the firm should belong to one partner for the purpose of continuing the business, and fixed solution, on the basis of the receipts from the the other partner's interest, in the event of disrent-collecting department, a subsequent sale of such department by both partners, while rendering inoperative the provision for ascer taining the second partner's share, does not annul the former provision, so as to make the books, papers, etc., assets of the firm. Appeal from court of common pleas, Allegheny county. Bill in equity by H. C. Wilson against Samuel Black for a dissolution of partnership and for an accounting. Decree for plaintiff, and defendant appeals. Modified. Jas. C. Doty, Knox & Reed, and Edwin W. Smith, for appellant. John D. Brown and A. M. Brown, for appellee. ers and the prior vendee. This case was followed by Martin's Appeal, 97 Pa. St. 85, in which the rule was stated to be that pieces of land subject to a common incumbrance, when sold successively by the owner, are liable for the incumbrance in the inverse order of alienation. Consequently, if the holder of the incumbrance releases the pieces last sold, this will, if the pieces released are of sufficient value to pay the debt, operate to discharge the lien of the incumbrance on the parts previously sold. This was so far qualified in Schrack v. Shriner, 100 Pa. St. 451, as to make the knowledge of the holder of the mortgage an element to be considered in the application of the equitable doctrine. If he was without any knowledge of a previous sale of a part of the premises, and acted in good faith in the making of a release for another part of the land bound by the mort gage, then the rule of Paxton v. Harrier would not apply; but if he knew of the previous sale, or of facts that fairly put him upon notice, then the subsequent release of the remainder, if of sufficient value to pay the debt, would operate as a release of the lot first sold. This case was commented on and followed in Milligan's Appeal, 104 Pa. St. 503. The distinction between junior incumbrancers and successive purchasers is considered in McIlvaine v. Assurance Co., 93 Pa. St. 30. A junior incumbrancer must give notice of the position of his lien to the mortgagee, if he would affect him with notice of his situation. Knowledge in fact of the position of a purchaser of land bound by the mortgage is enough, no matter how that knowledge is acquired. If it was clearly done by said partnership, in his own name upon the evidence that Hartman had knowledge of the possession and claim of Moffet and Sharpneck when he made the release to the holders of the balance of the mortgaged premises, then the court below should have negatived the plaintiff's first point, and given a binding instruction in favor of the defendant. If this question was involved in doubt, it should have been submitted to the jury, with instructions to find for the defendant if they found Hartman knew of the prior sale when he executed the subsequent releases. It is not necessary that he should have seen the deed, or been informed of the exact date or terms of the sale. It is enough if he had knowledge of the fact that Moffet, or, after him, Sharpneck, was in possession, claiming under a previous sale from the mortgagors. The judgment is reversed for the reasons now given, and a venire facias de novo awarded. WILSON v. BLACK. (Supreme Court of Pennsylvania. Nov. 5, 1894.) PARTNERSHIP AGREEMENT-CONSTRUCTION. Where an agreement between partners provided that, on dissolution "for any cause,' all the personal property, books, papers, etc., of STERRETT, C. J. One of the items constituting "the sum of $2,094.11," found by the learned master "as the net value of the firm assets received by the defendant," is $700 for books, papers, maps, plans, office furniture, etc., mentioned in the first specification of error. We are unable to see how, upon a proper construction of the copartnership agreement of July 1, 1889, these articles can be regarded as firm assets. As to them, the agreement provides thus: "In the event of a dissolution of the firm from any cause, all the personal property, books, papers, maps, plans, and unexecuted orders belonging to or in the possession of such partnership shall become the property of the said first party, for the purpose of enabling said first party to continue the business, previous and for his own benefit." In the next succeeding clause of said agreement, provision is made for ascertaining the second party's interest in the partnership, in the event of a dissolution thereof, by taking as a basis "the gross receipts from" the rent-collecting "department for the twelve months previous to dissolution" etc., as therein specified. When the firm business had been prosecuted for about six months, both partners united in effecting a sale of their rent-collecting department for $20,000, which sum they treated as profits, and divided according to their respective interests in the firm, plaintiff receiving one-third, and defendant the residue. They thenceforth confined their efforts to buying and selling real estate. While the effect of disposing of the rent-collecting department of their business was to render inoperative the provision aforesaid for agcertaining plaintiff's interest in the firm, it did not in any manner interfere with defendant's right to the books, papers, maps, plans, etc., which, under the clause above quoted, were to become his "property" "in the event of a dissolution of