ant, spent three days in examining the premises with the assistance of two "showers" appointed by the court, who were intimately acquainted with the places from which culm was produced along the Susquehanna river and its tributaries. This aided the jury greatly in passing on the vital question in the case. Under the evidence submitted, the jury would have been justified in finding that a greater proportion of the culm than 40 per cent. came from the defendant's collieries.

[2] We are at a loss to see why the learned counsel for the appellant should complain of the court's ruling sustaining the ob

(232 Pa. 170)

PIERCE v. LEHIGH VALLEY COAL CO. (Supreme Court of Pennsylvania. May 23, 1911.)

DAMAGES (§ 69*)-DETENTION OF PAYMENT. In an action to recover damages for injury the verdict was for only $6,200, and the claim to land, where the claim was for $50,000, while was strongly insisted upon in its entirety at the trial, and at no time did plaintiff offer to receive less than his original demand, damages awarded by the jury for detention of the payment of plaintiff's claim were properly disallowed by the court.

Cent. Dig. 88 137-140; Dec. Dig. § 69.*]

[Ed. Note.-For other cases, see Damages,

Appeal from Court of Common Pleas, Luzerne County.

Action by Harry W. Pierce against the Lehigh Valley Coal Company. From a judgment setting aside an item of damage in verdict for plaintiff, plaintiff appeals. Affirmed. See, also, 81 Atl. 141.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

William S. McLean and John A. Opp, for appellant. J. B. Woodward, F. W. Wheaton, and John T. Lenahan, for appellee.

jection to the defendant's offer to show on cross-examination by plaintiff's witnesses that there was culm in the river, other than the defendant's, when no exception was taken on the trial to such ruling, and it is not assigned for error on this appeal. The learned counsel well knows that if he desired to have the alleged error corrected he should have assigned the ruling of the court for error. It is idle to complain of the action of the court as is done in the printed brief, and attempt to use it as an argument to sustain the allegation that the court erred in not directing a verdict for nominal damages. When the plaintiff rested on the trial of the cause, if the defendant company thought he had MESTREZAT, J. This was an action of failed to show its proportion of culm deposited on the land, it should have declined to trespass to recover damages for injuries offer any testimony, and ask for binding in- which the plaintiff alleges he sustained by structions. It was sufficient for the plaintiff, reason of the deposit of culm and other coal in the first instance, to introduce evidence refuse upon his land from the defendant's warranting the jury in finding that culm the court, returned a special verdict, in which colliery. The jury, under the instruction of from the defendant's collieries was deposited they found for the plaintiff $6.200 damages on his land, and caused the injury complained of. That is what was done. The defend- ment of the sum awarded as damages. The and $2,920 as compensation for delay in payant company did not ask for binding instruc- learned court set aside the part of the vertions at the conclusion of the plaintiff's tes-dict that allowed compensation for the detimony, but introduced its own testimony lay in payment, and directed judgment to be to meet the plaintiff's case. The defendant entered for the amount of the damages. cannot now complain that the plaintiff's case was in part made out by its own testimony. The learned court below instructed the jury that the burden was upon the plaintiff to show that his injuries resulted from the deposit of the defendant's culm on his premises, and that, "if you believe that the culm on the plaintiff's land came partly from defendant's operations and partly from those of other people, what was the defendant's share of it, its proportion of it? What was the defendant's proportion of the injury which was done by the washing of its loose culm down upon the plaintiff's land? Before you can find compensatory damages against the defendant, it is necessary for you to determine how much of that damage the defendant was responsible for." There was ample evidence to support the jury's finding as to the proportion of the defendant's culm deposited on the plaintiff's land, and the judgment is affirmed.

The

plaintiff alleges error in the court's action in not allowing compensation for detention of the damages. This is the only question in the case.

The facts fully warranted the court in disallowing the damages awarded for the detention of the payment of the plaintiff's claim. As appears by the evidence, and as stated by the court, the claim was for $50,000, and it was strongly insisted upon in its entirety at the trial. At no time did the plaintiff offer to reduce the claim, or to accept any smaller sum than his original demand. The fact that the verdict in his favor was for only $6,200 shows that the demand was excessive, extortionate, and unreasonable, and one which the defendant was fully warranted in contesting. The officers of the defendant company would manifestly not have been justified in paying the claim. Had they done so, they would have failed to perform their duty, and would have been respon

Pa.)

