Pa.) RUCH v. YORK CITY 897 had sustained if the defendant had refused | before set forth." These "acts, omissions, to permit the plaintiffs to furnish the materials and do the work, or to determine what damages the city had sustained if the plaintiffs had declined to furnish the materials and construct the sewers. With equal reason, it seems to us, that the arbitrator is without jurisdiction to determine whether the contract, as contained in the several parts thereof, contemplated that the city should, by the construction of a sewer under contract "C" or by other means, furnish an outlet for the sewers constructed by the plaintiffs under contract "B," and if such an outlet was contemplated by the parties and provided for in the contract, what damages the plaintiffs sustained by the failure of the defendant to keep its covenant. Keeping in view the settled rule that the court is not to be deprived of its jurisdiction without clear and plain terms in the arbitration clause, we think this is the proper interpretation of the article in contract "B," conferring arbitral powers on the engineer. There is no express provision in any part of the agreement requiring the plaintiffs to cleanse the sewers, and the question does not depend simply upon the construction of the plans and specifications, but upon an interpretation of the whole agreement. The statement avers that the plaintiffs were not obliged under the contract to clean the sewers, and that if the city had provided an outlet, as required by the agreement, the expense of such cleaning would have been trivial. This claim, we think, should go to a court and jury. [7] By article 17 of the agreement the contractor was required to complete the work by January 1, 1906, and the city was authorized to deduct out of moneys due the contractor $50 per day as liquidated damages for every day the work was not completed beyond the time specified. The arbitrator decided that the city had the right to retain a certain amount under this provision of the agreement. How the arbitrator arrived at the amount for which he allowed a credit does not appear, nor is it material, as we do not think he had the authority to adjudicate the question. It is argued by the defendant that the plaintiffs could only be relieved from their default under this article of the contract by an application to the engineer for an extension of time under article 16, and, failing to make such application, the city had the right to retain the per diem sum as liquidated damages for any time the contract was not completed beyond January 1, 1906. It is not averred in the statement that the plaintiffs made an application and were refused an extension of time in which to complete the work, but it is averred that the failure to complete the contract "was not due to any fault or neglect on their part, but was the result of the acts, omissions, and requirements of the engineers, the board of public works and the defendant as herein81 A.-57 and requirements" did not consist in ob- We do not think the omission to itemize the claim for damages for failure to construct an outlet or the claim for liquidated damages retained by the defendant defeats the plaintiffs' right of action for either of these items. If the defendant city desires a more detailed statement of either item of the claim, and such can be given, it may be obtained by an application for a bill of particulars. For the reasons stated, the judgment of the court below sustaining the demurrer is reversed, with a procedendo. (233 Pa. 25) MITCHELL v. COLUMBIA & P. D. RY. CO. (Supreme Court of Pennsylvania. July 6, 1911.) 1. EMINENT DOMAIN (§ 271*)-REMEDIES OF OWNER OF PROPERTY-NONSUIT. A proceeding for the assessment of damages from an entry on land for railroad purposes is not an action for trespass for illegal entry entitling plaintiff to a verdict on mere proof of the entry, but is an action for damages from the lawful entry under the power of eminent domain, so that plaintiff can recover only the difference in the market value of his property immediately before and after the construction of the railroad, and, if he fails to prove that, a nonsuit is proper. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 271.*] 2. EVIDENCE (§ 474*)-OPINION EVIDENCECOMPETENCY. On appeal from an award in railroad condemnation proceedings, a witness, who never lived in Pennsylvania, was not acquainted with the value of the property in the vicinity, and only professed knowledge of similar property 30 miles away in another state, and another witness, who had been on the tract in question 40 years before, but could not say when he last saw it and did not pretend to be acquainted with the value of property in the neighborhood, were not competent to express an opinion on the value of the land condemned. [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 474.