the firm from any cause." That provision was not altered or annulled by the sale aforesaid. It was never contemplated that defendant should account for the value of the books, papers, maps, plans etc., specified in the clause referred to. I by that well, they would of course drill other Those articles were to be used in the prosecution of the firm's business until a dissolution took place, and thereupon they reverted to defendant for the purpose of enabling him "to continue the business*** in his own name and for his own benefit." We are therefore of opinion that there was error in treating said articles, valued by the master at $700, as partnership assets, and the decree should be modified accordingly. As to the other items of assets, we are not prepared to say there was any error. We are also of opinion that defendant should not be required to pay more than two-thirds of the costs. The proceedings appear to have been necessary to the settlement of matters in dispute between the parties, respectively, and each should, therefore, bear his proportionate share of the costs, etc. Decree reversed; and it is now adjudged and decreed that, in lieu of the sum specified in said decree, the defendant pay to the plaintiff the sum of $464.67, with interest from September 16, 1893; and it is further ordered that the costs, including the master's fee ($200), stenographer's bill ($125), and costs of this appeal be paid, one-third by plaintiff, and the remaining two-thirds by the defendant. 1. One who leases oil land under an agreement to pay a certain sum for each oil well drilled is not released from liability for the rent by his assignment of the lease to another person, whom the lessor recognizes as his tenant. 2. The lessee is not released from liability for rent of a well by the lessor's failure to demand from the assignee the rent thereof at the time boring thereon is commenced. Appeal from court of common pleas, Washington county; J. A. McIlvaine, Judge. Bill by the Pittsburgh Consolidated Coal Company against Greenlee & Forst for rent under a lease which had been assigned by defendants. Judgment was rendered for plaintiff, and defendants appeal. Affirmed. Boyd Crumrine, J. P. Patterson, and E. E. Crumrine, for appellants. John W. & A. Donnan, for appellee. STERRETT, C. J. While the contract which is the subject of construction in this case grew out of the attempted drilling by defendants of a single well through plaintiff's intervening seam of coal, its manifest purpose was to set at rest, not only the existing dispute in respect of that particular well, but other wells which defendants should desire to drill under their lease. If oil should be developed in paying quantities wells, to the exhaustion of that field, and provision would therefore naturally be made for them, in order to avoid a repetition of the difficulties. The subject of the contract was a right of easements, in indefinite series, which were essential to the development of defendants' leasehold property, and whose regulation was necessary to the safe operation of plaintiff's mines; and it was to the advantage of both parties that their disputes should be adjusted at once and for all. Hence, it was expressly stated that the contract was made for the "purpose of settling and adjusting all differences between them;" and among the differences so settled and adjusted was the payment by defendants to plaintiff of a stipulated sum for the well then being drilled, out of which the dispute had arisen, but, "in addition thereto," a like sum for "each additional well drilled upon said land" thereafter. It is conceded that the defendants were bound for the payment of the sum stipulated so long as they themselves continued to drill, but not after the assignment of the leasehold. Why not so long as wells should be drilled under their contract? "Additional wells have since been drilled, and defendants' promise was absolute and unqualified to pay for them in the manner stipulated. The contract was, on the part of defendants, in effect an agreement to purchase from plaintiff rights of way involving an element of personal responsibility which could not be avoided by any ex parte act of theirs. Their status cannot be distinguished from that of any other purchaser of an interest in land, who has made himself personally liable for purchase money. The contract was mutual, and neither party could modify it without the assent of the other. It is not alleged that plaintiff has given any express assent, and it does not appear that it has done anything from which an implication of assent can be drawn. The assignment upon which defendants rely was purely ex parte, and is a "new way of paying old debts" which no court of justice can recognize. They continued liable "because, although their assignment had divested them of the lease, it could not relieve them of their contract" with plaintiff. Gas Co. v. Johnson, 123 Pa. St. 593, 16 Atl. 799. It was suggested that plaintiff's recognition of the assignee's status operated as a release of defendants' liability; but defendants' assignment was the exercise of a right incident to ownership, which plaintiff had no power to prevent, and which had no relevancy to the question of liability as between them. So, it was argued that, because plaintiff had failed to demand from the assignee the sum stipulated for each well when begun, it was guilty of laches which worked a forfeiture of its right to claim; but the time of payment, being for its benefit, might be waived, whereas, the burden of payment having been on defendants, the default was theirs. It fol BRIDGE ON HIGHWAY-BREAKING UNDER EXTRAORDINARY WEIGHT-STEAM THRESHER-LIABILITY OF TOWN-ACTION FOR WRONGFUL DEATH -EVIDENCE. 