and the reference actually made to the Kansas | cases but one law exists and can by any posstatute no more vitiated the pleading than a reference to any other repealed statute would have done." The court then held that the amendment was not "equivalent to the commencement of a new action," subject to "the two years' limitation"; and in so doing it expressly distinguished the case of Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, cited by the present defendant, stating in conclusion: "Since ** * the federal statute did not need to be pleaded, and the amended petition set up no new facts as the ground of action, the decision in the Wyler case is not controlling." Also, see Philadelphia, B. & W. Rd. Co. V. Schubert, 224 U. S. 603, 32 Sup. Ct. 589, 56 L. Ed. 911. The last reported case touching upon the subject before us is Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. 638, which decides that the proceeds of a judgment recovered in a state court, by an administratrix, in a personal injury case, within the act of Congress, must be distributed under the federal law and not under the law of the state where the accident happened and the decedent resided. Most of the recent federal cases are reviewed in the course of this opinion; the court stating, in connection with Second Emp. Cases, supra, that the statute and its amendments "having been enacted, state laws must give way to them; they established the policy for all, * states, in so far as they cover the same field, "Notwithstanding the original petition asserted a cause of action without making reference to the act of Congress, the court was presumed to be cognizant of the federal enactment, and to know that, with respect to the responsibility of interstate carriers by railroad to their employés injured in such commerce after its enactment, it had the effect of superseding state laws upon the subject." These United States decisions establish that this broad, general act of Congress supersedes the laws of the states upon all matters within its scope; and that, so long as it remains upon the books, in cases involving accidents happening upon interstate railroads, to employés engaged in interstate commerce, such state laws must be viewed as though nonexistent. This is the key to the whole situation, and it readily explains the Wulf decision, and makes clear its applicability to the present case. [3, 4] In allowing the plaintiff in that case to proceed as though the federal statute had been originally pleaded, there was no departure "from law to law," as in the Wyler Case; for, where in a particular class of sibility apply, ex necessitate, there can be no 714, relied upon by the defendant. common law but all relevant state enact- The federal statute was not brought into the case at bar until a special defense was entered upon, and then the plaintiff promptly drew attention to its express prohibition of all defenses of the character of the one offered; just as in the ordinary industrial accident case, although not formally pleaded, a plaintiff may claim the benefit of any particular provision in our Fellow Servant Act of June 10, 1907, P. L. 523, or our Factory Act of May 2, 1905, P. L. 352, if the circumstances call for it. True, the law depended upon at bar happened to be a federal statute; but, since the Supreme Court of the United States has decided that this statute must be treated by state courts, in each instance, as though an act of their own Legislature, for all practical purposes it is a Pennsylvania statute, in the same category as the two acts to which we refer; and its provision that "any contract, rule, regulation, or devise whatsoever,” the purpose of which is to enable a common carrier to exempt itself from liability for negligence to its employés, "shall to that extent be void," is the announcement of a broad rule of public policy applicable to all cases within the scope of the statute, with like effect as though promulgated by one of our acts. The question before us has been made strictly a federal one, by the act of Congress and the relevant United States Supreme Court decisions; and thereunder, when we consider that the plaintiff's case in chief did not depend upon any specific and peculiar statutory regulation, such as in the Allen Case, that he is a person bound by and entitled to all the benefits of the federal statute, that his declaration is entirely consistent with an action under that statute, and that the law thereby established is the only law that could by any possibility apply to his cause, it becomes plain that he could rely upon the provision of the act of Congress forbidding the defense here interposed. Moreover, from the authorities cited, it is clear that he was entitled to this as a mater of substance, and, if by reason of any technical rule of practice he should have mentioned the statute in his declaration, he was entitled to amend. In this particular instance, it is evident that no one can suffer any real harm, or plead surprise, even in the strict legal sense of that term, if the case is treated as though expressly brought under the act of 1908, supra; for the defendant is an interstate road, and it admitted at trial that the plaintiff was an employé engaged in interstate commerce at the time of the accident, so we may fairly assume that it had this knowledge from the first. The learned court below erred in giving binding instructions for the defendant; the assignments are sustained, and the judgment is reversed with a venire facias de novo. (245 Pa. 473) In re RUETSCHLIN'S ESTATE. APPEAL OF MAGEE et al. land, the orphans' court properly decreed that the agreement did not constitute a declaration the proceeds realized from the sale of the of trust or an equitable assignment of half of land, and that hence claimants were not entitled to a preference over creditors. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1646-1651; Dec. Dig. § 417.