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perVision and direction of the commission. The power to enforce the law is lodged in the commission and not in the subordinates. The chief examiner has no power Or authority except Such as may be delegated to him by the commission. He acts at all times under the supervision and subject to the direction Of the Commission. When he undertakeS to ignore its Wishes, or to disregard its directions, or to question its authority, he asSumes a power never intended to be conferred upon him. If he persists in Setting up his views in opposition to those held by the commission, he may very properly be classed aS in SubOrdinate. It is conceded if appellant was insubordinate within the meaning of the law there was just cause for his removal; but it is contended that the facts do not warrant such a finding. In the consideration of this point we start with the preSumption of good faith in the performance Of public duties on the part of the commission which removed appellant. The cause assigned for the removal having been challenged, the whole controversy was carefully considered by the learned court below. With the result that the Commission Was Sustained. This is the end Of the matter unless there was manifest error in the findings of the lower court. It is very earnestly argued here that the evidence did not Warrant Such a finding. The case is made to turn upon the question of insubordination. [2] The evidence Was largely documentary, although there Was Some Oral testimony. It may be that different mindS might reach Opposite conclusions from the evidence thus presented. But it has been frequently held that findings of fact will not be reversed on this ground unleSS there iS manifest error. Plankinton's Estate, 212 Pa. 235, 61 Atl. 888. We find no such manifest error in the findings about Which complaint is made as to Warrant a reversal. Indeed, the tone of the letters written by appellant to the commisSion indicates an unwillingness to follow instructionS, and a disinclination to do his Work as directed. His general attitude as indicated by his acts and letters is not SaVed from the Charge Of ill Subordination because he said in One letter that he would make the changes suggested if requested to dO SO. What OCCurred betWeen a member of the commission and appellant in connection with the marking amounted to a request to make the changes. The learned court below has So found, and We see no error in the conclusion reached. He must have underSt00d, as We believe he did, that the CommisSion desired him to change the markings as indicated by the marginal notes. Whether it Was Wise Or unwise for the COmmission to adopt a policy of more liberal marking under the circumstances was a question with which the chief examiner had nothing to do.

It was his duty to follow instructions and do as the commission directed. Upon a review of the whole record we see no reason for disturbing the findings and conclusions Of the learned Court below.

Assignments of error dismissed, and judgment affirmed.

(232 Pa. 21) BERGDOILL V. SOPP.

(Supreme Court of Pennsylvania. May 17, - 1911.) MORTGAGES (§ 114*) – CoNSTRUCTION – COLLATERAL SECURITY. Where a loan of $11,000 was made on condition that the father of the borrower should execute a mortgage for $8,000 as security, the presumption is, in the absence of special indemnity covenants, that the mortgage was given only as security for the sum named.

[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 114.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Emma C. Bergdoll against Ernest Sopp, Judgment for plaintiff, and defendant appeals. Reversed.

See 227 Pa. 363, 76 Atl. 64.

From the record it appeared that on Or about September 10, 1903, the son of the defendant borrowed $11,000 from the plaintiff. The latter made the loan on condition that the defendant would execute the mortgage in Suit as collateral Security to her. Subsequently the son's indebtedness to the plaintiff was increased, and at the time of his death it amounted to $12,200.27. His estate Was insolvent, and the plaintiff received a dividend of 1611/21 per cent. upon her whole claim of $12,200.27, amounting to $2,015.95. After receiving the dividend She brought Suit upon the mortgage, claiming that it was given to her as security for the whole indebtedness, and that she had the right to apply the $2,015.95 to the unsecured part of the debt due to her, and to recover the whole amount of the mortgage. The defendant claimed that it was collateral for Only $8,000, and that he was entitled to have the dividend credited pro rata upon that part Of the indebtedness which his mortgage Secured. He paid the difference, with interest, costs, and counsel fees, and the case proceeded to trial for the determination of a single issue, viz.: Had the plaintiff the right to apply the dividend paid her to the unsecured part of her claim? The trial judge instructed the jury to render a Verdict for the plaintiff. The court in banc subsequently entered judgment for the defendant non obstante veredicto, which judgment, on appeal, was reversed by the Supreme Court, with a venire facias de novo. At the next trial the case was Submitted to the jury, and a verdict was rendered for

