Montgomery Evans, for appellant. George W. Rogers, Charles Hunsicker, and Henry Freedley, for appellee.

MCCOLLUM, J. At the instance of the attorney of the estate the Woods claim against it was purchased by the nephews of the executrix for the sum of $1,000, and, in an action upon the claim in their names as trustees, she, acting under his advice, confessed a judgment against the estate for $15,525 and costs. The claim was purchased February 9, 1881, and the judgment was entered November 26, 1886. The negotiations for the purchase were conducted by the attorney who recommended it. The assignment of the claim was delivered to him by the sellers, who received his check in payment of the sum for which they sold it, and he immediately made a memorandum on the back of the assignment, showing how it was acquired, and under what instructions he held it. These instructions were to collect the claim, account to the purchasers for the money they invested in it, with interest thereon, and to pay the balance to the executrix. When the creditors of the estate attacked the judgment entered on the claim, and succeeded in the lower court in setting it aside, he advised the surviving plaintiff and trustee therein to appeal to this court; but the latter declined to do so until indemnity was furnished against all costs and expenses of such appeal. It seems from this that he was anxious to maintain the judgment against the estate. A singular fact in connection with the transaction is that he carefully concealed it from the executrix for whose benefit it was made. For 10 years or more the trust feature of it was known only to him and the purchasers of the claim. The silence of the parties to the transaction in reference to the trust created by it is suggestive of a consciousness, or at least an apprehension, on their part that the law would not enforce the trust against the creditors of the estate. We think the evidence in the case fairly establishes the existence of the facts recited, and that it fully justifies the conclusion that the nephews of the executrix were persuaded by the attorney of the estate to purchase the Woods claim "with the understanding, intention, and instructions" that he should collect it, and pay to her whatever was realized upon it above the cost of acquiring it. Such is the conclusion reached by the learned judge of the court below upon a careful consideration of all the testimony, and we see no reason to doubt the correctness of it. The controlling question arising from and founded upon it is whether the trust in favor of the executrix is enforceable against the creditors of the insolvent estate. The issue is in fact, though not in form, between them.

manding, and they have never demanded, anything from the estate on account of it beyond the amount they paid for it, together

with interest thereon. The transaction evidenced by the assignment from one of them to George W. Irwin was made to gratify the desire of the attorney of the estate to sustain the judgment, and it does not affect in any degree the rights of the real litigants, nor was it intended to do so. The law does not countenance speculation in claims against an estate by a person charged with the duty of administering it. He is not allowed to purchase such claims for his own profit. If he buys them for less than their face value, he can only recover from the estate the amount he paid for them. If, in this case, the executrix had bought the Woods claim with her own money for $1,000, that would be all she could recover from the estate on account of it. The same rule applies to her attorney, who was her legal adviser in the administration of the estate, and who did most of the work pertaining to it. If she had induced her nephews to buy the claim, as they did, for her benefit, would she have been entitled to the profits, if any, derived from the purchase? If so, she would have acquired by it an interest in the claim adverse to the estate she represented, and accomplished by indirection what she could not do directly, and what the law does not tolerate. The creation of the trust in her favor was due to the efforts of her counsel, and the parties to the transaction did not inform her that she was the beneficiary in it. But we think these facts do not give additional force to her contention, or place her on better ground in this litigation than she would have occupied if she had done for herself what her counsel did for her. To this point the language of the learned judge of the court below is so pertinent that we quote it. He said: "It must not be forgotten that this whole business was managed by the counsel for Mrs. Irwin and the estate. It was his duty to protect the estate as much as it was the duty of the executrix, and his knowledge was her knowledge. As he could. acquire no interest for himself antagonistic to the estate, neither could he do so for his client, the executrix. She could not intrust him with the whole management of the estate, and thus allow him to secure for herself an advantage which she was not permitted to do herself." Without further elaboration of the subject, we conclude that there is no error in the rulings, instructions, or decree complained of. The latter is in conformity with well-established principles recognized in the text-books and enforced in the cases cited in the opinion of the court below and in the briefs of the appellee. The specifications of error are overruled. Judg ment affirmed, and appeal dismissed, at the cost of the appellant.

BROTHERTON et al. v. REYNOLDS. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

RESCISSION OF CONTRACT-REVIEW ON APPEAL.

