verse.

Under Act May 23, 1887 (P. L. 159) § 5, cl. "e," disqualifying a surviving party to a contract with a decedent, or any other person having an adverse interest, to testify to any thing occurring before decedent's death, the maker of a note, who while cashier of a bank discounted it and placed the proceeds to his own credit, though on the face of the note they ought to have gone to the payee's, will not be permitted, in an action by the bank on the note against the administrator of the indorser who was also the payee, to give testimony the effect of which will be to relieve himself from liability to the payee's estate.

dead, no surviving party to such contract, or | A year before he had resigned as cashier, any other person whose interest shall be ad- and disposed of all his stock in the instiverse, shall be a competent witness to anything occurring before decedent's death, does not ren- tution. He was therefore not incompetent as der one incompetent who may be a surviving a witness on the ground of having any inparty, unless his interest is adverse to the right terest in the judgment that the bank might of decedent, though his testimony may be ad- recover against Ratti's estate; but was he [Ed. Note. For other cases, see Witnesses, competent under clause "e," § 5, of the act Cent. Dig. § 630; Dec. Dig. § 144.*] of May 23, 1887 (P. L. 159), which provides 2. WITNESSES (§ 144*)-COMPETENCY-TRANS- that where any party to a thing or contract ACTIONS WITH DECEDENT. in action is dead, and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, no surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased, shall be a competent witness to anything occurring before the death of said party? This clause does not render one incompetent who may be a surviving or remaining party to a thing or contract, unless his interest is adverse to the right of the deceased. "The disqualification is made to depend, not only on the fact of being a ‘remaining party,' but having an ‘adverse interest.'" Dickson v. McGraw Bros., 151 Pa. 98, 24 Atl. 1043. Adverse interest existing at the time a witness is called to testify is the test of his competency, for by section 6 of the act one incompetent under clause "e" of section 5 may become competent by a release or extinguishment in good faith of his interest. It is the adverse interest of the witness, and not his adverse testimony, that disqualifies him. Horne & Co. v. Petty, 192 Pa. 32, 43 Atl. 404.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 625-643; Dec. Dig. § 144.*] Appeal from Court of Common Pleas, Columbia County.

Action on a note by the First National Bank of Bloomsburg against Emanuel Gerli, administrator c. t. a. of the estate of Guiseppe Ratti, deceased. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, POTTER, and ELKIN, JJ. John G. Harman and Richard E. Dwight, for appellant. Fred Ikeler, Clinton Herring, and Wm. C. Johnston, for appellee.

BROWN, J. Plaintiff's right to recover depends upon the testimony of E. F. Carpenter, and on this appeal the controlling question is his competency to testify to the facts about to be stated. He and Ratti, for some time prior to the latter's death in October, 1906, had been friends and associates in business. In the spring of that year, as Ratti was about to start on a trip to Italy, he indorsed the note in suit for the benefit of Carpenter, the maker, who was then the cashier of the bank. When Ratti delivered the note to Carpenter the date in it was left blank, to be inserted whenever Carpenter might need the money. On August 7, 1906, the note, with that date inserted, was discounted by the bank, and the proceeds credited to Carpenter. When Ratti indorsed the note, he authorized Carpenter to attach to it a waiver of protest, as it might fall due before his return from Italy. This waiver was identical in form with others which Ratti had left with Carpenter for the purpose of avoiding protest of notes upon which he was indorser, if they should mature during his absence. When the note was discounted, Carpenter fastened the waiver of protest to it.

From the note itself it is clear that Ratti's indorsement was not for the accommodation of Carpenter. Under the words "credit the drawer," appearing on its face, the indorser's signature is omitted, and the instrument, without parol testimony to vary it, is an absolute promise of Carpenter to pay Ratti $5.000 for value received. At the time he says Ratti delivered the note to him Carpenter was the cashier of the bank, and the presumption would be that when the note was discounted it was for the benefit of Ratti, and that the proceeds ought to have gone to his credit. The effect of Carpenter's testimony is to wipe out his obligation to pay Ratti, and turn it into a paper bearing the accommodation indorsement of the payee for his benefit. If the judgment on this verdict, procured on his testimony, is to stand, he will be permitted to retain the proceeds of the note, which, from the face of it, he ought not to have received, and, though Ratti's estate may recover from him the amount of the judgment against it in this suit, it will still sustain a loss of $5,000, if the indorsement was not for the accommodation of Carpenter, for it will not be able to recover the proceeds of the note either from the bank or him. As his testimony made the indorsement one for his accommodation, and relieved him