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POTTER, J. When this case was here before (227 Pa. 363, 76 Atl. 64), we decided that there was evidence upon the record, by a witness named Borasky, which, if believed, would justify a finding that the $8,000 mortgage in Suit had been “given as a general indemnity against any loss On the entire $11,000 indebtedness.” A judgment for the defendant was reversed, With a venire facias de noVO, that the case might be Submitted to a jury to determine whether the mortgage was “collateral for every dollar of the $11,000,” or simply for $8,000 of such indebtedness. This witness did not appear at the retrial of the cause, and the only evidence upon the subject was given by the plaintiff herself.

Upon the former trial Borasky said that Mrs. Bergdoll had stipulated “that the $8,000 mortgage will be as a collateral for the $11,000 loan”; whereas at the last trial Mrs. Bergdoll's testimony was that at the time the security was negotiated she had said, “I want to be protected,” and that the mortgagor's son, for whom the security was being given, replied, “You can’t Iost a cent in the transaction, because, first, the place would not bring less than $3,000, even if it was in bankruptcy, then you have my father's mortgage in addition,” and that “the father nodded his head.” On cross-examination, in reply to the question, “As I understand you, at that conversation it was explained to you that as your debt was $11,000, or would be about $11,000, the saloon was worth $3,000?” she answered: “That is what young Mr. Sopp said. He said you can’t lost a cent On this transaction because in case of bankruptcy the Saloon would surely bring $3,000, and then you have the father's $8,000.” Immediately after this, in reply to the question, “The possible debt was $11,000, and you had $3,000 sure in the saloon, no matter what happened, and you had the $8,000 balance?” She said, “Yes.”

The testimony just detailed is not in any sense the equivalent of that given by the Witness Borasky at the former trial. If it were, the judgment for the plaintiff would not be disturbed; but we cannot sustain the judgment upon the proofs before us. It was a conceded fact that the mortgage was given as collateral for the debt of another. There being no Special indemnity Covenants therein, in the absence of evidence to the contrary, the presumption is that the mort


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gage was not given as security for more than its principal Sum. Therefore it required proof to show that it was intended as Security for a larger amount. The evidence produced WaS insufficient for that purpose. On the contrary, it indicates that the mortgage stood as security only for the amount of the indebtedness over and above the $3,000 value placed upon the saloon, or, in other words, for $8,000. Under the circumstances binding instructions Should have been given for the defendant, or this not having been done, judgment non obstante veredicto should have been entered in his favor. The assignments of error are sustained, the judgment is reversed, and judgment is here entered for the defendant.

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From the record it appeared that suit was begun against the “Laquin Lumber Company, a Corporation.” The cause of action arose on April 22, 1908. In February, 1911, the plaintiff made the following motion: “The plaintiff moves the Court that the record in this Case be amended in all particulars as it may be affected thereby by changing the designation of the defendant to the Laquin Lumber Company, a partnership composed of W. L. Barclay, C. F. Barclay, G. B. Barclay, M. F. Quinn, F. H. Quinn, and F. S. Sherman, trading as Copartners.” The court Overruled the motion.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, J.J.

M. Lilley and David E. Kaufman, for appellant. Wm. MaxWell, for appellee.


PER CURIAM. This appeal is from an order discharging a rule to amend the record by making new parties defendants after the statute of limitations had become a bar to a new action. The action was brought against the Laquin Lumber Company, a corporation. The amendment proposed was to name as defendant a partnership, composed of six perSons, trading as the Laquin Lumber Company. The allowance of the amendment WOuld have brought new parties on the record. Under the rule established by our cases this cannot be done. Where the Statute of limitations has run, amendments Will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under Which the right party is sued, it Will be allowed; if it is to bring in a new party, it will be refused. Wright v. Copper Co., 206 Pa. 274, 55 Atl. 978. The Order discharging the rule is affirmed.

