977(3)—REVIEW-case, were placed in an envelope marked "Property of Samuel B. Walton," and deposited in the firm's safe deposit box in the Lincoln National Bank. At the time of the trial this note had disappeared, and the evidence, so far as we have been able to ascer tain, does not disclose how long it was to run or what provision, if any, it contained as to the sale of the stock in case default was made in payment of the note. It appeared that the stock was in the possession of the bank at the time of the trial, but was not held by it as collateral for any loan. It is conceded that the value of the stock at the time it was delivered to Walton was $25 a share, and therefore amply sufficient to se

Assumpsit by the First National Bank of Birmingham, a corporation under the laws of the United States, against the Fidelity Title & Trust Company, administrator of Samuel B. Walton. From an order grant-cure the payment of the note given by the ing a new trial after verdict for plaintiff for $13,623.54, plaintiff appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRA-18, 1912, and on June 10th, of the same year, ZER, JJ.

facts other than those disclosed by this record, which should appear in the case to enable the court to determine, as a matter of law, whether the learned court did abuse its discretion in holding that the trial judge erred in his instructions in regard to the date at which the collateral stock should be valued.

its delivery to Walton or another date must valued? It is well to remember in determindetermine the consideration or benefit receiving the time at which the stock must be valed by him, but that the court did not mani- ued, that it is not sufficient that the holder festly abuse its discretion in granting a new gave value for the note, the lunatic must trial because the learned judge erred in his have received value. Wirebach's Executor instructions to the jury that the value of the v. First National Bank of Easton, 97 Pa. 543, stock should be as of the date of its delivery | 550, 39 Am. Rep. 821. There are material to Walton. This will depend upon all the facts affecting the questions, not the least important of which are the provisions in the alleged collateral note, if any, as to the stock deposited with it. It is difficult to determine from the manner in which the case was tried just what the facts are, and what they were found to be by the jury. The case was tried on the theory that Walton was insane and was an accommodation indorser, the defendant so alleging and denying that he received any consideration or benefit for his indorse ment, and the plaintiff alleging that he was sane and received full value for his indorsement, which would make him, however, not an accommodation indorser. The defendant on this appeal takes the same position, while the plaintiff, in its printed brief, argues that Walton purchased the note from Scully, Painter & Beech with the proceeds of the note indorsed by him and discounted by the plaintiff bank. The position of the plaintiff has evidence to support it, but the case was not tried on that theory and the court either overlooked or disregarded the evidence, and that phase of the case does not seem to have been submitted to the jury. Whether the jury sustained that contention or not we cannot determine. We are unable to find any request for instructions by the plaintiff which would have directed the jury's attention to that question. It was manifestly important and should have been passed upon by the jury. Had the jury found with the plaintiff on that issue, it would eliminate the question now before us.

The note given by the firm to Walton was not produced upon the trial of the cause, nor did its provisions relative to the collateral deposited with it clearly appear from the evidence. The two so-called collateral notes in the other case provided that the owner had the right to call for additional security should there be a decline in the market, and on failure to respond, the obligation was payable without demand or notice, with full power to sell the stock. Was there such a provision in the note given by the firm to Walton to secure the note in suit in this case? If this note was given simply as collateral to secure Walton for his indorsement, what power or authority was he given over the coal and coke stock delivered to him to secure the note? It does not appear from the evidence how long the so-called collateral note was to run or when it was payable. The evidence does not disclose the value of the stock at the maturity of the note in suit or of the so-called collateral note. Was that

In his opinion, the learned judge below called attention to the fact that there is a distinction between the principles of law applicable to the two suits, and we think it was a mistake to try them together. In the present case the issues do not seem to have been clearly defined, nor was the attention of the jury adequately directed to the evidence bearing upon the vital questions in the cast. The record discloses many exceptions taken by counsel on both sides, and which, we are satisfied, would have been far less in number had the case been tried by itself. If this appeal was sustained the probabilities are that we would have the case brought here by the present appellee. We think that in justice to both parties the case should be tried again in the court below and the facts fully developed, so that it may be considered by the court and jury clear of any confusion necessarily arising from it having been tried with the other case. In the present state of the record, we do not think it expedient to indicate our views as to the date when the collateral should be valued, as that will depend upon the facts as they are found to be on the retrial of the cause.

