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five-twelfths, and each sister to the undivid- and its constitutionality was upheld. Thomped one-twelfth, of the property for life. In son, J., delivering the opinion, says: “The July, 1903, the two brothers and their chil- objection that all the parties interested imdren, who were all of age, applied to the mediately or remotely are sui juris, and are orphans' court for an order to sell the real not to have their interests divested without estate at private sale under the act of April their consent, and hinted at in the argument, 18, 1853 (P. L. 503), setting forth in the pe- has also been considered. The act of 1853 is tition sufficient reasons for a private sale a general law, operating on all cases alike, and the necessary jurisdictional facts, aver- is intended as a rule of property, and is unring therein that, under the will of the tes- like the case of Ervine's Appeal, 16 Pa. 256, tatrix, "contingent remainders and executory 55 Am. Dec. 499, which exposed a legislative devises are limited upon said land, and that attempt to make a rule in a special case after it is the intention and purpose to bar and de- rights had become vested under existing feat the same and any entailment of said laws. I think it was well decided that such a land, and the right of the commonwealth to divestiture of title was not by due process have inquisition for forfeiture of the same.” of law.' Here, however, the property in quesThe two sisters and their children, who were tion became vested under a rule of law proall of age except one, who appeared by guard mulgated in the statute, by which it and ian, resisted the application on two grounds: property similarly situated might be divest(a) That the sale as prayed for would not be ed, and there is nothing contrary either to to the interests of the parties; and (b) that natural justice or to constitutional right to the court had no jurisdiction to order the allow the act so to operate where the fund is sale of the real estate against their will. A substituted for the estate, or so much as may decree was made by the court below that the remain after the necessary application to the trustee make private sale of the premises for relief of the estate or the benefit of those inthe price and upon the terms set forth in the terested in other portions of it. It unfetters petition, “freed from any contingent remain- the realty from diversity of titles and conder or executory devise limited thereon and tingent interests, secures to the purchasers entailment thereof." The two sisters, life clear titles, and to parties interested the valtenants, have taken this appeal.

ue of their interests. This objection is not The learned counsel for the appellants in in the way of the order of sale." Again, in their argument have presented for considera- the more recent case of Freeman's Estate, tion two questions: (1) Does the power exist 181 Pa. 405, 37 Atl. 591, 59 Am. St. Rep. 659, in the Legislature to pass any act authoriz- the validity of the act was discussed and susing the court to decree a sale of real estate tained. Our Brother Mitchell, delivering the against the objections of some of the living opinion, says: “The constitutional objections owners who are sui juris? And (2) would to this statute raised by the appellants are the proposed sale be for the best interests of not tenable. As applied to the case, the the parties? In their printed argument the statute is not the divesting of estates of parcounsel say: “The real question, however, ties sui juris without their consent, but the is not whether the decree of the court ap- regulation of joint rights where the joint pealed from could be sustained under the owners cannot agree in the control and disact of 1853, but whether there exists power position of the property. It defeats or interin the Legislature to pass any act author- feres with the individual rights of property izing the court to decree a sale against the no differently and no further than any other objections of some of the living owners." mode of changing their rights to severalty