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

(232 Pa. 3) . In re GIVEN’S ESTATE.

Appeal of SMITH. (Supreme Court of Pennsylvania. May 17, 1911.)

WILLs (§ 423*)—PROBATE–CoNCLUSIVENESS OF JUDGMENT. On the death of the decedent two wills were found. On a contest of the second will certain grandchildren of the decedent were not cited, but a daughter was cited to appear. The will was sustained, and an appeal taken from the register's decree probating the first will. The grandchildren and the daughter were cited in this proceeding, and, it being conceded that the second will was valid, the first will was vacated. Thereafter the daughter petitioned for an appeal, from the probate of the second will, which had been probated after the first will had been vacated. Held, that the daughter was coneluded by the decree on the subsequent appeal from the action of the register in probating the first will. [Ed. Note:—For other cases, see Wills, Dec. Dig. $423.*]

Appeal from Orphans’ Court, Chester County. Petition by Mary J. Smith for an issue devisavit vel non in estate of Mary Given. From a decree dismissing the petition, petitioner appeals. Affirmed.

From the record it appeared that when testatrix died she left two wills, one dated February 26, 1898, the other dated August 6, 1905. The first was probated October 6, 1906; the testatrix having died on September 10, 1906. On August 26, 1907, the second will was probated. On September 21, 1908, an appeal was taken from the probate of the second will by

the executors named in the first will. On October 12, 1908, Mary J. Smith, the appellant, a daughter of the decedent, was served with the citation on the appeal. The decedent's grandchildren, children of a deceased daughter, Were not mentioned in the Citation, nor Were they served. Subsequently an issue was framed, and on February 20, 1909, was tried, and a Verdict Was rendered Sustaining the Second Will. At the trial the appellant was present. On March 29, 1909, the executors of the second will appealed from the decree probating the first will. In this proceeding the citation was served on the appellant and on all parties in interest. On July 6, 1909, there Was a hearing in this appeal, and the Second Will Was Offered in evidence to defeat the first will, and the decree of probate of the first will was set aside. On July 27, 1909, the second will was formally probated. On January 27, 1910, Mary J. Smith appealed to the Orphans’ court from the decree of July 27, 1909, probating the second Will. On April 11, 1910, this appeal was dismissed. Butler, J., filed the following opinion:

“If it be COnceded that, When the iSSue Of forgery on the second will was determined, the court had no jurisdiction of the matter because of the failure to bring in certain grandchildren of the decedent, that the petitioner who was duly brought in, can take advantage of this circumstance, and is to be looked upon as not then having had her day in court, certainly she is concluded by the proceedings and decree upon the subsequent appeal from the action Of the register in probating the first Will. Then the petitioner and all other proper parties were regularly in court, the second will was presented as a matter of evidence to defeat the earlier will, the validity of the second will, the due execution of which had recently been determined, was conceded, and thereupon this court decreed the Vacation of the probate of the will of earlier date. The register then admitted to probate the will of later date. Under these facts the petitioner may not now contest the validity of this will.

“The petition for an issue is denied, and the appeal is dismissed.”

Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, J.J.

M. J. O’Callaghan and A. M. Holding, for appellant. J. Frank E. Hause, for appellees.

PER CURIAM. The order dismissing the petition for an issue is affirmed, on the opinion of the learned judge of the orphans' court. Conn.)

(84 Conn. 702) CHARIOTT V. McMULLEN.

(Supreme Court of Errors of Connecticut. Oct. 5, 1911.)

