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Joseph Hays and John D. Shafer, for appellants. A. M. Brown, for appellee.

PER CURIAM. The facts of this case are so very similar to the facts in the case of Simon v. Simon, reported in 163 Pa. St. 292, 29 Atl. 657, that we regard the opinion filed in that case as controlling the decision of this. Here, as there, the master found upon abundant testimony that there was no mental unsoundness of the grantor, and no undue influence was exerted to procure the execution of the deed. Here, also, the conveyance was prepared by eminent counsel at the instance of the grantor. Here, as in the case cited, the deed was made by parents to a daughter who was entirely competent to receive and hold it, without any necessity of showing by proof that it was fair and conscionable, as in the case of a voluntary conveyance to a stranger. No confidential relation was violated in either case, and in both the property conveyed was a reasonable provision for a dependent daughter. We do not discern in the facts of this case the presence of any of the elements which are essential to the exercise of the power to set aside voluntary conveyances.

As to the contention that the deed of conveyance was a will, it is entirely untenable. It has all the elements of a deed and none of The grantors carefully reserved an estate for the life of the father in the whole of the property, and for the life of the mother, if she survived, in an undivided one-half of the property. This was the whole effect of the reservations, and they were entirely consistent with a presently passing estate in fee simple in the grantee. We agree entirely with the learned court below in their views upon this subject and in the ultimate conclusion reached. The assignments of error are The decree of the court below is affirmed, and the appeal is dismissed, at the cost of the appellants.

all dismissed.

FRALICH v. DESPAR.

(Supreme Court of Pennsylvania. Nov. 12, 1894.)

INJUNCTION-USE OF TRADE SECRETS.

Plaintiff employed defendant in the manufacture of certain oils and greases. Before defendant entered such employment, he agreed not to divulge or to use any secrets of the business plaintiff might make known to him. Subsequently, he left plaintiff's employ, and began the manufacture of similar oils and greases, using plaintiff's secrets therein. Held, that a permanent injunction was properly issued to restrain him from so doing.

Appeal from court of common pleas, Allegheny county; Thomas Ewing, Judge.

Bill in equity filed by E. C. Fralich against Andrew Despar to restrain the latter from divulging or using a certain secret used in the manufacture of greases and oils. Judgment for plaintiff, and defendant appeals. Affirmed.

The opinion of the trial court was as follows:

"Finding of Facts by the Court.

"The defendant, Andrew Despar, on the 5th day of January, 1886, entered into the article of agreement with the plaintiff, which is Exhibit A attached to plaintiff's bill, in the form of an affidavit, as follows:

"I, Andrew Despar, of the city of Pittsburgh, state of Pennsylvania, in the employ of E. C. Fralich, a manufacturer of oils, axle, mill, and star grease, also of said city of Pittsburgh, do solemnly swear that if said E. C. Fralich makes known to me the ways and secrets of manufacturing and stilling of different kinds of oils and of the different kinds of greases manufactured by him, that I will not use such knowledge or secrets for my own gain, nor will I ever, so long as I may live, divulge or make known in any way the knowledge I may receive while in his employ, or any part of said secret, either of mixing in oils or otherwise.

his

"Andrew X Despar. [Seal.]
mark

"Attest: Ed. G. Hartje.

""Sworn to and subscribed before me this 5th day of January, 1886. Ed. G. Hartje, Notary Public.'

"The plaintiff, some twelve years before, had bought the business and good will and property from his father-in-law, Captain Frisbee, for a full consideration therefor, and had an established business and trade in manufacturing the articles in question, using some of the secrets of manufacture in part obtained from one Gilbert Frisbee and in part improved by himself; his principal employé being Gilbert Frisbee, who was familiar with the entire process, and the plaintiff and his son being the only others who had a knowledge of the secrets of the process. Andrew Despar, the defendant, went into the employ of the plaintiff in 1882, as a general hand, doing the hauling, teaming, and other work around the establishment, in the hauling of material and the delivering of goods, and had not a knowledge of the secrets of the business. The defendant had first received $10 per month, and was at the date of this agreement in receipt of $15 a month, as wages. Gilbert Frisbee having died shortly before this agreement was made, and the plaintiff proposing to employ the defendant to aid him in the manufacture, proposed to instruct him in the process, give him the secrets of the business, and to employ him therein at increased wages, there being no definite amount of increased wages agreed on at that time. That agreement was read over to the defendant, was thoroughly explained to him, and he understood it fully, and knew what he was doing, and why the agreement was made. Thereafter, the plaintiff revealed to the defendant the secrets of the business, in consideration of that agreement, and raised his wages gradually,

until, within a short time, and for years prior to defendant's leaving plaintiff's employment, he had been receiving $50 a month, and was furnished steady employment. The defendant, from April, has been using the secrets and formula so obtained under said agreement and employment for his own private use, and has associated himself with one M. B. Moseley, and has been manufacturing, compounding, and selling the manufacture under this secret process, from his knowledge so obtained while in the employ of the plaintiff, and has been selling to the trade, and representing that it is the same axle grease' manufactured by the plaintiff. We find that the allegations contained in the first, second, and third paragraphs of plaintiff's bill are true.

