tinctly understood that his salary was to be paid as before. On the 28th of April, 1897, Lewis addressed a letter to Moorhead & Co. as follows: "As requested by you, I take leave of absence from the rolling mill for a period of two months or thereabout, or indefinite period." In his letter to Moorhead he also said, "My salary as manager to continue and be payable the same as if I were at the works, and as requested by you." He also said that at Moorhead's suggestion he put into the letter the words "or indefinite period." It appears that, immediately after Lewis accepted the vacation tendered to him by Moorhead, the latter applied to Allen W. Smith to accept a position in his mill as manager. In considering the application, Smith was informed by Moore and Moorhead that Lewis had been discharged. In a brief time after the consultation between Smith and Moorhead respecting the application, the former refused to accept the latter's offer. It should be stated herein that Moorhead denied on the trial, in September, 1900, that he had discharged Lewis, as Smith had represented. As Moorhead was the only witness in the case who testified for the defendant company, and six witnesses testified in support of the plaintiff's contention, it would seem that there is a decided preponderance of the testimony in favor of the claim of the plaintiff, and against the claim of the defendant. To this we may add that, in our opinion, "the court committed no error in submitting the questions involved to the jury, nor instructing the jury that they might consider the bearing of the demand and refusal of salary on September 7th upon the question of appellant's intention, as evidenced by its conduct on July 19th." Judgment affirmed.

EQUITY - JURISDICTION - VALIDITY OF MARRIAGES-LUNACY OF CONTRACTING PARTY. Pennsylvania courts have no jurisdiction to determine the validity of a marriage alleged to be void on account of lunacy of one of the contracting parties, since this power has never been conferred on them by statute.

Appeal from court of common pleas, Allegheny county.

Suit by Mary Pitcairn against Robert Pitcairn and others. From a decree dismissing plaintiff's bill, she appeals. Affirmed.

J. S. & E. G: Ferguson and Henry Meyer, for appellant. Marron & McGirr and T. C. Pitcairn, for appellees.

POTTER, J. This is an appeal from a decree dismissing a bill in equity, filed by the wife against a lunatic husband, his committee and his next of kin, to determine the validity or invalidity of the marriage as af

fected by the lunacy of the husband. It appears from the allegations of the bill that plaintiff and Albert Pitcairn were married on August 29, 1897; that on the 19th day of April, 1901, under proceedings in lunacy, the said Albert Pitcairn was found to be a lunatic, and that he had been without lucid intervals for upwards of four years prior thereto. The plaintiff filed a traverse to this finding of the commission, which is still pending. Being advised, and believing that she could not have a sufficient or adequate remedy by the trial of the said traverse, plaintiff filed this bill in equity praying to have the question of the validity or nonvalidity of her marriage determined. The defendants demurred to the bill, and denied the jurisdiction of the court in the premises, and its power to grant the relief prayed for. The court sustained the demurrer, and dismissed the bill, basing its action upon the want of power in a court of equity to declare the marriage valid. It was also of the opinion that the plaintiff had a full and adequate remedy at law in the trial of the traverse. The plaintiff appealed from this action of the court, and has assigned for error the entry of the decree sustaining the demurrer, and the dismissal of the bill.

Much of the argument of appellant's counsel in support of the right to maintain the bill would be to the point if the courts of equity of Pennsylvania were possessed of general equity jurisdiction. But this is not the case. The courts of equity of Pennsylvania do not possess the general powers of a court of equity, but only such as have been conferred upon them by statute. This has been repeatedly pointed out. In Davis V. Gerhard, 5 Whart. 466, it was held that the powers of the courts of Pennsylvania, in matters of chancery jurisdiction, are limited to the cases which have been or may be specified by the legislature. And in Gilder v. Merwin, 6 Whart. 540, attention is called to the fact that the legislature have conferred upon the courts, not a universal, or even a general, equity jurisdiction, but only a limited and selected portion of equity power deemed to be suited to present exigencies. Again, in Dohnert's Appeal, 64 Pa. 311, Justice Sharswood says, "The jurisdiction of this court to exercise the powers of a court of chancery depends upon statutory enactments. We must resort, then, to the acts of assembly for our warrant in any case of this description." This was followed in Bridesburg Mfg. Co.'s Appeal, 106 Pa. 275. As was tersely said by Stowe, P. J., in Bakewell v. Keller, 11 Wkly. Notes Cas. 300, "In England, and in the United States, where there is general equity jurisdiction, a bill may be sustained under the general chancery powers of the court; but in Pennsylvania we have no equitable jurisdiction except where it is specifically granted." Howard v. Lewis, 6 Phila. 50, Allison, J., said, "In Pennsylvania the jurisdiction of

In

the courts of common pleas upon the subject of divorce, and in relation to the power to declare a marriage null and void, is purely statutory, both as to the form and the substance of the action." Jurisdiction to declare a marriage void on account of the lunacy of one of the contracting parties has never been conferred upon the courts of Pennsylvania; and, consequently, those courts have no such jurisdiction. The learned court below was therefore right in dismissing the bill for want of statutory jurisdiction. As to the adequacy of the remedy by means of the traverse of the inquisition, we do not decide. That question is not necessarily involved in the present appeal.