At the time of the trial, February 8, 1909, Carpenter had no connection with the bank.

of partnership does not necessarily here arise. [ could be maintained depended on what transThere was in this case no community ex-pired on December 20, 1900, and for this we cept as to profits. That this is an essential have the testimony of the plaintiff himself. element in partnership is universally rec- It will not lengthen this opinion unduly to ognized, but the authorities agree that it give his testimony in full. "Right after does not create a partnership. As was said they [stock and bonds] were transferred and in Walker v. Tupper, 152 Pa. 1, 25 Atl. 172, I had them in my name, I told them [aeits absence may be regarded as conclusive fendant] I wanted that partnership dissolved against the partnership, but its presence is or ended. I wanted to make good; I wantnot conclusive in favor. The rights of third ed my money instead of the stock. He [departies are not here involved, and it is pure- fendant] said it was not convenient; 'You ly a relation between parties to the con- hold them. You will never lose anything; tract as affecting themselves that is to be you have that agreement, and they will be considered. The defendant had no proper- all right. I will never let you lose anything' ty in the stock; he was to contribute noth--or words to that effect, and we were ing whatever either in money, skill, or service to the undertaking; he was to share equally in the profits, if any, and to bear all loss. It is true that sharing in the profits ordinarily gives rise to a strong presumption of partnership where the rights of third parties are involved; but, where the controversy concerns none but the parties to the contract, and can be settled by an action of assumpsit by one against the other, there would seem to be no reason to resort to the rules of partnership to determine their respective rights. As we view this contract it contemplated no "partnership," as that term is ordinarily understood, but was simply a contract of indemnity against loss; the consideration moving to the indemnitor being the privilege of sharing in expected profits. But, whether a partnership, or what has latterly become distinguishable therefrom as a joint adventure, or a contract of indemnity, this much is clearly deducible from the contract itself: No date being fixed for the determination of the contract, whatever it was, it rested with either party to end it at his pleasure; and, when ended, the rights of the parties became fixed. No more was it in plaintiff's power to continue defendant's obligation to indemnify beyond such time as he chose to call for a settlement than it was in the defendant's power to require the plaintiff to hold the stock for a longer period than the latter desired. The contract relation was to end some time; and, in the absence of any provision fixing the date, the law will imply that it was determinable at the pleasure of either, providing good faith be observed.

The only question in the case is, Did the plaintiff by any certain, positive declaration or act terminate the contract on December 20, 1900? He admitted that he did not sell either stock or bonds, though both were in his name and subject to his disposition. So far as appears, he is retaining them to the present time, with what result as to profit or loss of course we do not know, nor does it concern us. Whether his action

friends until 1905." It is impossible to gather from this an explicit and unequivocal demand for an immediate termination of the relation subsisting. At most it was but an expression of the desire on the part of plaintiff to close out the transaction, and this was followed by an equally positive expression of unwillingness on the part of the defendant, on the ground of inconvenience at that particular time, and a request that plaintiff should continue to hold the stock on the assurance that defendant would not allow him to lose anything. No final conclusion was reached. The plaintiff made no reply indicating a rejection or refusal of defendant's demand, or determination to hold him for the loss as measured by the current quotations on the stock exchange that day. On the contrary, he says that thereafter he and defendant continued to be friends for five years, during which time he asked the defendant several times for a settlement, but in no place does he say that he made any demand for settlement as of December 20, 1900, or that the value of the stock on that day was ever spoken of by either. It was only after a controversy arose between them as to other matters, and after an interval of five years from the transaction, that plaintiff brought suit. A notice of a determination to end such a relation as existed here ought to be so explicit as to leave the party notified no excuse for misinterpreting or misunderstanding it. Such was not the case here. On the contrary, it was plainly tentative, and the only understanding to be derived from what occurred is that the conclusion reached was acquiescence in the continuance of the relation, especially in view of the fact that plaintiff continued to retain both stock and bonds. The sufficiency of the notice, the facts in regard to it being ascertained, was for the court, and we quite agree that in this case the notice was wholly inadequate to charge defendant with liability as of the date when the notice was given.

Judgment affirmed.

ELKIN, J. The appellee for many years had been the owner of a rectangular tract of land located within the municipal limits

CATLIN v. NORTHERN COAL & IRON CO. (Supreme Court of Pennsylvania. June 22, 1909.) 1. EVIDENCE (§ 498%*)-OPINIONS-QUALIFI- of the city of Wilkes-Barre containing nearCATION OF WITNESS-KNOWLEDGE OF VAL

UES.

