unlawful. Both the blowing of the whistle and the escape of steam and smoke may be negligent, and therefore unlawful, according to circumstances. If the circumstances themselves do not warrant an inference of unlawful use, the mere fact that an accident was caused by either is not sufficient to convict of negligence. He who alleges negligence must go further, and prove it. He must show that, an act in itself lawful, the commission of it either at the time, at the place, or in the manner, became unlawful. This is the substance of two carefully considered decisions by this court. Railroad Co. v. Stinger, 78 Pa. 219; Farley v. Harris, 186 Pa. 440, 40 Atl. 798. Both cases involved the question of negligence in blowing of steam whistles, and in both cases we carefully avoided any modification of the rule on the same subject laid down in Railroad Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346, followed by a long line of cases, down to Simmons v. Railroad Co., 199 Pa. 232, 48 Atl. 1070. In each of these many cases either the undisputed facts afforded some ground for an inference of negligence, or there was express affirmative evidence of negligence. As a consequence, the cases went to a jury. In the case before us a nonsuit was directed. Therefore we must take every fact as proven of which there was any evidence, yet on these facts the jury would not have been permitted to find a verdict against defendant. The train

had stopped at Bingen station. Four hundred yards ahead of it was a deep cut, on a curve. The highway ran on top of the embankment, parallel with the railroad. When the locomotive was in the cut, the vehicle on the highway was not visible to the engineer; and the railroad in front of him was visible only for a short distance, because of the curve. As he approached the cut he blew the whistle, and blew it loudly. When entering and when in the cut, smoke and steam in large quantity escaped. The deceased being on the highway above, his horse took fright, either because of the whistle or the smoke, or perhaps because of both. Just what warning the engineer should give, under such circumstances, would be dictated by his carefulness and regard for the lives of others. There might be travelers on the highway approaching or even on the road above him. They ought to have warning, that they might be able to restrain their animals, either by stopping, going to their heads and holding them until the train passed, or by preparing for their sudden fright, and unexpected movements under fright. Those at some distance might prefer to wait until the train had passed before going on an embankment at the top of a deep cut. We leave out of view the question of signal posts altogether. The deep cut and curve were there as signals to the engineer, which could not, in the exercise of care, be disregarded by him. Then, what was in front of him, but out of sight on the track? Perhaps third per

All

sons having no business there, yet not to be recklessly run over, or track employés, who had a right to be there, and were entitled to warning of an approaching train. the circumstances point to no conclusion of negligence in giving warning at that time and at that place. As to the allegation that the whistle was blown unusually loud, that of itself does not show negligence. How far must the sound carry, to warn those whom it was intended to reach, either on the highway or track? That would depend on the state of the atmosphere, at that time, and the knowledge of the engineer, derived from observation. No mere opinion or conjecture of those having no knowledge on the subject should be permitted to convict him of recklessness. As to emitting unusual quantities of smoke and steam, the extent of that, immediately after starting from the station, would depend on the weight of his train, and the degree of curvature of the road he must draw it over. Necessarily, it was greater with a heavy train at a curve than with a lighter train on a straight track.

Giving plaintiff's testimony all the weight and significance it is entitled to, it fails to show that defendant committed a lawful act in an unlawful manner. Therefore the judgment is affirmed.

LIMITATIONS-APPLICATION IN EQUITY. Plaintiff having been in possession of a locomotive for eight years, under an undisputed claim of ownership, before assertion of title by defendant, so that defendant would be barred by limitations from maintaining an action at law for it, such limitations will be applied in a suit by plaintiff to enjoin the re moval of the locomotive from its road by defendant, with the result that plaintiff will have a decree.

Appeal from court of common pleas, Blair county.

Suit by the Altoona & Beech Creek Railroad Company against the Pittsburgh, Johnston, Ebensburgh & Easton Railroad Company and another. Decree for plaintiff, and defendants appeal. Affirmed.

Thomas H. Greevy, for appellants. William S. Hammond, for appellee.