"Conclusions of Law.

"Is the plaintiff entitled to relief? That he could maintain an action at law in the recovery of damages, we think, is entirely clear. An employé getting the secrets of a business or trade under such circumstances, and especially under such an agreement, carried out as this was, has no right to use the secrets so obtained for his own private use, or reveal them to others.

The

"Defendant's counsel cite the case of Keeler v. Taylor, 53 Pa. St. 467, as against the right of plaintiff to the relief sought for. In that case, Keeler revealed no secrets to Taylor, of either trade or manufacture or skill, that were not known to many others. agreement was an agreement in restraint of trade, without a sufficient and proper consideration to sustain it. The case of Peabody v. Norfolk, 98 Mass. 452, and Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 379, give very full discussions of the principles governing cases of this sort.

"A suit for damages would be no adequate remedy in this case. The law, we think, is with the complainant. A decree should be issued, enjoining the defendant, as prayed for. Let decree be prepared by counsel."

James H. Smith and James H. Porte, for appellant. E. G. Hartje and Shiras & Dickey, for appellee.

PER CURIAM. We think the findings of fact and conclusions of law, as contained in the opinion of the learned court below, are fully sustained by the evidence and authorities cited, and upon that opinion the decree of the court below is affirmed and the appeal dismissed, at the cost of the appellant.

COMMONWEALTH v. DELAWARE, S. & S. R. CO.

(Supreme Court of Pennsylvania. Nov. 13, 1894.) TAXATION OF CORPORATE STOCK-EQUALIZATIONREVIEW ON APPEAL.

1. Where an appeal by a corporation from the valuation of its capital stock by the auditor general and state treasurer, for the purposes of taxation, is heard by the court, with

out a jury, a finding fixing the value of the stock will not be disturbed on appeal if there is evidence to warrant the finding.

2. The action of the trial court in refusing to grant a new trial on an appeal from the valuation of capital stock, on the ground that, since the hearing, a contract with the corporation had been annulled by the person with whom the corporation had contracted, and that, by reason thereof, the corporation sustained a loss which might seriously affect the value of its stock, will not be reviewed by the supreme court.

3. In determining the actual value of the capital stock of a corporation under the statute of June 8, 1891, declaring that its purpose is the taxation of all corporations at a fixed rate upon each dollar of the actual value of their whole capital stock, including as well their bonds, mortgages, and money at interest as their franchises and property of other kinds, it is proper to take into consideration the value of the franchises owned by the corporation.

Appeal from court of common pleas, Dauphin county.

The Delaware, Susquehanna & Schuylkill Railroad Company appealed to the court of common pleas from the valuation of its capital stock, as fixed by the auditor general and state treasurer, for the purposes of taxation. Judgment was rendered in favor of the commonwealth, and the railroad company appeals. Affirmed.

The Delaware, Susquehanna & Schuylkill Railroad Company, a corporation of this state, is the owner of a railroad which in the year 1892 was unfinished. It was not completed until the spring of 1893. It is located in the counties of Luzerne and Carbon, and is about 60 miles in length. The stock of the company is owned by Messrs. Coxe Bros. & Co., who are miners of coal, practically in its entirety. The road is very circuitous, and was built chiefly to connect collieries of Coxe Bros. & Co. with the lines of road of the Philadelphia & Reading Railroad Company, the Lehigh Valley Railroad Company, the Pennsylvania Railroad Company, and the Central Railroad of New Jersey, for the purpose of securing for the coal mined and bought by Coxe Bros. & Co. transportation to tide water over competing lines. The company made report to the auditor general for the year ending the first Monday of November, 1892, in due form; and the report shows that the officers appraised the capital stock at $2,000,000, the authorized capital being $1,000,000. It shows further that the company declared a dividend of 40 per cent. on $1,000,000 of capital. The net earnings for the year taxed were $523,243.15. The surplus was $242,142.88. There were no sales of stock. It appears otherwise that the total cost of the road and equipment was $1,159,323.70, and the other assets were $113,413.69. That the reported earnings were so large was due to the fact that the entire product of the mines of Coxe Bros. & Co., together with coal bought by them, was sent over the road to connect with other lines of road, under contracts with the several railroad companies owning them. The net earnings of the railroad company,