1. In an action against a town for injuries caused by the breaking of a bridge under the weight of a steam thresher, defendant cannot complain of an instruction that if the bridge was properly constructed and maintained with reference to ordinary travel in 1888, when it was reconstructed, defendant would not be liable, though the moving of steam threshers had in the meantime become an ordinary use of the highway. 2. In an action for injuries causing death, evidence as to money received by plaintiff on the insurance policy of the deceased is inadmissible for the purpose of reducing damages. Appeal from court of common pleas, Mercer county; S. S. Mehard, Judge. Action by Rachel C. Coulter against the township of Pine for the death of plaintiff's husband through defects in a bridge. Judg ment for plaintiff, and defendant appeals. Affirmed. S. R. Mason and B. Magoffin, for appellant. G. W. McBride and Miller & Gordon, for appellee. MITCHELL, J. This case is governed by Clulow v. McClelland, 151 Pa. St. 583, 25 Atl. 147; but it is an error to suppose that that case, or Com. v. Allen, 148 Pa. St. 358, 23 Atl. 1115, decided, as matter of law, that the moving of traction engines, for steam threshing and other purposes, over roads or bridges, was at that time an extrordinary or unlawful use of the public highways. On the contrary, the nonsuit in Clulow v. MeClelland was sustained expressly on the ground that "plaintiffs themselves testified that they knew that the machine was a good deal heavier than the ordinary travel in the neighborhood; * * that in fact they had examined this bridge, taking off a plank to do so, and considered it safe,"-in other words, they were aware of the risk, and voluntarily accepted it,-while, as to the defendant, it was said, "It was not negligence in the township not to know what an inspection by the plaintiffs failed to disclose." The point of that case, therefore, is that the extraordinary use of the highway was clear, from plaintiffs' own evidence, and therefore there was no ground on which the township could be held liable for the accident. To make it still more clear that this was the extent of the decision, the chief justice added a warning, that "when the use of steam en gines for threshing, etc., becomes sc general that their transportation over the roads amounts to an ordinary use of them, it may be necessary to strengthen the bridges so as to withstand the increased strain." This generality of use would, of course, ordinarily be a question for the jury. How far, and under what circumstances, it may become the duty of townships to strengthen, for this purpose alone, bridges which are otherwise safe and in good repair, we need not discuss until the question is really before us. In the present case it appeared in the evidence that the bridge had been altered and reconstructed in 1888, and the court instructed the jury that, if it was properly constructed with reference to ordinary travel at that time, any intervening defect would have to be brought to the knowledge of the supervisors, but that if the timbers had been in use as long as such timbers usually last, or longer, then length of time would be equivalent to knowledge. This was in effect an instruction that, if the bridge was properly constructed and maintained with reference to ordinary travel in 1888, the township would not be liable, though the moving of steam threshers had in the meantime become an ordinary use of the highway. This was at least as favorable to defendant as it was entitled to ask. On the main issue the jury were told, "This case turns upon the question whether or not traction engines had become a usual and ordinary mode of travel when the superviors reconstructed the bridge in June, 1888." was a question for the jury, and was thus submitted in exact accord with the principle of Clulow v. McClelland. The difference in result was due to the difference in the facts, as appearing there in plaintiffs' own evidence, and as found here by the jury. It The assignment of error to the withdrawal of the evidence as to the insurance on the life of Joseph Coulter cannot be sustained. There was no basis on which such evidence could be admitted. Money paid on a policy of insurance is not the pecuniary value of the life, but of the premiums paid. The evidence was entirely irrelevant to the liability of defendant, or its amount. Railroad Co. v. Kirk, 90 Pa. St. 15. Appellant cites the authority of Lord Campbell, from Sedgwick on Damages; but the eighth edition of that work (section 67) discusses the subject more fully, and concludes thus: "The amount received by the plaintiff on an insurance policy cannot be shown to reduce the damages. ** When an action is brought, under a statute, for damages causing death, the rule in England is different. *** In the United States, however, the ordinary rule is followed, and the amount recovered is not reduced by the amount of insurance money;" citing Sherlock v. Alling, 44 Ind. 184, 199; Althorp v. Wolfe, 22 N. Y. 355; Terry v. Jewett, 17 Hun, 395; and Harding v. Townshend, 43 Vt. 536. Judgment affirmed. SIGUA IRON CO. v. VANDERVORT. (Supreme Court of Pennsylvania. Nov. 5, 1894.) ACTION ON SUBSCRIPTIONS TO CORPORATION— PLEADING. In