price for this work. The city authorities admitted the error as to amount of loose stone on hand from the excavations, but held it was an uncertainty arising in the progress of the work, which was taken care of by the extra work clause, which reads as

follows:

"It is understood that extra work or extra material, as considered in the contract and specifications, is work or material that the contractor is required to perform or furnish, and for which no definite price per unit is fixed in the contract specifications, or proposals."

[1] It is urged that under the contract the quarrying of stone for the slope facing and riprap was to be paid for as rock excavation. We have endeavored to point out generally the different parts of the work, how they fitted into each other, and were so specified that they could have been let to different contractors. By the express terms of the contract, as well as the general scheme of the work, rock excavation was limited to such work as was necessary in the construction of the reservoir; that is, such excavation as was actually demanded at the places indicated on the plans. The core wall must have an even rock foundation of a sufficient depth, in this case from 10 to 20 feet. Loose rock within that space must be taken away; otherwise, the foundation would be insecure. The same may be said of the pipe trenches. The earth within the flow lines was to be used for tthe embankments, securing greater storage capacity, as well as evening up the flow lines of the reservoir. It was at these places loose rock was expected to be found in quantities sufficient to cover the inner slope when the work was completed. There were no uncertainties about the work to be done; the only facts made doubtful as the work progressed were the place where the balance of the loose rock was to be secured and the price the contractor was to be paid. The specifications were explicit in declaring a sufficient quantity of rock would be taken The city authorities, by letter of October from the various excavations. This having 8th, directed the stone be procured at a desig- failed, it had to be secured at a place differnated point outside the flow lines, the con- ent from that mentioned in the agreement. tractor to be paid the extra work price, viz. Sufficient might have been gotten from the hillside, at a distance, or the way the city cost plus 15 per cent. for profit, superinten- directed; but it is clear the quarrying and dency, and general expense for "quarrying loading of the stone must necessarily be work and loading the stone"; the city paying, in and material that the contractor was readdition, the contract price of 30 cents per quired to furnish, for which no definite price yard when it was in place in the embankper unit was fixed, and covered by the extra ment. The contractor declined to accept this work clause of the contract. The contractor, determination, and in reply set up an entirely therefore, could not decline to proceed with new price, not mentioned in the agreement, the work; nor was the fact that the apnamely, force account, with a per diem charge pellee rescinded the contract while the disfor engine, cars, and track. It refused to cussion was going on material. The stipudepart from this price during the period of lated price for extra work or material mendiscussion, ending November 12th, when it tioned in the contract refers to a gross sum refused to do the work; the city suspending or certain figure; it does not affect the deterthe contract December 7th. The municipality served notice of suspension on the surety; [2] The doctrine of substantial performthis company under the surety agreement, ance has no place here, as the reservoir was proceeded to complete the work as if no de- not in any sense completed until the facing fault or abandonment had occurred. The and riprap were in place; a small part of contractor sued in its own behalf and for the the reservoir might be used, but not ùntil benefit of the use plaintiffs, to whom part of that work was done. Gillespie Tool Co. v. its claim had been assigned, seeking to re- Wilson et al., 123 Pa. 19, 26, 16 Atl. 36; cover the amount of the last estimate due Denahan & Co. v. Holmesburg Granite Co., 45 when a default was declared, the retained Pa. Super. Ct. 399, 403. The appellants had percentage, and damage for an unlawful re- been paid for everything due until the last scission of the contract. A judgment was di-estimate; this, under the contract with the

mination of the question.

surety company, was to be paid the latter company.

(265 Pa. 122)

SNYDER v. MCGILL.

(Supreme Court of Pennsylvania. May 21, 1919.)

SWER.

247-RIGHT TO FURTHER AN

Where an answer is fully responsive to a question, it is not error to refuse to allow the witness to answer further.

2. APPEAL AND ERROR

927(7)-PRESUMP

TIONS AS TO EVIDENCE IN REVIEWING RIGHT
TO DIRECTED VERDICT.

[3] When the city waived its option to rescind or annul the contract because it was not completed within the time limited, it did not thereby deprive itself of the future right to annul or suspend the contract for 1. WITNESSES work done in an unsatisfactory manner, or when the contractor refused to do certain parts of the work required by the agreement; the city was not estopped from declaring a forfeiture, annulment, or suspension for sufficient cause other than the time of completion. Wiggin v. Marsh Lumber Co., 77 W. Va. 7, 16, 87 S. E. 194; Beltinck v. Tacoma Theatre Co. et al., 61 Wash. 132, 136, 111 Pac. 1045; Nibbe v. Brauhn, 24 Ill. 268, 270. [4, 5] When the contract was annulled, the last monthly estimate of $4,816.60 was due appellants, and $10,000 was retained by the city as an indemnity against loss through anything arising out of the contract. The terms of the suretyship provided:

"If the said principal shall in any manner default in the performance of any matter or thing in said contract, * * the surety company shall have the right, at its option, to assume * *** said contract and to proceed thereunder as if no default or abandonment had occurred, * * and all moneys agreed therein to be paid said principal, and which at the time of the default [shall] be due the principal, shall thereupon become payable to the company and shall be paid to it, anything to the contrary notwithstanding."

In reviewing question whether defendant was entitled to binding instructions in his favor, the evidence favorable to plaintiff and every reasonable inference therefrom must be taken as true, and every unfavorable allegation and inference must be rejected.

3. WILLS

TO DEVISE.

58(1)—ACCEPTANCE OF CONTRACT

If one party renders services under a proposed contract to devise property to him, and the other accepts the services, the contract is binding without a formal, verbal, or written acceptance thereof.

4. WILLS 68 BREACH OF CONTRACT TO

DEVISE.

In assumpsit for breach of contract to devise property by will for services to be rendered, evidence held to support a verdict for plaintiff.

29(2)—

5. EXECUTORS AND ADMINISTRATORS APPOINTMENT NOT OPEN TO COLLATERAL AT

The city properly paid the surety company the amount of the last monthly estimate, and, when the final estimate was given, the retained $10,000 was to be paid. But appellants urge that the surety company has not collected, and may never collect, the retained percentage. The fact none the less remains that the retained percentage, by the terms of the suretyship, is assigned to the surety company, which is in duty bound to collect it, less any claim the city may have there against, and a failure so to do after proper notice will make it, and perhaps the city also, liable to an accounting for the net balance due by the city, as well as any balance due on the last estimate paid to the surety company. Upon this record, however, the mat-less, and would not justify a reversal, as under ter is not ripe for determination, and we shall therefore protect appellants' rights by the judgment we shall enter.

[6] After careful consideration of all the assignments of error, they are dismissed, and the judgment of the court below is affirmed, without prejudice to the right of the appellants to proceed for the moneys herein indicated by such action in law or equity as shall be warranted by the facts.

ERROR IN FAILING TO PROVE BREACH OF CON-
TRACT.

In assumpsit for breach of contract to leave property by will in consideration of services to be rendered, that plaintiff failed to prove that decedent did not make a will leaving his entire estate to her, even if error, was harm

would have received the entire estate, and by such a will as was agreed to be made plaintiff the verdict she could not possibly get more and might get less.

Appeal from Court of Common Pleas Crawford County.

Assumpsit by Ida Snyder against James McGill, administrator of Isaac McGill, late of Hayfield Township, deceased, for breach of