FELL, J. The bill filed in this case was to prevent the removal of locomotives and cars from the railroad leased by the defendants; the lease having been declared forfeited, and the lessee directed to deliver possession of the road and property leased to the lessor. The real contest was as to the ownership of a locomotive which was delivered to the Altoona, Clearfield & Northern Railroad Company by Burnham, Williams & Co. in 1892. Before the delivery, $3,000 of the

contract price was paid, and notes given for the balance. Two months after the delivery, default having been made in the payment of one of the notes, a lease was entered into by which it was provided that, when a rental equal in amount to the unpaid balance of the purchase money should have been paid in installments, the locomotive should become the property of the railroad company. It does not appear from the testimony whether the first agreement between the parties was for a lease, the execution of which was deferred, or whether this was a new arrangement to secure Burnham, Williams & Co. after the railroad company had failed to make the first payment. If there was a sale of the locomotive, it became subject to the lien of a mortgage given by the railroad company to secure bonds it had issued, and the title to it passed from the purchaser at the receivers' sale to the plaintiff. If there was a lease only, and it was properly recorded, the title was in one of the defendants, who purchased whatever interest Burnham, Williams & Co. had in the locomotive. It is, however, unnecessary to determine what right was acquired, or how it was affected by the failure to record the lease in the manner provided by the act of July 5, 1883 (P. L. 176). The plaintiff, under an undisputed claim of ownership, was in possession of the locomotive for eight years before the assertion of title by the party now claiming it. The statute of limitations was therefore a bar to any proeeeding at law, and it should be applied by analogy with the same effect in a court of equity.

The decree is affirmed, at the costs of the appellants.

SNYDER v. McLANAHAN. (Supreme Court of Pennsylvania. May 19, 1902.)

JUDICIAL SALE-RIGHT OF PURCHASER TO MAKE DEDUCTION FROM PURCHASE

PRICE-PLEADINGS.

1. At a judicial sale of real estate of an assigned estate, the assignor having died, his wife, who had not joined in the assignment, announced that she was claiming dower. Thereupon the attorney for the assignee announced that bidders would pay no attention to the dower notice, as the purchaser would receive a good title, and free of all liens and incumbrances whatever. Held, that this was merely an opinion that the sale would devest the widow's interest, and was not an 12rcement that the assignee would protect the purchaser from the widow's interest; so that, though the creditors were present and said nothing, the order of sale authorizing sale only of such title as the assignee had, and the deed made in pursuance of sale conveying only such title, the purchaser cannot deduct the amount of the widow's interest from the purchase price.1

2. Averment of affidavit of defense that conduct of creditors at a judicial sale "conclusively showed that the understanding was that the purchaser was not to pay for the dower in

1 See Assignments for Benefit of Creditors, vol. 4, Cent. Dig. § 791 [1].

addition to his bid" is insufficient, being but the conclusion of the pleader.

Appeal from court of common pleas, Blair county.

Action by John M. Snyder, assignee of Archibald McFadden, against J. King McLanahan, Jr., on a mortgage. Judgment for plaintiff. Defendant appeals. Affirmed.

John D. Blair, for appellant. Harry A. McFadden, for appellee.

MESTREZAT, J. This is a rule for judgment for want of a sufficient affidavit of defense. The court below made the rule absolute, and entered judgment against the defendant. He appeals.

The plaintiff is the assignee of Archibald McFadden, who made and delivered a deed of assignment for the benefit of his creditors in 1877, but in which his wife did not join. McFadden died in 1887, intestate, leaving to survive him his widow and three children. The real estate of the assignor was sold by his assignee on March 7, 1896, in pursuance of an order of the court of common pleas of Blair county, and the defendant, through his agent, became the purchaser. The sale was confirmed March 11, 1896, without objection by the purchaser, and a deed was delivered to him on April 2, 1896. One-third of the purchase money was paid on confirmation of the sale, and the remaining two-thirds were payable in one and two years thereafter. The last payment was secured by a mortgage given by the purchaser to the assignee. The second installment was paid into court. The third and last installment being due and unpaid, the assignee issued a scire facias on the mortgage. The defendant filed an affidavit of defense, and denies the right of the plaintiff to recover for the reasons therein set forth as follows: "On the 7th day of March, 1896, the assignee held his sale. Before the auctioneer began crying the sale, notice was given by Barbara McFadden that she was claiming a dower in the farm. Hon. A. S. Landis, who was the attorney for the assignee, and who had entire charge of the sale, after the giving of the dower notice, arose, and announced that bidders would pay no attention to the dower notice, as the purchaser would receive a good title, and free of all liens and incumbrances whatsoever. Both H. A. McFadden, executor of S. P. McFadden, and the representative of said Brooke mortgage, were present when said notice and announcement were made, and made no protest. On the contrary, their conduct conclusively showed that the understanding was that the purchaser was not to pay for the dower in addition to his bid, but that he would be protected. Said H. A. McFadden became a competitor with the purchaser, W. P. Smith, who was bidding for defendant, and the farm was bid to $9,000, less $10, when the farm was knocked down to defendant's agent." In brief, the defendant denies his liability on the mortgage be

