give a binding instruction to the jury to find | in favor of the defendant. This direction was probably asked upon the theory that the action was prematurely brought, because no particular sum was stated in the certificate of the architect to be due to the plaintiffs. The certificate refers to the contract in which the amounts of the several payments are distinctly stated, and sets out the fact that the contractors are "entitled to a payment, being the last payment on contract price for your residence." As though desirous to make the amount still more certain, the architect appends to his certificate a "remark" stating that the payment now due as the last payment "is the same as written in article of agreement, less credits, and credit for defective plastering." The only subject or item left uncertain was that of "defective plastering," which, in the light of the testimony, meant the substitution of the Fitzgerald for the adamant plaster. The The architect knew, as his testimony shows, that this was done by himself and the subcontractor, without the knowledge of the plaintiffs; and it is fair to him to assume that he left that item for adjustment between the parties because of his knowledge of the facts. The jury have found from the testimony that the plaintiffs ought not to suffer for the acts of the defendant or her agent, and, in the light of this finding, the certificate is sufficiently explicit in its statement of the sum due upon the contract. The judgment is affirmed. YOUNG v. PATTERSON. BONDS--ACTION BY ADMINISTRATOR OF OBLIGEE- 1. Where a bond binds the obligor to pay to the obligee, her executors, administrators, or assigns, a certain sum "for her own interest and as trustee for certain others," her administrator can sue thereon. 2. In an action by the administrator of the obligee on a bond, in which the obligor bound himself to pay her, her executors or administrators, the sum named "for her own interest and as trustee" for certain others, defendant cannot show that some of such others have arranged to settle with him concerning their respective shares separately. Appeal from court of common pleas, Allegheny county. Action by James Young, as administrator of the estate of Jane Young, deceased, for himself and the use of her heirs, against T. Baird Patterson, to recover the penalty named in a bond given by defendant to plaintiff's decedent, and for the sum it was given to secure. From a judgment for plaintiff, defendant appeals. Affirmed. T. H. Baird Patterson, in pro. per. DEAN, J. There is no history of the case in appellant's paper book. What purports to be one is an averment of facts, with no proof to sustain them, and an earnest argument to convict the court below of error at the trial. It gives us no aid in a proper understanding of the case, and, if a motion to quash for this cause had been made by opposing counsel before argument, the motion probably would have prevailed. As we gather from the fragments of evidence in the paper book, on the 17th of August, 1893, there was due and owing from T. Baird Patterson, defendant, to Mrs. Jane Young, widow of William Young, deceased, partly in her own right, and as trustee for her nine children, the sum of $2,223. For this, Patterson delivered to her his bond, duly sealed, in the penal sum of $4,446, to be paid to her certain attorney, executors, and administrators. The conditions of the bond were that the obligor was to pay to Jane Young, her executors, administrators, or assigns, in two years from the date thereof, the sum of $2,223, with legal interest from date, payable semiannually, and, in case of default, pay all costs, fees, and expenses of collecting the same, including an attorney's commission of 5 per cent. In 1891, Jane Young, the obligee in the bond, died. Her interest in the money was the right to the interest due semiannually. This had been paid her. The prin cipal belonged in equal shares to her nine children. At her death, this plaintiff took out letters of administration on her estate, and the bond passed into his possession. He brought suit upon it, as legal plaintiff, for the use of the children, the equitable owners, to enforce payment of a balance alleged to be unpaid. The obligor, this defendant, denied the right of plaintiff to bring suit, because he had no interest in the obligation; further, offered to prove that the money unpaid on the bond belonged to the children, and that the giving of the bond was in pursuance of an agreement with the children; that, by this means, the payment of the interest should be made to the mother during life, and, at her death, the principal to them. The court ruled that plaintiff could bring the suit, overruled defendant's offer of proof, and directed a verdict for plaintiff for the penalty of the bond, to stand for the use of the equitable plaintiffs, setting out their names, and the amounts respectively due them as part of the verdict. Some of them had been paid in part, and the aggregate claimed to be unpaid of the real debt-$2,223-was, with attorney's commissions, only $686.62. Judgment having been entered on the verdict, defendant brings this appeal, assigning nine errors, which involve but two questions: (1) Had the legal plaintiff a right of action on the bond? (2) If so, had the defendant the right, in answer to the claim on the bond, to offer proof that some of the heirs had arranged with him to settle concerning their respective shares severally? Clearly the legal title to the bond was in the administrator, without regard to the beneficiaries