account of the purchases and sales of this wheat, corn, and pork. None of the wheat, corn, or pork bought was ever delivered to Smith, and he never delivered any to those who purchased. The amount of wheat, corn, and pork bought by Kammerer & Co. for Smith equaled the amount sold by him for Smith, and Smith was credited with the gains on sales and charged with the loss on sales. The accounts rendered were in the following form (I give two, taken by random from the exhibits returned by the examiner): Account Purchase and Sale of 40,000 Wheat by F. G. Kammerer & Co., Chicago, for Account and Risk of Wm. F. Smith, Waynesburg, Pa. No. 5,830.

Feby. 8. Sold 40 M. May wheat, 8544........$34,100 00 Contra.

"In buying and selling this wheat, corn, and pork, F. G. Kammerer & Co. dealt with other members of the board of trade, and their accounts were kept and settled daily in accordance with the rules and regulations of the board.

Smith was not a party to the settlements Kammerer made of his purchases and sales from and to other brokers, and Smith did not know from whom the purchases were made, or to whom the sales were made. the board, Kammerer dealt in his own name, and each day made settlements through the board of trade clearing house. Section 1 of rule 14 of the board of trade provides as follows: 'A member of the association may act as a broker only between other members. A broker shall reveal the name of his principal when a transaction is made, if demanded; otherwise he may not be considered and treated as a broker, but as a principal.'

"(b) On October 6, 1886, William F. Smith was behind in his account with Kammerer & Co. $2,700; that is, to keep his margin up to what was required by the rules of the board, he needed $2,700 to save the November wheat he then had from being sold. To pay this $2,700, and to provide a margin for future deals, F. G. Kammerer & Co. took from William F. Smith a note for $6,500, at 60 days, payable to F. G. Kammerer & Co., with warrant of attorney authorizing the -confession of judgment for that sum by any attorney in any court of record, in favor of the holder of the note. At the same time, and

to secure the payment of this note, he took fro from William F. Smith an assignment-First, of a mortgage given by William Lippencott on a tract of land in Greene county, Pennsylvania, and ten accompanying notes for about $4,500; second, of a judgment note of Adamson and Hoge for $2,100. The proceeds of this $6,500 note was credited to Smith's account. On February 2, 1887, he paid $500 on the note; and on February 10, 1887, he paid $1,000. On or about the 1st of March, 1887, he stopped dealing with F. G. Kammerer & Co., and they had a final settlement and adjustment of their accounts, which showed that F. G. Kammerer & Co. owed Smith $487.50. This amount was on March 8, 1887, credited on the $6,500 note, to which we have referred.

were

"(c) On May 16, 1887, J. F. McFarland, Esq., a member of our bar, as attorney for William F. Smith, to No. 51, August term, 1887, of this court, confessed judgment against him and in favor of H. C. Champlin for the sum of $4,957.55, the balance shown to be due and unpaid on this $6,500 note; H. C. Champlin claiming to be 'the holder of the note.' Judgment was also entered on July 21, 1887, in this court to No. 296, August term, 1887, on the Adamson and Hoge note for $2,100, and accrued interest, less the credits. The mortgage of William Lippencott and assignment thereof duly recorded in Greene county, Pennsylvania; and on August 2, 1887, a scire facias was issued out of the court of common pleas of that county to foreclose it. On June 1, 1887, William F. Smith filed his petition in this court, and the rule we are now considering was issued. On September 3, 1887, William F. Smith filed his bill in the court of common pleas of Greene county, sitting in equity, against F. G. Kammerer et al., for the purpose of having the assignment of the William Lippencott mortgage and notes and the assignment of the Adamson & Hoge $2,100 note and the $6,500 note given by him on October 6, 1886, to F. G. Kammerer & Co., canceled, on the ground that the assignments and note were given in a gambling contract, and were therefore void. All proceedings, at the request of the parties, on the present rule, were suspended until the Greene county equity case should be finally determined; it being agreed that the testimony taken in the equity case could be used on the hearing of this rule. The master in the equity case recommended the dismissal of the plaintiff's bill, for the reason that the court had no jurisdiction of the Illinois parties, who appeared de bene esse, nor of the judgments in Washington county, and that William F. Smith, being in pari delicto with F. G. Kammerer (if the note and assignments were given in a grain-gambling transaction), and the contract, so far as the assignment of the mortgage was concerned, being executed, had no standing in a court of equity. The court concurred in the recommendation of

the master, and decreed the dismissal of the bill. On appeal the supreme court affirmed this decree. Smith v. Kammerer, 152 Pa. St. 98, 25 Atl. 165.