cause, as stated in the "question involved," misleading public announcements as to the dower were made by the assignee at the public sale in the presence of all the parties interested in the purchase money, understood by all, and relied on by the purchaser. What is not set forth in an affidavit of defense is presumed not to exist, and hence, if the facts averred in the affidavit present a defense insufficient in law, the plaintiff is entitled to a summary judgment. The sale to the defendant in this action was a judicial sale, made in pursuance of an order of court, and the facts disclosed by the affidavit do not take it out of the operation of the well-settled rule of caveat emptor. The deed of Archibald McFadden to his assignee was duly recorded in 1877, and this was constructive notice to McLanahan, equally as effective as actual notice, that Mrs. McFadden's inchoate right of dower did not pass to the assignee. This deed was in the line of the purchaser's title, and he is affected by what it discloses. Again, on the day of the sale, and before it began, "notice was given by Barbara McFadden that she was claiming dower in the farm." Her husband, the assignor, had then been dead several years, and her right to dower in the premises had become absolute. In addition, therefore, to the constructive notice which the deed to the assignor gave McLanahan of the widow's interest in the land, he had actual, positive notice that she still retained her interest, and would assert her claim. With a full knowledge of all the facts, he purchased the property. He therefore knew that his title was subject to the widow's dower interest, and that she would enforce her claim against the land. Notwithstanding his knowledge of all the facts which enabled him to bid intelligently, the appellant contends that he was misled and deceived by the announcement at the sale "that bidders would pay no attention to the dower notice, as the purchaser would receive a good title, and free of all liens and incumbrances whatsoever." It should be observed, however, that the appellant did not construe this notice as meaning that the widow had no dower interest in the land, or that the sale would devest it. Relief is not sought here on either of those grounds, but because (in the words of the appellant's counsel), “interpreting the language [of the announcement just quoted] rationally and in the light of his former practice, either he [the assignee] intended to purchase her dower, as he had done in other instances, or allow the one-third to remain, as he had also done before, without objection from any one." But the language used by the counsel of the assignee at the sale does not admit of the interpretation placed upon it by the appellant. It did not import an agreement by the assignee to deliver a title to the premises discharged of the widow's dower, nor was it a representation to bidders that the assignee would protect the purchaser from the wid

ow's interest in the premises. The announce ment followed immediately the notice given by the widow, and its only fair construction is that it was intended to be merely the opinion of the learned gentleman who made it that the sale by the assignee would devest the widow's interest in the land. At that time the legal profession of the state was divided in opinion on that question, which had not then been determined by this court. It cannot be presumed that Judge Landis, the able counsel of the assignee, intended by his statement to make his client personally responsible to the purchaser for the dower, if the sale did not devest it, and the widow should refuse to release it. That, however, is the effect of the appellant's construction of the language used in the announcement. Of course, the assignee was not invested with the power to compel the widow to relinquish her interest in the land. Nor was he authorized in his official capacity to agree or consent that the appellant might deduct from the purchase money secured by the mortgage a sum sufficient to protect him against the dower. Neither did the order of court under which the sale was made, nor its confirmation thereafter, clothe him with such authority. This, however, as we understand, is not claimed by the appellant, but he rests the authority of the assignee to apply the installment due on the mortgage in satisfaction of the dower on the fact that the creditors of the assignor were present at the sale and made no protest against the statement that the purchaser would receive a good title, clear of incumbrances, and on the further fact that the assignee, presumably with the consent of the creditors, had in former sales of real estate made such application of the purchase money. But the silence of the creditors cannot be construed into an agreement that the funds to which they are entitled should be applied by the assignee to this purpose. As has been observed, the assignee was not authorized by them to make such disposition of the purchase money. They were not bound to speak when the notice was given, and hence their silence was not a fraud on the purchaser nor was it a deception which would work an estoppel. It is not averred in the affidavit that the creditors said anything or did any positive act at the sale that would show their consent to the statement of Judge Landis, or that they intended to obligate themselves to pay the dower by permitting the purchase money to be applied to this purpose. It is true that the affidavit alleges that "their conduct conclusively showed that the understanding was that the purchaser was not to pay for the dower in addition to his bid," but this allegation is too indefinite and uncertain, and must, therefore, be disregarded. To avail the affiant, the affidavit must set out, not his conclusion of law or fact, but what the creditors said and did, so that the court may determine the understanding of the parties as to what occurred

