filed an answer, in which, after reserving "all exceptions heretofore filed in this cause as to the order of service, manner of service, and return of service," he set up various defenses to the plaintiff's bill. He denied that the bonds had been delivered to him for safekeeping, or for any other purpose, or were to be returned to the plaintiff; that any money passed into his hands from the plaintiff for investment in securities, or for any purpose whatever, for the plaintiff; or "that any bonds, cash, or other securities belonging to the plaintiff are now, or have at any time been, secreted or hidden away from said plaintiff by said defendant, as averred in said bill." The answer then admits that respondent has in his possession the bonds, the money representing the matured coupons cut therefrom, and $40,000, or the securities in which it had been invested; but avers that "he received them from one William R. Byers, of East Huntington township, Westmoreland county, to hold for him, subject to his direction and control," and that the said William R. Byers was the owner at the time of such deposit, and still remains the owner, of the money and the bonds. Subsequently William R. Byers was, on his own application and by permission of the court, allowed to intervene as a defendant, and filed an answer. He reserved the benefit of the exceptions to the service filed by William S. Byers, denied the jurisdiction of the court, and further denied that the plaintiff was the owner of the money and the bonds with their coupons set forth in the bill, and averred that said bonds and coupons had been presented to him by plaintiff as a gift, "to have and to hold as the property of this respondent." On the issue thus raised the learned trial judge found in favor of the plaintiff, and entered a decree that William S. Byers and William R. Byers surrender and deliver to the plaintiff the bonds and other securities named in the bill, and account to him for the residue of the $40,000 not converted into securities. From this decree we now have this appeal.

On the vital question in the case-the ownership of the property in controversy-the trial judge, sitting as a chancellor, after a full consideration of the voluminous testimony presented for his consideration, has found against the claim of the appellants and in favor of the appellee. To justify us in reversing the finding of a chancellor on a question of fact, as we have often said, clear and plain error must be pointed out. It is not sufficient that our conclusion would be different on the testimony brought up on the record. If the finding is warranted by evidence, and is not clearly erroneous, we will not disturb it. Here the credibility of the witnesses is of more than usual importance in ascertaining the facts, and for obvious reasons the trial judge was in a better position to determine it than we are. After an examination of the testimony, we see no

sufficient reason for interfering with the finding that the plaintiff is the owner of the property in dispute.

It is contended by the appellants that the court below was without authority to hear and determine the cause, inasmuch as it had jurisdiction neither of the subject-matter nor of the persons of the defendants. It is conceded that the appellants have never been residents of Allegheny county, and it is claimed by them that the provisions of the act of April 6, 1859 (P. L. 387), providing for service of process on nonresident defendants in certain cases in equity, were not complied with; and some of the members of this court, including the writer, incline to that opinion. But we need not and do not decide the question, as we are clearly of the opinion that the appellants are now precluded from raising it by the answers they filed in the case. The defendant may attack the jurisdiction of the court which has summoned him to appear before it; and, if he does so successfully, that relieves him from a contest in that court on the merits of the controversy. For this purpose it is the usual practice to enter a conditional appearance. The case is then proceeded with until the question of jurisdiction is disposed of. But the defendant must confine himself in his pleadings strictly to this issue. Jeannette Borough v. Roehme, 197 Pa. 230, 47 Atl. 283. If he, in addition to his plea to the jurisdiction, set up a defense on the merits of the cause, he submits himself to the jurisdiction of the court, and must abide by its judgment on both issues. He will not be permitted to avail himself of an opportunity to obtain a favorable decision on the merits, and at the same time contest the authority of the court to hear the cause. The filing of a plea averring a meritorious defense is equivalent to a general appearance, and thereafter the defendant will be regarded as having submitted himself to the jurisdiction of the tribunal in which the cause is pending. In the present case, as we have seen, William S. Byers entered a conditional appearance. He then moved to set aside the service of the bill on him, as well as the order of the court authorizing the service, for the reason that the court had no jurisdiction of the subjectmatter or of his person, and that the service of the bill, being without the jurisdiction, was irregular and illegal, and not in conformity with the act of April 6, 1859, authorizing service of process upon nonresident defendants. After this motion had been denied, and a subsequent demurrer had been overruled, the appellants filed separate answers, reiterating their denial of the jurisdiction of the court. Had the pleadings stopped here, and had the judgment we are now reviewing been against the appellants on that issue, they could now assert the lack of jurisdiction of the court to hear and determine the cause. But their answers went beyond a denial of the authority of the court to determine the rights of the parties to the matter in controversy, and aver

red matters which, if found to be true, would have been a complete defense to the plaintiff's cause of action as set forth in his bill. The answers in substance aver specifically that the bonds and money alleged in the bill to belong to the plaintiff, and which he here seeks to recover, were not his property, but are the property of William R. Byers, one of the appellants, and that therefore the plaintiff has no right to the possession of them. The title to the property was the vital question in the case, and was thus put in issue by the answers of the appellants. The bill averred it to be in the plaintiff, and the answers averred it to be in one of the appellants. They are therefore not now in a position to attack the validity of the judgment on the ground that the court rendering it was without jurisdiction of their persons.