Decree affirmed, and appeal dismissed, at the cost of appellant.

(201 Pa. 278)

WEBSTER v. MONONGAHELA RIVER CONSOL. COAL & COKE CO. (Supreme Court of Pennsylvania. Jan. 6, 1902.)

NEGLIGENT INJURY OF SERVANT-CONTRIBUTORY NEGLIGENCE-PROXIMATE CAUSE-ASSUMPTION OF RISK-PLEADING-RULES OF COURT-EVIDENCE-CONSTRUCTION OF RULE

-REVIEW.

1. Where certain evidence was received over defendant's objection that it was incompetent under a rule of court because the matter proposed to be proved was not averred in the statement and bill of particulars, the rule having been construed by the trial court, and it not appearing from the pleadings or evidence that there was manifest error, the appellate court will not interfere.

2. Plaintiff, employed in a coal mine, while in the discharge of his duty was riding on a train of cars being drawn out of the mine, when the cars jumped the track, and while running to a place of safety plaintiff was struck on the head by a broken piece of timber projecting from the roof, and sustained injuries. Three witnesses for plaintiff testified that the timbers were decayed, and there was testimony that each of several timbers at that place was marked unsafe, and plaintiff testified that prior to the accident he had called the superintendent's attention to the unsafe timbers. Defendant showed that the cars which jumped the track displaced the upright support of the roof, causing the fall of the timbers, and that no notice of defective condition had been given. Held, that the question whether defendant was negligent in maintaining unsafe timbering was for the jury.

3. There being evidence to show that plaintiff had threatened to leave defendant's employ if the timbers were not made safe, and that the superintendent had promised to remedy the dangerous condition, the question whether the danger was so imminent that plaintiff was guilty of contributory negligence in continuing the work was for the jury.

4. The unsafe condition of the timbering, and not the jumping of the cars from the track, was the proximate cause of the injury.

5. Where a servant remains in the service of the master after knowledge of the dangerous condition of the place where he is working, but the master has promised to repair the defect, and the danger is not imminent, the servant is not guilty of contributory negligence by remaining in such service.

Appeal from court of common pleas, Allegheny county.

Action by Lewis Webster against the Monongahela River Consolidated Coal & Coke Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Chas. G. McIlvain and Harry A. Jones, for appellant. R. B. Ivory, for appellee.

MESTREZAT, J. The plaintiff was employed by the defendant company as a "dilly rider" at its Black Diamond coal mine in Washington county. The mine was worked by a slope, and the plaintiff had charge of the train of cars which carried the coal from the interior to the outside of the mine. His duties required him to accompany the cars as they entered and left the mine. As they came out of the mine he occupied a seat provided for him on the front car of the train. The loaded train of cars was drawn out of the mine by means of a wire attached thereto and operated by a stationary engine on the outside of and near the mouth of the mine. It was generally known that the cars in making a trip frequently jumped the track, and to escape injury in that event the dilly rider was compelled to leave his seat, and seek a place of safety. "Breakthroughs," or manholes, are excavations of proper dimensions on the side of the entry through which the train passes, and are used as places of safety by the dilly rider and others when occasion requires it. While the plaintiff was in the discharge of his duty as a dilly rider in bringing out a train of loaded cars on the afternoon of January 22, 1900, the cars jumped the track, and he was thrown from his seat on the train. It is claimed by him and he testifies that when he was thrown off the train he sought a place of safety by running to a "breakthrough," and while doing so he was struck on the face or head and knocked down under the cars by a timber which had broken and was projecting from the roof of the entry. His left hand was cut off by the cars, and he was otherwise severely injured. The plaintiff attributes his injuries to the negligence of the defendant company in permitting the timbers supporting the roof of the mine to rot and become weakened and insecu, and to remain in that unsafe condition after the company had knowledge of it. This action was brought to recover damages for the alleged negligence. The trial resulted in a verdict for the plaintiff, and from the judgment entered thereon this appeal was taken by the defendant.