1. Findings of fact by a master, approved by the trial court, will not be disturbed on appeal except for clear error, even though they appear contrary to the weight of evidence.

amounts, as shown by the schedule prices, as actual payments on the whole price; further stipulating that, when the whole $30,000 was thus received by Reynolds, the timber yet unmanufactured, with the sawmill and appurtenances, was to become absolutely the property of plaintiffs. As part payment of the $30,000, they delivered to Reynolds a smaller sawmill they owned on another tract, at the price of $1,600, some sawed lumber, valued at $1,400, and a promissory note for

Appeal from court of common pleas, Warren county; John J. Henderson, Special Special Judge.

Bill of equity brought by Brotherton Bros. and F. E. Dewey against T. J. Reynolds for the rescission of a contract. There was a decree for plaintiffs, from which defendant appeals. Affirmed.

Chas. W. Stone, W. M. Lindsey, and J. O. Parmlee, for appellant. W. W. Wilbur and Wm. Schnur, for appellees.

DEAN, J. The bill in this case averred that defendant, by false and fraudulent representations and devices. had induced the plaintiffs to contract with him for certain standing timber, and prayed for a rescission of the contract, an accounting for money paid, and a computation of damages. The defendant denied any false or fraudulent representation, and averred the contract was in all respects reasonable and fair, and made by plaintiffs with a full knowledge of all the material facts. Reynolds, a resident of Rochester, N. Y., was the owner of 982 acres of timber land in Glade township, Warren county, Pa.

On this he had erected a sawmill and other improvements, and was carrying on the manufacture of lumber. While so engaged, on 13th of December, 1889, he entered into a written agreement with plaintiffs to lease to them the sawmill and the other improvements on the land, for the term of four years, with the standing timber thereon; they to saw the timber into lumber within that time, and deliver it to defendant on the cars at Warren for shipment to such consignees as he should direct; also to manufacture and deliver the railroad ties thereon. A complete schedule of prices to be paid by defendant to plaintiffs for each of 21 kinds and quality of lumber, on delivery, was made part of the agreement. The payments for such lumber were to be credited by defendant to plaintiffs the 15th of each month, for all deliveries made the previous month, until the sum of $30,000 had been thus paid Reynolds, as the consideration of the contract, with the stipulation, however, that Reynolds was to pay to plaintiffs in cash, each month, $6 per 1,000 on lumber, and 18 cents for each tie, leaving consequently only the excess above these

Erie county. At the same time, Reynolds sold and delivered to plaintiffs, in addition, a large amount of other personal property upon the premises, not included in the transfer of the timber. The price agreed upon for this was $4,000, $2,000 of which they paid in cash, and the balance in a note at six months. The plaintiff's then took possession of the property, and commenced to manufacture and deliver lumber as agreed upon, and so continued until February 14, 1890. They had then manufactured about 100,000 feet of lumber, and delivered about half of it on the cars, at $8 per thousand, the cost of manufacturing being $6 per thousand. They had also in the woods about 200,000 feet of logs, cut ready for hauling to the mill, and the cost of these was $2 per thousand. The plaintiffs had also, in purchases of additional tools and equipment and expenditures about their operations, paid out about $2,250. The parties on that day made a new agreement, whereby plaintiffs surrendered to Reynolds all the property contracted for in the first agreement, and all that had been added by them; Reynolds agreeing to manufacture and sell timber and ties from the land until the net proceeds paid the note of $2,000 and the $30,000, the consideration money of the first agreement; a reasonable compensation to Reynolds for his services and risk, not to exceed $5,000 per year; further, he to account for all lumber received and manufactured up to that date. When all these payments were made out of the net proceeds of timber manufactured, Reynolds was to retransfer all the property to plaintiffs, with the right to two years' further time to remove any timber yet standing. yet standing. Accordingly, Reynolds again resumed possession.