[2, 3] We have no doubt of our power to entertain an appeal from an order granting a new trial. Allen v. Sawyer, 2 Pen. & W. 325; Stauffer v. Reading, 206 Pa. 479, 55 Atl. 1072; Commonwealth v. Gabor, 209 Pa. 201, 58 Atl. 278. Of course, this power is to be exercised only in clear cases of an abuse of discretion on the part of the trial court. "The granting or refusing of a motion for a new trial," says our Brother Potter in the recent case of Mifflintown Bank v. New Kensington Bank, 247 Pa. 40, 43, 92 Atl. 1076, 1078, "is so largely a matter of discretion in the court below, that we will not attempt to review its exercise, except in a clear case of abuse of that discretion. In the present case the questions raised by the motion for a new trial were questions of law, and in disposing of them there was no abuse of discretion whatever." This is the doctrine of all our cases. The court can abuse its discretionary power as to the law as well as to the facts in passing upon an application for a new trial, and when a new trial is based on

to the facts of the case, it is such an abuse of discretion as will warrant a reversal. A party has the right to have his case heard and determined only once on the facts and the law applicable thereto, but when it has been decided by the court of first instance that he has not had such a trial, the granting of a retrial will not be reversed, unless reversible error in fact or law clearly appears to the appellate court.

June 11, 1914, amended it on September 22, 1914, and again at the audit, both times with the permission of the court. On September 23, 1914, the claimant made a legal demand for the prop erty of the Italo-French Produce Company, all of which was included in the account. Exceptions were filed by the widow, Augustina Pivirotian and next friend of her son Arturo Pivirotto, to, in her own behalf, and as the natural guardfor whom the executor is testamentary guardian. These exceptions were properly filed to the account which was first filed, and renewed each time it was amended. The exceptions of Mrs.

The order of the court below granting a Pivirotto challenge the right of ownership to the new trial is affirmed.

(251 Pa. 548)

59

In re PIVIROTTO'S ESTATE. (Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. EXECUTORS AND ADMINISTRATORS CLAIMS TO PROPERTY-EVIDENCE. Evidence held to show that the business of a produce company conducted by the decedent up to his death was his property, not that of his wife.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 1875; Dec. Dig. 59.]

assets included in the account, and allege that they belong to her.

At the audit when the exceptions were heard, the following facts were developed:

The decedent was at one time, many years ago, engaged in the liquor business, in the city of Pittsburgh, and was sold out at sheriff's sale; the proceeds being insufficient for the payment of all his debts. He and his wife, the claimant, were industrious, and with her assistance he established a macaroni, produce, and grocery business. A part of this business was conducted while he was a licensee for the sale of liquors, but after his failure he devoted all of his time and attention to the increase of his macaroni, produce, and grocery business, and borrowed money from his friends which was used in enlarging it. This borrowed money, together with the accumulation of profits from the business, and reinvestment of the same, was the Where a widow assisted her children in a foundation of what in after years became a contest of her husband's will in which they as- large and prosperous business concern in the serted that the property of a produce company city of Pittsburgh. After his failure the busiconducted by him was his property, she is estop-G. A. Pivirotto," "G. Pivirotto," and the "Italoness was conducted under the names of “Mrs. ped to assert that it was her property. that he was conducting it as manager for his French Produce Company." The pretense was wife, so as to evade the payment of judgments from his experience as a tavern keeper. which had been entered against him, resulting

2. ESTOPPEL

68(5)—EQUITABLE ESTOPPEL -GROUNDS-POSITION IN JUDICIAL PROCEED

ING.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 165, 166; Dec. Dig. 68(5).]

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Felice Graziano Pivirotto. From a decree dismissing exceptions to an adjudication, Augustina Pivirotto appeals. Affirmed.

