The opinion of the court below on exceptions to the auditor's report is as follows: "A number of exceptions to the auditor's report have been filed by both plaintiff and defendant. All the exceptions, however, are to the findings of fact by the auditor. Ꭺ careful examination of the testimony does not satisfy us that the auditor committed error in his findings of fact. It is true that the testimony is conflicting, and, in some instances, witnesses flatly contradict each other. In such case the auditor is much better qualified to judge of the credibility of the witnesses than is the court. He has the witnesses before him, and their intelligence, truthfulness, integrity, or lack of any of these qualities, can be determined by the auditor by his observation of each of the witnesses as they testify. It is evident to our mind that for some reason-possibly lack of business, qualifications among the partners-this partnership was a losing investment. The profits that Mrs. Gilliland, by her exceptions, suggests, are out of all proportion to the results as shown by the uncontradicted testimony. Her husband, who represented her in the partnership, and who took an active part in the management of the affairs of the partnership, has, according to the testimony, no clear idea of the business or of the moneys he received himself on account of the partnership, some of which the evidence clearly shows he did not account for. It is well settled that the findings of an auditor are as conclusive as the verdict of a jury, and that a court will not reverse except for gross error. Stilwell's Estate, 8 Phila. 178; Brightly's Dig. 2976, under the title, 'Reports of Auditors.' Under these decisions all exceptions relating to the findings of fact by the auditor should be dismissed."

Joseph B. Bredin, for appellant. J. D. Marshall, for appellee.

PER CURIAM. The principal exceptions filed to the auditor's report were included in and constituted 13 assignments of error, which related exclusively to findings of fact. The findings aforesaid were carefully considered and duly approved by the court. There was some conflict in the evidence re

specting the questions of fact involved, but it was the province of the auditor to determine from it what the facts were. In the ascertainment of the facts he was materially assisted by the testimony of the witnesses who appeared for the respective parties and testified in their behalf. As he had the witnesses before him, with full opportunity to examine them in relation to all matters in controversy, he was well qualified to reach a proper conclusion respecting such matters. We have not been able to discover in the evidence, the auditor's report, or the opinion of the court below any cause for setting aside or modifying the report. We therefore dismiss all the assignments. Decree affirmed, and appeal dismissed, at the cost of the appellant.

(198 Pa. 323)

MCKNIGHT et al. v. DENNY. (Supreme Court of Pennsylvania. Jan. 7, 1901.)

ADJOINING LOT OWNERS-TRESPASS

DAMAGES.

1. Defendant is liable for the extra expense to plaintiff in digging a cellar, caused by dirt filled in on defendant's lot slipping down on plaintiff's adjoining lot.

2. Where dirt filled in on defendant's lot slips onto plaintiff's lot, breaking the foundation walls which he is putting in for a house, and, to prevent its recurrence, plaintiff puts in stronger walls, and defendant fills in between such walls and his lot to support the latter, plaintiff is entitled to recover as damages the cost of strengthening the walls necessary to support the filling placed against them, and an agreement by defendant as to the amount he would pay for such strengthening is evidence of the amount of damages.

Appeal from court of common pleas, Allegheny county.

Action by Henry McKnight and another, executors of Elizabeth O'H. McKnight, against William C. Denny. Judgment for plaintiffs. Defendant appeals. Affirmed.

Prior to the strengthening of the foundation walls spoken of in the charge of the court earth had slipped from defendant's lot, and broken the foundation which plaintiff was putting in. Damages for this, however, are not brought in this action, they having previously been adjusted. The charge of the court, the part complained of by the fourth assignment of error being inclosed in brackets, and the third assignment of error, are as follows:

Charge of the Court.

"Gentlemen of the Jury: In this case Henry McKnight and William L. Pierce, executors of Elizabeth McKnight, are plaintiffs, and William C. Denny is the defendant. It is an action of trespass brought by the plaintiffs against the defendant to recover damages for an injury alleged to have been done by the defendant to the property of the plaintiffs. A trespass is a wrong done to the person, the property, or the rights of another.