1. CoNTRACTS (§ 295*)—PERFORMANCE—CONSTRUCTION CONTRACTS-SUBSTANTIAL PERFORMANCE. Literal performance of every detail of the work contemplated by a construction contract according to the plans and specifications is not necessary to recovery thereon; the contractor being entitled to recover if he substantially com: plies with the contract, notwithstanding slight defects for which compensation may be allowed the other party. [Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1353; Dec. Dig. § 295.*]

2. CONTRACTS (§ 295*)—PERFORMANCE—CONSTRUCTION CONTRACTS – SUFFICIENCY OF PERFORMANCE. Plaintiff contracted with defendant to construct roads, and one of the roads was not constructed in certain details as to its width, etc., according to the contract, but it was of practical value to defendant, and its cost to plaintiff was not materially less than if it had been constructed according to the contract. The changes made therein were approved by defendant's engineer, plaintiff acted in good faith in making them, and defendant retained the benefits of the work. Held, that defendant could not retain the benefits, and yet repudiate the contract, on the ground that plaintiff had failed to perform according to the contract.

[Ed... Note:-For other cases, see Contracts, Cent. Dig. §§ 1353, 1356; Dec. Dig. § 295.*]

Appeal from Superior Court, Fairfield County; William H. Williams, Judge.

Action by Salvator Chariott against John McMullen. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Light, for appellant. Stiles Judson and John J. Cuneo, for appellee.

RORABACK, J. This action was brought to recoVer a balance alleged to be due the plaintiff from the defendant upon a contract for the construction of a sea wall, of roads, and grading, dated May 14, 1907. The plaintiff alleged a performance Of the COntract, admitted the payment of $6,800 on account, and claimed to recover a balance of about $6,000, which included the sum of $4,000 alleged and claimed to be due for extra work. The defendant denied the performance of the contract, and the performance of extra Work, and then, by Way Of Counterclaim, alleged damages in the sum of $6,000 for nonperformance Of the Contract in Several particularS. Edwin L. Scofield, the COmmittee to Whom the action was referred, after making a specific finding of facts, stated that he had reached the following conclusions: “Upon the facts aforesaid it is found that Said contract of May 14, 1907, was substantially performed by the plaintiff. If upon the foregoing facts the engineer, Minor, under the provisions in said contract, was authorized to inter

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pret the plans and specifications as requiring no gutter on the inside of the Shore road, then there is due and owing from the defendant to the plaintiff on account of said contract the sum of $2,145; otherwise, there is due and owing to him the sum of $1,976.20. Upon the facts aforesaid there is due and OWing from the defendant to the plaintiff for extra work (Work aside and apart from that required to be done under the contract) done by the plaintiff for the defendant the sum of $2,186.85.” The defendant moved to recommit the report for the finding of additional facts, and the report was sent back to the committee. The committee having filed a supplemental report, the defendant made another motion to recommit, which was denied. A remonstrance to the acceptance of the report was then filed, which was overruled. Judgment was then rendered for the plaintiff to recover of the defendant as Stated. [1] The third assignment of error charges that there was error in holding on the facts found that the contract described in the Complaint had been substantially performed by the plaintiff. The plaintiff entered into a Written contract to do all the Work connected with the improvement of the defendant's property “in accordance with the plans, specifications, and directions of H. R. Minor, C. E.” In order to recover, he must ShoW that the contract had been substantially performed. It was not necessary that he should be able to show literal performance of the Work in every detail according to the plans and specifications as a condition precedent to a recovery. West v. Suda, 69 Conn. 60, 63, 36 Atl. 1015. It is Sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially. When this has been done, he may recover for his work, notwithstanding slight and trivial defects in his performance for which compensation may be made by an allowance to the other party. Woodward V. Fuller, 80 N. Y. 312, 317. The Committee finds that the plaintiff has not completed the work in question in strict compliance With Some of the requirementS Of the contract, but has deviated and departed from it in certain particulars which he specifies. Without enumerating them, it is enough for the present purposes to Say that these deviations were either allowed for, being inconSiderable, Or Were approved of as the Work progressed, and at its termination by the engineer, Minor, in a letter to the defendant, which is as follows: “Henry Rossiter Minor, Civil Engineer, So. Norwalk, Conn., Oct. 10, 1907. Mr. John McMullen, New York CityDear Sir: Mr. Chariott has completed his entire job to my entire satisfaction, and for the last few days I have been going Over the work in detail. and now Submit a final and