under it. The defendant, in the penal clause of it, says: I "am held and firmly bound unto Mrs. Jane Young, for her own interest and as trustee of the heirs of William Young, deceased, according to their respective interests." He is not bound to the heirs, but to her for them. Then the Can condition of the bond is to "well and truly pay or cause to be paid to said Mrs. Jane Young, her executors, administrators, or assigns, the just sum of $2,223, in two years from the date hereof, with legal interest, payable semiannually." Jane Young lived eight years after she received the bond, and six years after it became due and payable. her right to sue in her lifetime upon it, after maturity, be doubted? Or can her answerability, or that of her representative, be doubted, to the beneficiaries, for the money due them? As this defendant made the obligation expressly payable to her or her administrators, he has no standing to object to the suit by plaintiff, merely because her estate is not entitled to the principal. Then, as to appellant's offers to prove that the principal sum in the bond was part of the estate of William Young, deceased, and by an arrangement between the mother and children, at her death, they were to receive their respective shares, and that he had made part payment to several of the children, they were properly overruled. It was immaterial It was immaterial to defendant what arrangement had been made between the children and their mother. His contract was not to pay to the children, but to her or her administrator, as evidenced by his bond. As between them and their mother, or her personal representative, the trust confided to her would be settled by the terms of it. With this defendant had nothing to do. It is probable, as would have been entirely proper, if defendant had offered to prove that, before suit brought, he had settled with and paid all the children in full their respective shares, and all interest on the debt, and of this the administrator had notice, the court below would have permitted him to establish that fact, and, if established, would have directed a verdict in his favor. This, not because there was a legal right in the children to demand, or in him to pay to those not the legal obligees in the bond, but because such payment would have been in equity a discharge of the legal obligation, and the estate of the mother could thereafter have been in no peril which it would have been the duty of the administrator to guard against. But no such offer was made, nor the semblance of it. The character of defendant's evidence, which was objected to and ruled out by the court, is indicated by the interrogatories to the witnesses, thus: "What interest had Jane Young in this fund? Do you know how much money has been paid these heirs? Did these heirs all authorize you to bring this suit?" Then the offer was: "I propose to prove this was a fund arising from the estate of William Young, deceased, and that, after the settle ment of his estate, this money belonged to these heirs in severalty, subject to an arrangement by which their mother was to receive the interest on it during her lifetime." Admit this, what had that to do with the obligation in the bond? It might be important if the mother had sought to appropriate the principal of the bond in her lifetime, or if her administrator denied the right of the children to it after her death. But appellant has no concern in such a controversy. His duty is to pay what he owes, and not withhold payment because those to whom it belongs might wrong each other when they get it. Not a single one of the cases cited by appellant has any bearing on the question before us. Mentzer v. Menor, 8 Watts, 296; Hise v. Geiger, 7 Watts & S. 273; Hillbish's Appeal, 89 Pa. St. 497; Kurtz's Appeal, 26 Pa. St. 465; Gourley v. Kinley, 66 Pa. St. 273,-are all cases of recognizances in the orphans' court on the lands of decedents. By statute and order of the court, these obligations are a lien upon the land, the interest to be paid to the widow during life, and at her death the principal sum to the heirs. But this bond is in no respect a recognizance in the orphans' court; it is a personal obligation, taken by agreement of the parties, without intervention of the court. No injustice can be done this appellant. The court below has full control of the judgment, and will not permit the collection from him of any greater sum than he owes. If he has made any payments to any of the children not already credited, the court, on proper proof, can order such payment to be credited against the shares of the ones who have received the money. The judgment is affirmed. In re UNITED PRESBYTERIAN CHURCH OF FLEMING STATION. Appeal of TEUTEBERG. (Supreme Court of Pennsylvania. Jan. 7, 1895.) DEED TO CHURCH-RIGHT OF CHURCH TO SELL. A deed to the trustees of a church, in trust for said church, and for the sole use and behoof of the congregation organized to build thereon and worship in said building, gives the grantor no right to object to a sale of the lot by the church to pay off a mortgage on a lot thereafter acquired for a church edifice. Appeal from court of common pleas, Allegheny county. The United Presbyterian Church of Fleming Station petitioned the court that it be authorized to sell a certain lot deeded to it by William Teuteberg, for the purpose of satisfying a mortgage on another lot, which it had since bought for a building site for a church edifice. William Teuteberg answered that the provision in his deed to petitioner's trustees, "to have