"Disputed Facts.

"William F. Smith was examined in his own behalf, and testified that he had a contract with Kammerer that he was to trade on margins, and was not to take 'the stuff itself;' that he told him that he did not want to receive or handle any grain, but wished to deal in the differences, the fluctuations of the market, to buy risks and margins; that Kammerer said he would fix that, and that that was the proper way to speculate. He says that he told Kammerer that he did not have enough of money to pay for any quantity of wheat, but that he would put up money as margins only. He says this is the contract he had with Kammerer. F. G. Kammerer was examined, and positively denied such a contract. He says that he, as Smith's agent, bought wheat, corn, and pork on the board of trade, as Smith ordered it bought; that his contract with those from whom he bought, under the rules of the board, was such that the delivery of every bushel and barrel of it was contemplated, and could have been demanded when the time for delivery arrived; that all his purchases were for future delivery; and that there was no option in the contracts he made except that relating to the time of delivery; for instance, the seller of May wheat had all of the month of May in which to deliver it. He said, further, that it is true that no wheat was ever actually delivered on his purchases to Smith, because Smith ordered him to sell it before the time of delivery came around. He says that for his purchases and sales he made daily settlements, in accordance with the rules of the board, and that none of his transactions on behalf of Smith were in violation of the statutes of Illinois. He testified further, that Smith had been furnished a printed copy of the rules and regulations of the board of trade, and was familiar with the manner of doing business under these rules; that, before the note in question was given, he had been present when some of his deals were made, and gave personal direction in regard to the same; that he knew of the right of brokers to make daily settlement by setting off their purchases against sales and accounting for the differences. A number of attorneys and business men of Chicago testified that, under Kammerer's statement of the character of his deals for and with Smith, there was no violation of the rules of the board or the law of Illinois.

"(2) Claim of the Parties.

"(a) The petitioner claims (1) that this judgment in controversy should be stricken from the records for the reason that it is entered in favor of H. C. Champlin when the note is payable to F. G. Kammerer & Co.; v.30A.no.9-29

(2) that the note in question was given to pay Smith's losses in a gambling contract, which was against public morals, and in violation of the statutes of Illinois.

"(b) The respondent claims (1) that the board of trade is incorporated under the law of Illinois; that its rules and regulations are in conformity thereto; and that his dealings with Smith were bona fide purchases and sales, as his agent, of wheat, corn, and pork, for future delivery; (2) that the question here in controversy is res adjudicata; and (3) that the petitioner cannot successfully invoke the aid of a court of equity by setting up an illegal act to which he was a party. "(3) Conclusion of the Facts and the Law.

"(a) We are of the opinion, and so find, that the deals and settlements made by F. G. Kammerer & Co. (under the orders of William F. Smith) with other members of the board of trade, for the purchase and sale of wheat, corn, and pork, were made in accordance with the rules and regulations of the board, and were not illegal under the law of Illinois. Perin v. Parker, 126 Ill. 203, 18 N. E. 747; Samuels v. Oliver, 130 Ill. 79, 22 N. E. 499; Pixley v. Boynton, 79 Ill. 352; Corbett v. Underwood, 83 Ill. 326; Wolcott v. IIealth, 78 Ill. 436; Peters v. Grim, 149 Pa. St. 163, 24 Atl. 192; Smith v. Bouvier, 70 Pa. St. 330; Oldershaw v. Knoles, 4 Ill. App. 63.

"(b) We are of opinion, and find, that, notwithstanding this fact, F. G. Kammerer and William F. Smith could have had a contract between themselves that would be illegal. If F. G. Kammerer agreed with William F. Smith that he would not reveal his name on the board of trade, but would himself stand as principal in the deals he there made with his fellow brokers, and would assume all responsibility as to the delivery of the grain, etc., but would allow Smith to have the benefit of the deals he ordered without being bound to receive or deliver any wheat, corn, or pork, and agreed to pay him all the gains he made on sales, provided Smith would pay him his commissions, and make good all losses on sales, and would keep deposited with him sufficient margins to protect him against the losses, then the contract between Kammerer and Smith would be a gambling contract. In such a case, Smith would not be interested in the contract of purchases and sales made by Kammerer on the board, but would be only interested in the rise or fall of the market between the time of purchase and sale. The stipulation between them would simply be that Smith would gain if the wheat Kammerer bought from a broker should be sold by Kammerer to some other broker at a higher price, and would lose if sold for a lower price. In other words, Smith would be betting with Kammerer that purchases and sales that he made with other brokers on the board at his direction would be profitable. If Smith won,

he took the profits, less Kammerer's commission. If he lost, he paid Kammerer the loss and commissions. In such a case Kammerer would be dealing with Smith as a principal, and not as his agent. Schneider v. Turner, 130 Ill. 48, 22 N. E. 497; Pearce v. Foote, 113 Ill. 228; Tenney v. Foote, 4 Ill. App. 594; Farcira v. Gabell, 89 Pa. St. 89; North v. Phillips, Id. 250; Brua's Appeal, 55 Pa. St. 294; Gaw v. Bennett, 153 Pa. St. 247, 25 Atl. 1114.