Having determined that the appellants had, by their answers, submitted themselves to the jurisdiction of the court, the other questions raised on the record become immaterial, and need not be considered.

The decree is affirmed.

(207 Pa. 592)

MAGUIRE et al. v. JOHNSTON et al. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

BREACH OF CONTRACT-ACTION-NONSUIT. 1. Plaintiffs brought assumpsit for breach of a contract by which two of the defendants were to buy a railroad if the holder of its bonds-a trust company-should buy at a receiver's sale. Plaintiffs were to bring about the decree of sale, and defendants were to pay the price, and were to form a corporation to take title; the bonds and stock of the new corporation to be divided among the parties.. After a purchase of the road by the trust company, one of the plaintiffs informed such company of an intent of one of the defendants to cheapen the road, so as to induce the trust company to sell at a lower price, whereupon the trust company refused to have any further dealings with plaintiffs and defendants. Held, that a nonsuit was properly entered.

Appeal from Court of Common Pleas, Allegheny County.

Action by Edward J. Maguire and others against William D. Johnston and others. From an order refusing to take off a nonsuit, plaintiffs appeal. Affirmed.

The following is the opinion of the court below (McFarlane, J.):

"On this motion, we treat the evidence of the plaintiff as sufficient proof of the facts, and we have substantially the following situation: The plaintiffs, Maguire, Graver, and Hopkins, claim damages from the defendants William D. Johnston and Thomas A. Watkins for breach of a written joint contract between the five parties dated October 25, 1900. The agreement recites that the Morton Trust Company, of New York, is the owner of $125,000 defaulted bonds of the Salem Railroad; that Watkins and Johnston are willing to

1. See Contracts, vol. 11, Cent. Dig. § 1431.

guaranty the payment of $125,000 to the trust company on the condition that it foreclose the bonds and purchase the railroad, and within days sell and transfer the same to the Salem & Ohio Railroad Company, a corporation to be hereafter created under the laws of Ohio; that Johnston and Watkins will pay to the Morton Trust Company within days after acquiring title

by the trust company the sum of $125,000; that Graver, Hopkins, and Maguire agree to organize the new railroad company, with a capital of $240,000, to be called the Salem & Ohio Railroad Company, immediately after the trust company has acquired the title to the Salem Road; second, that the new company issue $165,000 of bonds, and to transfer them to Johnston and Watkins in full settlement of their payment, and to issue $240,000 stock to be divided among the five in designated proportion. All agree to work in concert to the end of acquiring title to the road on this basis. The contract then contains this important provision: 'It is understood, however, that in the event the Morton Trust Company fails to sell said railroad and convey title as aforesaid, this contract is to be null and void, otherwise to remain in full force and effect.' A part of the statement of claim offered in evidence states a part of the agreement of the parties. It is that the plaintiffs agree to procure the persons who had made defense to the suit to foreclose the bonds to withdraw their defense, or to permit the same to be adjudicated in favor of the plaintiff therein; to procure the trust company to push the suit to a conclusion; to buy it in at the sale, and to sell the same immediately thereafter to the defendants for $125,000; and the defendants Johnston and Watkins agree to join in the formation of the new railroad company; to procure the new company to purchase the railroad from the defendants for $165,000, bonds of the company; and, in consideration of the services of the plaintiffs, to transfer to them $170,000 of the stock. The city of Salem, Ohio, constructed the railroad referred to, and issued $125,000 of bonds, which were a lien upon the road. The bonds were in default, and proceedings in foreclosure were begun by the State Trust Company, the holder. The city of Salem was made a defendant, and filed a demurrer. receiver was appointed, who took charge of the road, and managed it down to the time of the public sale. Andrew Hopkins, one of the plaintiffs in this case, entered into negotiations with Walter S. Johnston, then the vice president of the State Trust Company, and afterwards a director of the Morton Trust Company, and Mr. Johnston said that his company would be willing to sell the road for $125,000, if it should become the purchaser; and a paper was prepared, in the form of an agreement, which was never executed, for Mr. Hopkins' use, showing the terms on which the company would be will