NOWLIS v. HURWITZ

143

(232 Pa. 154)

NOWLIS v. HURWITZ. (Supreme Court of Pennsylvania. May 23, 1911.)

ROR.

Where an inadvertent error as to the law was made in an instruction, it is no ground for reversal, where it was in conflict with other instructions given and with the whole trend of the charge.

sible to the company. It is true that the defendant company declined to pay any sum whatever, and took the position that it was not liable for any damages; but in passing upon the question now under consideration it TRIAL (§ 296*)-INSTRUCTIONS-CURE OF ERmust not be overlooked that on the first trial of the cause the lower court sustained this view, and a verdict for nominal damages only was rendered for the plaintiff. That judgment was reversed by the superior court, and the second trial resulted in the judg: ment from which this appeal was taken. At no time did the plaintiff offer or indicate a willingness to accept anything less than the original demand, and, notwithstanding the defendant company's erroneous view of the law as to the plaintiff's right to recover compensatory damages, it was fully justified, as the present verdict shows, in resisting a recovery of the plaintiff's claim.

Dig. 88 705-713; Dec. Dig. § 296.*]
[Ed. Note.-For other cases, see Trial, Cent.

Appeal from Court of Common Pleas, Luzerne County.

Action by William Nowlis against Joseph Hurwitz. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Frank A. McGuigan, for appellant. Evan C. Jones and Andrew Hourigan, for appellee.

PER CURIAM. This was an action to recover salary for 49 weeks, under an express contract of employment at $50 per week for an indeterminate period. The defendant denied the employment, and alleged that the plaintiff was his partner in the business in which the services were rendered. There was no dispute in relation to the time of service.

The right to compensation for delay in the payment of damages arising out of a tort depends upon the circumstances of the case. It is therefore usually a question for the jury under the evidence submitted. If the fault in nonpayment of the claim rests with the defendant, he cannot complain if he is required to compensate for the delay. If, on the other hand, the fault lies with the plaintiff by reason of an excessive and unconscionable demand, one which the defendant is required to protect himself against by litigation, he should not be penalized for The main ground of complaint is that the the unwarranted conduct of the plaintiff, charge contained the instruction that, unless and required to pay damages for the delay the evidence showed that the plaintiff had in the settlement of the claim. The court worked 49 weeks, he was not entitled to reshould so instruct the jury, and if they dis- cover anything. This instruction was clearregard the evidence, and wrongfully return a ly erroneous, since no period of service was verdict awarding compensation for the delay, provided for in the express contract set up the court should set aside that part of the by the plaintiff. The mention of a fixed peverdict, where the amount can be ascertain- riod as essential to any recovery was inaded; and if it cannot be ascertained the en- vertently made in the earlier part of the tire verdict should be set aside, and a new charge. It was followed by the instruction, trial awarded. If it is clearly developed on many times very clearly repeated, that the the trial of the cause that the claim is ex- only question for the jury was whether there travagant and unreasonable, and warranted was an employment or a partnership, and the defendant in resisting payment, the court that if an employment was found by the jury should direct the attention of the jury to the the verdict should be for the full amount evidence, with instructions that if it is cred- claimed. Taking the charge as a whole, ible the plaintiff would not be entitled to re- there is no reason to believe that the jury cover compensation for the delay. In such a was misled. We have repeatedly held that case the only question for the jury would be an error in the statement of testimony in a the credibility of the witnesses, and if they charge should be called to the attention of persisted in returning a verdict against the the judge before the jury retires, in order manifest weight of the evidence it should that it may be corrected. The same rule be promptly set aside by the court. A ver- should apply where the error is as to the dict on this, as on every, question submitted law, and it is evident that it was inadvertto a jury should be sustained by the cred-ently made, because in conflict with other inible evidence, and when it is not the clear structions given and with the whole trend of duty of the court is to set it aside. The judgment is affirmed.

the charge.