"(c) We are of opinion, and so find, that, if the contract between Smith and Kammerer was of the character that Smith testifies it was, then it was a gambling contract and illegal, and the note upon which judgment was entered in this case was void for want of a legal consideration, notwithstanding Kammerer's contracts of purchases and sales on the board of trade with other brokers were legal; but if Kammerer was not acting under an independent contract, such as Smith sets up, wherein they were both principals, but was acting only as Smith's agent in making bona fide purchases and sales on the board of trade, such as we have found he did make, then the contract between them would not be illegal, and the note in question would not be void.

"(d) This brings us to the point where we must determine between the credibility of the two principal witnesses, or rather determine whether the petitioner, in the face of the denial of the respondent, has made out such a case as entitled him to equitable relief. Kammerer's story is consistent with and upholds the legality of the transaction in which he was engaged. Smith's story brands the transaction in which he was a party as illegal, and necessarily puts him in a position where he must plead his own turpitude. The undisputed facts in the case are as consistent with Kammerer's story as they are with Smith's; and, on the whole testimony, we are of opinion that the petitioner has not supported his petition, its material averments being denied by the respondent, with sufficient proof to warrant the court in opening the judgment and sending the case to a jury. "(e) We are of opinion that the question here involved is not res adjudicata. The plaintiff's bill in the equity case (Smith v. Kammerer, 152 Pa. St. 98, 25 Atl. 165) was dismissed for want of jurisdiction.

"(f) Although we are not fully satisfied that the maxim, 'No man shall plead his own iniquity in order to obtain equity,' applies' to a case of this kind, where a question of public interest is involved, still that fact should have its weight in passing on the petitioner's prayer for relief. Griffiths' Appeal, 16 Wkly. Notes Cas. 249, is the only case we have been able to find where a judgment entered on a note given in a wagering contract was opened, and the defendant let into a defense. In Ruchizky v. De Haven, 97 Pa. St. 210, and Stewart v. Parnell, 147 Pa. St. 527, 23 Atl. 838, are dicta which ap

pear to be on the other side of the question. See, also, Merriam v. Stock Exchange, 1 Pa. Co. Ct. R. 478.

"(g) We are of opinion that the power in the warrant of attorney to confess judgment 'in favor of the holder of the note' was sufficient warrant to J. F. McFarland, Esq., to confess judgment in favor of H. C. Champlin, who was then the holder of the note, and that judgment was not irregularly entered in his favor."

Boyd Crumrine and A. A. Purman, for appellant. Wiley, Buchanan & Walton and T. Jeff. Duncan, for appellee.

PER CURIAM. This contention is the offspring of Illinois contracts, the legal effect of which depends mainly on the lex loci contractus, and that appears to have been properly applied. We are satisfied from an examination of the pleadings and evidence that there is no substantial error in either of the findings of fact complained of in several of the specifications; nor do we think there is any error in any of the material conclusions drawn therefrom. All the questions involved in the assignments of error have been so fully considered and satisfactorily disposed of by the learned president of the common pleas that little, if anything, can be profitably added to what is contained in his opinion, sent up with the record. On that opinion, the decree, discharging the rule to show cause why the judgment should not be opened, and the defendant let into a defense, etc., is affirmed, and appeal dismissed, with costs to be paid by appellant.

ROBERTS v. FIREMEN'S INS. CO. OF CHICAGO. Nov. 13,

(Supreme Court of Pennsylvania. 1894.)

INSURANCE-POLICY-PROPERTY "HELD IN TRUST." 1. An ageni employed to manage a store, carrying on the business in his own name, who is required to keep an account of all the transactions, to account to his principal for the profits whenever requested so to do, and to turn over all the property at the end of his employment, holds the property of his principal "in trust," within the meaning of an insurance policy on goods so held.

2. Such agent may insure the property in his own name.

Appeal from court of common pleas, Allegheny county.

Action by John S. Roberts, trustee for oneJaneway and others, against the Firemen's Insurance Company of Chicago. There was a judgment for plaintiff, and defendant appeals. Affirmed.

