equipped, carried a strong pole some six or seven feet in length, fitted for the purpose. That the locomotive upon the train in question was equipped with such a pole is not disputed. It was proven as part of the plaintiff's case. Yet, notwithstanding the fact that the locomotive pole was in its place ready for use at the time of the accident, the plaintiff made no attempt to get it or use it; but, instead, used a piece of hemlock scantling, which he said he knew had been intended for use as a stanchion at the side of a freight car. His excuse was that the conductor told him to use the piece of hemlock. The conductor denied having given any such direction. If this feature were essential to the decision of the case, it would have to go to the jury as a disputed question of fact; but we do not so regard it. The plaintiff admits that he used the piece of hemlock, which he considered unsafe, and which had not been supplied by the defendant for any such purpose, and that it broke under the pressure which was put upon it, and caused the injuries of which plaintiff complains. The record shows that the defendant company furnished a safe and proper appliance, which the plaintiff failed to use. If he had used this appliance for the purpose for which it was intended, the accident in all probability would not have occurred. That the conductor should have suggested the use of a manifestly unfit piece of hemlock wood, when a proper and suitable pole was in its place upon the locomotive, waiting to be used, seems incredible. But granting that the credibility of the plaintiff's statement was for the jury, it affords no proof that the defendant company was in any way at fault. Having furnished a proper appliance, it could not be held responsible for the failure of plaintiff to use it, even though the conductor did suggest that something else, which was an obvious makeshift, would answer the purpose. If the conductor made such a suggestion, it could only have been as advisory, and while working in co-operation, as he was at the time, with the plaintiff. The conductor was uncoupling the cars which were to be poled, while the plaintiff was attending to the placing of the pole in position between the cars. The duty of supplying a proper pole was not upon the conductor. That duty was upon the defendant, and had been performed by it. If any suggestion was made by the con-. ductor to use something else, it was a voluntary interference with, and was in disregard of, the proper provision which had been made by the defendant. It could not be regarded as justifying the plaintiff in disregarding for himself the use of the pole which was furnished, and in jeopardizing his own safety by using something which he knew was unfit for the purpose. The record presents nothing from which it can fairly be inferred that the defendant company failed in the discharge of any duty which it owed to the plaintiff. But in any event, if the responsibility of the defendant company could be regarded as extending to the alleged action of the conductor in telling the plaintiff to use the hemlock, we agree with the court below that the clear contributory negligence of the plaintiff prevents his recovery. He testified that he knew the piece of wood was hemlock, that it was crossgrained and full of slivers, and was not a push pole, but was a side pole for holding a load in place upon a car, and that he thought it was unsafe to use. He was a man of experience, and had knowledge of the character of wood; yet he did use the hemlock which he knew was not suitable for the purpose, and which he regarded as unsafe. In so doing, he took upon himself the risk. There are six assignments of error in which complaint is made of the exclusion of evidence as to the use of the pole which was provided. In none of these assignments do we find any merit. There was no offer to show that the plaintiff examined the pole, or criticised it in any way, or objected to its use. The piece of hemlock which he used was about six feet in length, while the regular pole was about one foot longer. As it was set at an angle between the cars, it would involve placing the cars a little farther apart, but the difference would be immaterial. The pleadings raise no question as to the length of the pole or as to plaintiff's inability to use it. He was familiar with the work he was called upon to perform. Two of the assignments are to the rejection upon objection of questions which clearly were not cross-examination. The assignments of error are all overruled, and the judgment is affirmed. 1. (243 Pa. 375) In re MATHIOT'S ESTATE. (Supreme Court of Pennsylvania. Jan. 5, 1914.) CONTRACTS (§_111*)—ILLEGAL CONTRACTS -CONTRACT TO FACILITATE DIVORCE. Since the law favors continuance of the marriage relation and does not favor divorce, contracts to facilitate the procurement of divorce are illegal. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 515-520; Dec. Dig. § 111.*] 2. EXECUTORS AND ADMINISTRATORS (§ 228*)— CLAIMS AGAINST ESTATE EVIDENCE. Claims against the estate of a deceased person must be rigidly scanned when based on parol evidence and are subject to just suspicion if they could have been enforced against the deceased while living. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 819-826, 8272; Dec. Dig. § 228.*] 3. EXECUTORS AND ADMINISTRATORS (§ 207*)— CLAIMS AGAINST ESTATE-CONTRACT TO FACILITATE DIVORCE. A claim against decedent's estate by his widow for money received by him from her while their marriage was in contemplation, and used by him with her knowledge and as she intended, to procure a divorce from his former wife, being based on a void contract, was properly disal- of Ohio, and on August 2, 1907, accepted lowed. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 734; Dec. Dig. § 207.*] service of the summons. In the meanwhile, to wit, in the early part of 1908, he gave up his house on Walnut street and took rooms at the Hotel Lamont adjoining those of the Appeal from Orphans' Court, Allegheny claimant. Their affectionate relationship County. Ajudication in the Estate of Edward B. Mathiot, deceased. From decree dismissing exceptions to the adjudication, Laura H. Mathiot appeals. Affirmed. Upon the audit of the account, Miller, J., filed the following opinion: "The question is whether decedent's present wife can maintain a claim for $15,000 received by him from her and used with her knowledge by him to procure a divorce from his former wife; a subsequent marriage between claimant and the decedent being then in contemplation. "The Facts. He "1. Dr. Mathiot was first married in 1886. From this marriage were born two children, a son, Karl, and a daughter, Miriam. was a physician with an established reputation as a specialist and having a practice estimated worth $25,000 a year. At the time of the separation, hereinafter referred to, his then wife was the record owner of what has been described as No. 5912 Walnut street, in the city of Pittsburgh, while he was the record owner of the adjoining property, No. 5914. The two properties constitute one large building, but then completely separated by division walls and made up two separate residences. "2. In 1903, the claimant, then Mrs. Laura H. Taylor, began to be Dr. Mathiot's patient. For a short time statements were rendered to her for professional services. Later she became a very constant and frequent visitor at his office. These visits were more personal than professional. She remainded after office hours, frequently leaving with him. No statements or bills were rendered after this character of visits began. Their relations became very friendly and affectionate and so continued. continued, he giving her many presents, and various money transactions took place between them. "4. On February 10, 1908, notice was passed between the parties or their counsel that Dr. Mathiot was ready with his money. Foilowing this, on February 12th, a decree of divorce was obtained. On February 13th, the claimant gave the decedent a check for $15,000, he stating in her presence when the money was obtained at her bank that they intended to be married. The next day the money was paid to Mrs. Mathiot's counsel. On the 18th of April following, the decedent and the claimant were married. "5. From the foregoing facts, their sequence, the relationship of the parties, and the weight of all the testimony, the further fact is found that the claimant knew that the $15,000 she gave to the decedent then was to be used in the procurement of the divorce from his first wife in order that she and Dr. Mathiot might be married. "6. Shortly after their marriage, the doctor and the claimant had constant quarrels She demanded inabout money matters. terest on this money transaction. A check for $375 is offered in evidence tending to show such interest was paid. The claimant demands interest from the date when the money was advanced without allowing this credit. Shortly following Dr. Mathiot's death, the claimant, in answer to questions as to his debt, stated she knew of none exShe did not then state cept current bills. that she had this claim or the one subsequently referred to. She did, however, later take up the question of these claims with her present counsel, who in reasonable time gave notice of the same. "The Law. "Was the use of claimant's $15,000 known by her as the purchase price between Dr. Mathiot and his first wife as a consideration for an absolute divorce collusively obtained between them, followed by claimant's marriage to him in accordance with their clear intention, against public policy? "3. About 1907 a permanent estrangement took place between Dr. Mathiot and his then wife, Katherine. He refused to provide for her and his children unless she procured an absolute divorce from him. She moved from this state and took up her residence in Ohio. [1, 2] "Certain well-known principles must By arrangement between him and his wife a divorce was to be obtained upon the pay- be kept in mind in arriving at a just conclument to her of $10,000 as alimony and $5,000 sion: The law favors the continuance of the in settlement of a debt he owed to her father marriage relation; it does not favor divorce; or to her father's estate. Proceedings for contracts having for their object the procuredivorce were instituted in Ohio on August 1, ment, or facilitating the procurement, of diClaims against a dead 