The first assignment relates to the action of the court in overruling an objection to an offer of evidence. The objection to the offer was that the statement and bill of particulars filed by the plaintiff did not aver the matter proposed to be proved, and hence it was incompetent under a rule of the trial court. We have repeatedly said that a court is the best exponent of its own rules, and that this court will not reverse for any con

struction, unless it is manifestly erroneous and injurious. Dailey v. Green, 15 Pa. 128; Carpet Co. v. Latimer, 165 Pa. 617, 30 Atl. 1050. It is not alleged that the defendant was taken by surprise, or was not prepared with testimony to meet the proof contained in this offer, and that it was thereby injuriously affected by the admission of the testimony. The only reason assigned by the defendant for the rejection of the testimony is the technical one that it was in violation of a rule of the court below. That court having construed the rule against the contention of the defendant, and our examination of the pleadings and the proposed evidence having disclosed no manifest error, we will not interfere.

The other and important assignment alleges error in the court below in refusing the defendant's point that under the evidence in the case the verdict should be for the defendant. This point is based upon the theory that the testimony failed to disclose any negligence on the part of the defendant, or showed that the plaintiff's negligence contributed to his injuries. Both these questions were submitted to the jury by the learned trial judge in a charge that was fair and adequate, and the jury has determined both in favor of the plaintiff. Unless we are prepared to say that there was no evidence to sustain this finding, the judgment of the court below must be affirmed. If the testimony of the plaintiff's witnesses was credible, the timbers in the mine at the place and at the time the accident occurred were in a rotten and unsafe condition. This is the testimony of at least three witnesses. Matthew O'Reilly testified that the timbers were pretty well decayed, and that one of the overhead timbers was broken, and hung down from the roof. He also stated in reply to a question on cross-examination that the trip did not displace the upright timbers supporting the roofs, and that the post supporting the broken timber was standing after the accident. Ben Lauterback testified that he saw the timbers about an hour after the accident, and took them out of the mine. He said they were overhead pieces, and were badly diseased, and that each of them had a mark on it indicating that it was unsafe. He also stated that whenever timbers were not safe the bosses marked them in this manner for removal. John Collins, another witness, testified that the timbers were in pretty bad condition, and that one of them was broken. The plaintiff testified that six or eight weeks prior to the accident he called the attention of the general superintendent to the unsafe condition of the timbers, and told him that the place was getting dangerous, and that he would quit work if it was not fixed. The witness was directed by the superintendent to go on with his work, and was assured that the timbers would be fixed or attended to. We have referred to the testimony on the part of the plaintiff showing

how the accident occurred, the unsafe condition of the overhead timbers supporting the roof, and the knowledge of the defendant company of their defective condition, and its promise to repair them. We think this testimony amply sufficient to go to the jury on the questions at issue. It is true that it was met by testimony on the part of the defendant that the timbers were sound, that the fall of the roof was caused by the cars displacing the upright support of the roof, that no notice of a defective condition of the timbers was given, and no promise to repair them was made. The defendant also attempted to show that the circumstances surrounding the accident contradicted the testimony of the plaintiff as to how it occurred. But the testimony of the defendant did not justify the court in withdrawing the case from the jury. If believed, it would have warranted the jury in finding a verdict for the defendant company. The court, however, could not pass upon it, and declare as a matter of law that the defendant was not guilty of negligence, or that the plaintiff's injuries were the result of his own negligence.

It is also contended by the defendant that the unsafe condition of the timber was not the proximate cause of the accident, and, as that is the only negligence alleged, there could be no recovery. We do not think the position is tenable. The evidence shows that the roof of the entry where the accident occurred was from 5 to 5% feet high, and was sufficiently high to permit the plaintiff to walk erect at that place. It also appears that the broken timber projected from the roof six inches or a foot. It must, therefore, be conceded that, had it not been for the defective condition of the roof whereby the timber was broken and caused to project, the plaintiff's head would not necessarily have come in contact with the defective timber. Notwithstanding these facts, however, it is argued by the defendant's counsel that this was the remote or concurring cause of the accident, and that without the intervening cause of the cars jumping the track the plaintiff would not have been injured. But the intervening cause will not prevent a recovery if the injury inflicted was the natural and probable consequence of the negligence of the defendant in permitting the timber to project from the roof. It cannot be said that the plaintiff's injuries, inflicted by the fallen timber, were a natural and probable consequence of the derailment of the train which was the primary cause. That might well have occurred, and the plaintiff not been injured by the timber projecting from the roof. No one could have foreseen that result as a consequence of that occurrence. In the language of the court in Railroad Co. v. Hope, 80 Pa. 377, 21 Am. Rep. 101, "The final result cannot be said to be the natural and probable consequence of the primary cause." On