*] ed, and the judgment of nonsuit necessarily followed when asked for. [2] Mitchell and Bowman, the exclusion of whose testimony is complained of by the fourth, fifth, and sixth assignments, were clearly incompetent witnesses for the purpose for which they were called. Mitchell never even lived in Pennsylvania and stated frankly to the court that he was not acquainted with the value of property in the vicinity of the plaintiff's before the railroad went through it. All the knowledge he professed to have was of property of the same character in the state of Maryland-30 miles away from appellant's. Bowman had been on the tract 40 years before, but could not say when he last saw it and did not pretend that he was acquainted with the value of property in the neighborhood. Judgment affirmed. (233 Pa. 55) In re SINGER'S ESTATE. (Supreme Court of Pennsylvania. July 6, 1911.) 1. HUSBAND AND WIFE (§ 278*)-SEPARATION AGREEMENTS-VALIDITY. Deeds and postnuptial agreements for the actual and immediate separation of husband Appeal from Court of Common Pleas, Lan- and wife, when based on a good consideration caster County. Appeal by Mary A. Mitchell from an award of viewers in condemnation proceedings to the Columbia & Port Deposit Railway Company. From an order refusing to take off nonsuit, the plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. B. F. Davis, for appellant. W. U. Hensel, for appellee. and reasonable in terms, are valid, both at law and in equity. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 1046-1053; Dec. Dig. § 278.*] 2. HUSBAND AND WIFE (§ 279*)-SEPARATION AGREEMENTS-REVOCATION-EFFECT. [Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 279.*] Where a husband and wife, by written agreement for separation, adjust their respective property rights, but later enter into a new ing that the parties have become reconciled agreement, reciting the former one, and recitand desire to live together, but providing that the former agreement shall in no other respect be modified, and there is no separation therePER CURIAM. [1] The appellant present-after, the husband cannot, after his wife's ed her petition to the court below for the death, demand that he be relieved from the appointment of viewers to assess the dam- performance of his part of the contract and ages which she alleged she had sustained claim a share in her estate under the intestate laws. by the entry of the appellee upon her land for railroad purposes. On appeal from the report of the viewers an issue was framed for the purpose of having a jury pass upon the question of what damages, if any, she had sustained. The action was not, as her counsel contends, one of trespass for an illegal entry, entitling her to a verdict upon mere proof of the entry. It was for damages alleged to have been sustained by the lawful entry of the railroad company under the right of eminent domain, and before the plaintiff could recover she was required to prove the difference in the market value of her property immediately before and after the construction of the railroad. Hope v. Philadelphia & Western R. R. Co., 211 Pa. 401, 60 Atl. 996; Moudy Manufacturing Co. v. Penna. R. R. Co., 212 Pa. 156, 61 Atl. 906. No competent testimony as to this was offer Appeal from Orphans' Court, York County. Bittenger, P. J., filed the following opinion in the court below: "The following exceptions were filed by John A. Singer, surviving husband of the decedent: "(1) The auditor erred in holding: 'Your auditor, upon the authority of Burkholder's Appeal and Fennel's Estate, holds that John A. Singer is precluded by the above-mentioned agreement of January 6, 1902, and of March 24, 1902, from taking any part in his deceased wife's estate, notwithstanding he "(2) The auditor erred in not awarding to John A. Singer absolutely, surviving husband of Adelaide V. Singer, the one-half of the estate of said Adelaide V. Singer remaining after paying debts and legal necessary costs of administration. "(3) The auditor erred in not awarding John A. Singer the sum of $5,000 in addition to the one-half of the said estate. "(4) The auditor erred in finding 'the act of April 1, 1909 (P. L. 87) does not apply to a case where the decedent dies testate and the husband elects to take against the will.' "(5) The auditor erred in not finding that from 1904 up to February, 1907, John A. Singer and Adelaide V. Singer did not live together as husband and wife. 899 and his wife became reconciled after Jan-| (P. L. 430), and that this act does not bar his uary 6, 1902, and cohabited for a consider- claim to participate in this distribution.' able period of time after March 24th of the "The only exceptions of John A. Singer same year; and therefore he is not entitled to the finding of facts by the auditor is the to any part of the balance on the account fifth and sixth. These exceptions cannot be of Richard E. Cochran, executor of the will sustained. We find no competent evidence of Adelaide V. Singer, deceased, as shown by of any agreement to separate at or about said account or as modified by your auditor; the time stated in the fifth exception, or and his claim for $5,000 and for one-half of that they lived separate and apart during the remainder of said balance, after de- the said time mentioned in the exception. ducting the