1907. The cause alleged was extreme cruelty vorce, are illegal. and neglect. Other grounds discussed by man's estate based on parol evidence must be counsel were not by arrangement set forth in rigidly scanned; if they might have been the libel. By collusive agreement Dr. enforced against him while living, they are Mathiot went to Youngstown in the state the subject of just suspicion; these prin ciples are so generally stated in text-books, for her marriage, the consummation of which in encyclopedias of law, in adjudicated cases was impossible so long as there was no diincluding many in Pennsylvania, that specific | vorce. This money used as found by the reference to a few only need be made in facts cannot be recovered back. Waugh v. support thereof. [3] "With special application to the facts in this case, it is held in Noice v. Brown, 38 N. J. Law, 228, 20 Am. Rep. 388, that a contract of marriage made by a man then married to take effect upon his obtaining a divorce from his then wife is illegal and void; so in Leupert v. Shields, 14 Colo. App. 404, 60 Pac. 193. In Pennsylvania it is well settled that divorce must never be obtained 'through levity or by collusion.' Hoffman v. Hoffman, 30 Pa. 417. A contract between the husband and wife pending proceedings in divorce, by which she should be paid money, the consideration for which was that she should not oppose the divorce, is void. Kilborn v. Field, 78 Pa. 194. A bond to facilitate divorce proceedings cannot be collected. Sampson v. Cresson, 6 Phila. 229. Contracts prejudicial to the convenience and welfare of the public must not be enforced, no matter how flagrant and malicious the breach of it by one of the parties. Irvin v. Irvin, 169 Pa. 529, 32 Atl. 445, 29 L. R. A. 292. "Whether courts will refuse to enforce such contracts or leave the parties where they have placed themselves depends upon the circumstances. As between themselves it is a well-recognized policy ordinarily to leave the parties alone, but when it concerns others, as in this case, the public to whom the sanctity of the marriage relation is one of the most important considerations of life, and the children of Dr. Mathiot, who by the allowance of this illegal claim are largely deprived of their patrimony in their father's estate, the consideration is of an entirely different character. As early as in Collins v. Blantern, 2 Wilson, 341, decided in 1765, a vicious consideration strikes at the contract itself and destroys its legal entity. It is im material whether the contract be to stifle a prosecution for perjury, as therein set forth, or to enter into a contract for marriage by one already married, as set forth in Kilborn v. Field, 78 Pa. 194; it is based on iniquity; its allowance would be to favor that which is highly impolitic, scandalous, and necessarily illegal; it is against the security of society and good morals. "Applying these principles to the facts in this case, wherein without the shadow of a doubt this claimant knew that her money was being used to procure a collusive divorce and her purpose was marriage with Dr. Mathiot, it is immaterial whether the amount was the price she was willing to pay for her husband or whether it was a loan. Whether her relations with the decedent were the instigating cause or the result of the estrangement between the husband and his former wife. She was the active participant therein, and her money opened the door Beck, 114 Pa. 422, 6 Atl. 923, 60 Am. Rep. 354. The atmosphere surrounding the relations of the claimant and Dr. Mathiot, the divorce and the money paid in connection with it, is vitiated, and no competent evidence has cleared it up. "In so concluding, little consideration is given to the inconsistencies and contradictions that appear in connection with this claim, such as the variation with respect to the demand for interest, or that she stated, after the doctor's death, that she knew of no claims against her husband's estate and refrained from mentioning what it is asserted is this belated one. The claim is refused wholly because the facts clearly bring it within the line of cases which courts cannot enforce, unless public policy and good morals are wholly eliminated." The court dismissed the exceptions. Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ. John O. Wicks and John S. Weller, both of Pittsburgh, for appellant. Willis F. McCook and Charles A. Woods, both of Pittsburgh, for appellees. PER CURIAM. The decree of the orphans' court is affirmed on the findings of fact and conclusions of law by Judge Miller. (243 Pa. 340) COONS v. McKEES ROCKS BOROUGH. (Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. EMINENT DOMAIN (§ 203*) - CHANGE OF GRADE-DAMAGES-EVIDENCE. In proceedings to recover for damages to a leasehold from change of a street grade, evidence of the necessity for and proper cost of raising buildings to conform to the new grade was admissible, not as a separate item of damage or as an independent fact, but as an element affecting the market value. [Ed. Note. For other cases, see Eminent Do main, Cent. Dig. § 542; Dec. Dig. § 203.