an action by a corporation on stock subscriptions, an affidavit of defenses which merely alleges that plaintiff (a foreign corporation) has failed to file with the secretary of state a statement of the title and object of the corporation, etc., as required by Act June 9, 1881, and that it is not true that any valid contract was made, or that any valid issue of stock was made to defendant, is insufficient, since the latter allegations, being mere conclusions of law, will be disregarded, and therefore the contract may have been made in the state where the corporation was organized. Appeal from court of common pleas, Allegheny county. Action by the Sigua Iron Company against F. F. Vandervort to enforce payment of stock subscriptions. There was a judgment for plaintiff, and defendant appeals. Affirined. West McMurray, W. R. Errett, and W. A. Schmidt, for appellant. Watson & MeCleave, for appellee. PER CURIAM. Plaintiff company's statement of claim, verified by the affidavit of its president, presents a good cause of action, entitling it to judgment, unless a valid defense has been interposed. Without expressly traversing or denying either of the material averments of fact contained in said statement, the defendant avers "that plaintiff is a corporation of West Virginia, and was at the time of the alleged sale or contract and issuing of stock, in the city of Philadelphia, state of Pennsylvania, attempting to carry on business in this state, although it had not, as such foreign corporation, filed in the office of the secretary of this commonwealth, under the seal of said corporation, and signed by its president and secretary, a statement showing the title and object of said corporation, the location of its office or offices, and name or names of its authorized agents, or any certificate whatsoever, nor has it done so up to this time, as required by the act * of June 9, 1881." For aught that sufficiently appears in this or any other part of the affidavit of defense, defendant may have purchased the 100 shares of stock in question from some one in the state of West Virginia. The second paragraph, from which the above sentence is quoted, commences with the averment "that it is not true that any contract for the sale of said stock to defendant, or for the purchase thereof by defendant, which is binding, valid, or of any force or effect in law, was made as alleged by plaintiff, or that any valid or legal issue of stock was made by plaintiff to defendant, as alleged." This is a mere legal conclusion, and not an averment of facts from which a legal conclusion may be drawn by the court. This remark is applicable to the concluding sentence of the same paragraph. In any view that can be properly taken of the affidavit of defense, it is not a sufficient answer to plaintiff's statement; and hence there was no error in making the rule for judgment, etc., absolute. Judgment affirmed. HESS et al. v. McLAUGHLIN. (Supreme Court of Pennsylvania. Nov. 5, 1894.) CONTRACT-CONSTRUCTION-SEVERAL OR ENTIRE. A contract by a dairyman to ship whatever milk he may have, at a certain price per gallon, for a year, is a severable contract. Appeal from court of common pleas, Allegheny county. Action by F. T. McLaughlin against Catherine Hess and another. There was a judg ment for plaintiff, and defendants appeal. Affirmed. Plaintiff sued on a contract to ship defendants, for one year, whatever milk plaintiff should have, at a certain price per gallon, after breach by himself, for the quantity of milk shipped. The charge of the court complained of was as follows: "The defendant admits to have received this milk, and says that primarily he was to have paid for it at these rates; but he says that this plaintiff agreed to furnish him all the milk he had to ship during the entire year from April, 1892, to April, 1893, and primarily that, because that contract was violated, there can be no recovery whatever, the contract not having been fulfilled, and the plaintiff having been obliged to fully perform his contract before he can recover. This view of the case, gentlemen, we cannot recognize under the testimony. It was not a contract to furnish so many gallons of milk for so much time in a round sum, but it was an understanding between them that this plaintiff should ship what milk he had to ship, whether more or less, during the year. That is assuming the defendants' contention with regard to the contract to be correct. It was simply an agreement that this plaintiff should ship whatever milk he had to ship, be it more or less, or be it none, to him during the year, and upon the defendants' contention that it should be paid for at the rate of 15 cents per gallon during April, then 12 cents per gallon until October, and then 15 cents per gallon during October, and 18 cents per gallon during the remainder of the year until the first The defendants did not day of April, 1893. agree to take any specific quantity of him. There was no quantity mentioned. It was simply an agreement between them that whatever milk this man had to ship during these months should be paid for at these rates." W. S. Woods, for appellants. George N. Chalfant, for appellee. PER CURIAM. We find no error in that part of the charge recited in the first specifi cation. As to the second specification, it does not appear that the learned trial judge was requested to instruct the jury "that if they found as a fact that the contract was entire, and the breach of it was occasioned by the plaintiff himself," he could not recover; and, if he had been so requested, it would have been his duty, in view of the testimony, to have refused the point. In any view that In any view that can be properly taken of the testimony in this case, the contract in question was not entire, but severable. 