Clark v. Reardon. the plaintiff until after she was struck. It is not at all material whether the plaintiff was in the act of stepping on the car or not. The question for the jury's consideration was whether the car had stopped when the automobile passed. There is no doubt that the witness testified that it had stopped, and no possible injury was done to the defendant by our statement that the witness testified that the plaintiff was about to get on the car when struck, because that was not a material matter. It is complained in the sixth reason that we did not properly quote the testimony of Isaac Goldman. At one place in the testimony Isaac Goldman said that the car was approaching, but later in his testimony he was asked, "Where was the car when the woman screamed? (time of the accident). A. I can't tell you; I was sitting back and couldn't tell you." In our charge to the jury we quoted this testimony as follows: "The defendant testified that the car was not there when he struck the woman, and that she was standing in the street, he didn't see her, and that he struck her and the car came up afterwards. His father, James Reardon, testified that the car came after the woman was struck, that he had her picked up in his arms before the car got to the corner. Mr. Goldman says he does not know where the car was when the woman was hurt. That is the testimony that the car wasn't there." It will be observed from this that we referred to Mr. Goldman's testimony, in not knowing where the car was, as testimony to support the defendant's position that the car had not stopped at the time the accident occurred, which is all that the plaintiff claims for it. The only question that is raised in the other reasons for a new trial that needs consideration is whether the plaintiff was guilty of contributory negligence. That was not the question in the case. The plaintiff sought to recover for the reason alone that the defendant violated the Act of Assembly which required him not to pass with his automobile a trolley-car which had stopped to take on passengers: Act of June 30, 1919, Section 25, P. L. 694. We told the jury that unless the car had stopped for that purpose the plaintiff could not recover under her statement, so that that was the only question in the case. If it had stopped, and the plaintiff attempted to pass in his automobile, then he violated the Act of Assembly, and was guilty of negligence. Under such circumstances contributory negligence is not a defense, it being well settled that where the defendant fails to comply with the requirements of or violates an Act of Assembly, thus causing injury to another, he cannot avail himself of the defense that the plaintiff was guilty of contributory negligence: Narramore v. Cleveland Railway, 96 Federal Rep. 298; Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617; Sullivan v. Hanover Cordage Co., 222 Pa. 40; Lenahan v. Pittston Coal Co., 218 Pa. 311. That the act of the defendant in passing a standing car was negligence, see Lewis v. Wood, 247 Pa. 545; Frankel v. Norris, 252 Pa. 14; Wallace v. Keystone Auto Co., 239 Pa. 110. We do not think any error was committed in the trial of this case, and discharge the rule to show cause why a new trial should not be granted. The rule for judgment non obstante veredicto is also discharged. Court of Common Pleas of Lancaster County Suretyship City of Lancaster v. American Bonding Co. Suit on contractor's bond Statement Sufficiency of— Written or oral contract-Unfinished work-Items of amount due -Variation of contract-Practice Act, 1915, Sec. 9. In an action on a contractor's bond to recover the difference between the contract price and the amount paid another contractor to complete the work, it is not necessary that the statement should set forth whether the contract with the second contractor was written or oral, or what work was left undone by the first contractor and completed by the second contractor or in detail how the amount claimed was arrived at. All that need be alleged is the amount the plaintiff was required to pay above the original contract price. Such statement is not defective for alleging a variation in the contract where it alleges that the contract was made for the completion of the work "without any material variation with " the original contract, but at an increased price. An immaterial change in the contract would not relieve the surety. Question of law raised by affidavit. June Term, 1914, No. 45. Oliver S. Schaeffer and Bernard J. Myers, for plaintiff. John E. Malone, for defendant. July 2, 1921. Opinion by HASSLER, J. An affidavit of defense has been filed in this case raising questions of law. The facts set forth in plaintiff's statement show that the defendant was surety on a bond given to the plaintiff by The Lehigh Engineering and Construction Company, conditioned that the said Lehigh Company would erect a dam, intake, bridge pier, &c., at the pumping