at the sale and its legal effect. As we have seen, the appellant knew, before he bid at the sale, that the premises were subject to the dower of Mrs. McFadden, and that the purchaser would take them incumbered to that extent. He was, therefore, not deceived or misled as to the title or the incumbrance upon it. If he relied upon the assignee to satisfy the widow's claim upon the land, he must secure his redress from that source as a personal obligation, if the promise has any validity. In his official capacity the assignee sold the land incumbered with the dower of which the appellant had full knowledge at the time he purchased, and the deed made in pursuance of the sale conveys only the title which the assignee held and which he sold. He has performed his duty officially, and the appellant is in possession of, and has a good title to, what he purchased. He is therefore not now in a position to resist payment of the purchase money. The rule of caveat emptor applies. He gets what he knew the assignee had to sell, and at the price bid by him. The rights of the assignor's creditors to the purchase money cannot be defeated by the mere expectation of the purchaser that an incumbrance known to the latter would in some way be removed by the assignee. This is not an application by the purchaser to set aside a sale before its confirmation on the ground of a defective title, but it is an appeal to the equitable powers of the court four years after the sale has been confirmed, the deed has been delivered, and title has passed, to compel the assignee to apply part of the purchase money to the payment of an incumbrance of which the purchaser was fully advised before he bid at the sale. If the appellant desired relief under the facts set forth in his affidavit, and which he fully knew at the time of the sale, he should have presented his application to the court granting the order of sale, and before its confirmation. He would have been heard and relieved from the consequence of any deception practiced upon him, or of any misrepresentations made by the assignee. This is the general rule applicable to judicial sales, and the one that must be enforced in this case. The authorities to sustain it are cited in the opinion of the court below, approved by this court in the very recent case of Falrig v. Schimpff, 199 Pa. 423, 49 Atl. 237.

The facts of Leard's Estate, 164 Pa. 435, 30 Atl. 298, are very similar to those of the ease in hand. That was an application by a successful bidder to set aside a sale before confirmation on the ground that the purchaser would have to pay a sum in addition to his bid at the assignee's sale before he could procure a complete title. A question arose at the sale as to the title, and after a conference between the assignee's counsel and the assignor and his father, who each owned a one-third interest in the premises, an "announcement was made that the title would be made good, or the money paid

refunded." After the sale the owner of the other one-third declined to convey his interest to the purchaser. The court below refused to set aside the sale for the reason that the purchaser knew at the time of the sale that the title to the property was not wholly in the assignor, but was in three parties. It was therefore held that he was not deceived by the statement made at the sale. This court affirmed the decree of the court below. In the case in hand the purchaser was cognizant of the facts, and bid for the property with the knowledge that the dower of the widow had not been released, and that she would assert her claim against the farm. The statement, therefore, at the sale, did not deceive or mislead him as to the fact. His interpretation of the announcement directly in conflict with the facts, which he knew, cannot now be interposed as a defense to the payment of the purchase money. The decisions cited by the learned counsel for the appellant are not applicable to the facts of this case. It is true that at the proper time, and under proper circumstances, the court will relieve the purchaser at a judicial sale who has been misled and deceived to his injury. In re Leard's Estate, supra. The facts of this case stand in the way of enforcing that rule in this proceeding.

The assignments of error are overruled, and the judgment is affirmed.

OGDEN V. PHILADELPHIA & W. C. TRACTION CO.

(Supreme Court of Pennsylvania. May 19, 1902.)

CONTRACTS EVIDENCE TO AVOID WRITTEN BY CONTEMPORANEOUS PAROL -INDEFINITENESS.

1. That, for a while after an employé got out of the house after his injury, the employers, according to their custom, gave him light employment at $1.50 per day, is not evidence that an oral agreement that they should give him such employment for life was made contemporaneously with a written agreement whereby he, in consideration of certain payments, released them from all liability on account of his injury.

2. A written contract whereby, in consideration of $20, and payment of $1.50 per day during time an employé is confined in the house, he expressly releases the employers from all liability for his injury, cannot be avoided by evidence of a contemporaneous oral agree ment that they were to pay his doctor's bill, and, from the time he was able to get out of the house, would employ him at $1.50 per day for the rest of his life; he and his wife alone testifying to this, and two employés testifying to the contrary.

3. Contract that employers should employ an injured employé at $1.50 per day for the rest of his life is too indefinite to be enforced; there being no provision as to the nature of the employment, or how it should be determined.

Appeal from court of common pleas, Philadelphia county.