Sufficiency of knowledge of land, its area, improvements, the uses to which adapted, and general selling price in the neighborhood are preliminary questions, to be determined by the court before a witness should be permitted to express an opinion as to its market value.

ly 30 acres, 18 acres of which were high ground available for building lots, and the remainder was low ground suitable for agricultural purposes. As the city grew in population the land in question became available as a residential section. Several tracts near the land of appellee were purchased, divided into lots, and sold as build

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2290, 2291; Dec. Dig. § 4982.*] 2. EVIDENCE (§ 474*)-OPINIONS-QUALIFICA- ing sites. Appellee, evidently considering TION OF WITNESS MEANS OF KNOWLEDGE

-VALUE OF LAND.

A witness, to be qualified to express an opinion as to the market value of land, must have such knowledge of the subject-matter as can reasonably be expected in view of the frequency of sales, the location, and adaptability of the land for any available purpose, and such other things as enter into a proper estimate of market value.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2217; Dec. Dig. § 474.*]

3. APPEAL AND ERROR (§ 274*)-PRESENTATION OF ERROR-EXCEPTIONS-NECESSITY. After the acceptance of witnesses as qualified to express an opinion as to value, if any question asked or answer given was improper, an exception should have been taken, and an exception taken at the conclusion of their preliminary examination as to their qualification to the action of the court holding them qualified will not cover subsequent rulings.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1631; Dec. Dig. § 274.*] 4. APPEAL AND ERROR (§ 738*)-ASSIGNMENT OF ERROR-SUFFICIENCY.

Embodying in one assignment of error alleged error in refusing to str.ke the testimony of a large number of witnesses is in violation of rule 29, and each error relied on must be specified particularly and by itself.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3033; Dec. Dig. § 738.*] 5. EMINENT DOMAIN (§ 134*)-COMPENSATION AVAILABILITY OF LAND FOR BUILDING

LOTS.

It was proper, in estimating the value of land condemned, to consider its availability for sale as building lots, where lots, streets, and alleys had been laid out on the ground and lots offered for sale, and a considerable portion of the land was available for sale as building lots at the time of appropriation, and several other tracts near the land had been sold as building sites, and this, though at the time of appropriation no actual sales had been made because of the high price asked.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 356; Dec. Dig. § 134.*] Appeal from Court of Common Pleas, Luzerne County.

Proceeding to assess damages for land of Sterling R. Catlin, condemned by the Northern Coal & Iron Company. From the judgment for plaintiff, defendant appeals. Affirmed.

He

that his property was adapted to the same
purpose, laid out the 18 acres of high
ground into building lots, plotted streets
and alleys, all of which were marked on the
ground, and offered the lots for sale. It is
true that at the time of the appropriation
no actual sales had been made, but this is
explained by the fact that the asking price
of the owner was $1,500 per lot, while the
Would not accept the price offered, and so
best price offered was only $1,000.
the lots remained unsold. The testimony,
however, clearly shows that the lots, streets,
and alleys were laid out and marked on
the ground, that they were located in a sec-
tion of the city desirable for building pur-
poses, and that they were available and on
the market for sale as building lots at the
time the defendant entered and took pos-
session under proceedings to condemn. The
appellant constructed a wye through and
over the lands of appellee, dividing one
part thereof from the other, and appropri-
ated all the lots laid out between the two
legs of the wye. The land actually appro-
priated was a little over 4 acres. The legs
of the wye were elevated several feet above
the surface of the ground, by reason of
which access from one part of the tract to
the other was made difficult, and the value
of the whole tract either for building or
agricultural purposes, was seriously affect-
ed. The main contention of appellant is
that witnesses at the trial in the court be-
low were permitted to estimate the value of
the tract at the time of the entry upon the
basis of a building lot proposition.

In order to determine the question raised
it will be necessary to consider the assign-
ments of error in some detail. The first
four specifications relate to the qualifica-
tion of four different witnesses produced
by the plaintiff to testify as to market
value before and after the taking. The rule
is that the possession and sufficiency of
knowledge of the land, its area, improve-
Af-knowledge
ments, the uses for which adapted, and gen-
eral selling price in the neighborhood are
preliminary questions to be determined by
the court before the witness should be per-
mitted to express an opinion. This method
was pursued at the trial, and each of the
four witnesses complained of were subject-

Argued before MITCHELL, C. J., and FELL, BROWN, POTTER, and ELKIN, JJ.