costs of audit, is therefore dis- It is true that Mrs. Charlotte Donnelly tesallowed, and said balance is distributed in tifies that she entered into the employment accordance with the provisions of the afore- of John A. Singer in superintending his said will of Adelaide V. Singer.' house in the city of New York in October, 1904, and remained in that capacity to serve him in three different houses for seven years; that she saw Mrs. Adelaide V. Singer there only one time, in May, 1907; that she cohabited with her husband from Wednesday to Saturday, when she refused, on his request, to remain there with him, and left, and did not return. It is thus shown that he maintained for seven years a residence and home in New York City from 1904 which was not occupied or visited but for a few days by his wife, but it does not appear from her testimony that John A. Singer was residing in said homes habitually or that the house was regularly occupied by any person or persons except herself and the servant. On the occasion named, John A. Singer had come there from Clifton Springs, N. Y., where he and his wife had been cohabiting, to which place he stated to Mrs. Singer on her coming, the next day, he intended to return to her on Saturday following. The maintenance of a residence in the manner stated by the witness, without evidence of the proprietor of the same occupying it regularly and habitually without the presence of his wife at his home, does not prove, or tend to prove, a living separate and apart from his wife, and especially when it is shown that at the time or immediately before they were cohabiting at another place and his expression of his intention to return to her at Clifton Springs within à few days. The evidence falls short of even raising an inference that John A. Singer and his wife were living separate during the time named; that they had separated subsequent to March 24, 1902; and that unconditional reconciliation had taken place between them. No error has been found by the court in the auditor's finding of facts covered by this exception, and therefore his findings of facts must be sustained. "(6) The auditor erred in not finding that from February, 1907, to May 25, 1907, the said John A. Singer and Adelaide V. Singer did live and cohabit together as husband and wife continuously with the exception of one day, at Asheville, N. C., the Hotel Eduard, Philadelphia, and at Clifton Springs, and at the residence of John A. Singer in the city of New York; these facts having been embraced in the admission of facts agreed upon by counsel, and established by uncontradicted evidence. "(7) The auditor erred in distributing the balance on the account as provided in the last will and testament of said decedent. "(8) The auditor erred upon all the facts admitted, agreed upon, and proven in not awarding to John A. Singer one-half of the estate of his deceased wife after deducting the debts and necessary legal expenses out of the estate and the further sum of $5,000 under the act of assembly giving surviving husband the same right in his wife's estate as she could take of his under the intestate law. "Margaret S. H. Porter filed the following exception: The auditor erred in holding that the failure of John A. Singer to pay to or for his wife anything for her support after May 24, 1907, under the facts found by the auditor 'especially showing that she received of him and returned 300 shares of the capital stock of the Singer Manufacturing Company which yielded a substantial income, does not bring him within the provisions of the act of assembly of May 4, 1855 "All the other exceptions filed by John A. Singer are to the conclusions of law and its application by the auditor. "From the admissions filed and the evidence in the case, the auditor has found the following facts: "It has thus been established and your auditor finds that: "John A. Singer and the testatrix were married on June 11, 1885. married on June 11, 1885. In July, 1901, Mr. Singer, at the urgent demand of his wife, transferred and delivered to her absolutely 125 shares of the capital stock of the Singer Manufacturing Company, worth $30,250, subject to the payment of the debt of Mr. Singer of $16,500, for which the stock had been pledged, and 275 shares of the same stock worth $66,550, upon the oral stipulation that she shall receive the dividends on said 275 shares of stock during her lifetime, and if she survived her husband the same shall become hers absolutely, but in case of her decease before the death of her husband said 275 shares of stock 'shall revert' to him. "On December 31, 1901, John A. Singer filed in the court of common pleas of York county, Pa., a bill in equity against his wife, the above-mentioned testatrix, in which he averred, among other things, the transfer of the aforesaid 275 shares of the capital stock of the Singer Manufacturing Company to his wife, upon the aforesaid stipulation in relation thereto, and that he had reason to believe that she intends to wrongfully transfer said stock in violation of said stipulation, and prayed the