The plaintiffs alleged that they had entered into both contracts relying upon the representations of Reynolds as to the quantity and quality of the timber, and that these representations were grossly false, and known to be so by Reynolds at the time. That he had represented there were upon the land 9,000,000 of feet, when in fact there were not 3,000,000; also, that it was of the best quality, while in fact it was very inferior. That he had pointed out to them timber as on this tract which was not on it. The master, from the evidence, has found as a fact that Reynolds had said to plaintiffs, before the first contract was made, there were 9,000,000 of feet on the land. He finds, further, that there were not

3,000,000, and that Reynolds knew it; that Reynolds represented the timber as of good quality, yet it was very poor, and Reynolds knew this; that he made other false representations to plaintiffs, to induce them to enter into the contracts; and that both contracts were made by plaintiffs in reliance upon these representations. Throughout, in his findings of facts and conclusions of law, the master's report is against defendant; and he suggests that the court decree that Reynolds deliver up both contracts for cancellation, as also the notes, mortgages, and securities in his possession delivered to him by plaintiffs in pursuance of the contracts, and that all bargains and agreements on the subject be rescinded; further, that an account be taken of the money expended by plaintiffs, and paid by them to defendant, and of damages sustained by them, and that defendant be ordered to pay over to them such sum as should be found due. On exceptions filed by defendant to the report, they were overruled by the court, the report confirmed, and the decree suggested by the master adopted. From that decree, defendant appeals.

All of the 19 assignments of error, either expressly or inferentially, deny the correctness of the master's findings of fact. Unless that denial in some degree be sustained, the averments of error must fail. While we frequently draw from facts other inferences than those the master and the court below think warranted, and often come to a different conclusion as to the law applicable to the facts, it is a very rare case that the findings of fact by the master, approved by the court below, are so manifestly wrong that we feel called upon to set them aside. Very often the testimony presented to us on paper books seems not to warrant the findings; but we know full well there probably was much at the hearing to induce belief or disbelief which does not and cannot find its way to the printer. The manner of a witness, his intelligence, acuteness of perception, and opportunities for observation, all are matters which influence the master, but cannot be fully transferred to the report. Besides, there is more or less abbreviation, lack of emphasis, and error in the most accurate transcripts of testimony. So, notwithstanding the urgent appeal of counsel for appellant, we must adhere to the rules so often announced before, and so recently in Stocker v. Hutter, 134 Pa. St. 23, 19 Atl. 427, 566: "The findings of a master on questions of fact, approved by the court below, will not be set aside in the supreme court, except for clear error, even where the testimony is conflicting and the merits may appear contrary to the master's conclusion."

We must then assume as facts that there was gross misrepresentation of the quantity; that there was not one-third of the 9,000,000 represented on the land; there was also misrepresentation as to quality; instead of being very good, it was very poor; and that Reynolds

knowingly misstated the facts in each particular. But it is argued that, from the undisputed facts, the inference is that the plaintiff's had every opportunity, before bargaining, to examine the timber, and in fact did examine it; and the rule is invoked, as laid down in Farnsworth v. Duffner, 142 U. S. 47, 12 Sup. Ct. 164, and similar cases, where the suit was for a rescission of the contract on the ground of fraudulent representations: "In respect to such an action, where the means of knowledge respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that, by the use of such means, he could have ascertained." We do not question the soundness of this rule, but it is not applicable to these facts. The subject of this contract was the timber standing on about 1,000 acres of land, cut up by ravines, and broken by elevations. The most accurate estimate of quantity would have been to run the outside lines, and then traverse the whole tract by sections, inspecting and counting the trees. Neither party desired to adopt such an expensive and time-consuming method as this. Another, the crudest sort of an estimate, is to look at different parts of the tract, notice the relative merits of each, estimate roughly how much was well timbered, and how much indifferent; then estimate how many thousand feet stood on one acre of each, and multiply that by the number of acres of the same kind. Or another method is that pursued by some of the witnesses here: A party of three or four blaze a strip eight or ten rods wide from one side clear across the tract, and estimate, by slowly walking over the strip, the quantity; then blaze another strip; and so back and forth until the whole tract has been gone over. This method, some of the witnesses state, required the time of four men about 24 days. The master has found as a fact that these plaintiffs made no estimate of any kind. They looked at the timber, spent only a few hours in doing so, and then they were conducted by defendant's agents and employés. One of them, Henry S. Deal, testified that he went upon the land twice with Brotherton, and says: "He [Reynolds] told me to show them the best part of the timber, and not to take them over that part that had been cut, and I done as directed by Mr. Reynolds." Smiley, one of the parties interested with Brotherton, says that Deal said to him what he showed them was a general average of the timber. The master finds that Reynolds stated to plaintiffs he had had the timber estimated, and there were 9,000,000; further, that he knew this was not true. If this be correct, then, by a trick carried out through Deal, his agent, he sought to confirm plaintiff's in trusting in his false statement; tried to lead them to believe that with their own eyes they were witnesses to the truth of it. This is not what the law means by knowledge equally accessible to both parties; by