regarded as profit to Coxe Bros. & Co., were more apparent than real, the difference arising from the manner of keeping the railroad company's books, which did not distinguish the portion of the receipts which was assignable to transportation, after allowing to Coxe Bros. & Co. the usual selling price of coal in the locality at the mines. The company, further, had only temporary contracts with Coxe Bros. & Co., and with the other railroad companies, which might be terminated at any time on short notice. The auditor general and state treasurer refused to accept the valuation of the officers of the company, and settled an account against the company at the rate of 5 mills on the value of $8,720,719.16, which was, under the construction put by the accounting officers on the act of June 8, 1891, the value that the act required; that is, the sum which at the rate of 6 per cent. would produce $523,243.15,-the net earnings reported. From this settlement the defendant appealed to court of common pleas of Dauphin county. The court below held that the appraisement made by the accounting officers was wrong in principle, but made a new valuation of the capital stock, viz. $4,000,000, on the ground that the act of June 8, 1891, requires the franchise of a corporation to be appraised and taxed as a valuable element of the capital stock. To this ruling defendant filed exceptions, and moved for a new trial, offering to show on such trial the fact that the contracts, to which were assignable the profits reported, had been rescinded by the receivers of the Philadelphia & Reading Railroad Company since the date of the trial of the appeal, and, furthermore, that, in view of the reasons given by the court below for its conclusion, it should be shown, in addition, that the losses of Coxe Bros. & Co. as coal miners, in the year for which tax is claimed, were $459,883.36, which should have, on the basis of appraisement adopted by the court, been deducted from the net earnings reported of the railroad company, which was also owned by Coxe Bros. & Co. This motion, as well as the exceptions of defendant, the court refused, and awarded to the commonwealth the full amount of the tax on $4,000,000, at 5 mills, together with interest and attorney general's commission. This amount was subsequently reduced by the allowance of a credit of $10,000, which had been paid by the company before appeal was taken, and a further credit for the amount of tax for seven months charged on the six-tenths of the capital stock which had not been paid into the treasury of the company until after June 1, 1892.

W. B. Lamberton and S. P. Wolverton, for appellant. W. U. Hensel, for the Commonwealth.

MCCOLLUM, J. The defendant company complains on this appeal of the finding that

the actual value in cash of its capital stock between the 1st and 15th of November, 1892, was $4,000,000, and that its franchises were considered as an element or factor in ascertaining such value. It also complains that its motion for a new trial was overruled. The actual cash value of the company's capital stock, at the time stated, was, under the stipulation filed, a fact to be found by the court, upon relevant testimony. If the evidence submitted for the purpose of ascertaining this fact was pertinent to the issue, and sufficient to warrant the finding complained of, the latter must stand as the basis of the taxation in question. The finding of the court is on the footing of the verdict of a jury. An examination of the evidence before the court in this case has satisfied us that it authorized the finding in respect to the value of the stock, and that we would not therefore be justified in setting the same aside.

The motion for a new trial was based upon the allegation that, after the hearing was concluded, the defendant company's contract with the Philadelphia & Reading Railroad Company was annulled by the receivers, and that, in consequence thereof, the defendant company sustained a loss which might injuriously affect the value of its capital stock. The motion was made after the opinion of the court was filed, and while exceptions thereto were pending. The allowance or refusal of this motion was within the discretion of the learned court below, and it is not a matter for review on this appeal.

In ascertaining the actual value of the capital stock, was it proper to take into consideration, as affecting that value, the franchises of the company? We think this question is affirmatively answered by the act of June 8, 1891, under which the valuation was made. The capital stock represents the franchises as well as other property of the company. In the sixth preamble of the act there appears a plain legislative purpose to include the franchises in fixing the value of the stock, and this is in harmony with the title and the provision in respect to the taxation of it. The specifications of error are overruled. Judgment affirmed.

COMMONWEALTH v. DELAWARE, S & S. R. CO.

(Supreme Court of Pennsylvania. Nov. 13, 1894.) Appeal from court of common pleas, Dauphin county.

The Delaware, Susquehanna & Schuylkill Railroad Company appealed to the court of common pleas from the valuation of its capital stock, as fixed by the auditor general and state treasurer for the purposes of taxation. From a judgment reducing the valuation, the commonwealth appeals. Affirmed.