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

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complete estimate of the work done and amount due the contractor. I also enclose to you my bill in detail for additional work which you have had me do outside of the original contract. Yours truly, Henry Rossiter Minor, C. E. Civil Engineer.” [2] The defendant places special emphasis upon the failure of the plaintiff to complete the “shore road” so called, according to the requirements of the contract. In this connection, the record discloses that the shore road Was not constructed in the manner called for by the plans and specifications, in that throughout its entire length it was not of the specified width, and at the Westerly end stones of the required size were not used in the foundation, the dressing material, consisting of gravel and loam, of the road above the foundation, Was not of the proportions, nor was it laid in the manner, nor was it of the depth called for by the plans and specifications. The width of the road as constructed, the stones used in the foundation, and the manner of laying them, the dressing material provided and itS proportion in mixture, gravel, and loam, and the manner of laying it, and its depth throughout the Whole length of the road, Was approved of as the work progressed and at its termination by the engineer. While the work was in progress the defendant Was occasionally upon the premises during a part of the time, being there from Friday nights to Monday mornings, and at other times not So frequently. He was familiar with the kind and character of the work required to be done in the construction of this road, knew of What Was being done, and with but one objection permitted the work to go forward. A short time prior to the completion of the road the defendant employed One Linnell, a civil engineer, and a person fully conversant with road construction and with the requirements of the contract in Suit, to represent him in an inspection of the work that had been and was then being done by the plaintiff, and to approve or disapprove of the Same. An inspection was made by Linnell, and he, in the defendant's behalf, suggested some slight additions to be made in the top dressing of the road. These additions were made by the plaintiff, and Linnell then approved of the work that had been done by the plaintiff in the construction of this road. The road as conStructed Was one of practical value to the defendant. Its cost to the plaintiff was not materially less than the cost of such a road as the contract called for and the parties contemplated when the contract was made. It appears, therefore, that these changes in the contract complained of were made with the approval of the defendant's engineer. The plaintiff acted in good faith, and did not

profit by the changes. The defendant has received and will retain the benefits of a substantial performance of the agreement, knowing of the departure from its original terms, and through his representatives has finally accepted and approved of the work. Under such circumstances, the defendant should not be permitted to retain the benefits and repudiate the burdens of the contract. Wiley v. Athol, 150 Mass. 426, 435, 23 N. E. 311, 6 L. R. A. 342; Jones & Hotchkiss Co. v. Davenport, 74 Conn. 418, 420, 421, 50 Atl. 1028. It is now urged that the case presented by the finding of the committee which was accepted by the superior court varies from the complaint, in that the plaintiff alleged a full performance of the contract, while the facts found disclosed that there was only a partial performance. This claim might have been considered by the superior court if it had been properly made. Pitcher v. Christ Church, 83 Conn. 308, 76 Atl. 272; Andrews v. Peck, 83 Conn. 668, 78 Atl. 445, 32 L. R. A. (N. S.) 181. See Foeller V. Heintz, 137 Wis. 169, 118 N. W. 543. 24 L. R. A. (N. S.) 327, and cases cited. One reason of appeal charges that there Was error in overruling the remonstrance against the acceptance of the committee's report. It is alleged in the remonstrance that Several facts relating to the issue as to the substantial performance of the contract and tending to show departures therefrom Were established by the evidence. It is enough to say with regard to this objection that it is not supported by the record, in which no part of the evidence is given, and it does not appear that any offer was made to Show What the evidence before the committee was. Assignments of error must be supported by the record. Decker v. Mann, 80 Conn. 86, 87, 66 Atl. 884. The other reasons of appeal are either immaterial or involved in the ones already disCuSSed. There is no error.

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