*] 2. APPEAL AND ERROR (§ 748*)-ASSIGNMENT OF ERROR-ADMISSION OF EVIDEnce. An assignment of error complaining of the admission of evidence is defective where it misquotes such evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.*] 3. APPEAL AND ERROR (§ 1052*)-HARMLESS ERROR-EVIDENCE. In a proceeding for damages to a leasehold from change of a street grade, the fact that a for raising buildings, instead of stating the reawitness testified that he paid a certain amount sonable cost thereof, was harmless, where defendant showed by the man to whom payment was made that the amount was a reasonable charge for the work. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*] 4. APPEAL AND ERROR (§ 1078*)--ASSIGNMENT OF ERROR--ABANDONMENT. An assignment of error not discussed in appellant's printed argument may be deemed abandoned. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. 8 1078.*] 5. EVIDENCE (§ 543*) - COMPETENCY - TESTIMONY AS TO VALUE. Where, in proceedings for damages to a leasehold from change of a street grade, a witness testified that he was the former owner of the leasehold and had a general familiarity with values in the neighborhood, he was competent to express an opinion on the value of the leasehold. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 23562-2358; Dec. Dig. § 543.* 6. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. Admission of a witness' testimony as to the value of a leasehold, if error, was harmless, where, subsequent to his examination, evidence consistent with his testimony and sufficient to sustain the verdict was given by other witnesses whose competency was not questioned. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. 8 1051.*] 7. EMINENT DOMAIN_ (§ 201*) - CHANGE OF GRADE-DAMAGES EVIDENCE. to Where, in proceeding for damages to a leasehold from change of a street grade, it appeared that the lessee assigned his lease and claim for damages and that the assignee and subsequently her executor assigned same plaintiff, and that by agreement of counsel a stipulation that the case should be proceeded with and tried on its merits was filed of record, the assignment of the claim for damages and the will of testatrix were admissible in evidence as part of the line of proof to explain plaintiff's title. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 5402; Dec. Dig. § 201.*] 8. ASSIGNMENTS (§ 22*)-—CLAIM FOR DAMAGES TO LEASEHOLD-CHANGE OF STREET GRADE. A claim for damages to a leasehold from change of a street grade is assignable. [Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 35-39; Dec. Dig. § 22.*] 9. EMINENT DOMAIN (§ 194*)-CHANGE OF GRADE-DAMAGES TO LEASEHOLD AMENDMENT TO STATEMENT OF CLAIM. In a proceeding for damages to a leasehold from change of a street grade, it was not error to permit an amendment increasing the amount claimed in the statement of claim. where there was no departure from the original cause of action. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 523; Dec. Dig. § 194.*] 10. DAMAGES (§ 228*)-EXCESSIVE VERDICTREMITTITUR. The court of common pleas may permit a verdict to stand on condition that a remittitur for part thereof be filed of record. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 576-579; Dec. Dig. § 228.*] Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. R. S. Martin and Edward F. Duffy, both of Pittsburgh, for appellant. R. B. Petty, Jr., of Pittsburgh, for appellee. 1903, on MOSCHZISKER, J. In January, the Pittsburgh Railroad Company leased to J. N. Coons for the term of 20 years, commencing April 1, 1903, a certain piece of ground, with the improvements thereon, in the defendant borough, at a rental of $90 per month. The lease stipulated that the "tenant shall not have the right to move any of the buildings now or hereafter placed said lot." The improvements consisted of some frame buildings, and subsequently a double brick building was erected, presumably by the tenant. In December, 1903, J. N. Coons and wife executed an assignment of the lease to Samuel E. Coons, who forthwith reassigned it to Margaret M. Coons. In 1907 the defendant borough raised the grade of Chartiers avenue in front of the property in question about five feet. This had the effect of placing the two frame houses and the large double brick structure, which were at grade and stood out flush with the building line of the street, below the new level te that extent. In February, 1909, Margaret M. Coons and husband executed two assignments to Emma V. McFarland, one covering the leasehold and the other their claim for damages arising out of the change of grade. In April, 1909, on petition of Emma V. McFarland, viewers were appointed to assess the damages resulting to the leasehold, and she was awarded $1,750, for which judgment was entered in September, 1909. The borough appealed to the common pleas. In July, 1909, Emma V. McFarland died leaving a will in which, after making several specific bequests, she devised the remainder of her property to her husband, Thomas W. McFarland, and appointed him executor; but the testatrix made no special mention of her claim for damages against the defendant. In December, 1909, an agreement was filed of record in the court below signed by the solicitor for the borough and the attorney for "Margaret M. Coons