parties dealing at arm's length on their own judgment. The knowledge of the quantity was difficult to be had. To obtain it required many days of careful, laborious examination. Reynolds, in substance, said: "Heretofore, I got this information. I have had an estimate made." Then, to guard against discovery by them of the truth, he successWhether fully planned to mislead them. these were the facts was open to question before the master, where defendant was fully heard. The master, on sufficient evidence, has found the facts against him, and that is an end of discussion here. No further knowledge was acquired by plaintiffs after they took the possession, which they kept for two

months, and then surrendered. Most of the old employés of Reynolds remained. Plaintiffs themselves, being busy closing out their operations of another mill, were seldom on the ground, and had but little further opportunity for observation. The master has found that, trusting in this misrepresentation as to quantity, persistently kept up by trick and artifice, the plaintiffs were induced to contract. They could have made an estimate, but why should they do so when Reynolds had one made, which he assured them was correct? Especially, why, when Deal had shown them a part of the timber which was good, and represented that was an average of the whole? To hold, on these findings of the master, the means of knowledge were equally open to both parties, would be equivalent to holding that systematic and continued deception was a means of knowledge. This is not the case of buyers relying upon an imperfect investigation of their own, as in Mahaffey v. Ferguson, 156 Pa. St. 156, 27 Atl. 21, cited by appellant; but the case of a buyer relying upon a false estimate of the vendor, and his confidence increased by a further falsehood, still more persuasive.

The argument of the learned counsel for appellant, however forcible, all through, is to the effect that the master and the court below ought not to have found the material facts against them; but they have wholly failed to show that there was no evidence

refused to live there with him, and whether he had ever asked her, the question of desertion may be submitted to a jury.

Appeal from court of common pleas, Philadelphia county.

Action by John G. S. Beck against Kate E. Beck for a divorce. There was a decree for libelant, from which respondent appeals. Affirmed.

th

The plaintiff, Mr. Beck, filed a petition alleging that his wife had willfully and maliciously deserted his habitation, and, without cause, has persisted in her desertion for a period of two years. To that petition, Mrs. Beck, the defendant, filed an answer, denying that she had deserted her husband, and alleging that he had deserted her. It appears from the testimony of both parties that Mr. and Mrs. Beck were married in 1858. In June of 1882 they moved to 700 North Twentieth street, where they resided with their children until April 30, 1888. At this last date their children were of age. Mr. Beck's place of business at that time was 1730 Market street, and he had been there from November of 1884. On the 30th of April, 1888, Mr. Beck removed from the house 700 North Twentieth street, to 1730 Market street, which was fitted up at that time for a residence. He testifies that he was unable to support and maintain his family at 700 North Twentieth street after the death of his father; that his business had declined, his income had become reduced, and his earnings were insufficient to meet his expenses; that, to reduce his expenses within proper limits, he desired to give up the house on North Twentieth street, and remove his family to Market street; that at that time the building 1730 Market street was suitable for a resi dence; that the house was new and commodious, and suitably arranged for a dwelling, and had all the appointments necessary for housekeeping; that he in good faith desired to make this his home, for the reasons indicated; that his wife refused to accompany him, and has persisted in that refusal. Mrs. Beck has testified that she never deserted her husband; that she was never requested

established, the inferences drawn were not warranted. We find nothing sufficient to justify us in reversing the decree on any one of the assignments; therefore it is affirmed, and the appeal is dismissed, at costs of appellant.

BECK v. BECK.

(Supreme Court of Pennsylvania. Oct. 1, 1894.)

DIVORCE-DESERTION-EVIDENCE-PRACTICE.

In an action by the husband for a divorce on the ground of desertion, where it appears that he provided a home suitable to his condition in life, and removed thereto, and the evidence is conflicting as to whether his wife had

she would have gone there if she had been asked by him to go. She further testifies that he left the house on North Twentieth street without cause; that he never subsequently asked her to come to the house 1730 Market street.