sidered or might have considered as a fair compensation for the damage sustained by Mrs. McKnight. The plaintiffs' claim is that this wall was made necessary by the filling in above, and that Mr. Aull and Mr. McKnight, having a conversation with regard to the matter, agreed that the wall should be strengthened. At the time the house was built by Mrs. McKnight a portion of the wall was to be of brick, but about that time a conversation was had between Mr. McKnight and Mr. Aull, and it was agreed that the wall should be made stronger, that it should be made of stone instead of brick, and that, as the plaintiffs claim, was to be paid for, at least in part or entirely, by Mr. Denny; and the plaintiffs claim that that agreement fixed the amount of the damages which Mrs. McKnight had sustained, or would sustain, by reason of this filling. Now, you are not bound by that testimony. Of course, if you should find that was the understanding, that Mr. Aull agreed that he would build that wall, you can consider that as the amount of damages sustained by Mrs. McKnight, and having been fixed by the parties. But, if not, then you, gentlemen, must fix the amount of damages sustained, and the damage would be such sum as would compensate Mrs. McKnight for the additional cost that she was put to in the construction of her house by reason of the filling in by Mr. Denny on the upper side of her lot; and if you think that her damage would reach the sum of $2,300, as claimed by the plaintiffs, you will be justified in allowing that amount. But, if it only reached half that amount, you should not allow more than that, or, if there was no damage sustained by her, then she ought not to be allowed anything. You have heard the testimony of the different witnesses in regard to that, as to what expense Mrs. McKnight was put to by reason of being required to strengthen this wall, and you have heard the evidence of defendant in regard to that. While Mr. Aull admits that the wall to some extent does support Mr. Denny's lot, he claims it is not absolutely necessary, and that the filling done above the wall is really of no injury to Mrs. McKnight. If it supports Mr. Denny's lot to some extent, it seems to me that it would be a damage to Mrs. McKnight to some extent. She is not bound to build a wall to support Mr. Denny's property, and, if his filling in required her to strengthen the wall, then she would be entitled to such damages as would compensate her for the additional amount that she was required to invest in her wall, but for no more. She would not be entitled to the value of her whole wall,-what the wall would cost,-because to build her house it was necessary to put in some foundation. She would only be entitled to such amount as was required to strengthen that wall.]

"It seems to me, gentlemen, those are the two points in the case: First, to what extent was Mrs. McKnight required to expend

money to remove the filling that came onto her lot from Mr. Denny's lot? Second, to what extent was she required to increase the strength of the wall in the foundation of her house to protect it from the filling in done by Mr. Denny on his lot in the rear of hers? Those are the questions, and you will determine these two amounts, and the gross sum should be the amount of your verdict, if you should find in her favor. If not, then you will simply return a verdict for the defendant. The list of items is merely for your information; you are not bound by it." Assignments of Error.

"(3) The learned court below erred in admitting as evidence the agreement between the parties as to the extra cost of wall, said extra cost having been the basis of a contract between the parties."

C. S. Crawford, for appellant. Thomas Patterson, for appellees.

PER CURIAM. This suit was instituted by the executors of Elizabeth McKnight to recover damages sustained by her by reason of dirt thrown upon her property by the defendant, and a fill made by him to support his houses, which rest upon and are supported by the wall or foundation of her house. It resulted in a verdict and judgment against the defendant in the sum of $1,599.06, from which he appealed to this court. The assignments of error on which he relies to sustain his appeal have been carefully examined and duly considered by us, and the conclusion we have arrived at is that no just cause for a reversal of the judgment appears in either of them. The evidence presented by the plaintiffs required the submission of the case to the jury, and the charge of the court was fair, pertinent to all material matters, and without prejudice to the rights of either party. Assignments dismissed. Judgment affirmed.

(198 Pa. 132)

GILCHRIST et al. v. HARTLEY et al. (Supreme Court of Pennsylvania. Jan. 7, 1901.)

INSTRUCTIONS.

* * *

In an action for injuries caused by the breaking away of defendant's fleet of coal barges, in a charge stating: "The contention of plaintiffs is that there was negligence in having such a large fleet. (There was too much of a breast on a high water, catching so much of the current, increasing the strain on the lines.] Also, if and, of course, there was not sufficient number of lines on the boat to meet an emergency, that would be the negligence of defendants. * Another ground of contention of plaintiff is,"-the words in brackets are not expressive of the judge's opinion, but a statement of plaintiff's contention.

*

Appeal from court of common pleas, Allegheny county.

Action by J. C. Gilchrist and others, partners as J. M. Gilchrist's Sons, against Hart

ley Bros. Judgment for plaintiffs. Defendants appeal. Affirmed.