The judgment is affirmed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

On motion to take off the nonsuit, Hall, further time of the court by the introducP. J., filed the following opinion:

a careful examination of them does not disclose that Courtright promised the plaintiff to pay her $1,100, or any other specified sum. He acknowledged that, as administrator, he received certain moneys belonging to the estate of the plaintiff's mother, in which the

plaintiff had an interest. It further appears by the letters that he made plaintiff a proposition to pay her and the other heirs certain sums of money, but it was on the condition that they would receipt to him in full for the claims they had against him as administrator of his wife's estate. There is nothing in the evidence to show that the plaintiff accepted the offers contained in the letters. It is not averred in the statement that W. H. Courtright filed an account as administrator of his wife, nor is it averred that a decree of distribution was made by the orphans' court, distributing the funds in his hands, and awarding to the plaintiff any specific sum as administrator; and, as has been said, there was nothing to show any promise in writing by the administrator to pay any certain sum to the plaintiff in lieu of her distributive share in her mother's estate. Under these circumstances, the court could not permit the jury to guess that Courtright was indebted to the plaintiff in the sum of $1,100, or in any other definite sum for which a verdict could be rendered in an action for money had and received.

145

(232 Pa. 89)

In re MEYER'S ESTATE. Appeal of WEISS. (Supreme Court of Pennsylvania. May 23, 1911.) 1. HUSBAND AND WIFE (§ 14*)-ESTATE BY ENTIRETIES.

the capacity of a wife to acquire and dispose Act June 8, 1893 (P. L. 344), enlarging of property and to sue and be sued, does not change the nature of the wife's estate nor destroy the legal unity between husband and wife, and does not abolish an estate by entireties existing between them.

[Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 14.*]

2. BANKRUPTCY (§ 139*)-RIGHTS OF TRUSTEE IN BANKRUPTCY ESTATE BY ENTIRETIES.

Where a testator gives his residuary estate to his daughter and her husband absolutely and forever as tenants by entire ties, a trustitled during the life of the wife to any part tee in bankruptcy of the husband is not enof the principal or income.

[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 139.*]

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of C. A. A.

Meyer. From a decree dismissing exceptions to adjudication C. J. Weiss, trustee in bankruptcy, appeals. Affirmed.

From the record it appeared that testator died December 19, 1902, leaving a will by which he gave his residuary estate to his daughter, Clara L. Beihl, and her husband, Ernest H. Beihl, "absolutely and forever, as tenants by entireties." On July 2, 1909, Ernest H. Beihl was adjudicated a bankrupt by the United States District Court, and Charles J. Weiss was appointed his trustee in bankruptcy. The trustee in bankruptcy claimed that one-half of the fund before the court should be awarded to him as the property of the bankrupt. The auditing

[2] The record does not disclose that the court below entered the compulsory nonsuit before the plaintiff had an opportunity to introduce all her testimony. It only appears by the opinion of the court, in refusing to take off the nonsuit. We cannot, however, reverse the court for refusing to take off the nonsuit because it was granted before the plaintiff had concluded her testimony, or because the court had rejected part of her testimony. The right to a nonsuit is determin-judge disallowed the claim. ed on the evidence before the court, and not on evidence which was offered and rejected by the court. The plaintiff should have offered her additional testimony and, if rejected, had an exception noted. If the evidence should have been admitted, the ruling would have been reversible error, although, without it, the nonsuit would have to be sustained. There is no objection or exception on the record to the alleged premature closing of the case, or to the rejection of any testimony; and hence those questions cannot be reviewed on this appeal.

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

George P. Rich, for appellant. Harvey Gourley, for appellee.

STEWART, J. The appeal is by the trustee in bankruptcy of the estate of Ernest H. Beihl from a decree of the orphans' court in the adjudication of the account of the trustees under the last will of C. A. Adolph Meyer, deceased, awarding the fund before the court to Ernest H. Beihl and Clara, his wife. The appellant claims the fund in virtue of his office in bankruptcy, the appellees on the ground that the estate vested in them as husband and wife. It is not questioned

The facts found by the learned court be low justified it in opening the judgment entered on the award of the award of arbitrators, and letting the defendants into a defense; and that under the will through which this estherefore the first and second assignments are not sustained. The learned court below has found and stated the facts, and we will not discuss them here.