W. U. Hensel, for the Commonwealth. W. B. Lamberton and S. P. Wolverton, for appellee.

MCCOLLUM, J. The single question raised by this appeal is ruled against the commonwealth in Com. v. Edgerton Coal Co. (Pa. Sup.) 30 Atl. 125, and other cases from the middle district, decided at this term. There is therefore no occasion to discuss or consider it in this case. Judgment affirmed.

KENDALL v. DRAKE et al. (Supreme Court of New Hampshire. Grafton. March 11, 1892.)

ASSAULT EVIDENCE.

In an action for assault, it appeared that plaintiff, at the request of one of two adjoining landowners,-their division line being in dispute,-leaned against the division fence. One of defendants, with the approval of the others, in attempting the removal of the fence, injured plaintiff. Held, that she could recover.

Action by Kate J. Kendall against Arthur Drake and others, in trespass, for assault and battery. The dividing line between the premises of adjoining owners was in dispute. The plaintiff, at the request of one of the owners, leaned against the fence erected by him upon the strip of land in dispute,— one arm resting upon one of the rails,for the purpose of preventing its removal by the defendants. It being found that one of the defendants, with the approval of the others, in attempting the removal of the fence, injured the plaintiff by a want of due care, in striking the rail against which she was bearing, the plaintiff recovered judgment.

Fling & Chase, for plaintiff. G. A. Emerson and Barnard & Barnard, for defendants.

PER CURIAM. Affirmed.

CHASE, J., did not sit. The others concurred.

PENNSYLVANIA R. CO. v. RUSS. (Court of Errors and Appeals of New Jersey. Nov. 18, 1894.)

RAILROAD COMPANY-LIABILITY FOR MAIL AGENT'S
NEGLIGENCE-PERSON INJURED BY
MAIL THROWN.

A notice with respect to throwing United States mail bags off the moving trains of the Pennsylvania Railroad Company uses this language: "It must be distinctly understood, however, that this does not in any way relieve baggage masters and mail agents from using all possible precautions against liability of injuring any one in throwing off mail." Held, that on trains carrying a mail agent the failure of baggage masters to observe how the mail agent performed his duty did not, under this notice, make the railroad liable to one injured by a mail bag carelessly thrown by the United States official.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles Russ, administrator, against the Pennsylvania Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

W. S. Gummere, for plaintiff in error. R. V. Lindabury, for defendant in error.

GARRISON, J. This is an action against the Pennsylvania Railroad Company for causing the death of Henry Papenburg, the plaintiff's intestate. Papenburg was struck and killed by a United States mail bag thrown from the mail car attached to one of defendant's trains. The bag was thrown from the postal car, not by one of the defendant's servants, but by the mail agent of the United States government. The place where the bag was thrown from the train was about the center of Cherry street in the city of Rahway. Papenburg was approaching Cherry street across a triangle of ground belonging to the railroad company, upon a beaten track lying near to and parallel with the railroad tracks, and used by the public in gaining access to the station. About the middle of this triangle, alongside the track, a mail crane had been erected, from which moving trains might take on mail bags. The foot of this crane was the spot designated for throwing off mail bags. In order that the bags thrown from rapidly moving trains should fall at the foot of this crane it was necessary to throw them off before the mail car had actually reached the crane. Upon the occasion in question the United States mail agent threw off the bag some 80 feet before reaching the crane, causing thereby the fatal accident to Papenburg, who was lawfully at the place where he was struck and killed.

In this situation of affairs two interesting questions arose, and were to some extent discussed: First, the liability of the defendant for the acts of the servant of the United States government; and, second, the negligence of the defendant in designating for a performance of this character a spot so near to a traveled pathway over its own property that in the natural course of things injury might befall one lawfully using this thoroughfare.

These questions are, however, not presented by the case with which we have to deal, for the reason that the negligence of the company was put by the trial court upon another and different ground, in which aspect alone it is before us upon a specific exception on which error has been assigned.