A

Hopkins had sent him, or caused to be sent him, after March 1, 1901. On April 12, 1901, Walter S. Johnston assigned his bid to another person, and, as we recall the evidence, at a better price than $125,000. Evidence was taken as to the value of the road, although we were and are still of the opinion that the damages thus sought to be establish

as may be designated by him, for the sum of $125,000; the purchasers to co-operate with the trust company in facilitating the entry of a decree and sale of the road. Soon after the execution of the contract in suit, Hopkins, Watkins, and Johnston went to New York, and had an interview with Walter S. Johnston, then a director of the Morton Trust Company, with which the State Trust Company had merged, and which had become the holder of the bonds; and they were assured by Mr. Johnston that his company would sell the road, as it desired only to recover what it had invested, with expensesin all, amounting to about $115,000. On November 10, 1901, the defendants notified the plaintiffs that they canceled the contract. The plaintiffs refused to accede to this, and notified the defendants that they would hold them to performance. The plaintiffs, or some of them, were of assistance in obtain. ing a withdrawal of the defense of the city of Salem, a decree was entered, and the rail. road was sold on March 1, 1901, at public sale, to Walter S. Johnston, presumably for the Morton Trust Company. Immediately after the road was 'bid in' by Walter S. Johnston, he told Hopkins that he was now ready to carry out the arrangement. After the notice of November 10th, the defendants told Hopkins that the attempted cancellation did not apply to him; that they intended to buy the road for a lower price, and would give him an interest in the matter. Shortly be fore the sale on March 1st, W. D. Johnston, one of the defendants, suggested to Hopkins that he procure the manager of the road to secure the breaking down of an engine on the occasion of a contemplated trip over the road by Walter S. Johnston, so as to delay him and disgust him with the property, and induce him to sell it at a lower price; and about the same time W. D. Johnston wrote to the manager, making the same suggestion. After the sale on March 1st, no steps were taken by any one towards the formation of the corporation contemplated in the contract of October 25th, and no tender of the $125,000 was made by the defendants, but they made some effort to see Walter S. Johnston in regard to the purchase; and finally Mr. Watkins wrote, asking him why he did not answer his letters-that they were ready to purchase the road for $115,000, and did not like such treatment-whereupon he was in. formed by Walter S. Johnston that he would not have any further dealings with him or the other defendant, and assigned as a reason the letter to the manager of the road which 57 A.-5

measure; and evidence was given by Hopkins as to his expenses and the value of his time. We have not been furnished with the report of the testimony, but the foregoing is, we believe, a correct statement of the main facts, gathered from a great mass of evidence.

"This is a case where five men agree with each other to buy a railroad, if the holder of the bonds should buy it at receiver's sale and then sell it to them; all to work in concert to that end; the plaintiff to facilitate a decree of sale, and the defendants to pay the purchase money; the title to be put in a new corporation, the bonds and stock of which were to be divided among the parties. No binding agreement was ever made with the holder of the bonds either before or after it became the owner of the road. Assuming that Walter S. Johnston had full authority to represent the trust company, we have the same situation. The contract provided that, if the trust company failed to convey, the agreement became void, and in fact the company did fail to convey. The only grounds upon which the plaintiffs could be entitled to recover are, first, that defendants broke the contract by the notice of November 10th, and, persisting in their refusal to perform, are liable for their breach; and, second, that their misconduct, or, rather, that of one of them, caused the failure of the scheme.

"First. The plaintiffs having refused to accept the defendant's notice of intended breach, the contract was kept alive for the benefit of all parties. Zuck v. McClure, 98 Pa. 541. The fact that the notice was not withdrawn is evidence of a continued intention to refuse performance. Zuck v. McClure, supra. The plaintiffs were bound to perform their part of the contract, which was to create a corporation immediately after March 1, 1901; all the parties acting in concert. They did nothing but watch the movements of the defendants. The arrangement with Walter S. Johnston, as evidenced by the preliminary paper, was that he would sell the road to these parties within sixty days after March 1st. Before the expiration of that time he refused to have any dealings with the plaintiffs, and sold the road to another. To provide against such an event, the provision was inserted in the contract that the failure of the trust company to convey the road ended all liability of the parties. The defendants had sixty days to perform, and we cannot hold them liable because they failed to perform before the full expiration of that period, especially when Walter S. Johnston put it out

of his power to make a conveyance or to assign his bid to them or the proposed corporation.