the other hand, it was both a natural and probable result, and one to be anticipated by the defendant company, that a fall in the roof, by reason of unsafe and defective timbers, might cause an injury to the employés engaged in that entry. Whether they were trying to escape a sudden danger, or were compelled to use that part of the mine for any other purpose, the consequence of injury from such condition of the mine would readily occur to a careful and pru dent man. While, therefore, if we concede that the primary cause of the accident was the derailment of the cars, yet it was not the natural and probable cause of the plaintiff's injuries in this case. Had he been injured when he was thrown from his seat on the car, it would have been the natural and probable consequence of the train jumping the track; but with no show of reason can it be maintained that, having been thrown from the car, he would probably and naturally strike his head against these timbers in fleeing from impending danger. No such result could have been anticipated. The proximate cause of the plaintiff's injuries, therefore, was the intermediate and independent act of the defendant in carelessly and negligently permitting the roof of the mine to remain in a dangerous and unsafe condition. As said by our Brother Dean in Sturgis v. Kountz, 165 Pa. 365, 30 Atl. 979, 27 L. R. A. 391: "The primary is by no means always the natural and probable cause of a particular injury. It is not when there is a sufficient and independent cause between it and the injury. In such case resort must be had by the sufferer to the originator of the intermediate cause." And in Moulton v. Inhabitants of Sanford, 51 Me. 134, Chief Justice Appleton, speaking for the court, says: "Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuous, and is the most immediately preceding and proximate in the event."

The defendant assigns as another reason why the plaintiff cannot recover that he was guilty of negligence in remaining in the service of the company after he had discovered the dangerous condition of the roof. Replying to this position of the defendant, the plaintiff says that the defective condition of the timbers did not threaten immediate injury, and that he continued in the employment of the company because its superintendent directed him to go on with his work, and promised him that he would have the timber examined, and, if there was anything wrong, he would have it fixed. The testimony on this branch of the defense was submitted to the jury with proper instructions by the court below. The verdict establishes the fact that the condition of the timber was not such as to make the danger imminent, and, further, that the plaintiff continued his work on the assurance of the superintendent that, if the timbers were un

safe, they would be removed, and the place made secure. This finding relieves the plaintiff from the charge of contributory negli gence. When a servant remains in the service of his master after he has knowledge of the dangerous condition of the place in which he is engaged, he is presumed to assume the risk of the danger; but this presumption is rebutted if the master promises to repair the defect, and the danger is not so obvious or imminent that negligence can fairly be imputed to the servant for exposing himself to it. Patterson v. Railroad Co., 76 Pa. 389, 18 Am. Rep. 412; Wood, Mast. & S. (2d Ed.) § 380.

The defendant's point, the subject of the second assignment of error, was properly refused. Under the testimony submitted the case was unquestionably for the jury. We discover no reversible error, and therefore the judgment is affirmed.

(201 Pa. 90)

VANKIRK et al. v. PATTERSON. (Supreme Court of Pennsylvania. Jan. 6, 1902.)

VENDOR AND PURCHASER-OPTION-PER

FORMANCE-CANCELLATION-APPEAL

-QUESTIONS REVIEWABLE.

1. Where an option on land provides that the same shall be void unless the purchase money is paid within a certain time, and that the vendor shall give a deed free from all incumbrances, and such deed is not tendered, the fact that such money is not paid within the time fixed will not authorize cancellation of the agreement.

2. A question which is not raised below will not be reviewed on appeal.

Appeal from court of common pleas, Greene county.

Bill by Edward P. Vankirk and another against James G. Patterson. From a decree in favor of defendant, plaintiffs appeal. Affirmed.

Jas. E. Sayers and H. J. Ross, for appellants. A. F. Silveus and Willis F. McCook, for appellee.

POTTER, J. This is an appeal from a decree dismissing a bill in equity, filed to cancel a recorded option for the sale of a tract of coal land; the recording of the option being a cloud on plaintiffs' title. The lack of an orderly statement of the findings of fact by the court below has rendered it difficult to ascertain clearly what the force and effect of the findings were. We are satisfied, however, that the first assignment of error presents substantially the entire ground of controversy between the parties. It alleges that the court erred in its answer to the plaintiffs' fourth request for a finding of fact, which request and answer is as follows: "(4) That this clause or covenant in the agreement of option, that the same should be null and void unless one-third of the purchase money was paid at the end of six months, was inserted at the time, and before