The ground of negligence thus alluded to is that it was the duty of the baggage masters of the defendant company to observe how the mails were thrown off, and to use precautions against injury therefrom; and in this connection the jury was told that any neglect of this duty by the baggage master, by which injury arose, was the neglect of the company. Inasmuch as there was no attempt to prove that the baggage master of the train in question had supervised the throwing off of the mail bag by which Papenburg was killed, it is clear that the defendant was guilty of neglect of its duty in

this respect, if that duty was correctly stated in this instruction. The basis of the court's charge upon this point was a printed notice in evidence, designating the places for the delivery of mail from moving trains. This notice was signed by Joseph Crawford, superintendent of the defendant company, and also by R. C. Jackson, superintendent of the United States mail service. It reads as follows: "General Notice to Passenger Trainmen and Mail Agents. Baggage masters and mail agents are hereby instructed to throw off mail bags at the points designated in the following statement. It must be distinctly understood, however, that this does not in any way relieve baggage masters and mail agents from using all possible precaution against liability of injuring any one in throwing off mail."

The instruction of the trial judge upon this branch of the case was as follows: "I call your attention to the notice given by Crawford, the superintendent of the railroad company, to the trainmen on passenger cars as well as to the mail agents. He expressly made it the duty of the baggage masters, who are railroad employés, to use all possible precautions against injury by throwing off the mails. It was thus made the duty of these baggage masters to observe how the mails were thrown off, and any neglect on their part by which injury was done was the neglect of the defendant company."

The conclusion I have reached is that the learned judge misconceived the meaning of this notice, and in consequence of such misconception placed the liability of the defendant upon an untenable ground. The jury was, in effect, told that when mails were thrown from moving trains, whether by trainmen or by mail agents, it was the duty of the railroad baggage masters to observe the operation with the view of averting injury, and that their failure in this respect would be the neglect of the railroad company. Applied to the case of a mail bag thrown from a mail car by the United States official in charge thereof, I do not think that this notice contemplated any oversight or interference by the ordinary trainmen, or that, properly interpreted, such a direction will be found in it. In the course of the case it was shown that some trains carried mail cars in charge of mail agents, while upon others the duty of handling the mails was left to the railroad employés. The natural meaning of the joint notice of the federal government and the railroad company, in view of this fact, is not that baggage masters on trains that carried United States mail agents should oversee the latter, but that they whose duty it was to throw off the mail-mail agents from mail cars, baggage masters from baggage cars-should observe care and exercise all possible precautions against injury.

The injurious effect of the court's instructions must at once appear, for it is admitted

that in the case in hand the baggage master of the defendant did not oversee the United States mail agent who threw off the bag. This omission, in itself, would, under the charge of the court, be plenary proof of negligence; and upon this ground of error we must, on this argument, assume that the jury rested its verdict. Deeming, as we do, that this instruction was erroneous, and considering the question of contributory negligence as one that was properly left to the jury, there must be a venire de novo.

KENNY et ux. v. LEMBECK et al. (Court of Chancery of New Jersey. Nov. 14, 1894.)

JUDICIAL SALE-FRAUD-RESCISSION-WEIGHT OF EVIDENCE.

1. Where a person who desires to buy land at a judicial sale secretly enters into a fraudulent arrangement with a part of the persons interested in the land, by which he agrees, if such persons will assist him in acquiring the land, he will pay them a sum of money in addition to his bid, so that they shall receive more than the others, and his object in making the arrangement is to defraud all the persons interested in the land,-both those with whom the arrangement is made, as well as those with whom it is not made,-his fraud is so iniquitous in its character that the court, in undoing his wrong, must administer justice regardless of the consequences to him.

2. When a witness confesses that he was a willing participant in the fraud in respect to which redress is sought, the safe administration of justice requires that his evidence shall not be credited unless it is corroborated in one or more essential points.

(Syllabus by the Court.)

Bill by Patrick Kenny and wife against Henry Lembeck and others to set aside a sale by a master in chancery. Dismissed.

Samuel D. Haines and Charles H. Voorhis, for complainants. Charles L. Corbin, for defendant Lembeck. fendant Lembeck. William S. Stuhr, for defendants Margaret Burke and Ellen Kenny.

VAN FLEET, V. C. The complainants seek by this suit to have a sale of land made by a master of this court, and the deed made in execution of such sale, set aside and declared to be nullities, or that the defendant Lembeck be required to pay, in addition to the price for which the land was sold to him at public sale, the sum of $1,900. The complainants rest their right to relief on the ground of fraud. The following are the material averments of their bill: In June, 1892, Margaret Burke and James T., her husband, and Ellen Kenny, filed their petition in this court, asking that certain land devised by the will of John Kenny, deceased, be sold under the statute authorizing the sale of land limited over to infants, or in contingency. Margaret Burke was a daughter of John Kenny, deceased, and took under his will an undivided moiety of the land sought to be sold, in case she and her brother, Patrick Kenny, one of the complainants, were both

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