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such transfer in view of the numerous decisions of this court sustaining actions based on assignments of this character. In Hamilton v. Brown, 18 Pa. 87-89, we said:

"An assignee need show no right in himself; it is enough if he show a right in the legal plaintiff, for it is this right alone that can be enforced."

Earle Hepburn, of Philadelphia, for appellant.

J. Hibbs Buckman (of Buckman & Buckman), of Philadelphia, for appellee.

PER CURIAM. Plaintiff sued to recover damages for injuries sustained as the result of falling through an open elevator shaft on In Howes v. Scott, 224 Pa. 7, 13, 73 Atl. the lower court, in refusing to take off a the premises of defendant. The judgment of 186, 188:

"The right to maintain this action does not depend upon the interest which the use plaintiff may have in the result. It depends solely upon whether the legal plaintiff has a cause of on whether the legal plaintiff has a cause of action against the defendant. If he cannot maintain the action, the use plaintiff cannot do If the legal plaintiff has a good cause of action, it is immaterial, so far as the defendant is concerned, whether the use plaintiff has any cerns the legal and use plaintiffs and not the

interest or not. That is a matter which con

defendant."

The fact that the corporation had ceased to do business will not prevent a recovery here. Under the Act of May 21, 1881 (P. L. 30 [Pa. St. 1920, § 5985]), the corporation had a right, for the purpose of winding up its affairs, to dispose of its property with the same effect as if it were still a going concern, and to do so an assignment of the equitable title of the claim in controversy was within its power.

An examination of the evidence convinces us of its sufficiency to sustain the claim for us of its sufficiency to sustain the claim for consequential damages if believed by the jury. This question was fairly submitted to the jury and found against defendant. The judgment is affirmed.

nonsuit, is affirmed on the following extract from the opinion of the learned court below:

"Plaintiff on his own testimony admitted that he was standing seven feet away from the opening into the elevator; that he had his back to the elevator; that he had been engaged for a few minutes previous in helping to load his truck with flour. He then says that he stepped fell down the unguarded shaft, the elevator having been moved meanwhile by somebody unknown. The plaintiff further testified that he knew that the gates were not there, or that if they were there that they did not work, betwelve times before over a period of about two cause he said he had been up there some ten or months before this accident happened, and therefore he knew the condition of the elevator, and knew therefore that if the elevator was moved there would be no gates there to protect a person. With that knowledge, he stepped backward from his position in the truck to the elevator shaft without turning his head, either before he started or while he was backing, or immediately before passing over from the solid floor into the area covered by the elevator. He also says it was a bright May day, a tor. He also says it was a bright May day, a sunny day, and that while it was not as light within the building, of course, as it was outside, there was enough light there for him to have seen had he looked. He frankly says that he could have seen had he looked, and that he did not look."

backward those seven feet to the elevator and

The judgment is affirmed.

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(273 Pa. 12)

INDEPENDENT BREWING CO. OF PITTSBURGH v. COLONIAL TRUST CO. et al. (Supreme Court of Pennsylvania. Jan. 3, 1922.)

1. Courts 472 (3)-Court of common pleas held to have jurisdiction to enforce rights under mortgages of manufacturing corporations.

Under Act June 16, 1836 (P. L. 784, 789, § 13; Pa. St. 1920, § 4562), and Act March 23, 1877 (P. L. 32; Pa. St. 1920, §§ 4584, 4585), a court of common pleas has the power of the court of chancery to enforce right under mortgages given by manufacturing corporations. 2. Equity 44-Chancery court has exclusive control of trustees in management or administration.

A court of chancery has exclusive supervision and control of trustees in the management or administration of their trust.

(116 A.)

3. Mandamus 138-Will not lie to enforce mortgage bonds, as it had previously done, contract obligations. and give in return the face value of the Since mandamus will not lie at the suit of bonds-this, notwithstanding the fact that one corporation contracting with another to enforce the contract, where a brewing company has made a trust company trustee under a mortgage wherein certain duties were imposed upon the trustee as to the management and control of a sinking fund, the brewing company could not by mandamus compel the trust company to perform such contract; there being no specific duty to the brewing company imposed upon the trust company by the terms of its charter or necessarily arising from the nature of the obligation which the charter created.

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fore us.

the sinking fund was raised for the benefit of the bondholders, and appellee could go into the market and purchase bonds for 45 per cent. of their value. Appellee, for the first time, as far as it appears, denied the brewing company's right to the money in the sinking fund, and the latter, contending it had the sole, absolute, and exclusive power to direct the trustee how to invest or dispose of the money in the sinking fund, se

cured an alternative writ of mandamus to compel the trustee to accept the bonds. The court below, on motion, quashed the alternative writ, for the reason equity had exclusive jurisdiction of the subject-matter of the litigation. This appeal follows that

decree.