Albert E. Peterson and William W. Wiltbank, for appellant. Carroll R. Williams and Edward W. Magill, for appellee.

PER CURIAM. An examination of this somewhat voluminous record has not convinced us that either of the specifications of error should be sustained. The testimony bearing on the questions of fact involved in the issue was sufficient to justify the learned trial judge in submitting the case to the jury. There was therefore no error in refusing to

Appeal from court of common pleas, Warren county; Charles H. Noyes, Judge.

Proceedings by the trustees of the State Hospital for the Insane at Warren, Pa., against Jennie Wood, to condemn land. After the award was made the trustees asked for leave to discontinue proceedings and surrender the land, and from an order refusing leave to discontinue they appeal. Affirmed.

D. I. Ball and W. M. Lindsey, for appellants. W. D. Brown, W. W. Wilbur, and W. E. Rice, for appellee.

STERRETT, C. J. One of the questions presented by this record is whether the learned court erred in discharging defendants' rule for leave to discontinue their proceeding for the assessment of damages, etc. If leave to discontinue was thus rightly refused, it follows that there was no error in proceeding with the issue to determine the amount of plaintiff's damages, nor in rejecting on the trial thereof the offers of evidence referred to in the sixth and seventh specifications of error. These offers are to show the same facts that were urged by defendants in support of their application for leave to discontinue, etc., and were rejected for the double reason that they were irrelevant to the issue on trial, and did not tend to controvert the facts showing the actual taking of plaintiff's land by defendants under the right of eminent domain, with which they are invested by the act of May 6, 1891 (P. L. p. 43). Assuming for the present that leave to discontinue and abandon the proceedings for assessment of damages was rightly refused, it may be remarked in this connection that the record discloses no error in the trial, or in the proceedings leading up thereto, that would warrant a reversal of the judgment. The validity of the latter therefore hinges on the question above stated. The act of 1891 provides that whenever the trustees of any

state lunatic hospital shall desire more land for the erection of necessary buildings, or other necessary hospital uses or purposes, and shall be unable to procure the same by purchase from the owners, etc., it shall be lawful for them to enter upon, mark off, occupy, and use the same for said purposes, and for all damage done or suffered, or which shall accrue to the owner, by reason of such taking, the state shall be security; and on application thereto the court of common pleas shall appoint three discreet and disinterested citizens as viewers, who, upon notice to all parties interested, shall estimate and determine what damages, if any, have been sustained, and to whom payable, and make report thereof to the court, and if damages be awarded, and the report be confirmed, judgment shall be entered thereon, with the right of either party to appeal, etc., as in other cases of taking under the right of eminent domain. The act also provides, among other things, "that a fee simple title to all lands acquired under the provisions of this act shall vest in" said trustees.

As evidenced by the record of their proceedings, the first official action taken by the defendants was their resolution of January 31, 1893, wherein, after reciting their inability to agree with plaintiff for the purchase of her tract of 50 acres, more or less, adjoining the hospital lands, they resolved to, forthwith, by their president and secretary, take possession of, mark off, use and occupy the same for specified hospital purposes, and authorized said officers to institute all necessary judicial proceedings for the valuation thereof, etc., in accordance with said act of 1891. In their petition of February 13, 1893, for the appointment of viewers, after reciting the purposes for which said land was needed, the necessity for taking the same, and referring to their previous resolution to take it, they say that in pursuance thereof they "have entered upon and occupied and are now occupying" said land "for the purposes herein before designated," and ask that viewers be appointed to estimate and determine the damages, etc. Viewers were accordingly appointed, and reported $10,341 damages, payable to the plaintiff, "in whom the legal title is vested." On April 10th following, said report was "presented in open court, and confirmed, subject to the right of appeal as provided by law." The next action of the trustees was at a special meeting on April 14, 1893, when they instructed their counsel "to examine the question whether the trus tees, after having appropriated the Wood property, have power, after viewers appointed by the court have filed their award, to discontinue the proceedings and abandon the property, and to report to the board at a meeting to be held on Friday, the 21st instant." At that meeting, in view of the opinion of their counsel, the board resolved to take an appeal, and instructed their at