The charge of the court below is as follows:

"This is an action based upon alleged negligence of the defendants. The plaintiffs had a fleet of coal flats anu boats on the Allegheny side of the Allegheny river, and the defendants had a similar fleet of coal flats and boats higher up the river. According to the evidence, there was about one hundred and twenty-five or one hundred and fifty feet between the head of the plaintiffs' fleet and the stern of the defendants' fleet. On Sunday, the 20th day of March, 1898, the river began to rise, and continued to rise on Sunday, Monday, Tuesday, and Wednesday. I believe on Tuesday evening there was a rise in the river of about twenty or twentyone feet. On Wednesday morning it had risen some six feet or so, and was about twenty-seven feet high. On the morning of Wednesday, the 23d of March, the defendants' fleet broke loose from its mooring, drifted down the river, struck the plaintiffs' fleet, and broke it loose from its moorings; and, according to the evidence, the plaintiffs lost a good portion of their fleet, including coal and other property. If the fleet of the defendants broke loose from the negligence of the defendants, they would be liable to the plaintiffs, and liable to pay to the plaintiffs all the damage that they sustained in consequence of striking their fleet and breaking it loose from its moorings. If there was no negligence on the part of the defendants, of course there is no liability to the plain tiffs. What is negligence? It is doing something which an ordinarily prudent man would not do under the surrounding circumstances, or neglecting to do something which an ordinarily prudent man would do under the circumstances. The surrounding circumstances include not only what existed at the time, but the reasonable probabilities of the future. Men are bound to anticipate what may reasonably happen, and provide against that. The defendants were bound to furnish skillful, competent men in charge of their fleet, especially when there was high water and a large fleet. If they failed to furnish skillful, experienced men in charge of the fleet, it would be a neglect of their duty; and that in law is negligence. That would be the personal negligence of the defendants,-if they failed to supply and have on the fleet skillful and competent men in charge of it. But the defendants are liable for the men that were employed, not only the fleet boss, who, according to the evidence, had charge of the fleet; but if the fleet boss, or the men employed on the fleet, were guilty of negligence, in law it is the negligence of the defendants, because they were their servants. The contention on the part of the plaintiffs is that there was negligence in having such a large fleet at that time, and especially with the outside flats

loaded with coal. [There was too much of a breast on a high water, catching so much of the current of the stream, and, of course, increasing the strain upon the lines.]. Also, if there was not sufficient number of lines on the boat to meet an emergency, that would be the negligence of the defendants themselves, because they would be bound to furnish whatever would be reasonably necessary in the case of an emergency. Another ground of contention upon the part of the plaintiffs as to negligence is that there was too much dependence upon post No. 3. The two wire ropes, as I understand, were fastened to the post No. 3. There were some lines on No. 2 also, and some lines fastened to rings; but the main dependence, as I understand from the testimony, was upon the wire ropes that were fastened to post No. 3. I may say, gentlemen, that you will not take the testimony from me. You will take your own recollection of it; and I do not intend to go into detail over the testimony. Very able counsel have done that. I merely group together the grounds of contention in this case, and call your attention to what especially you should direct your thoughts to. Another ground of contention on the part of the plaintiffs in reference to negligence is that, when the water was so high, and the drift accumulating in front of the fleet, it was negligence to permit the lines to get under that drift, thus increasing the strain upon those lines, because the lines would have to hold not only the fleet, but also have to hold the drift that was above. And another ground of contention is that it was negligence doing nothing to relieve this strain upon those lines, contending that there should have been additional lines sent out, and it is contended that there were other posts where additional lines might have been fastened. Especially it is contended that on that high water, and when the river was still rising, with that large fleet, and the drift extending so much in front of it, some of the outside flats-and those were the loaded ones-ought to have been dropped down, thus decreasing the front of the fleet, and, of course, relieving, to a certain extent, the strain upon those lines. Also that there was no difficulty in reducing the front of that fleet, because there was a steam tug there between four and five o'clock on Tuesday evening that could have taken some of those barges or flats, and either removed them somewhere else or dropped them down to the rear of the fleet. These are the main grounds claimed for negligence on the part of those in charge of the fleet. Now, on the part of the defense it is contended that the men in charge of it there did all that could be expected of ordinarily prudent men under the circumstances. The men in charge of the fleet would not be bound to anticipate some extraordinary event that could not and would not reasonably be expected to occur, but they would be