George R. Bedford, Paul Bedford, and Andrew H. McClintock, for appellant. John T. Lenahan and Charles F. McHugh, for appellee.

such valuation is speculative and too re-
mote.
mote. The court answered, "This point is
correct if there be any testimony showing
that the estimates were based on future
sales." The appellant has nothing to com-
plain of in this instruction. The point sub-
mitted was indefinite both as to the wit-
nesses and their testimony, and the court
answered in the same general terms.

The first seven assignments go to the ques

ed to this preliminary test. The learned trial judge ruled that the witnesses were qualified to express an opinion as to market value, to which ruling an exception was taken, and bill sealed. After the question of competency had been determined, many questions relating to market value were asked these witnesses on direct and cross-examination, but no exception was taken nor bill sealed to any question asked or answer given. As the record stands, the only question of whether it is proper, in estimating the tion before this court is that raised by the exception taken at the conclusion of the preliminary examination as to the qualification of the witnesses objected to. We have no doubt as to the competency of these witIn such cases a witness must have such knowledge of the subject-matter as can reasonably be expected in view of the circumstances, the frequency or infrequency of sales, the location, adaptability of the land for any available purpose, and such other things as enter into a proper estimate of market value. Smith v. Railroad Co., Smith v. Railroad Co., 205 Pa. 645, 55 Atl. 768; Hope v. Railroad Co., 211 Pa. 401, 60 Atl. 996; Lally v. Railroad Co., 215 Pa. 436, 64 Atl. 633. The witnesses complained of in the present case fully meet the requirements of this rule, and were competent to testify. After they were accepted as witnesses, if any question asked or answer given was improper, or in violation of the rules of law governing such cases, an exception should have been taken and bill sealed, in order that each distinct question could be raised by a separate assignment. The matters complained of relate more particularly to the testimony of the witnesses given after the preliminary test of qualification had been passed upon, but this testimony was not excepted to, and is not properly before us.

The fifth and sixth assignments relate to the refusal of the court below to strike out the testimony of a large number of witnesses, because it is alleged that it was based upon their estimate of what said lands would ultimately bring if laid out in building lots and so sold, and not upon the market value of the land before and after the entry. These assignments are in plain violation of rule 29 of this court. Each error relied on must be specified particularly and by itself. Each distinct question must be made the subject of a separate assignment. Embodying in one assignment the alleged error of the trial court in refusing to strike out the testimony of four or more different witnesses is in violation of the rule. Brown v. Forest Water Co., 213 Pa. 440, 62 Atl. 1078. The seventh assignment also relates to the basis of estimating market value. At the trial a point was submitted asking the court to instruct the jury to disregard all the testimony of the plaintiff and his witnesses as to the value of the land, based on their estimates of what might ultimately be re

value of land taken in condemnation proceedings to consider its availability for sale as building lots. Some of our recent cases are relied on to sustain the contention that it is not. Gorgas v. Railroad Co., 215 Pa. 501, 64 Atl. 680, 114 Am. St. Rep. 974; Hamory v. Railroad Co., 222 Pa. 631, 72 Atl. 227, are cited for this purpose. What was said in these cases, if not considered in connection with their facts, might appear to give support to the view now earnestly pressed upon us. These cases, however, must be read and understood in view of the situation at the time of the entry. The entry in these cases was made on farm lands in rural districts, and they were not immediately available for sale as building lots. The effort was made to add a fictitious value to the lands entered upon by undertaking to show that they could be divided into lots, and might be sold for building purposes. It was apparent, however, that this was all speculative, and had no real basis in fact. The lands appropriated were farm lands, and in determining their value it was necessary to limit the inquiry to those intrinsic elements of value existing at the time of the appropriation. In the case last cited a witness was asked on preliminary cross-examination if his estimate of what the property was worth at the time of the entry was based upon what it would bring if it had been laid out in building lots, and all the lots had been sold at what he considered them worth, to which an affirmative answer was given. This court held that the method of estimating market value indicated by the answer of the witness was improper. This case was clearly right on its facts. The tract of land had not been laid out in lots. It was farm land. There was no immediate prospect of its being available for sale as building lots, and hence such a method of estimating value would be purely speculative.

The test in every such case is, What was the market value of the land, at the time of the appropriation, for any available purpose? If it was then available for sale as building lots, and had a market value for such purpose at the time of the entry, it is proper to consider this element of value in determining what the property was then worth. All of our cases recognize that the use to which the land is best adapted may always be considered in estimating market