1. This application was made under the or regulating the management until that is act of April 18, 1853 (P. L. 503), commonly done. The right of a joint owner is to an known as the “Price Act.” The constitu- undivided interest in every portion of the tionality of this statute is attacked by the joint property, but this right is accompanied appellants, and the power of the Legislature with the ancient incident of partition. Each to enact it is denied. The question, how- owner has the right to enlarge his estate to ever, has been settled by this court, and the severalty, though in so doing he must reduce reasons assigned in the opinions are amply its corpus so that the other owners may also sufficient to sustain the conclusion. We need have the like privilege. The mode of doing not, therefore, enter into a discussion to sus- this has always been within legislative contain the validity of the legislation. The argu- trol, and this statute does no more." ment of the learned counsel has not con- In 1896 we held in Keller v. Lees, 176 Pa. vinced us that we should overrule our deci- 402, 35 Atl. 197, that the orphans' court, unsions and sustain their contention. Grena- der the Price act, could not decree a sale of walt's Appeal, 37 Pa. 95, was an application the estate of possible after-born children to the orphans' court under the Price act for where the remainder has become vested by an order to sell the real estate of a testator. the birth of children, but is liable to open and The clause of the act authorizing a sale let in after-born children. The Legislature whenever real estate shall be entailed or con- at its next session in the following year, evitingent remainders or executory devises shall dently to meet this decision, and to further be limited thereon was under consideration. "unfetter realty from diversity of titles and The validity of the act was directly involved, contingent interests,” made provision for such a contingency by the act of the 14th of

(207 Pa. 562) June, 1897 (P. L. 144), which amended the MCKNIGHT et al. . NEWELL second section of the act of 1853 so as to au

(Supreme Court of Pennsylvania. Jan. 4, thorize the sale of real estate "whenever real

1904.) estate shall be entailed, or contingent remain- DOCUMENTARY EVIDENCE BOOK OF ACders, or executory devises, or vested re


LESS ERROR-ASSIGNMENT OF ERROR. mainders, which are liable to open and let in after-born children shall be limited thereon."

1. Where, in assumpsit by a firm, plaintiff in

troduces a book which was not one of the regu2. We are satisfied that this sale will be lar books of the firm, but contained only the for the best interests of all the parties. The account with defendant, in which the entries three learned judges of the court below, who

were not made contemporaneously with the

work done, it was inadmissible as a book of are familiar with the property and with val- original entries. ues in that locality, and who heard the tes- 2. Where, in assumpsit for work done, detimony of the witnesses, have, after full con- fendant pleads overpayment, and the amount sideration, determined that it is to the best

paid is not disputed, the burden is on plaintiff

to show what work was done. interests of all parties concerned that the 3. A refusal to strike out an answer to a sale should be consummated at the price of- question not in accordance wi the rulings of fered. The appellants here are life tenants,

the court is harmless error where it is evident and it is conceded by their counsel that the

that it, with other testimony, would not have

prejudiced the objecting party. proposed sale will largely increase their rev- 4. An assignment of error to the exclusion of enues for the time being. It is contended, certain writings, where the full copies of the

writings rejected are not printed in a paper however, that the value of the property will

book as required by rule 31, will not be considcontinue to advance, that its revenues will ered. increase, and that when the remaindermen

Appeal from Court of Common Pleas, Alcome into possession of it "they will find an

legheny County. estate greatly enhanced in value ready for

Action by Frank McKnight and William them.” That may be true, but, at the same

Victory against John Newell. Judgment for time, such a result is merely speculative. On

defendant, and plaintiffs appeal. Affirmed. the other hand, the evidence discloses the fact that not only is the present income from

When the defendant was on the stand, he the property about $10,000 less than will be was asked this question: "Q. Have you realized from the income from the proceeds any idea, beginning in 1891, and running of a sale, but that to maintain the present

down to 1894, what repairs, if any, were net income received by the life tenants the

done to that bar by McKnight & Victory? whole of the property must be kept rented, A. The amount-what it would cost? Q. and the taxes must be levied on the present Well, the amount, if you can tell us, or in assessment, which is less than one-half of detail as far as you can tell us anything the price the purchaser is to pay for it. Busi- about it? Mr. Ritchey: That is, just what ness experience teaches that the continuance you know from your own knowledge. A. of either or both of these conditions is most Well, just to guess at it, I don't know uncertain. If the property should lack ten- from my own knowledge, nor nobody else ants or rents be diminished, and the assessor can. Mr. Ritchey: This is objected to, then. should comply with his official oath and as- Mr. Ferguson: Q. You were about all the sess the real estate at the rate which he time, weren't you? (Objected to.) Mr. "sball, after due examination and considera- Ritchey: Q. Can you give anything better tion, believe the same would sell for,” the than a guess? A. I could give a pretty fair consequences to all the interested parties, in idea. Q. Would it be simply a guess, as you view of the very large mortgage against the