bound to anticipate what might reasonably be expected. The contention of the defendants is that these 'men-especially the float men-did all that they believed to be necessary and proper under the circumstances. It is not what they believed, but what an ordinarily prudent and skilled man would have done and anticipated. If the fleet boss was not an experienced, skillful man, he might think it was perfectly safe; and yet an ordinarily prudent man-a skillful man-might have thought otherwise, and might have done otherwise. Another ground is that the river had been rising from Sunday, and on Tuesday evening it was still rising, but they did not expect a rise of more than a foot or so during the night; and about midnight, or later, it began to rise very rapidly, in consequence of rains up the river, and rose very rapidly from that until about five o'clock, when the fleet broke loose. Another ground is that, in consequence of the dam on the Pittsburg side, the current in the river had been changed, and had been thrown over to the Allegheny side, and that that brought over the drift that was there. Another ground is that just before the fleet broke loose some wreck was floating down the river in a very swift current, according to all the evidence at that time, and the contention is that that drift-sunken coal boat, or something of the kind-struck the defendants' fleet, and broke loose its moorings. These are about the contentions of these two parties, gentlemen, and it is for you to pass upon all the evidence here bearing on the question whether that fleet broke loose through the negligence of the men in charge of it. If it did, then the plaintiffs are entitled to recover, and to recover all their loss in consequence of it. If there was no negligence, then, if it was such an unforeseen event, extraordinary, not to be anticipated reasonably, then there is no liability for the accident.

"The first point presented by the defendants' counsel is: "The law did not require of the defendants extraordinary foresight and care in and about the safety and management of their fleet, but only such foresight as ordinarily prudent persons or firms in the line of business would exercise under the same circumstances.' That is affirmed.

"Second: "The burden of proof is on the plaintiffs. They must satisfy the jury by the weight of evidence; and if the jury believe that, under all the circumstances of this case, the defendants did exercise the foresight and care which ordinarily prudent fleet owners would have exercised under the same circumstances, then the verdict should have been for the defendants.' That is affirmed."

defendants' negligence was the cause of the plaintiffs' loss. The burden of establishing the negligence of the defendants was on the plaintiffs, and, having succeeded in that, it was necessary for them to show that the negligence was the cause of their loss. The testimony, if credited, was sufficient to warrant a verdict and judgment for the plaintiffs. A verdict was rendered in their favor, and a judgment was entered thereon, and from that judgment so entered this appeal was taken. Two specifications of error were filed, and neither of them afforded, in our opinion, any ground for a reversal of the judgment. The first specification was founded upon a sentence from the charge in the following words: "There was too much of a breast on a high water, catching so much of the current of the stream, and, of course, increasing the strain upon the lines." A reference to that part of the charge from which the sentence was taken shows it was not expressive of the opinion of the judge, but was a statement of the plaintiffs' contention. 1ne second specification hints at inadequacy in the charge, with an intimation of partiality in the instruction to the jury. It seems to us, however, that the charge was impartial and fair. The specifications are, therefore, overruled. Judgment affirmed.

KIEFER v. YODER.

(198 Pa. 308)

(Supreme Court of Pennsylvania. Jan. 7, 1901.)

BROKERS-RIGHT TO COMMISSIONS CONTINUING AGENCY.

1. A broker has no right to commissions for making a sale, though he first calls the attention of the purchaser to the property, the latter then refusing to make the purchase, but being induced, two years later, to make it, by one acting as agent of or purchaser from the one represented by the broker.

2. That a broker had not a continuing agency from Y. for sale of property till the time of its sale to A. is shown by the fact that when A. asked him if he still had the property for sale he did not assert a continuing agency, but said he would see, and then went to Y. to see if he would still be allowed to make the sale, and was informed by Y. that he could not do so, as another had taken up the matter.

Appeal from court of common pleas, Allegheny county.

Action by James Kiefer, for the use of Amos Steelsmith, against L. T. Yoder. Judgment for plaintiff. Defendant appeals. Reversed.

H. L. Christy and D. F. Patterson, for appellant. O'Brien & Ashley and John G. McConnell, for appellee.

PER CURIAM. The only question for the determination of the jury was whether the

defendant owned and controlled in the West Penn and Apollo Gas Companies. In his statement of claim he declared upon an express contract for a sale actually made of