The adjudication of Trimble, J., in the court below, was as follows:

Felice Graziano Pivirotto died on the 8th day of May, 1913, testate. By his will dated June 24, 1912, he directed that the business known by the name of the Italo-French Produce Company should be disposed of according to the judgment of his heirs, "either to be sold or to be kept up,' disinherited his wife because he had "already well provided for her as per agreement of separation signed on December 2, 1911," bequeathed illusory legacies to four of his children, $10,000 in merchandise to a faithful employé, and $5,000 to his sister. The remainder of his estate was bequeathed and devised to his son Arturo Pivirotto, and his nephew Gast Teyssier, onehalf to each. Gast Teyssier was appointed testamentary guardian of Arturo Pivirotto, and executor of the will. The will was probated, and on the 5th day of December, 1913, an inventory of the estate was filed showing assets of $116,405.72. The four children who received the unsubstantial legacies petitioned the orphans' court for an issue devisa vit vel non. After the pleadings were perfected, the parties had several hearings, and on February 9, 1914, the contestants and Gast Teyssier, legatee, with the consent of the orphans' court, settled the contest. Gast Teyssier paying to the petitioners $16,000 from his own estate. Augustina Pivirotto, the widow of the decedent, and claimant here, was active in aiding the contestants in the preparation of their case for trial. The executor filed his account on

The

Real estate was purchased from the profits of the business, and the title thereto was taken and held in the name of the claimant. On Oc settlement with his judgment creditors. tober 14 and 17, 1907, the decedent effected a real estate where the business was conducted, the decedent on the 4th day of May, 1908. in Allegheny, now Pittsburgh, was conveyed to New buildings were contracted for and erected in 1910 and 1911, and paid for by the decedent, out of the funds of the Italo-French Produce Company, and these buildings and all of their contents were insured by the decedent, and the insurance paid in the same manner. From the time the real estate in which the business was conducted was conveyed to him by his wife, all of the business which had formerly been transacted under the name of his wife, was thereafter, until his death, conducted by him individually, under the name of the ItaloFrench Produce Company, and from the date upon which the change in name was effected, until his death, the claimant exercised no rights or duties as owner. She claims that the title to the assets of the Italo-French Produce Company has always been in her, and that she never transferred them to any person; that because the business had grown from a small concern, which she could easily handle, to over half a million dollars annually, and being illiterate, she permitted her husband to operate it as manager for her. That he was a prosperous business man is admitted. A disagreement arose between him and his wife about his oldest son, and the consequence was an estrangement between him and all of his family, except his youngest child Arturo.

In September, 1911, the decedent threatened to file a libel in divorce against his wife, and on the 2d of December, 1911, their married life

year 1908. When the decedent conducted his business in the name of the claimant, and concealed real estate in her name, which had been purchased by funds taken from the business, the transactions were void as to creditors, but good between the parties. On the 4th of May, 1908, Mrs. Pivirotto conveyed to her husband the land where the Italo-French Produce Company was conducting the business, and on the 27th of October, 1908, the bank account was changed by striking off the word "manager." From the time when the land was transferred to the decedent and the account in the bank changed from himself as "manager," and thereafter conducted by him individually, the claimant can show no act of ownership, either express or implied, except by her own children, who testify to declarations and admissions of the decedent, and by one other witness, who was prosecuted and convicted at the instance of the decedent, for embezzlement.

reached its climax in a separation agreement, in | writing, wherein a division of the estate held by each was made. All of the land which was in Mrs. I'ivirotto's name at the time of the separation agreement was bought and paid for out of the funds of the Italo-French Produce Company. The settlement between them was fair; all of his estate was revealed to her, and, in fixing the value of the share which each one received, the Italo-French Produce Company was appraised and made a part of the valuation. The total value of the share received by the claimant was $43,000, and the share of the decedent did not exceed $47,000, and this included the Italo-French Produce Company. Two of the covenants of the separation agree ment are that he will "permit her to follow and carry on such trade or business as she may from time to time choose," and that she will "permit him * to follow and carry on such trade or business as he may from time to time choose, without any interference If we could give any credence to the testifrom her." The decedent was at that time car-mony which was offered, an issue would be rying on the Italo-French Produce Company in raised; but their credibility is destroyed chiefhis own name, and continued to do so until his ly by their own testimony, given by them in the death. contest of their father's will, wherein they asserted that this Italo-French Produce Company belonged to the decedent, because it was the subject of a legacy in the will, which they were contesting. By claiming it from him they admitted that it was his, which they cannot now contradict, without the loss of their credibility.