"Second. The defendant Watkins had nothing to do with the suggestion of Johnston about the scheme to disgust the trust company with the road. These people occupied no relation of confidence to that company. There was nothing criminal in an attempt to buy the property at a lower figure, and not even a breach of faith with the company. The proposed trick is open to criticism, but it was in no way Mr. Hopkins' duty to disclose it to Walter S. Johnston, especially after the time had gone by when it was proposed to put it into effect. If the purchase fell through on this account, it was through Mr. Hopkins' own act. It may be that it was from a sense of duty that he communicated the facts to Mr. Johnston, but, if the result was disastrous to his project, he can blame only himself. We do not, however, base our conclusion on this ground alone. Had there been a binding agreement with the trust company, no such excuse would have availed it; but, in its absence, the mere fact that its officer assigned as a reason for not selling that he would not do business with such people, on account of a proposed scheme to which he objected, is not sufficient to support a verdict. Watkins is clearly not to blame, and a joint verdict on this second ground would be an injustice to him, and the defendants cannot be here separated.

"Other questions have been raised by counsel for defendants, which we do not think it necessary to discuss. The motion to take off the nonsuit must be refused."

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

Henry A. Davis and William Galbraith, for appellants. George R. Wallace and R. B. Ivory, for appellees.

PER CURIAM. This judgment is affirmed on the opinion of the learned judge below, refusing to take off the nonsuit.

(208 Pa. 50)

KOSSLER et al. v. PITTSBURG, C., C. & ST. L. RY. CO.

(Supreme Court of Pennsylvania. Jan. 4, 1904.) CONDEMNATION PROCEEDINGS-AWARD-EVIDENCE OF VALUE-DAMAGES.

1. In proceedings to assess damages for condemning certain ground, the value of a saltwater well on the premises is to be considered, but such value is to be determined not by the profits in operating the same, but from its selling value.

2. In condemnation proceedings the jury cannot allow damages for distinct items, and reach the total amount by adding them together.

3. In the assessment of damages for right of way over one of two lots, which, though adjoining, were separated by a stream, with such steep banks as to allow passage over it only by a bridge, which had not been built, where

there was evidence that the smaller tract, which was not touched, had been purchased to afford access by means of a bridge to the other lot, it was error to charge the jury as a matter of law to consider the two lots as a whole in assessing the damage.

Appeal from Court of Common Pleas, Allegheny County.

Action by William Kossler and others against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

From the record it appeared that the plaintiffs were owners of two adjoining tracts of land in the Thirty-Fourth Ward of the city of Pittsburg. The right of way of the railroad was located solely upon the larger of the two tracts. Upon it there had been a salt well, with a plant equipped for the manufacture of salt. This plant was burned down in 1891, and had not been rebuilt. The two tracts were separated by a very steep ravine, and were not accessible to each other, except by a bridge, which had not been built.

John A. Beck, one of the plaintiffs, being upon the stand, was questioned as follows, to wit: "Q. You burned down in 1891? A. Yes, sir. Q. At the time the fire took place, what was the production of this well?" To which question defendant objected as follows: "Objected to by the defense as irrelevant and immaterial, being nine years before the condemnation took place." To which objection plaintiffs' counsel made the following offer, to wit: "Plaintiffs' counsel propose to show by the witness on the stand and other witnesses that the well in question was an exceedingly valuable salt well, that it never was abandoned by the owners, and that it was their intention at the first convenient time to resume operations; that wells of this description do not lose in their value as to production by being shut in, but can be resumed at any time with substantially the same production as at the time of closing them in. This for the purpose of showing as one element in the value of the salt well in question." To which offer defendant objected as follows, to wit: "Objected to by the defense as incompetent, as too vague and general in its terms, the fair market value of the property as a whole at the time of the condemnation, in its then present condition, being the fair measure of damages." Upon which objection the court ruled as follows, to wit: "The Court: The objection is overruled. Exception to defendant." And thereupon Mr. Ferguson proceeded to examine his witness as follows, to wit: "Mr. Ferguson: Q. Mr. Beck, at the time the well was shut down, you have said it was producing salt water? A. Yes, sir. Q. In considerable quantities? A. There was enough there for 250 barrels a day. * * Q. You had no vessels to receive that water after the fire there, had you? A. No, sir. Q. From your experi ence, pumping very strong, as you have stated, are you able to say what the total produc

tion per day would be? A. Yes. It was pumping more there than would produce 250 barrels of salt."