2 Pars. Cont. (5th Ed.) 517; Rugg v. Moore, 110 Pa. St. 236, 1 Atl. 320, and cases there cited. Judgment affirmed. RELEASE AND DISCHARGE-ACCIDENT TO RAILWAY EMPLOYE-ACCEPTANCE OF BENEFITS FROM RELIEF ASSOCIATION. 1. Where a railroad company is a member of a relief association, and has agreed to assume its obligations, an employé of the company who joins the association under an agree ment that the acceptance of benefits from the relief fund for an injury caused by the operation of the railroad shall release all claims for damages against the company, and that he will execute such further instrument as may be necessary to evidence the acquittance of the company, is, by the acceptance of benefits after an injury, precluded from recovering damages from the railroad company, though he has never executed a formal release of damages. 2. Where the verdict is for plaintiff, subject to a question of law reserved, a subsequent judgment for plaintiff should be entered, not on the point reserved, but on the verdict. Appeal from court of common pleas, Westmoreland county; Lucien W. Doty, Judge. Action by George E. Ringle against the Pennsylvania Railroad Company for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Reversed. George E. Ringle, plaintiff, was a freight conductor on the West Penn Division of the Pennsylvania Railroad prior to the 19th of March, 1890, his run being from Blairsville to Allegheny city and return. Along by Bagdad Station, near the Kiskiminetas river, in Westmoreland county, this road runs at the base of the river hill. Plaintiff testified that he never considered this a dangerous place. Some of his witnesses testified that they thought it was a dangerous place. All of defendant's witnesses testified that they never considered it a dangerous place. On the 13th of March, 1890, a slide occurred near Bagdad Station, filling the ditch next the hillside, and approaching so near the track that the steps of one of the cars of a passenger train were partially twisted off by coming in contact with the debris. Notice of this was given by message of the conductor to the superintendent, of which the following is a copy: "March 13th, 1890. No. 5 struck some rocks three-fourths mile west of Bagdad Station, and knocked all the steps off of the left side of both coaches. I think the combined car will do to go east with. No other damage to train; none to engine. I think the rocks will clear a freight train, but there should be some one watching the hill, as rocks are still falling." On receipt of this, the following order was issued by the superintendent, and posted in the office at Blairsville as notice to freight and other trainmen: "March 13, 1890. No. 5 struck some rocks three-fourth miles west of Bagdad Station. Approach and run carefully at this point." Immediately thereafter the trackmen proceeded to Bagdad, and on the morning of the 14th of March the track was cleared, and the following message was sent to the superintendent by the foreman: "March 14, 1890. Track west of Bagdad (. K." Upon receipt of this message the superintendent issued an order, which was posted in the office at Blairsville, as notice to freight and other trainmen: "March 14, 1890. Trains may now resume schedule speed three-fourth miles west of Bagdad Station." An extra watchman was put in charge of this section of the road after this accident on the 13th of March, 1890. The plaintiff made his usual run each night from the 13th of March, 1890, until the 19th of March, 1890. On this latter date he was passing the place where the slide had occurred on the night of the 13th with his train, towards Allegheny city; and, while running at schedule speed, the engine of his train ran into a slide which covered the track nearest the hillside; the engine, in which he was at the time, was thrown over; and the plaintiff was permanently disabled. One leg was so badly injured that it was afterwards amputated. On the 21st of July, 1886, the plaintiff executed his application to the relief department of the Pennsylvania Railroad Company, which on the 31st of July, 1886. was approved by the assistant superintendent of this department. He continued in good standing up until the time of his accident. One stipulation of this contract is as follows: "And I agree that the acceptance of benefits from the said relief fund for injury or death shall operate as a release of all claims for damages against said company arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute such further instrument as may be necessary formally to evidence such acquittance." On the 16th of April, 1890, the plaintiff received his first payment from the relief department, amounting to $12, by reason of his injuries received on the 19th of March prior. On the 12th of May following, he received a payment of $30, and each month thereafter received payment at the rate of $1 per day until the 7th of April, 1891, at which time the amount of benefits was reduced to one-half dollar per day; and he thereafter continued to receive from the said relief department payments at the rate of one-half dollar per day until the 18th of January, 1892. All of the vouchers |