and to hold the said described lot of ground in trust for said church, N. W. Shafer, for appellant. Robb & Lindsay, for appellee. PER CURIAM. An examination of this record discloses no error in the decree or in the proceedings leading up thereto. Appellant's deed of January 31, 1870, to Oliver Shannon and others, "trustees of the United Presbyterian Church of Fleming Station,' etc., "in trust for said church, and for the sole use and behoof of the congregation," etc., contains no condition or provision that gives him any special standing to object to the de Neither of the specifications of error Is sustained. Decree affirmed, and the appeal dismissed, with costs to be paid by appellant. and for the sole use and behoof of the con- answer the defendant admits that a majority gregation organized for the purpose of build-in interest and number of the owners of proping on said lot and worshiping in said build-erty abutting on the line of the new portion ing," created a special trust, by reason of of Hamilton avenue, to wit, the part thereof which they could not sell. From the decree between Fifth avenue, on the east, and Franksauthorizing the sale said Teuteberg appeals. town avenue, near Station street, on the west, Affirmed. did not petition for the ordinance in question; but, in same connection, it avers that a majority in interest and number of the property owners on the entire line of said Hamilton avenue, from its junction with Frankstown avenue, on the west, to the easterly line of the city, did so petition, and that "all the parties owning property fronting or abutting upon the entire line of the improvement are interested in the opening of each part thereof, and therefore such petition must be signed by such majority in number and interest." It also admits that Hamilton avenue, from Fifth avenue to the eastern line of the city, "had been previously lawfully opened, and portions thereof graded and paved." From these and other admissions it conclusively appears that the only part of Hamilton avenue that remained unopened when the petition in question was signed, and for the opening of which the signers could have petitioned, was that part of said avenue running west from Fifth avenue, the other part, extending east from Fifth avenue to the city line, having been previously opened. It also appears that the opening of said unopened part of Hamilton avenue was not petitioned for by a majority in number and interest of the property owners fronting or abutting thereon. These facts being conclusively established, the ordinance of councils, passed in pursuance of the petition containing less than a majority of legally qualified signers, was quashed by the court below. The court was clearly right in construing the ninth section of the act, above quoted, as it did. Any other construction would be contrary to the letter, as well as the manifest spirit of the act. As stated in appellant's history of the case: "It has been the practice, with perhaps this single exception, to pass ordinances for the opening and vacation of streets upon petitions signed by a majority in interest and number of owners of property abutting upon the parts to be opened or vacated." This is correct practice, and should be adhered to. Decree affirmed, and appeal dismissed, with costs to be paid by appellant. SPEER v. CITY OF PITTSBURGH. MUNICIPAL IMPROVEMENTS-PETITION BY ABUT- Under Act May 16, 1891, § 9, giving municipal corporations power to make public improvements on petition of a majority in interest and number of abutting owners on the line of the improvement, where the proposed improvement is the extension of an already existing street a majority in interest and number of owners of property abutting on the part to be opened, and not on the entire street, is necessary to authorize the improvement. Appeal from court of common pleas, Allegheny county. Petition by Amelia R. Speer from an ordinance of the city of Pittsburgh authorizing the opening of Hamilton avenue. Judgment for petitioner, and defendant appeals. Affirmed. William C. Moreland and Thomas D. Carnahan, for appellant. Hunter, Ivory & Beatty, for appellee. PER CURIAM. This proceeding, in the court below, was under section 10 of the act of May 16, 1891 (P. L. 1891), which provides, inter alia, for an appeal to the court of common pleas, and makes it the duty of that court to inquire and determine whether certain municipal improvements were petitioned for by the requisite majority of property owners "on the line of the proposed improvement," etc. The preceding section of the act declares: "Every municipal corporation shall have power to open, widen, straighten or extend streets or alleys, or parts thereof, within its limits, and to vacate the same upon the petition of a majority in interest and number of owners of property abutting on the line of the proposed improvement, to be verified by affidavit of one or more parties," etc. In its KILKEARY v. THACKERY. (No. 91.) (Supreme Court of Pennsylvania. Jan. 7, 1895.) NEGLIGENCE-QUESTION FOR JURY. Where, in an action for injuries, the testimony renders the questions of negligence and contributory negligence questions of fact, the case should not be withdrawn from the jury. Appeal from court of common pleas, Allegheny county. Action by Annie Kilkeary, by her father and next friend, Martin Kilkeary, against W. H. Thackery, for personal injuries resulting | from plaintiff's arm being caught between the cylinders of a machine known as a "mangle," in defendant's laundry, where she was employed, and caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed. Hunter, Ivory & Beatty, for appellant. Montooth Bros. & Buchanan, for appellee. PER CURIAM. There was no error in refusing to affirm either of the points recited in the specifications of error. In one of them the court was requested to charge: "From the evidence in this case, the point of danger in the mangle was where the two cylinders, revolving towards each other, came together, and the danger of being caught was obvious, and the plaintiff was guilty of contributory negligence, and cannot recover." In the other the court was asked to say "that, under all the evidence in the case, the verdict should be for the defendant." We are satisfied from an examination of the testimony that the question of defendant's negligence, and also that of plaintiff's contributory negligence, were so presented that the court was bound to submit both to the jury as questions of fact exclusively for their determination. That was done in a clear and adequate charge that appears to be free from any error of which the defendant can justly complain. In view of the testimony bearing on each of said questions, it would have been manifest error for the court to have affirmed either of the points referred to. Judgment affirmed. KILKEARY v. THACKERY. (No. 90.) (Supreme Court of Pennsylvania. Jan. 7, 1895.) Appeal from court of common pleas, Allegheny county. Action by Martin Kilkeary against W. H. Thackery to recover for the loss of services of his daughter, and medical expenses resulting from personal injuries to her, caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed. Hunter, Ivory & Beatty, for appellant. Montooth Bros. & Buchanan, for appellee. PER CURIAM. This case was tried in the court below and heard here with Kilkeary v. Thackery (No. 91 of this term) 30 Atl. 1013, in which an opinion has just been filed. Both cases arose out of the same transaction, and involve substantially the same questions. For reasons suggested in the opinion referred to, neither of the specifications of error can be sustained. Judgment affirmed. KENNELTY v. BALTIMORE & O. R. CO. (Supreme Court of Pennsylvania. Jan. 7, 1895.) INJURY TO RAILROAD EMPLOYE-COLLISION-NEGLIGENCE OF COMPANY AND EMPLOYES-ACTION FOR INJURIES TO BRAKEMAN-EVIDENCE. 1. Passenger train No. 5, when 100 miles from P., was ordered to run to P. two hours late, which would make the time of its arrival at P. twenty minutes earlier than passenger train No. 37, which was then ahead of No. 5, and running on schedule time. Every one connected with the trains knew that such order was to be read in connection with the general rules of the company for the running of trains, and meant that No. 5 should run two hours late and have a track clear of freight trains, but that it must run with reference to the schedule of all passenger trains; and that it required No. 5 to run ten minutes behind No. 37 to G., and five minutes behind it from there to P. Before reaching P., No. 5 ran into No. 37, whereby a brakeman on No. 37 was killed. Held, that the collision was caused by the negligence of the trainmen, and not by an unsafe schedule or defective rules. 2. In an action against the company for such death, the issue being whether the accident was caused by the negligence of decedent's coemployés, or of defendant in not providing a safe schedule, it appeared that No. 37 had signal lights on the rear end of the rear car, and that No. 5 was five minutes behind No. 37 at G. as the rules required, a question whether it would have been "better railroading if an order had been sent to No. 37 to look out for No. 5, and an order sent to No. 5 to look out for No. 37, and also an order sent to the agent at G. to hold No. 5," was properly excluded. Appeal from court of common pleas, Allegheny county. Action by Lida A. Kennelty against the Baltimore & Ohio Railroad Company to recover for the death of plaintiff's husband, caused by defendant's negligence. From a judgment of compulsory nonsuit, plaintiff ap peals. Affirmed. Young & Trent, for appellant. Watson & McCleave, for appellee. FELL, J. The plaintiff's husband was employed by the defendant as a brakeman and assistant baggage master. He was killed by a collision of the train on which he was em ployed with another passenger train, which ran into it from the rear. The accident was the result of gross negligence, and upon the trial the only question was whether the negligence was that of a coemployé, in disregarding the rules for the movement of trains, or of the defendant, in not providing a safe schedule. Both trains were running west on the same track, towards Pittsburgh. Train No. 37, on which the deceased was riding, was running on its schedule time. Train No. 5, which ran into it, reached Rockwood, 100 miles east of Pittsburgh, 2 hours and 11 minutes late, and the engineer there received a telegraphed order to run to Pittsburgh two hours late. The schedule time of the arrival of train No. 37 at Pittsburgh was 10:50 p. m., and that of train No. 5 was 8:30 p. m. Running two hours late, under the special order, this train would reach Pittsburgh at 10:30 p. m. A literal compliance with the order would have required train No. 5 to pass train No. 37, and any other local trains which were in its way on the west-bound track, and would have required additional orders to all such All the testitrains to get out of the way. mony shows that this special order was to be read in connection with the general rules of the company for the running of trains, and that it was