the signing thereof, at the instance and request of the plaintiffs, and upon the express consent and agreement of the defendant in parol that it was to be a condition precedent to the sale of said coal lands and their mining rights that one-third of the purchase money should be paid to the plaintiffs by the said defendant on or before the first day of February, 1900. Answer. Found as a fact, and further that the plaintiffs on their part were to make deeds free of lien and incumbrances." Whether time was of the essence of the contract or not the covenants of the vendor and vendee were mutual. The defendant was bound to pay one-third of the purchase money, and the plaintiffs were bound to present a deed and show a clear title. The court found, as facts, that there was a break in the chain of title, caused by an unrecorded deed, of which plaintiffs had notice; that no deed was presented by the plaintiffs, elther upon the date stipulated or at any other time; and, further, that the examination of the title by defendant disclosed the existence of liens of record against the property in excess of the payment to be made on account of the purchase money. Clearly, these were all matters in which plaintiffs were in default. Until remedied defendant could not be called upon to make payment, or to proceed in the performance of his covenants. The authorities are uniformly to the effect that where performance is prevented by either party no advantage can be taken by the party causing the failure. The law on the subject is thus stated in Wat. Spec. Perf. § 436. "When parties have deliberately, by their agreements or covenants, fixed a time for the performance of an act, a court of equity will be very cautious how it interferes in disregard of it, and thus in effect change the contract which the parties have made. It will not do this unless, by reason of mistake or some other cause falling within the legitimate powers of a court of equlty, it shall see that justice demands the exercise of its jurisdiction, irrespective of the lapse of such time. But if a party who insists upon exact time has himself been the cause of delay, a court of equity will, notwithstanding, decree specific performance. The vendor is not entitled to forfeit the contract as against the vendee, when he is himself in no condition to perform, even though, by the terms of the contract, he has the right to declare it forfeited, and to retain what has already been paid, if the vendee makes default. But the party seeking relief from a forfeiture must show that circumstances which exclude the idea of willful neglect or gross carelessness have prevented a strict compliance, or that it has been occasioned by the fault of the other party, or that a strict compliance has been waived." In Pom. Cont. § 394, it is said: "Wherever time is made essential, either by the nature of the subjectmatter and object of the agreement, or by express stipulation, or by a subsequent no

tice given by one of the parties to the other, the party in whose favor this quality exists —that is, the one who is entitled to insist upon a punctual performance by the other, or else that the agreement be ended-may waive his right, and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly or by his conduct; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting, and not ended by the other party's default." In support of the text a line of English and American cas es are cited, which fully sustain this prin ciple. Our Pennsylvania cases of Remington v. Irwin, 14 Pa. 143; Tiennan v. Roland, 15 Pa. 429; Irvin v. Bleakley, 67 Pa. 24; and Hatton v. Johnson, 83 Pa. 219,-are all to the effect that a party in default has no right to insist upon a rescission. No case has been cited by counsel, or revealed by diligent search in which a party in default has been allowed to declare a forfeiture. Benedict v. Lynch, 1 Johns. Ch. 370, 7 Am. Dec. 484, cited by appellants, makes an exception broad enough to sustain this statement. We agree with the conclusion of the court below as set forth in the affirmance of defendant's third request for findings of law, "that, as plaintiffs never performed or offered to perform their part of said agreement, and never tendered a deed 'clear of all incumbrances whatsoever,' no default can be imputed to the defendant, and the agreement cannot be canceled." Since the argument of. this case our attention has been called to the act of June 10, 1893 (P. L. 415), entitled "An act to provide for the quieting of titles to land," and the suggestion has been made that this act provided a complete statutory remedy for the plaintiffs. Whether it does or not, we do not here decide, as the question was not argued, nor was it considered, by the court below. The bill was properly dismissed upon the merits.

The assignments of error are all overruled, and the decree is affirmed.

(201 Pa. 97)

CALHOON et al. v. NEELY et al. (Supreme Court of Pennsylvania. Jan. 6, 1902.)

LEASE OF OIL LAND-ABANDONMENT-RECOVERY OF LAND.

1. The lessees under an oil lease for "fifteen years, and as much longer as oil and gas are found in paying quantities," erected a rig and drilled a test well on the premises, but obtained no oil, whereupon they removed the machinery used in drilling, leaving nothing but a tank, which was allowed to rot, and asserted no title till nine years thereafter, when other lessees found oil in paying quantities. Held, an abandonment of the lease, so as to entitle the subsequent lessees to the premises.

2. A clause in such lease reciting that operations should commence within a certain time and be prosecuted with due diligence, and no right of action should, after such failure, ac