*] 2. EXECUTORS AND ADMINISTRATORS (§ 124*)— MORTGAGE BELONGING TO ESTATE-BOND COLLATERAL TO MORTGAGE-POWER OF EXECUTOR TO PURCHASE. That one of three executors wrote a letmortgaged to his decedent, for $500 "over and ter stating that he would purchase property, above the bond and mortgage now held by us,' did not estop the executors from subsequently enforcing the bond, where he withdrew the oftified the recipient of the letter that counsel fer within a few days after making it and nohad advised him that he had no power to purchase real estate, and a conference was held terest at which the question of foreclosure of shortly afterwards between the parties in inthe mortgage was discussed but no mention was made of the letter. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 496-507; Dec. Dig. § 124.*] Appeal from Orphans' Court, Philadelphia County. Adjudication in the estate of of Henry Ruetschlin, deceased. From a decree dismissing exceptions to the adjudication, Henry I. Magee and others, executors of Francis Magee, deceased, appeal. Decree modified. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Henry Spalding, William Y. Tripple, and Alfred Moore, all of Philadelphia, for appellants. Frederick J. Knaus, Charles H. Edmunds, Ruby R. Vale, and Conlen, Brinton & Acker, all of Philadelphia, for appellee. MOSCHZISKER, J. At the adjudication in the estate of Henry Ruetschlin, deceased, the executors of Francis Magee presented several claims. They contended for a preference to the extent of $12,500, by reason of a written agreement existing between their decedent and the one whose estate was under (Supreme Court of Pennsylvania. May 22, distribution. ERENCE. 1914.) * [1] By a paper dated November 1, 1909, ex1. EXECUTORS AND ADMINISTRATORS (§ 417*)—ecuted by "Henry I. Magee, trustee for FranCLAIM AGAINST ESTATE RIGHT TO PREF- cis Magee," and Henry Ruetschlin, it was Where, at the audit of the account of ex- stipulated that "upon the sale of ecutors of an insolvent estate, claim was made the plot of ground situated" (no description) for a preference of $12,500 pursuant to an un- Ruetschlin would "give to" Magee "one-half recorded agreement between decedent and claimants' testator, stipulating that on the of all money which he (Ruetschlin) shall resale of a plot of ground decedent would give ceive as his portion of the proceeds" of such such testator one-half the proceeds, and that sale; and Magee agreed not to require payclaimant's testator would not demand payment of "the loan of $32,000," due to him by ment of a loan of $32,000 for five years, it appeared that the land had been sold by the executors for $25,000 and had been purchased by decedent with the money loaned him by claimants' testator, and that such testator had loaned decedent other amounts in addition to the sum mentioned in the agreement, but it did not appear that at the time of any particular loan decedent agreed to grant claimants' testator an interest in the land or that any money was given by such testator to decedent for the specific purpose of buying such Ruetschlin, for a period of five years, unless the ground was sold in the interim; at the expiration of that time Magee to have the "option" of calling in the loan, or, should the ground still remain unsold, "to renew the agreement" for a further period of five years. The executors of Ruetschlin included in their account an item of $25,000, derived November 20, 1912, from the sale of a one *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes third interest in a lot of ground in West | court below did not err when it refused the Philadelphia; they admitted that this prop- preference claimed by appellants. [2] The next matter for consideration arises out of a bond conditioned for the payment of $10,000, dated May 31, 1911, and given by Ruetschlin to the three executors of the estate of Magee as collateral to a mortgage on another piece of real estate. This mortgage was foreclosed; and the prop Magee executors for $50. It appears that one of these executors wrote a letter to an executor of the Ruetschlin estate, dated December 21, 1911, in which he stated that the Magee estate would purchase the mortgaged property for $500 "over and above the But erty was the same as that "mapped out" on a certain blueprint attached to the written agreement between Magee and their decedent. Testimony was offered which showed that Ruetschlin died insolvent July 24, 1911, that early in June, 1911, a meeting was held between him and Henry I. Magee, at which time Ruetschlin acknowledged that the blue-erty was purchased at sheriff's sale by the print represented the ground referred to in the agreement; and further that he had used money loaned to him by Magee to purchase his (Ruetschlin's) interest in this land. It appeared that Magee had from time to time advanced Ruetschlin other moneys, in addition to the amounts claimed at the adjudica- bond and mortgage now held by us." tion and the $32,000 mentioned in the agree- a few days later the writer of the letter ment; but there was no evidence to show notified its recipient that counsel had adwhat particular funds coming from Magee actually went into this West Philadelphia land. Moreover, there was no proof that at the time of any particular loan Ruetschlin then and there agreed to grant Magee an interest in the property in question, or that money was given by the latter to the former for the specific purpose of buying the land covered by the blueprint. So far as the evidence goes, it merely appears that Magee made loans to Ruetschlin for the latter's own purposes, that some of the money was used in the purchase of an interest in this real estate, and, long after the purchase was made, Ruetschlin agreed that, when he sold, he would give his creditor (Magee), one-half of the proceeds. It is not a case where one purchased land in his own