so understood by every one connected therewith. It meant that No. 5 should run two hours late, and would have a track clear of all freight trains, but that it must run with reference to the schedule of all passenger trains. It imposed upon those charged with the running of the train the duty to observe the schedule time of all passenger trains, and to run 10 minutes behind the time of the train which it followed to Glenwood, and 5 minutes behind it from there to Pittsburgh. It appeared that this was distinctly understood by the trainmen who received the order, and that the collision resulted from their neglect. Within a few miles of the point where the accident occurred, the conductor of train No. 5 was aware that they were running too fast, and signaled the engineer to reduce the speed, and when within a few hundred feet of the point he knew that they were close upon time of train No. 37. A moment before the collision, but when too late, he directed the baggage master to look out the side door for the train. It was clearly shown by the testimony produced by the plaintiff that the collision was caused, not by an unsafe schedule or defective rules, but that it was due to the reckless disregard of clearly-defined and wellunderstood duties by those in charge of the train. As they were coemployés of the plaintiff's husband, there was nothing to leave to the jury, and the nonsuit was properly entered. We find no error in the refusal of the offer of testimony, which is the subject of the first assignment. It should be observed that this ruling was subsequently modified to admit the testimony, on proof that the witness was qualified to speak as an expert. The offer did not raise a question as to the safety of the schedule and the rules adopted by the defendant for the operation of its road, or of any orders given at the time. The witness was asked for an opinion as to whether it would have been "better railroading if an order had been sent out to No. 37 to look out for No. 5, and an order sent to No. 5 to look out for No. 37, and also an order sent to the agent at Glenwood to hold No. 5." It is not apparent that the trainmen of No. 37 could have done more, under a special order, than they did, to give notice to No. 5, which followed them. They were in charge of a regular passenger train, running on schedule time, and having schedule rights, and had taken the usual precaution of fixing signal lights on the rear platform of the last car. It was a clearly-defined duty of the trainmen of No. 5 to look out for No. 37, and no special order would have made it clearer. They knew this, and they knew the time of the train, and knew that they were encroaching upon it. Train No. 5 passed Glenwood station, as it should have done, five minutes after train No. 37; and even with a special order, as each train was in its proper position on the road, there would have been no reason for holding it. The judgment is affirmed. FIFE et ux. v. MILLER. (Supreme Court of Pennsylvania. Jan. 7, 1895.) WILLS-CONSTRUCTION-CODICIL. Testator gave to his daughter a house, to be used and controlled by her and her husband during her life. Then followed a provision, marked in parentheses, that, in case she died without children, her husband, if he survived her, should have the use of it for life, and then it should go to testator's grandchildren. Held, that a codicil, declaring that "I hereby alter that part of will*** that now is canceled **** marked in parentheses, so that it should read that my son-in-law, *** instead of only having a life estate in it, shall own and possess it as his own," merely increased the quantum of the son-in-law's estate, which still remained dependent on the double contingency of his wife dying without children and his surviving her. Appeal from court of common pleas, Allegheny county. Action by Samuel Fife and Margaret Fife, his wife, against T. J. M. Miller, to compel defendant to carry out his contract of purchase of certain land. Judgment for plaintiffs. Defendant appeals. Reversed. The land in question was devised by the following provision and codicil of the will of Alexander W. Tidball, under which defendant claims plaintiffs could not give good title: "To my daughter Margaret I will the mansion house, already mentioned, and with it fifty-one acres of fifty-one acres of land and twenty-three perches, more or less, being the one-half of one hundred and two acres and forty-six perches, as will appear from the plot of said land, to be used and controlled by her and her husband during her lifetime for their own profit and advantage, subject, however, to the dower already mentioned and to the legacies yet to be mentioned (and in case she dies without children, her husband, if he survive her, shall have the use of it for his benefit during his lifetime, and then it is my will that it shall go to and be inherited by my grandchildren, viz. the children of my son Alexander and daughter Rachel, both deceased, to be theirs and their heirs after them forever, and to be divided amongst them in equal proportions). "Codicil. I hereby alter that part of will found recorded on second page of this will, and at the end of the twenty-second line, that now is canceled to the middle of the thirtysecond line, marked in parentheses, so that it shall read that my son-in-law, Samuel Fife, instead of only having a life estate in it, shall own and possess it as his own, without let or hindrance, except as subject to the legacies of which he is to bear his part as mentioned in the body of the will." |