for the use of Thomas W. McFarland, executor of Emma V. McFarland, deceased," in which it was stipulated that the case should be proceeded with and tried on its merits upon the issue "whether or not the leasehold property damaged * * by the change of grade and, if * damaged, to what amount." In November, 1911, Thomas W. was Appeal from Court of Common Pleas, Al- McFarland, personally and as executor, exlegheny County. Action by Margaret M. Coons, for use of Emma V. McFarland, now for use of Charles W. Warren, against the Borough of McKees Rocks. From a judgment for plaintiff, defendant appeals. Affirmed. ecuted two assignments whereby he transferred to Charles W. Warren (the use plaintiff) the leasehold and claim for damages. The record in the court below was amended: First, by the suggestion of the death of Emma V. McFarland, and the substitution of her executor, Thomas W. McFarland; next, by the substitution of Thomas W. Warren as use plaintiff, and, finally, by permitting the damages averred in the statement to be increased from $2,500 to $14,000. At the trial of the appeal, which occurred in February, 1913, the jury rendered a verdict in favor of the plaintiff for $5,000, which the trial judge reduced to $1,000, and the plaintiff accepted that amount by a stipulation filed of record. Judgment was entered upon the verdict, and the defendant has appealed to this court. * measure of damage was "the difference be- [1] The first and third assignments complain of the admission of evidence relative to the necessity for and the proper cost of raising the buildings on Chartiers avenue to conform to the new grade. In Dawson v. Pittsburgh, 159 Pa. 317, 28 Atl. 171, we held that testimony of this character was admissible in a change of grade proceeding, and that the probable cost or expense of raising a house might be considered; not, of course, as a separate item of damage or as an independent fact for the jury, but as an element bearing on and affecting the market value. Chambers v. South Chester Boro., 140 Pa. 510, 21 Atl. 409, relied upon by the appellant, is explained and distinguished in Dawson v. Pittsburgh, supra, upon two grounds: (1) In that case the cost of raising the building was sought to be introduced as a separate item of damage, and (2) the lot never had been on a level with the original grade of the street. Edsall v. Jersey Shore Boro., 220 Pa. 591, 70 Atl. 429, may also be distinguished upon the latter ground. In Patton v. Philadelphia, 175 Pa. 88, 34 Atl. 344, evidence as to cost of restoring a property to its former condition by making a fill was permitted; this court stating by Mr. Justice Mitchell: "Where a street is opened at a grade that leaves the adjoining property in a depression, the expense of putting the property in condition to make use of the street was held in Dawson v. Pittsburgh to be one of the elements of damage. * The offers of evidence therefore, as to the amount and the cost of the filling required to make the lot conform or to be available for use at the new grade, were competent and should have been admitted, not as independent items of damage, but as elements, to be taken into consideration by the jury together with other circumstances, in determining the market value of the property before and after taking of part of it for the street." | Also, see Shaffer v. Reynoldsville Boro., 44 Pa. Super. Ct. 1, and Hill v. Oakmont Boro., 47 Pa. Super. Ct. 261. In the case at bar the trial judge explained the law as ruled in these authorities, and made it plain not only at the time he admitted the testimony, but by numerous reiterations in his charge, that the jury could not under any circum-express an opinion upon the subject had not stances award the plaintiff the cost of raising the buildings, and that they were not to consider the proper expense of so doing as [2, 3] Before taking up the hext specification of error, we stop to note that the first assignment is defective in that it does not give a true abstract of the testimony. The record shows the witness in question testified that he had spent $235 to raise the frame buildings, while the assignment states the sum as $2,350, and this in itself is sufficient cause for dismissing the specification without further comment; but while upon this sub*ject it may be well to notice that, although this witness gave the amount actually spent for raising the buildings, instead of the reasonable cost therefor, yet no substantial harm was done by this testimony, for later in the trial the defendant proved the same fact by the man to whom the money was paid, and had him testify on direct examination that the amount was a reasonable charge and the work was worth what he had received for it. The testimony covered by the third assignment did not relate to money actually spent, but covered the reasonable and probable cost of raising the double brick building. [4-6] The second assignment complains of certain testimony regarding the value of the leasehold, which was objected to on the ground that the competency of the witness to been sufficiently shown. But, since this assignment is not discussed in the appellant's printed argument, we assume that it is not |