name for another; no more is it a case where money was ad vanced for the specific purpose of a partic"The solution of the question involved is atular purchase, with the agreement at bar in tended with difficulties, and, in view of the exview. The property was not sold by Ruet- istence of the letter written by one of the exschlin in his lifetime; and the agreement lieve that those present, with the exception of ecutors aforesaid, it is but reasonable to bedoes not declare that he held it in any man- Mr. Tripple (the attorney for the Magee exner or to any extent for the benefit of Magee,ecutors), left the conference with the distinct or even that he would so hold one-half of the understanding that Mr. Tripple would buy in the property in satisfaction of the debt." proceeds in the event of a sale. Finally, Ruetschlin in no respect expressly limited his right to sell, or personally to receive the proceeds in the event of a sale. Under the circumstances, we cannot sustain the appellants' contention that the written agreement constituted a declaration of trust or an equitable assignment. What might have been determined had the question arisen during the lifetime of Ruetschlin, it is not necessary to decide; but, as between the several creditors of Ruetschlin's insolvent estate, it is clear that this writing, which was not of record, and was unknown to creditors other than Magee, cannot be construed to give a preference to his estate. We have looked at the authorities cited by both sides; but, on their facts, all of them are distinguishable from the present case, although Wylie's Appeal, 92 Pa. 196, is nearest in principle. Also, see Wood's Estate, 243 Pa. 211, 215, 89 Atl. 975. It is clear the vised him he had no power to purchase real estate; and the offer was withdrawn. Shortly afterwards a conference was held at which the attorney of the Magee executors met one of the Ruetschlin executors and his counsel, with some other persons, and discussed the question of the foreclosure of the mortgage. We have read all the testimony in reference to this meeting, and, were we sitting as a chancellor, we should find that the attorney for the Magee executors neither said nor did anything at that time, or at the subsequent sheriff's sale, that estops his clients from claiming on the bond now before us. Of course, had the court below, after seeing and hearing the witnesses, made specific findings should hesitate to reverse; but the learned of fact compelling a contrary conclusion, we auditing judge goes no further than to say that: Upon this view of the facts, the learned court concluded that the appellants were estopped from claiming on the bond, but we cannot concur in the conclusion. It is clear that the epistle in question was written before the conference, and it was not even mentioned at that time; in point of fact, so far as the appellants are concerned, the testimony shows that neither the attorney nor any of the executors of the Magee estate, other than the writer of the letter, then knew of its existence. As a matter of law, there can be no doubt about the appellants' right to pursue their remedy on the bond (Wolfe's Appeal, 110 Pa. 126, 20 Atl. 410; Lomison v. Faust, 145 Pa. 8, 23 Atl. 377; Mollenauer v. Smith, 51 Pa. Super. Ct. 517, per Rice, J.), and in view of the specific offer made at the bar of the court below, by the attorney of the Magee estate. to surrender the property purchased under foreclosure, upon payment of the mortgage debt with interest, and to "put the thing back into statu quo," so far as possible, we are not impressed with the equity of the position taken by the appellees; but, however that may be, clear error was committed in the ruling that no valid claim could be made upon the bond. The first, second, third, and fourth assignments of error are overruled; the others, including the eighth (so far as it relates to the questions before us), are sustained. The record is remitted to the court below with directions to modify the final decree in accordance with the views here expressed; one half of the costs to be paid by the estate of Ruetschlin and the other half by the estate of Magee. (245 Pa. 418) COX & SONS CO. v. NORTHAMPTON (Supreme Court of Pennsylvania. May 22, 1914.) 1. BILLS AND NOTES (§ 327*)—NOTICE OF INFIRMITY-APPLICATION OF STATUTE-CORPO RATIONS. ELKIN, J. The defense mainly relied on by the appellant corporation is that it was an accommodation indorser on the promissory notes in suit, and that as to a corporation such indorsements are ultra vires acts, and therefore void. It is established as a fact that the plaintiff became the holder of the notes sued on in due course for value before maturity without notice of any infirmity. At the trial plaintiff contended that the notes were indorsed by defendant for its own benefit in the usual course of business and that it was not in any proper legal sense an accommodation indorser. The learned trial judge refused to submit this question to the jury on the evidence, and, the contention of plaintiff having prevailed on other grounds, there was no occasion to assign this ruling for error. We will not discuss it now further than to say that there are doubts in our minds upon this question, and we are not convinced that it should have been withdrawn from the consideration of the jury. [1] The case was submitted to the jury on the theory that the defendant was liable if the plaintiff became the bona fide holder of the notes for value before maturity without Negotiable Instruments Act of May 16, notice of any infirmity, even if it subsequent1901 (P. L. 202) § 56, providing that, to con-ly developed that the indorsements were stitute notice of an infirmity in an instrument, or defect in the title of a person negotiating the same, the person to whom it is negotiated must have had actual notice of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith, applies to corporations as well as natural per sons. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 792; Dec. Dig. § 327.*] 2. BILLS AND NOTES (§ 494*)-COMMERCIAL PAPER OF CORPORATIONS-PRESUMPTION OF VALIDITY. Negotiable paper issued by a corporation having either express or implied power to issue such paper is presumably valid. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 494.*] 3. BILLS AND NOTES (§ 367*)-ACCOMMODATION INDORSEMENTS-LIABILITY. A corporation, having general power to issue negotiable paper and to indorse the same for its own benefit in the course of its business, is liable on its accommodation indorsement, where the paper has passed into the hands of a bona fide holder for value, before maturity, without notice of the character of the indorsement. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 947, 948; Dec. Dig. § 367.*] Appeal from Court of Common Pleas, Northampton County. Assumpsit on promissory notes, by the Cox & Sons Company, against the Northampton Brewing Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. Calvin F. Smith, of Easton, and E. C. Nagle, of Siegfried, for appellant. Robert A. Stotz and William H. Schneller, both of Easton, for appellee. made for accommodation purposes. There is no pretense in the present case that plaintiff had actual knowledge of any infirmity in the notes, and there is no evidence of bad faith in taking the notes. Section 56 of our Negotiable Instruments Act of May 16, 1901 (P. L. 194) provides: "To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith." [2, 3] This law applies to all classes of persons, artificial as well as natural, and must be so regarded. It is argued, however, that the mere fact of the notes having been indorsed by a corporation is sufficient to charge the holder with notice of the irregular indorsement, and to show that failure to make inquiry as to the character of the indorsement amounted to bad faith. With this proposition we do not agree. A corporation having either an express or implied power to issue negotiable paper is presumed to act within the scope of its power; and hence there is a presumption in favor of the validity of negotiable paper issued pursuant to such power. Eaton and Gilbert on Commercial Paper, page 136. It is not deniedthe power to issue negotiable paper, and indeed it could not be that appellant has hence could accept the notes in suit in the course of its business and indorse the same for its own benefit. Therefore there was nothing on the face of the notes, or in the indorsements, to put a third party on notice that the indorsements were irregular, or *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes alleged to have been negligently left by defendant's servants in an open shanty in which the child was playing, evidence held insufficient to go to the jury on the issue of defendant's connection with the dynamite which caused the in [Ed. Note.-For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. § 8.*] Appeal from Court of Common Pleas, Phil. adelphia County. Trespass by Emil Gralka, by his father and next friend, Adolph Gralka, and Adolph Gralka, individually, against Worth Brothers Company, for personal injuries. From judgment for plaintiff, defendant appeals. Reversed. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. John G. Johnson and Henry P. Brown, both of Philadelphia, for appellant. William T. Connor and John R. K. Scott, both of Philadelphia, for appellees. that the notes had not been negotiated in 1914.) BROWN, J. Worth Bros. Company is a corporation owning and operating blast furnaces and rolling mills at Coatesville, this state. On January 18, 1913, several boys went into a shanty owned by the company and found a box of dynamite in it. They took a portion of this up to the side of a hill, where they built a fire, and one of them threw some of the dynamite into it. As a result of the explosion that followed Emil Gralka, one of the boys-then seven years of age-lost an eye. From the judgments recovered by him and his father against the defendant company-found by the jury to have negligently left the dynamite in the shanty-it has appealed. [1] The burden was upon the plaintiff below, who sued for himself and his injured. son, to show by competent testimony that the defendant had been guilty of the negligence with which he charged it. The averment upon which he relied in asking for the recovery of damages was that it had negligently permitted dynamite to be in its shanty on January 18, 1913, and for a long time prior thereto, and that the injuries sustained by his son had resulted from this negligence. The shanty was open and accessible to the boys, and if the dynamite which they found in it had been put or left there by the defendant, or by one of its employés in the course of his employment, or had been allow 1. EXPLOSIVES (§ 8*)-INJURY TO INFANT-ed to remain in the building by the defendBURDEN OF PROOF. In an action for injuries to a seven year old child from the explosion of dynamite, alleged to have been left by defendant's servants in an open shanty in which the child played, the burden was on plaintiff to prove defendant's negligence. [Ed. Note. For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. § 8.*] 2. EXPLOSIVES (§ 8*)-INJURY TO INFANT DIRECTION OF VERDICT. Where, in an action for injuries to a seven year old child from the explosion of dynamite, ant after knowledge that it was there, the charge of negligence would have been sufficiently proved. In passing upon the contention of learned counsel for appellant that a verdict ought to have been directed in its favor, the first inquiry must be as to the sufficiency of the proof submitted by the plaintiff in support of his averment of the negligence of the defendant, without regard to what it may have shown by way of defense. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No: Series & Rep'r Indexes |