J. S. & E. G. Ferguson, for appellant. James W. Collins and M. A. Woodward, for appellee.

GREEN, J. By the express terms of the policy in this case, the plaintiff, John S. Rob

erts, was insured to the extent of $2,500 "on stock of wall paper, shades, and other merchandise not more hazardous, his own, or held by him in trust or on commission, or sold but not removed," while contained in a certain described store building. We understand these terms to mean that if he held any property of the kind named in the building, which was "his own," it was insured; if he had any property which was "held by him in trust," it was insured; or any held "on commission," or "sold but not removed," it was all insured by the policy. Here are four distinct classes of property covered by the policy, that are not distinct as to their character or kind, but as to the kind of title or condition in which they were held. To enable the plaintiff to recover therefor, it was not necessary that he should be the owner of the goods. If he held them in trust, it was sufficient. That means, if others were the real owners, and he held them for the benefit of the owners, as their property, for their use and advantage, it was not necessary that, in addition to that kind of ownership or holding, there should be superadded a personal and individual interest of his own, as owner, in order that there might be a recovery. The words of the policy would be without meaning if such requirement were essential. By the terms of the agreement between Roberts and the owners, he was intrusted with the exclusive care, management, and direction of the entire stock of goods belonging to the owners at the store in question; he was to carry on the business in his own name, and by his own efforts and exertions, but entirely for the benefit and advantage of the real owners; he was to keep accurate books of account of all his transactions open at all times; and at such times as they should appoint he was to account for and pay over the net profits or income arising out of the business; and at the end of the agreement he was to wind up the business, and turn over all the property and assets to the true owners. For his services he was to receive a fixed compensation, payable monthly, of $3,000 per annum. It is difficult to imagine a more perfect example of a trust relation between the plaintiff and the owners, and we have not the slightest difficulty in holding that the property insured by this policy came literally within the designation or description, "held in trust by him." In Biddle on Insurance (section 171), it is said: "An agent having the custody of goods, and liable to account to his principal for goods, may insure; and he may do so in his own name, either by policy for whom it may concern, or as trustee"; citing many authorities. In Richardson on Insurance (section 131), the writer, referring to the expression in policies, "their own, or held by them in trust or on commission, or sold but not delivered," says, citing numerous decisions: "Such special phrases are often employed to show that persons holding the property of others may secure the protection of

the policy, though the title to the property may or may not be in them. 'Held in trust' means simply that the goods or property are in the custody of the insured. The phrase is not used in its strict, technical meaning." In the case of California Ins. Co. v. Union Compress Co., 133 U. S. 387, 10 Sup. Ct. 365, it was said in the opinion of the court, by Blatchford, J.: "It was lawful for the plaintiff to insure, in its own name, goods held in trust by it; and it can recover for their entire value, holding the excess over its own interest in them for the benefit of those who have intrusted the goods to it." In Insurance Co. v. Jackson, 16 B. Mon. 242, it was held that "an agent or consignee, having the principal's property in his possession, being responsible for it, and having a special interest in it to the amount of his commissions, may insure it in his own name, and, in case of loss, recover the full amount of his policy, holding all beyond his own interest in trust for his principal." In Waring v. Insurance Co., 45 N. Y. 606, it was held that "agents, commission merchants, or others having the custody of, and being responsible for, property, may insure in their own names, and they may, in their own names, recover from the insurer, not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy, up to the value of the property." See, also, Siter v. Morris, 13 Pa. St. 218, and Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527. Further citations are useless. We do not understand these principles to be controverted, and that they are directly applicable to the policy which is the subject of the present controversy cannot be doubted. Judgment affirmed.

ROBERTS v. SUN INS. CO. SAME v. GIRARD FIRE & MARINE INS. CO. OF PHILADELPHIA. SAME v. NORTHERN ASSUR. CO. OF LONDON. SAME V. MANCHESTER FIRE ASSUR. CO. OF ENGLAND. SAME v. GERMANIA FIRE INS. CO. OF NEW YORK. SAME v. HOME INS. CO. OF NEW YORK. SAME

FIREMAN'S INS. CO. OF BALTIMORE. SAME v. CITIZENS' INS. CO. OF NEW YORK. SAME v. MERCHANTS' INS. CO. OF NEWARK. SAME v. BUFFALO GERMAN INS. CO. SAME V. GERMAN FIRE INS. CO. OF PITTSBURGH. SAME v. CALEDONIA INS. CO. OF EDINBURGH.

(Supreme Court of Pennsylvania. Nov. 13, 1894.)

Appeals from court of common pleas, Allegheny county.