court for an injunction restraining her from selling said stock, and for a decree requiring her to give security for the faithful performance of her duty in relation to the trust growing out of the transfer of said 275 shares of stock to her as aforesaid. On the same day a preliminary injunction was granted in accordance with the prayer in the plaintiff's bill. York Life Insurance Company, upon her husband's life, each for $25,000 in which she was beneficiary, also 100 shares of the capital stock of the Singer Manufacturing Company. Mr. Singer relinquished all claims to all other property in her possession including the remainder of said stock and their dwelling house which he had previously conveyed to her. Mr. Singer also released, acquitted, and discharged his wife, 'her representatives, heirs and assigns, from all and every claim, demand, suit, action, or accounting for or on account of any matter or thing either during her lifetime or after her death,' and released and surrendered 'all right, title and interest as husband, tenant by the curtesy or otherwise howsoever, in any property, real or personal, which she now has or may be in any wise entitled to, or may hereafter acquire, to the end that she may acquire, possess, enjoy, convey, devise and bequeath the same with the same effect as if she were a feme sole.' And Mrs. Singer as fully released her husband and his estate of all claim and demands during his lifetime and of all that she might have as his surviving widow. The above-mentioned insurance policies and 100 shares of stock and notes were duly delivered to Mr. Singer in accordance with the terms of said agreement. Upon the execution of this agreement on January 6, 1902, Mr. and Mrs. Singer separated and continued to live separate and apart until March 24, 1902. "On January 14, 1902, after leave granted by the court, on motion of counsel for plaintiff and defendant, the above-mentioned suit in equity was withdrawn, and the preliminary injunction issued upon said bill was dissolved. "On January 6, 1902, Mr. Singer and his wife entered into a written agreement which was duly acknowledged by them and entered of record in the office of the recorder of deeds of said county on March 8, 1902, in which they recite the pending of the abovementioned bill in equity and the intention of "On March 24, 1902, Mr. Singer and his Mr. Singer to institute other proceedings wife entered into another written agreement against her; that 'divers disputes and un- which was duly acknowledged by them and happy differences have arisen between' them entered of record in said recorder's office on 'for which reason they have consented and November 18, 1902, in which they recite, agreed to live separate and apart from each among other things, the execution of the other during their natural lives,' and that above-mentioned agreement of January 6, 'after due consideration and full and sepa- 1902; that said agreement 'provided that the rate consultation with their respective legal counsel and advisers' they 'have agreed upon the adjustment of their respective claims, rights, equities, trusts and reversions in and to all property, real, personal or mixed, now in the possession of or standing in the name of or to the use of them or either of them.' "The agreement stipulates, among other things, in the usual form, that they shall live separate and apart from each other, and that neither shall interfere with the other; that Mr. Singer shall in no measure be liable for his wife's support; and that Mrs. Singer shall surrender to Mr. Singer his promissory note for $2,000 payable to Mrs. Singer, and his two promissory notes, one for $1,000 and one for $400, payable to Anna M. Small. By this same agreement Mrs. Singer transferred to her husband her interest in two said parties thereto should thereafter live separate and apart from one another as part of the consideration of said agreement,' and that 'said parties hereto have now become reconciled and desire to again live together as husband and wife, but in no other respect to modify any of the terms of said agreement.' By this agreement Mrs. Singer agreed to resume the family relations with her husband.' The agreement contains various stipulations relative to the conduct of the household affairs and the behavior of the parties toward one another. It provides that each shall pay one-half of the domestic household expenses,' and that Mrs. Singer shall pay her own personal expenses, including wearing apparel. It also contains these two paragraphs, which refer to the above-mentioned agreement of January 6, 1902: Pa.) IN RE SINGER'S ESTATE .901 ratify and confirm all of the various stipu- | resumption of the marital relations by the lations and agreement contained in said contract of January 6, A. D. 1902, except the stipulation that the said parties shall live separate and apart. "And it is hereby further expressly agreed and understood by and between the parties hereto that in case they shall fail to agree and shall again separate that this agreement and all its provisions shall immediately become