The separation agreement provided for the payment of mortgages on real estate vested in her, and also some cash. In order to discharge his liability on his covenants of the separation agreement, the decedent paid all of these sums out of the funds of the Italo-French Produce Company. Two of these checks which The admitted venality of the claimant's son, paid his liability were drawn to Mrs. Pivirotto's who was her chief witness, destroyed his crediorder, and were indorsed by her, with her mark, bility, for the seduction and fraud, and the perduly attested, and delivered by her to her son, jury which he committed, either when he claimwho was her trustee, and who was with her ed his father's estate as his own, or when he aids when the settlement was made and money paid, his mother in claiming it as hers, were all comto explain everything. One of the deeds deliv-mitted by him brazenly, and shows that depravered to her by her husband in carrying out the ity is the source from which his testimony terms of this agreement contains this recital: "This deed being made in order to explain the springs. The interests of these witnesses, too, difference in names, and also to avoid confu- brother Arturo, and passed to the mother, wherein having this estate taken away from their sion of names, due to the fact that F. G. Pivi-in they would possibly share hereafter, is another rotto is now doing business as F. G. Pivirotto, doing business as Italo-French Produce Com reason why the claimant cannot be permitted to recover on their testimony. Nor is the testimoIn February, 1912, the claimant had the de-ny of Conti to be relied upon; his manifest decedent arrested for the nonsupport of his minor children, and caused testimony to be introduced at the hearing in the county court of this county, showing that the decedent was rated financially, inter alia, by his business, which was the Italo-French Produce Company.

pany."

On February 19, 1913, she filed an affidavit of defense, to an action brought against her and her husband, on the warranty in a deed dated April 11, 1906, executed and delivered by both of them, conveying land to the plaintiff, in which she alleged "that whatever matters took place in connection with the sale, purchase, and resale of the property mentioned in the affi davit of claim, were matters connected with the business of her husband Felice G. Pivirotto, and she only acted as agent or trustee for him in said matters."

She aided her children in the contest of her husband's will, and did not assert ownership of any part of the decedent's estate for more than seven months after the contest was settled, although the business which she now claims as her own was bequeathed by that will. To aid in this contest, she petitioned the orphans' court for the appointment of a guardian for her daughter, and alleged that the decedent's estate was worth much more than $100,000, she knew his real estate, and that its value was less than that sum, and when she represented to the court the value of his estate she included therein the Italo-French Produce Company.

[1] From the above statement of facts, it is not difficult to arrive at a conclusion as to the ownership of the Italo-French Produce Company, or any other business which was conducted by either the decedent or his wife from the time it was started, until the early part of the

termination to have vengeance for his conviction, which was caused by the decedent, was such that, in view of the overwhelming testimony against the theory of the claimant, could not be the basis of a just decree.

The postnuptial contract, and the performance of its covenants alone, discharged all liability of the decedent to his wife, and confirmed absolutely the title to the assets of the Italo-French Produce Company in him. She agreed to permit him to carry on his business to his liking; he was then carrying on the Italo-French Produce Company, and paid her what cash was coming to her, and the mortgages on the properties which she either had, or were conveyed to her, from the funds of the Italo-French Produce Company. If this company or business belonged to her, she should have protested that the money which he gave her, by the checks of the Italo-French Produce Company, was hers, and not his; but she took it without objection, or assertion of ownership, and thereby admitted that it belonged to him. And in addition to that admission of ownership, she precluded all possible doubt about her belief in her husband's ownership, when she accepted a deed from him in settlement, which recites that "F. G. Pivirotto is now doing business as F. G. Pivirotto, doing business as ItaloFrench Produce Company." This postnuptial agreement, and the acceptance of that deed, are conclusive proof of her release of dower, and any and all interest which she had in his business, and she cannot now claim this against the provisions of the decedent's will.

Moreover, when she prosecuted him for nonsupport of his children, after she had settled with him by the postnuptial contract, she produced evidence to the court that he owned the

Italo-French Produce Company, in order that
the court could determine the amount of his
liability for the support of his children.
Again, when she defended an action brought
against her on the warranty in her deed in Feb-
ruary, 1913, after the separation agreement
was signed, and in this defense asserted an agen-
cy for her husband "in his business," knowing
that his business was then that which she now
claims is hers, her admission silences her claim

for this business.