Action by John Ogden against the Philadelphia & West Chester Traction Company.

Judgment for plaintiff, and defendant appeals. Reversed.

S. K. Louchheim and S. Davis Page, for appellant. W. Horace Hepburn, for appellee.

DEAN, J. The plaintiff, John Ogden, had been conductor on a trolley car of defendant for two months prior to 2d of March, 1899. On that day his car jumped the track, and he was seriously injured, but continued to work out the remainder of that day, and for the two days following. On the 10th of March, while confined to his room, J. H. Gibson, superintendent of the company, and H. H. Aikens, clerk to the president, visited Ogden, at his invitation, in his room, where, after some conversation with reference to his injuries, he signed and delivered to them this paper: "Philadelphia, March 10th, 1899. Philadelphia and West Chester Traction Company-Gentlemen: In consideration of twenty dollars paid by you to me this day, the receipt of which is hereby acknowledged by me, and the further understanding that you pay me the further sum of one and 50/100 dollars for each day I am confined to the house, I hereby release your company and the companies over whose tracks you operated from all liability for the accident which happened to me by reason of your car jumping the track going east of Milltown Hill on March 2nd, 1899, in which accident I was seriously injured. This is intended to be a general release of all liability on your part for the injuries which I have sustained in said accident, no matter what the result of the same may be. John Ogden." The execution and delivery of this paper are not disputed. But Ogden alleged that it did not contain all the stipulations of the company in his favor, and that there was an oral agreement on the part of the company, made at the same time, as a further inducement to its execution, and without such oral stipulation he would not have signed it. He testifies that, at the same time the release was signed, Gibson, representing the company, agreed that the company would, in addition, pay his doctor's bill, and, from the time he was able to get out of the house, would employ him at $1.50 a day for the rest of his life. In this statement he is corroborated by the testimony of his wife. There were but the two others present when the paper was executed,-Gibson and Aikens. Both of them testify positively that no other consideration was promised than that contained in the paper called a "release," and that paper was read to, and understood by, Ogden. It was the custom of the company to keep the places of employés injured in its service open for them, or to give them such other work as they could perform when disabled. Ogden was employed in a ticket office for the greater part of the time after he was able to leave his room until the following November. His wages, including the $1.50 per day

while confined to the house, amounted to $368.68,-about $1.50 per day for the whole period. The summer ticket office in which he had worked was closed for the winter in November. The company then offered to employ him as a tollgate keeper on a turnpike under its control, and pay to him $6 per week, with house rent free, but this he declined to accept. It was perfectly willing to give him back his place as conductor, but he alleged that, on account of his injuries, he was physically unable to perform its duties. No other employment was offered him, and he did not remain in the company's service. The court below submitted the conflicting testimony to the jury to find: First. Whether there was an oral agreement such as plaintiff claimed. Second. If so, then was it broken by defendant? Third. If broken, then what damages was plaintiff entitled to? The verdict was for plaintiff in the sum of $2,500, and defendant appeals, preferring nine assignments of error.

The denial by the court of defendant's fifth prayer for instructions, it seems to us, raises the crucial question on this appeal. That prayer was as follows: "(5) The written contract signed by plaintiff on the 10th of March, 1899, in the presence of John H. Gibson and H. H. Aikens, having been prepared by Gibson in the presence of plaintiff after a conversation with him, and having been signed by the plaintiff after such contract was read and explained to him, its terms cannot be varied or altered by any conversation had with the plaintiff before the execution of the same, unless it clearly appears that such conversation would supply the terms of the contract omitted either through fraud, accident, or mistake, of which in this case there is no evidence." The evidence is not contradicted that the paper was read to Ogden. By its terms, it is full and complete. There was expressed a substantial consideration, which was fully paid. There is no testimony that the additional oral consideration induced Ogden to execute the paper, as assumed by the learned judge in his charge. There is the evidence of Ogden and his wife that, in the conversation between Gibson and the husband before signing, Gibson said that Ogden would be employed the rest of his life at $1.50 per day. Both Gibson and Aikens flatly deny that any such conversation took place. It does appear, from other evidence in the case, that it was well understood that this employer, from dictates of kindness, and perhaps to encourage loyalty on the part of its employés, kept open the places of the latter for them until recovery from injuries received in its service, or furnished other employment when partial disability occurred; and such custom is not, perhaps, unusual with employers. This plaintiff was furnished with lighter employment for months after his injury, and was then tendered another position, for which his weakness did not incapacitate him; but this last he declined to