The judgment is affirmed.

tate was derived husband and wife took by entireties, if indeed such estate may still be created. The contention of appellant is that this venerable and unique common-law estate has been abolished in Pennsylvania

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-10

by the act of June 8, 1893 (P. L. 344), not in ex-I with men." A comparison of this provision press terms, but by unavoidable implication. in the later act with that which more nearly The act of June 8, 1893, was meant as a corresponds in the earlier will show how utsubstitute for the earlier act of June 3, 1887 terly unimportant in this particular connec(P. L. 332), which it expressly repeals. The tion is the change introduced. It reads: primary object in each was the same-to "Hereafter marriage shall not be held to emancipate married women from restraints impose any disability or incapacity in a marand disqualifications with which they had ried woman, as to the acquisition, ownerbeen fettered by the common law. The later ship, possession, control, use or disposition act embraces within its scope all that was of property of any kind, in any trade or busigained for married women by the earlier, and ness in which she may engage or for necesat the same time it removes other disquali-saries, and for the use, enjoyment and imfications which the earlier left undisturbed; provement of her separate estate, real or but it can no more be affirmed of one than of the other, that it discloses a legislative purpose to change the nature of any estate which married women could theretofore have acquired, or destroys or in any way interferes with the legal unity which characterizes the relation of husband and wife, in deference to which, and for its better protection perhaps, this peculiar estate by entireties was invented. The title to the act of 1887 reads: "An act, relating to husband and wife, defining the rights to and over their property, to make conveyances and contracts, authorizing them to sue and be sued on their contracts, and for torts, and defining the interest of husband and wife in the estate of each by will or otherwise."

personal; or her right and power to make contracts of any kind, and to give obligations binding herself therefor; but every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real and personal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the rights and liabilities incident thereto, except as herein provided, as if she were not married, and property of every kind owned, acquired or earned by a woman, before or during her marriage, shall belong to her, and not to her husband or his creditors," etc. If it can be said of the earlier act that no intent can be discovered therein to change the nature of the estate of a married woman, or to destroy the legal unity of husband and wife, with quite as much reason can the same be affirmed of the later, whether regard be had to the title or the provisions above quoted. It is unnecessary to repeat here the reasoning of the court in the case above cited. It was satisfactory to the court then, and its correctness has never since been questioned. With the judicial interpretation of the act of 1887, to the effect that it did not change estates by entireties, it is hardly supposable that when the Legislature in 1893 came to substitute another act for that, if the intention was to put an end to "the legal fiction of unity between husband and wife," and abolish such estates, that it would have left such intent to be derived by implication, and that, too, from provisions in the substitute which no more clearly indicate such intent than those in the act repealed, to say nothing of its rejection of the easier, simpler, and more certain method it might have adopted, the enacting in a single line that thereafter estates in entireties should be held as estates in common. Were there nothing else in the case to forbid the implication which the appellant seeks to raise, that feature of the act of 1893 which limits the right of the

[1] The title to the act of 1893 reads: "An act, relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, and to make a last will, and enabling them to sue and testify against each other in certain cases." Since it is squarely ruled in Bramberry's Estate, 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64, that the act of 1887 was, like the act of 1848, intended to protect the property of the wife from the dominion or control of the husband but not to change the nature of her estate, or destroy the legal unity of the relation, it follows that the present contention can be sustained only as it can be shown that the act of 1893 in its advance upon the act of 1887 unmistakably discloses a purpose to change the nature of the married woman's estate which she holds by entireties, and reduce it to a tenancy in The provision in the act which it is thought reveals such purpose is as follows: "That hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, contract, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person," etc. The argu- wife to divide her estate or protect it from ment on behalf of appellant proceeds: "In fact, it is difficult to conceive how there can be much broader language severing the legal fiction of unity between husband and wife and putting her, with respect to any prop

the husband by adverse legal proceedings only in case the husband has deserted, or refused to support her, would be sufficient in itself. This qualification and restriction of the right to sue the husband shows clearly