station in accordance with the terms and specifications attached to that contract. It is alleged that the said company failed to do its work, and the City of Lancaster was compelled to employ one G. W. Rockwell of Sunbury, Pa., to build it, and was required to pay him $3259.97 more than the Lehigh Company had contracted to do the work for. This suit was brought to recover that amount from the defendant, as surety on said bond for the said Lehigh Company. It is objected that the statement is not sufficient, because it does not set forth whether the contract made with G. W. Rockwell on August 25, 1911, was a verbal or written contract. We do not think there is any merit in this contention. Section 9 of the Act of May 14, 1915, P. L. 483, requires that it shall be stated whether the contract upon which suit is brought is oral or in writing. The contract with Rockwell is not the one upon which suit is brought. It can only be used as evidence of what amount, if any, the defendant is liable for on the contract between the plaintiff and the Lehigh Engineering Company upon which the defendant company was surety. The statement alleges that that contract is in writing, which meets the requirements of the Act of Assembly. The second objection to the statement is that it alleges that the Rockwell contract varied from the contract that the plaintiff entered into with the Lehigh Engineering Company, &c., and that this legally VOL. XXXVII, No. 89 City of Lancaster v. American Bonding Co. discharged the defendant from liability. This is not correct. The plaintiff's statement alleges that the contract was made with Rockwell for the completion of the work "without any material variation with the original contract with the said Lehigh Engineering Contracting Company, and at a price in excess of said original contract." An immaterial change in the contract would not relieve the surety: Philadelphia v. Ray, et al., 266 Pa. 345. But there is no allegation in the statement that there was any material change in the contract with Rockwell. The third objection is that the statement fails to set forth what work was left undone. We do not think that it was necessary to set this forth in the statement. Whatever work was left undone by the original contract it was proper for the plaintiff to employ some one else to do, and if it cost more, the defendant, as surety on the original contractor's bond, would be liable for the payment of such excess. The fourth objection is tha tthe statement fails to show how the damage of $3259.97 sustained by the plaintiff is arrived at. The statement does allege that it was the amount which the plaintiff was required to pay to Rockwell, because of the defendant's principal's failure to perform his contract. This is all that is required to be alleged in the statement. We are satisfied that there is no merit in the questions raised in the present affidavit of defense, and therefore refuse to enter judgment for the defendant, but direct the defendant to file a new affidavit of defense within fifteen days from the date of the filing of this opinion. Orphans' Court of Lancaster County Estate of Jacob 8. Buch, dec'd (No. 1). A testator's will provided as follows: "5th. I order and direct that my executors shall invest my son John's share safely at not less than four per cent interest, and if he dies without issue, the said share shall be equally divided among his brothers and sisters or their heirs." Held, that this item created an active trust, delegating to the trustees the duties of investing the fund, paying the income thereof to the beneficiary and conserving the principal for remaindermen, viz.: John's issue, or if he died without issue, "his brothers and sisters or their heirs." Rule to terminate trust. December Term, 1915, No. 37. John A. Coyle, for rule. Joseph T. Evans, contra. June 16, 1921. Opinion by SMITH, P. J. This proceeding is on a rule to show cause why a trust should not be terminated. The testator's words comprehending the trust are as follows: All that remains after all expenses and bequests is paid shall be equally divided among my children, or their heirs, namely: Estate of Jacob S. Buch, dec'd (No. 1). "5th. I order and direct that my executors shall invest my son John's share safely at not less than four per cent interest and if he dies without issue the said share shall be equally divided among his brothers and sisters or their heirs." The testator, in creating a trust for the use of his son John, did not adopt any trite formula, but he said that which leaves no doubt as to his intention. If the intention is clear, the form of its expression is of little consequence. There can be no question that in parceling his estate he intended to provide for John in a different way from that contemplated by him for his other children, and he distinguishes it by the provision in the fifth item of his will. What other way is there of interpreting that