stated ? A. Yes; it would have to be a guess, property, would be disastrous. One witness

as I didn't mark it down, but I am a pretty who is familiar with present financial condi

good guesser. Mr. Ferguson: Q. What do tions in Pittsburg, and whose knowledge of you mean by 'a guess'? Mr. Ritchey: This is the property and its revenues enable him to objected to. The Court: If Mr. Newell will speak with accuracy, says: “If this present state to the best of his recollection what MCinflated condition cease, and the income stop, Knight & Victory did in the way of repairs that property would be in jeopardy.

to the bar, or additions made to the bar, he With a number of the owners, life tenants and may then state what, in his opinion, those remaindermen, who could not protect their in- were worth, without merely lumping it as terests, it was a very serious question to a whole. He ought to go into some details. have an incumbrance of this size against this A. I have figured it up since this case was property if the property fluctuates and the on-Miss Pfordt and I valued it-about $500. income is affected." These hazardous condi- All the work they did around the bar and tions may prevail at any time, and imperil cellar for me, and give them the benefit too the interests of life tenant and remainder- a good price. Mr. Ritchey: We object to man alike. Under all the circumstances, we that answer of the witness for the reason are convinced that the best interests of the that he has not shown sufficient knowledge parties will be served by a sale of the prop- of this work to enable him to put any reaerty at the price offered by the purchaser. sonable or fair value upon it—this work beThe decree is affirmed

ing the work that we have sued for in this case, as applied to this bar, the items to which judgment was entered for $2,463.30; which the witness is testifying; and I.move all above that amount having been remitted. to strike out that answer of the witness' esti- Argued before MITCHELL, C. J., and mate based upon a guess, as stated by him. DEAN, FELL, BROWN, MESTREZAT, and (Objection overruled, motion refused, and POTTER, JJ. bill sealed for plaintiffs.) Mr. Ritchey: I offer in evidence the slips produced by plaintiffs,

David S. McCann and J. L. Ritchey for and testified to as being the slips of the

appellants. J. S. Ferguson, E. G. Ferguson,

and William Hunter, for appellee. workmen for work and material done on this account. (Objected to as incompetent and irrelevant. Objections sustained, and POTTER, J. In the spring of 1891 the debill sealed for plaintiffs.)"

fendant purchased property upon Fifth ave. Defendant presented these points: "That nue, in the city of Pittsburg, and proceeded the plaintiffs' Exhibit No. 1 is not a book to enlarge and reconstruct the buildings upon of original entries, and is not entitled to be the lot to fit the premises for use as a hotel. considered in any way whatsoever by the According to his testimony, Mr. Newell gave jury as tending to establish the claim of the the entire contract for the work to the firm plaintiffs, or any portion thereof. Answer. of Vurphy & Hamilton. They did the car. That is affirmed, with this qualification: pentry work themselves, and sublet the other The book in itself does not tend to establish portions of the work to other persons. The defendant's liability, and is only to be con- plumbing for the building was sublet to the sidered by the jury in conjunction with the plaintiffs in this case, and they admit that testimony of McKnight & Victory."