Pursuant to plaintiffs' offer to show the value of the salt well, Alexander Martin, a witness on behalf of the plaintiffs being on the stand, was questioned, and testified as follows, to wit: "Q. Assuming that this well produced eleven-degree water, and produced sufficient water to make 250 barrels of salt a day, would there be any saving in such a well, located, as this well was, as compared with a well of the same sort with water at nine degrees? A. Yes, there would be quite a saving. Q. What would be the general nature of that saving? A. It would be in fuel. It would cost that much less. Q. Is there any well-recognized formula as to the amount of fuel requisite to produce a barrel of salt when the water is at varying degrees of strength? A. Yes, sir; I have studied that pretty closely, and tested it at times. Q. What is that rule? A. Eight-degree water will cost 34.30 cents a barrel to produce, with coal at 5 cents a bushel; nine-degree water 30.25 cents; ten-degree water, 27.43 cents; and eleven-degree water would cost 22.31 cents. Q. That is, with coal at 5 cents a bushel? A. Yes, with coal at 5 cents a bushel. There would be a net gain of over eight-degree water of 12 cents per barrel." The same witness, being still upon the stand, was questioned and testified as follows: "Q. Now give us the estimate you reach as to what the value would be. A. Well, I would consider it worth $100,000. The Court: Speaking of the time of the appropriation in 1900, you think the well would be worth that in the market in 1900, the way it stood there, not having been operated for nine years? A. I am basing it on the 250 barrels a day. Q. Are you giving your opinion of the value of the well as it stood there in 1900, when the railroad took it, not having been operated for nine years? Is that the value at that time, under those circumstances? What was the market value in 1900? Mr. Ferguson: Q. What do you think it would have sold for in the market? A. I was going on manufacturing 250 barrels a day."

The court charged in part as follows: "All those things affect the market value. Look at it in that view-what would be the market value of this property as a whole-and I now include specially the piece across the run on Main street. The railroad company did not touch the piece across the run, but it appears to be a part of the property as a whole. There was only Saw Mill run between; and I liken that to a farmer having a run, it not being a public stream, through his farm. Being for the benefit of the other part, we take it as a whole, and as a matter of law I instruct you to include the whole."

Verdict for plaintiff for $62,000, upon which judgment was entered for $50,000, all above that amount having been remitted. Defendant appealed.

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

William S. Dalzell, for appellant. J. S. Ferguson, J. H. White, S. W. Childs, John Reed Scott, and E. G. Ferguson, for appellees.

POTTER, J. This was a proceeding in the court below, to ascertain the amount of compensation to which the plaintiffs were entitled, for certain property belonging to them, which had been appropriated by the defendant company under the power of eminent domain. The land taken consisted of two tracts; the larger one fronting on Steuben street, and having upon it an old salt-water well. The smaller tract was in the rear of the other, and consisted of a narrow lot, extending through to Main street; and, according to the testimony, it had been purchased for the purpose of affording access to the larger tract from the rear. The two pieces were, however, separated by a stream, Saw Mill run, with high, steep banks, requiring a bridge to admit of passage; and, while such a bridge was contemplated, it was not built. So that the lots were not, at the time of entry upon the property, joined in such a way as to permit of connected use. The property was condemned for railroad purposes by the defendant company in July, 1900. A plant for the manufacture of salt was located upon the larger tract prior to 1891, but in that year it was burned down, and not rebuilt. No use was made of the salt-water well after the fire, in 1891, although the plaintiffs claimed that they were about to rebuild the plant, and again operate the well, at the time their land was taken by the defendant company. Both parties to the present controversy thoroughly understand and admit that the correct rule for measuring the damages is to take the difference between the market value of the property as it was just before the entry and the value of what was left afterwards. One of the elements alleged to contribute to the value of the property was the salt-water well, and in estimating the value of the property at the time of the taking this fact was, of course, to be taken into consideration. But the appellant alleges, in the first assignment of error, that the court below erred, in admiting against the objection of the defendant, evidence not merely as to the market value or selling value of the well at the time of the entry in 1900, but as to the production of saltwater by the well in 1891, some nine years before. It was also shown that, in the opinion of the witnesses, the quantity and quality of salt water coming from the well was about the same in 1900; that it was sufficient to make 250 barrels of salt per day, if there had been a plant in operation for its manufacture; that with coal at a certain price per bushel, and the water of a certain degree of strength, salt could be manufactured at a