null and void and that the said contract of January 6, 1902, shall be in all respects revived and reinstated as fully and completely as if this contract had never been made or entered into.' "Subsequently Mr. and Mrs. Singer cohabited together for at least part of the time until May 24, 1907. The admitted facts are that they cohabited at intervals, but there is nothing before the auditor to show that they did not also cohabit between these intervals. "Mr. Singer maintained a residence in New York City between October, 1904, and May 25, 1907. During this time Mrs. Charlotte Donnelly lived with him at his New York residence, 'superintending his house.' About May 22, 1907, in addition to Mrs. Donnelly, 'a maid' was also in this residence. Mrs. Singer in this time visited this residence of Mr. Singer but once for a period of four days. During part of this time Mr. and Mrs. Singer cohabited at intervals at different hotels and at a sanitarium. He paid the bills for both, but in a number of cases she refunded to him one-half of the charges for room and board and other common expenses and all of her personal expenses. parties to a separation agreement in the several jurisdictions terminates the articles of separation, but in one of the cases, Smith v. King, 107 N. C. 273, on page 276, 12 S. E. 57, cited by the exceptant, it is said: 'When she (the wife) returned to his roof, cohabited with him, and is supported by him, this annuls all agreements for a separation and for the support rendered necessary thereby. The law, if it recognizes, does not favor, articles of separation, and will not construe them as to be valid after the parties have themselves canceled the agreement to separate, by cohabiting together, unless it appears by the deed, plainly, that such separate support is to be continued notwithstanding any future reconciliation and cohabitation.' "In the case under consideration, the estate for distribution was created by John A. Singer in his wife, by the transfer to her of the stock mentioned in the agreement unequivocally providing that he would not interfere with his wife's estate before or after her death, by claiming any part of the same. At the time of the second agreement of March 24, 1902, it was positively declared and agreed in the reconciliation of the parties that the terms and conditions upon which they resumed the relation of husband and wife were that their intention in such resumption of the marriage relation was 'not to modify any of the terms of the agreement of January 6, 1902, excepting those which provided that they shall live together'; and expressly republished, ratified and confirmed 'all the various stipulations and agreements contained in said contract of January 6, A. D. 1902, except the stipulation that the said parties shall live separate and apart.' "About May 18, 1907, after they had been cohabiting at Clifton Springs, N. Y., for about 18 days, Mr. Singer went to his abovementioned New York residence. Mrs. Singer followed him a day later, arriving at his res- "This agreement was mutually binding idence on May 21st or May 22d. She remain- on the parties. The wife had full power ed there until May 25th, during which time to contract under the Pennsylvania acts she occupied the same room and bed with of assembly, notably the act entitled 'An her husband. She left on May 25th, after Mr. Singer requested her to stay and had offered to go with her wherever she wished to go, if she did not like it at his residence. About 15 minutes before she left she said 'she would not live with him.' After this they never cohabited and 'from and after this date Mr. Singer never made any payments of money to her, or for her account.' "Mrs. Singer died on July 19, 1910, without surviving issue. Her above-mentioned will was duly probated. act relating to husband and wife enlarging their capacity to acquire and dispose of property, to sue and be sued and to make a last will, etc.,' approved June 8, 1893 (P. L. 344). "As we have seen, there is no evidence to establish separation between John A. Singer and his wife, after March 24, 1902, and a subsequent reconciliation without conditions, as contended by exceptant's counsel. No separation after said period being proven, there could not be a subsequent unconditional reconciliation. "The terms of the original agreement of separation as it was reaffirmed by the parties in their agreement of March 24, 1902, therefore continued, at the death of the decedent, Adelaide V. Singer. subsequent separation in December, 1904, and the unconditional reconciliation as contended for by exceptant's counsel, "A very complete brief of authorities has been submitted by the learned counsel of John A. Singer in which a multitude of English decisions and decisions of other states are cited to establish the contention of this exceptant that the agreement in evidence of January 6, 1902, was completely abrogated by the reconciliation of the parties and their resumption of the marriage relation. "The law is to the effect that a subsequent proven, in the absence of proof to the con |