they have received payment in full from The court charged in part as follows: "To Murphy & Hamilton for all work done for assist you in determining whether or not the them; but they allege that, in addition to defendant is indebted to the plaintiffs, we the work done for Murphy & Hamilton, they have admitted in evidence a book which the did a large amount of work for Mr. Newell, plaintiffs claim is a book of original entries. the defendant, and it is for that they seek to We are of the opinion that that is not, prop- recover in this suit. The defendant denies erly speaking, a book of original entries; that the plaintiffs did any work directly for that is a mere memorandum, and not a book him for which they have not been fully paid, of original entries. A book of original en- and more than paid. He alleges that he paid tries is a book in which a merchant keeps the plaintiffs a large sum of money under the his accounts generally, and enters therein mistaken impression that it was to be applied from day to day a record of his transac- upon the amount due from him to his general tions. In a book of that kind, when pre- contractors, Murphy & Hamilton, and for sented to the jury, the jury can see under that he claims a certificate in his favor. The each date the amount of sales made to cus- course of dealing between Murphy & Hamiltomers. The presumption is that a book so ton and the plaintiffs was somewhat complikept is a correct record. The presumption is cated. Several different contracts that a business man keeps his account cor- made, which aggregated about $8,000. Then rectly, and, where the charges are made from the defendant, Newell, made two contracts day to day, and courts receive books so kept with the plaintiffs for electric light fixtures in evidence, they are strongly persuasive evi- and dining room fixtures, amounting to some dence, at least, of the correctness of the ac- $2,200, for which it is alleged he paid in full. count. This book Exhibit No. 1 is not kept All the conflicting claims of the parties to in that way. It is a book in which alone are this litigation were very carefully submitted entered the items claimed to be chargeable to the jury by the trial judge, and the result to the Newell Hotel improvement. It con- was a verdict which sustained the claims of tains no other entries, and we admit it only the defendant. in connection with the testimony of Mc- At the trial the plaintiffs offered an acKnight & Victory. You, gentlemen, may ex- count book purporting to be a book of origiamine it, and, in connection with their testi- nal entries. This book was identified as Exmony, give it such credit as you think it is hibit No. 1. The first, second, and third asentitled to receive. The book of itself proves signments of error raised the question that, nothing, but, in conjunction with the testimo- this book having been admitted in evidence, ny of Mr. McKnight and Mr. Victory, it may its effect should not have been limited, as assist you in arriving at a verdict. If it it was, to that of mere memoranda, to be were a regular book of original entries, it used only in connection with the oral testiwould be entitled to receive more credit. Mr. mony of witnesses. In the charge the court Ritchey: I think your honor should state to said that the book lacked the essentials of a the jury that the burden is upon the defense book of original entries, and could not be to show the items claimed for in this suit considered as such. But the jury were told were in any of the other contracts. The that they might examine it, and, in connecCourt: No; the burden is on the plaintiffs. tion with the testimony of witnesses, give it They must make out their case, and show such credit as they might think it was entheir right to recover."

titled to receive. We find from the testiCertificate for defendant, for $5,530, upon mony that when the book was first offered