[2] Finally, she estopped herself from claiming this business of the decedent. It is beyond any doubt that she aided her four children in the contest of her husband's will; this forbids any other claim by her. If she owned the property, she should not have aided the children in representing to the court that the decedent owned it; she should then have asserted that the business

known as the Italo-French Produce Company, which was bequeathed by the will, belonged to her.

Gast Teyssier was one of the legatees of this business, and a devisee of one-half of testator's property, after the deduction of some minor legacies, and she allowed him to pay from his own estate $16,000 to her children, to settle that will

contest.

It is equity that, "where actions or words lead others to believe in the existence of certain facts, the party inducing such belief will not be permitted to allege the contrary of the facts for which he has vouched." Bispham's Principles of Equity (8th Ed.) § 287, p. 443.

The claim is dismissed.

The court dismissed the exceptions. Augustina Pivirotto appealed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

H. D. Montgomery and George E. Reynolds, both of Pittsburgh, for appellant. F. C. McGirr and Thomas M. Marshall, Jr., both of Pittsburgh, for appellee.

PER CURIAM. We have not been convinced that any reversible error was committed in the taking of the testimony in this case, and, under it, the claim of the appellant was properly disallowed.

and conveniences other than the ordinary easement of passage by the public.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 225; Dec. Dig. 67.] 3. ELECTRICITY 6-EXTENT OF EASEMENT— RIGHT OF ABUTTING OWNER.

tract with the commissioners of a township of Since an electric light company under conthe first class to light the highways has no right to place its poles and wires on the highway bill in equity to restrain an abutting owner from without the consent of the abutting owners, a interfering with the erection of such poles and wires is properly dismissed.

[Ed. Note.-For other cases, see Electricity, Dec. Dig. 6.]

Appeal from Court of Common Pleas, Allegheny County.

Bill in equity by the Duquesne Light Company against Harry Duff for an injunction to restrain defendant from interfering with plaintiff in the erection of poles in front of defendant's land. From a decree refusing an injunction, plaintiff appeals. Affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

David A. Reed and John G. Frazer, both of Pittsburgh, for appellant. Elder W. Marshall, of Pittsburgh, for appellee.

MESTREZAT, J. [1] The sole question in the case is whether an electric light company having a contract with the commissioners of a township of the first class to light its highways has the right to place its poles and wires upon the highways for such purpose without the consent of the abutting owners. We are not unmindful of the conflict of opinion as to whether an electric, telephone, or telegraph line constitutes an additional servitude on the land occupied as a highway. A distinguished legal author has said that "practically the only point that the courts are in harmony on is that there is an irreconcilable conflict in the decisions." There is, how

The decree is therefore affirmed, at her ever, no conflict in our own decisions, and the costs.

(251 Pa. 607)

DUQUESNE LIGHT CO. v. DUFF. (Supreme Court of Pennsylvania. Jan. 3, 1916.)

1. HIGHWAYS 89-EXTENT OF EASEMENT RIGHT OF ABUTTING OWNER.

principle is announced and has been consistently adhered to that the only servitude imposed on land appropriated for a rural highway is the right to construct and maintain a safe and convenient roadway thereon, and that the public acquires a mere right of passage with the powers incident to such a

The appropriation of land for a rural high-right. The owner in such cases retains the way gives to the public only the right to con- fee, and may use the land for any purpose struct and maintain a safe and convenient not inconsistent with the easement acquired roadway and the right of passage with the pow-by the public. Damages are assessed solely ers incident thereto; the owner retaining the

89.]

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 294, 295, 299; Dec. Dig. 2. HIGHWAYS 67-EXTENT OF EASEMENT RIGHT OF ABUTTING OWNER.

fee and the right to use the land for any pur- on the ground that the easement thus acquirpose not inconsistent with the easement acquired is the only servitude imposed on the land. ed by the public. We have accordingly held that laying and maintaining a gas line, at the ordinary depth under the surface, necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities, where the land was appropriated for the purpose of a public road. Sterling's Appeal, 111 Pa. 35, 2 Atl. 105, 56 Am. Rep.

Act April 28, 1899 (P. L. 104), classifying townships, does not change a township of the first class into a borough or city, nor subject highways to the servitude of urban necessities