which he there said than to declare that he intended to create a trust for John's use; and if it was for his use, it is reconcilable with the intention that the income of the trust to be invested by the trustees named shall be paid to him, though he neglected to specifically so order. The implication is irresistible. It is apparent that he intended the trustees to hold the principal and pay it to John's issue upon his death, and if he left no issue, then to "his brothers and sisters or their heirs." It is an active trust, delegating to the trustees the duties of investing the fund, paying the income thereof to the lifebeneficiary, and conserving the principal for remaindermen. Whether or not it is a spendthrift trust is not pertinent, and the question of the absence of physical or mental disability on the part of John is wholly irrelevant. The construction given the testator's declaration as to the trust is in harmony with that given it by all the beneficiaries named in his will, including John. Evidently wishing to humor or favor him, a written agreement was entered into by all of them, which provides as follows: "Now it is agreed upon by and between Pricilla Buch, the Widow; and Susan Eshleman, Daniel Buch, John Buch, Lizzie Demmy, Lemon Buch, and Kate Enck, six of the eight children of said Jacob S. Buch, deceased, of the first part; And Adam Buch and Mary Redcay, the other two children and also the Executors of the said Deceased, of the second part: 1st: That the amount of money to be placed in trust for John Buch shall be Two Thousand Dollars. 2nd: That all money in excess of Two Thousand Dollars, due said John Buch from the estate of Jacob S. Buch, deceased, shall paid to him absolutely and free of the trust in the will. 3rd: - That said First Parties, for themselves and their heirs and assigns, absolutely release the said Adam Buch and Mary Redcay, Executors of Jacob S. Buch, deceased, from any accounting for the said monies advanced to John Buch in excess of the said sum of Two Thousand Dollars. 4th: To all and every the covenants aforesaid, the said Parties bind themselves, their heirs, executors and administrators. In witness whereof, the said Parties have hereunto set their hands and seals the 12th day of June, A. D. 1917.” Estate of Jacob S. Buch, dec'd (No. 1). The amount in excess of $2000.00 has been paid to John. Orphans' Court of Lancaster County Estate of Jacob S. Buch, dec'd (No. 2). A cestui que trust having signed an agreement with the parties interested fixing the amount of the trust and agreeing that the balance of his share should be paid to him and the trustees relieved from accounting for it, is estopped from taking exception to the credit for such sum in the trustees' account. Five per cent interest is not sufficient for a trustee to pay for uninvested funds. He must account for six per cent. December, 1915, No. 37. Exceptions to account. Joseph T. Evans, for exceptions. John A. Coyle, contra. June 16, 1921. Opinion by SMITH, P. J. Of the exceptions filed by John Buch to the account of Adam Buch and Mary Redcay, trustees of John Buch (the exceptant) under the will of Jacob S. Buch, deceased, that relating to a credit of $694.88is of first importance. The testator directed his executors to invest his "son John's share safely at not less than four per cent interest," and upon his death without issue to divide the "share" equally among his brothers and sisters and their heirs. By a decree of the Court, adjudicating the testator's estate, entered May 21, 1917, to Adam Buch and Mary Redcay, trustees for the use of John Buch, was awarded $2694.88. Later an agreement in writing was entered into by the widow, and all the children of the testator, and Adam Buch and Mary Redcay as executors, embracing all parties named by the testator, whereby "the amount of money to be paid in trust for John Buch shall be $2000.00,” and all money in excess of $2000.00 . . . shall be paid to him absolutely and free of the trust "; and further, releasing Adam Buch and Mary Redcay, executors, "from any accounting for the said moneys advanced to John Buch." In compliance with this agreement the executors paid to John Buch $694.88, and to the credit therefor the exception has been taken. It is found that John Buch by his own act is estopped from filing exceptions to this item of credit, that he is without standing, and therefore the exception is quashed. While there is no apprehension as to the safety of the trust fund, it nevertheless appears that it is not invested, but that it has been used by Adam Buch, one of the trustees, who has regularly paid interest thereon at the rate of five per cent. While ordinarily this would be regarded as a fair return if the fund had been properly invested, under the circumstances it cannot be approved, and the trustees must be held accountable for interest at the legal rate of six per cent. Therefore, they are surcharged $70.00. |