in evidence, the court did not pass definitely court is not likely to have affected the jury; upon the question, but, against defendant's but, if so, it was substantially correct. It is objection, permitted it to be offered under a undoubtedly true that the burden of proof is claim only that it was a book of original en- upon a defendant alleging a set-off or country. The attitude of the court appears from terelaim. In the present case, however, there the ruling made upon the evidence of one of was no dispute whatever as to the amount the plaintiffs. He said: “Mr. Victory may of money paid by the defendant to plaintiffs, testify to anything he recalls having been The only question was as to the work done furnished there, and may use the book Ex- by plaintiffs outside the contracts with Murhibit No. 1 as a means of refreshing his mem- phy & Hamilton. The burden of proof as to ory, if he knows it to be correct. We will this work was certainly upon the plaintiffs. permit him to testify to any items that he If they failed to show that they had percan personally recall having been put into formed as much work directly for the dethe building-for any work that he personal- fendant as would cover his payments, then ly recalls having been done." Under this the right to recover the amount overpaid permission, Mr. Victory and Mr. McKnight was established without the necessity of furboth testified. We do not see that the court ther proof. If there had been any dispute below went any farther than this, and, when as to the total sum paid by defendant, then the book itself was offered and admitted in the burden would have rested on him to esevidence, it may fairly be regarded as for tablish his payments. But the payments he the same purpose as, and nothing more than, claimed to have made were all admitted. that for which the witnesses for the plain- The sixth assignment alleges error in the tiffs had been permitted to use it in tes- refusal to strike out the answer of a witness tifying. While the plaintiffs offered the book based upon a guess. The answer does not in evidence "for the purpose of proving seem to have been made in accordance with the sale and delivery and the price of the the ruling of the court. The witness adgoods," they did not rely upon it to prove mitted that any opinion he expressed as to these facts, but subsequently offered a large the work done and its value would be no amount of other testimony to establish the more than a guess. He was not shown to performance of the work and its value. The have any expert knowledge of the subject, detailed character of the oral testimony, and and the value he testified to was not his own the minute manner in which the items of the individual opinion, but the result of joint claims were set forth and described by the figuring by himself and his bookkeeper. It witnesses, make it apparent that the plain- would seem that the answer should have tiffs depended by no means solely upon the been stricken out. But it appears that, while effect of the account book. The further fact, the estimate was a guess in so far as any detoo. that the book was sent out with the tails were concerned, yet it was made so jury, and examined fully by them, would high, based upon his knowledge of the outseem to bave given the plaintiffs every ad- side limit of what the cost could have been, vantage to which they were properly entitled that the testimony could not have barmed in any aspect of the question. We are not the plaintiffs. The testimony of another witconvinced that any injustice was done to the ness, who had knowledge of the details, fixed plaintiffs by the rulings of the trial judge as the value of the work done and materials set forth in the first three specifications of furnished by the plaintiffs for that specific error. The book was clearly inadmissible as portion of tbe work at figures far below that a book of original entries. It was not one of the witness to whose testimony exception of the regular books of the firm. It con- is taken. The evidence of which complaint tained only the accounts with defendant, and is made in the assignment appears by comthe entries were not made contemporaneous- parison to be highly favorable to the plainly with the doing of the work. Many of the tiffs. It does not seem, therefore, that this entries were also lumping charges, and there- evidence could have harmed the plaintiffs in fore inadmissible. Corr v. Sellers, 100 Pa. any way, and the refusal to strike it out is 169, 45 Am. Rep. 370. If any mistake was not reversible error. made in the admission of the book when The seventh assignment of error is in disoffered, it was at the instance of the plain- regard of rule 31, in that full copies of the tiffs, and against the objection of the defend. writings rejected as evidence are not printed ant. The plaintiffs cannot now complain of in the paper book. They seem to have conan error induced by themselves, nor can they sisted of slips of paper containing memoproperly object to the position taken by the randa made by the workmen. There was no court in that portion of the charge which lim- evidence as to when or by whom the slips ited the effect of the book as evidence.

were made. It merely appeared that they As to the fourth and fifth assignments of were handed in by the men employed by error: The plaintiffs presented no points re- plaintiffs. They were found by plaintiffs questing instructions as to the alleged set- during the trial in an old barrel in their shed. off, except the verbal request which is cov. The persons who wrote them were not called, ered by the fourth assignment. This request and their handwriting was not identified. was made by counsel after the charge had The assignments of error are all overruled, been delivered, and the reply made by the and the judgment is affirmed.

(207 Pa. 585)

have frequently said, counsel violate the GERWIG v. W. J. JOHNSTON CO.

rules of the court at their peril, which, it may (Supreme Court of Pennsylvania. Jan, 4,

be added, includes responsibility to their cli1904.)