Actions by John S. Roberts, trustee, against certain insurance companies. There were judgments for plaintiff, and defendant in each case appeals. Affirmed.

J. S. & E. G. Ferguson, for appellants. James W. Collins and M. A. Woodward, for appellee.

PER CURIAM. The judgments in these cases are affirmed.

CITY OF PITTSBURGH v. COYLE et al. (Supreme Court of Pennsylvania. Nov. 13, 1894.)

CONSTITUTIONAL LAW-TAXATION OF BROKERSUNIFORMITY.

Imposing a brokerage tax upon two designated classes of brokers does not contravene the constitution of 1874, which provides that taxation shall be uniform upon the same class of objects within the territorial limits of the authority levying the tax.

taxation, was not in conflict with the constitutional provision requiring uniformity of taxation. Said Judge McPherson in the opinion: "Doubtless all corporations of every kind may for some purposes be put into one class. So may all manufacturing corporations. But this is not the limit of proper divisibility. Manufacturing corporations are themselves of diverse kinds, depending on their respective business; and we can see no reason, and have heard of none, why the legislature may not, if it please, put into one class, and tax it, the companies which manufacture liquor and gas, while it leaves all other manufacturing companies untaxed." In Roup's Case, *81 Pa. St. 211, passing upon the constitutional validity of an act which classified real estate into three different classes, subjecting them to different rates of

Action by the city of Pittsburgh against Reed B. Coyle & Co. to enforce the payment of a tax imposed upon real-estate brokers. From a judgment for plaintiff, defendants appeal. Affirmed.

J. S. & E. G. Ferguson, for appellants. William C. Moreland, City Atty., and Robert S. Frazer, for appellees.

GREEN, J. It cannot be doubted, and is not really contested, that the acts of January 4, 1859 (P. L. 828), and April 15, 1867 (P. L. 1258), conferred upon the city councils the power to levy the tax in question. The ordinance of March 12, 1892, passed by the councils, was a lawful exercise of that power, and the only question in dispute is whether in imposing a brokerage tax upon two designated classes of brokers, and not upon all other classes of brokers, the provision of the constitution of 1874 which directs that taxation shall be uniform upon the same class of objects within the territorial limits of the authority levying the tax is contravened. We are unable to see that there is any violation of that provision in this case. It is true that two classes of brokers only are named, to wit, merchandise brokers and real-estate brokers, but all the members of each class are taxed alike. There might be very sufficient reasons for taxing the business of stockbrokers, either by an act of the legislature or by an authorized municipal ordinance; yet it could hardly be contended that such taxation would be void if all other classes of brokers were not included. In a very able opinion by Judge McPherson of the Dauphin common pleas in the case of Com. v. Germania Brewing Co., 145 Pa. St. 83, 22 Atl. 240, the whole subject of classification in taxation was thoroughly reviewed. The entire opinion was adopted by this court on appeal. We there held that the provision of the act of June 30, 1885 (P. L. 199), which excepted manufacturers of liquor and gas from the general exemption of manufacturing companies from

the subjects of taxation is not taken away

by the new constitution." by the new constitution." In Germania Life Ins. Co. v. Com., 85 Pa. St. 513, we said: "We are of opinion that under the ninth article of the new constitution the legislature has power to classify the subjects of taxation, and that foreign insurance companies may be placed in a class by themselves, and distinct from domestic insurance companies, and may be taxed independently and differently." In many other cases the power of the legislature to classify the subjects of taxation, and tax the classes differently, without violating the constitutional provision, has been affirmed by this court; but it is unnecessary to extend the citations. In this case, the subject of taxation being brokers, and there being many different kinds of brokers, we are of opinion that the classification of the different kinds, and the taxation of some of them, constitute a lawful exercise of the taxing power, although there may be other classes of brokers that are not taxed. It is almost needless to add that we do not regard this tax as an income tax. Judgment affirmed.

AMENDMENT OF PLEADING-MECHANIC'S LIENPROPERTY OF Wife.

1. Where a mechanic's lien was filed against J. W. H and his wife, J. H., and scire facias was issued against them so named, but on stipulation the court allowed the name J. H. to be changed to A. H. in the scire facias, the amendment changed the wife's name to A. H. wherever it appeared in the proceedings.

2. On scire facias against a husband and wife to enforce a mechanic's lien, it appeared that the building was built on land of the wife, and that she had full knowledge of the contract made by her husband, and had conversed with the husband and the contractors in regard to the work, and made no objection at any time during its progress. Held, that the wife was liable.

Appeal from court of common pleas, Allegheny county.