We are clearly of opinion that the other INJURY TO GOODS-DAMAGES.

specifications of error are without merit If 1. An assignment of error to rulings on evi

the jury believed the testimony introduced on dence will not be reviewed where it fails to comply with Supreme Court rule 31, in not set

the part of the plaintiff, corroborated in some ting forth the names of the witnesses, or the respects by the defendant's evidence, they pages of the paper book where the testimony were fully justified in finding that the neg. could be found.

ligence of the defendant company's servants 2. In trespass to recover for injuries to goods by intentionally causing overflow of water and

caused the injurious floods to flow to the grease over plaintiff's premises, evidence re- plaintiff's premises, and that their action in viewed, and held to sustain judgment for plain- so doing was willful, and with a reckless distiff for the amount of the loss and for punitive regard to the plaintiff's rights. The first and damages.

one of the large floods was in February ór Appeal from Court of Common Pleas, Al

March, 1901; and at frequent intervals in legheny County.

the succeeding months, until plaintiff was Action by A. H. Gerwig against the W. J.

compelled to abandon the premises, in the Johnston Company. Judgment for plaintiff, / following December, the water, in small or and defendant appeals. Affirmed.

large quantities, flowed from the fifth floor, Argued before MITCHELL, C. J., and occupied and used by the defendant compaDEAN, FELL, BROWN, and MESTREZAT,

ny, to the fourth floor of the building on JJ.

which the plaintiff carried on his jewelry H. L. Castle, for appellant. G. K. Wright

business. This water was polluted with dirt, and A. H. Mercer, for appellee.

grease, and oil-principally the refuse from

the polishing material used in the defendMESTREZAT, J. Rule 31 of this court , ant's business, but partly from the washing

rides, inter alia, that, when error is as. of the hands and of the clothes of the defendsigned to the admission of evidence, the speci. ant's employés. The flooding of the plainfication must quote the offer and the testimo. 1 tiff's premises was caused by the overflow of ny admitted, “together with a reference to the barrels placed under the sinks, and this the page of the paper book where the matter was occasioned by the dirt, oil, and grease may be found in its regular order in the 1 clogging the pipe connecting the barrels, and printed evidence or notes of trial,

leading from them into the drainage or sewer Any assignment of error not according to pipe. The polishing material was of a sticky, this and the last rule will be disregarded." oily substance, and that, with the grease The fourth specification alleges error “in ad- and dirt washed from the hands and clothes initting the following testimony set out on of the employés, went to the bottom of the page in the appendix,” without giving | barrels; and, as soon as a sufficient quantity the name of the witness, or the page where had accumulated there to reach the mouth the testimony may be found in the appendix. of the pipe, which was near the bottom of The fifth assignment alleges that the court the first barrel, it was carried into the pipe, below erręd “in admitting the testimony un- and clogged it, resulting in the overflow of der the following offer made by counsel for the water in the barrel. It appears from the the plaintiff, upon page

of the appen

defendant's testimony that the barrels were dix," which likewise neglects to give the not cleaned once in six months. The necesname of the witness, and the page of the sary result of permitting this material to acpaper book where the testimony may be cumulate in the bottom of the barrel was to found. Both of these assignments are in stop the pipe, and cause the barrel to overclear violation of the rule, and must there. flow, and its contents to be carried to the fore be disregarded. Blank paging is no fourth floor, where, if the testimony is bepaging, and fails to give the information lieved, it not only injured the rooms occupied which the rule specifically provides shall be by the plaintiff, but his goods, as well, to the given. The consideration of alleged error in extent even of compelling him to abandon the admission of testimony requires us to ex- the premises. Both the cause and the effect amine the testimony in the record, and fre- of the flooding of the plaintiff's rooms were quently in connection with the other testi- apparent to the defendant company's servmony of the witness. Hence the specification ants. Whether their conduct, under the cirshould name the witness, and give a refer- cumstances, was negligent, was clearly for ence to the page of the paper book where the the jury, and the question was properly subtestimony may be found. The members of mitted by the tria judge in the following this court should not be expected to relieve portion of the charge: "He (the plaintiff] counsel from the performance of their duty must show not merely that water from above in this respect by searching the appendix for came down upon his premises, but that it the objectionable offer or testimony, and es- came from defendant's premises, and from pecially when, as here, the appendix contains causes within the control of the defendant's over 300 pages of printed matter. As we

agents, and that, from want of reasonable

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