[1] Appellant bases its right to the writ
St. 1920, § 14507), because appellee, as a
on the Act of March 19, 1903 (P. L. 32; Pa.
trust company, had certain enumerated pow-
ers ("to reccive and hold on deposit and in
trust, and as security, estate, real and per-
sonal;" "to take, accept and execute trusts
of every description not inconsistent with
the law of this state or of the United
States;" "and to receive and manage any
sinking fund *
on such terms as

may be agreed upon") that were, in fact, le-
may be agreed upon") that were, in fact, le-
gal duties under the act which gave the
mandamus. The petition for mandamus dis-
court jurisdiction to compel performance by
tinctly avers that appellee is a trustee in a
mortgage, with certain duties to perform by
reason of the acceptance of the trust; as trus-
tee it took the legal title to a sum of money
deposited with it, the equitable title being
directly in those beneficially interested in
the sinking fund through the terms of the
supplemental mortgage. The legal relation
of trustee and cestui que trust, and the equi-
table title that came into existence through
it, was the product of a court of equity,
and, except in a decedent's estate, specifical.
ly excepted by statute, it is no more than
proper that a court of equity should con-
tinue to take care of it. This is generally
the law in England and America; in Penn-
sylvania it has been the subject of a stat-
utory regulation. "The several courts of
common pleas, shall have the jurisdiction
and powers of a court of chancery, so far
as it relates to the control, removal and dis-
charge of trustees, and the appointment of
trustees, and the settlement of their ac-
counts,
the care of trust monies

KEPHART, J. If, as urged by appellee, mandamus will not lie, then the questions so earnestly argued by appellant are not be To understand appellant's position, a brief recital of the facts is necessary. The Independent Brewing Company, in 1905, created an indebtedness of $4,500,000, issuing therefor its 50-year bonds, with interest payable semiannually thereafter. The mortgage securing the bonds contained no covenant for the creation or maintenance of a sinking fund. By a supplemental mortgage, executed in 1909, such fund was created; the Colonial Trust Company, appellee, was designated trustee and accepted the position. This indenture required appellant to deposit $50,000, in 1911, and annually thereafter, with the trustee, for a sinking fund; and it further provided (section 7) that the money so paid, with the accumulations of interest, was to be used and applied by the trustee as the board of directors should request; that is, to purchase bonds secured by the mortgage. Since the date mentioned, ten payments of $50,000 each have been made, and the trustee, at the request of the directors, has taken treasury bonds from appellant (debtor), giving par value therefor, though the bonds had been selling in the open market at from 40 to 90 per cent. of their face value. In January, and property made liable to the 1921, there came into the possession of the control of the said courts.” Act of June 16, trustee $17,000 as accrued interest on the 1836, (P. L. 784, 789, § 13; Pa. St. 1920, § bonds in its hands; and appellant, acting 4562). and appellant, acting 4562). And by the Act of March 23, 1877 (P. under what it believed to be its right, re- L. 32; Pa. St. 1920, §§ 4584, 4585), it has the quested appellee to take seventeen of the first power of a court of chancery to enforce

*

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

rights under mortgages given by manufac-, taken in the name of a third party at the speturing corporations, appellant being such a cial request of the employee, the payee in such note could recover thereon for the use of the employer.

company.

[2] The fund in appellee's hands is a trust fund and the dispute is over its management. A court of chancery has exclusive supervision and control of trustees in the management or administration of their trust, and, while this was not directly ruled, it was accepted in Struthers Coal & Coke Co. v. Union

Tr. Co., 227 Pa. 29, 75 Atl. 986.

Appeal from Court of Common Pleas, Philadelphia County; John M. Patterson, Judge.

the Edward S. Tryon Company, against Wil-
Action by Francis S. Laws, to the use of
liam H. Maxwell. From an order refusing
to open a judgment entered on a note, de-
fendant appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and
KEP-
WALLING, SIMPSON,
FRAZER, WALLING,
HART, SADLER, and SCHAFFER, JJ.
Walter Thomas, of Philadelphia, for ap-
pellant.

Otto Wolff, Jr., and Lewis, Adler & Laws, all of Philadelphia, for appellee.

PER CURIAM. This is an appeal from the refusal to open a judgment entered on a note under seal signed by defendant. The evidence shows that defendant worked for use-plaintiff; he proved a defaulter, and the

[3] Notwithstanding this, appellant urges that a remedy, likely a concurrent one, exists by way of mandamus-arguing, as above stated, that, as appellee is a corporation, with the powers enumerated when it accepted the trust, a clear legal duty was imposed on it which it has declined to obey. When appellee, in the exercise of its corporate powers, accepted the trust, it involved certain duties to be performed, but these are not statutory or public duties that might be enforced by mandamus; they exist through contract and are contractual obligations; mandamus does not lie at the suit of one corporation contracting with another corpora-obligation in suit was given to cover the baltion to enforce performance of such contracts. It is unnecessary to discuss appellant's cases in detail. They relate to situations where mandamus was used to enforce a strictly public duty or an obligation arising by charter, such as duties of a public service company or their like, or to enforce rights within a corporation between its stockholders and officers; no case has been cited where mandamus lies to enforce rights springing solely from contract. Duties imposed upon a corporation not by virtue of express laws or the conditions of its charter, but arising out of contract relations, will not be enforced by mandamus, since the use of the writ is limited to the enforcement of obligations imposed by law. To warrant the writ against such a company, there must be some specific duty to the relator, expressly imposed by the terms of its charter or necessarily arising from the nature of the privileges or obligations which the charter creates. "The writ of mandamus issues only in case of necessity. Where there is doubt. of its necessity or propriety it will not go." 26 Cyc. 146; New Brighton Boro. v. New Brighton Water Co., 247 Pa. 232, 238, 93

Atl. 327.

ance due his employer. The note was taken in the name of the legal plaintiff, Francis S. Laws, at the special solicitation and request of defendant, who feared that, if judgment for such a large amount were entered against him by his employer, just as he, defendant, was leaving a position which he had occupied for some years, it might cause suspicion and impair his chances of obtainment of facts disposes of the necessity for ing other employment. This simple statediscussing the points of law so earnestly urged upon us by appellant's counsel, and it is necessary to say only that, after reading the testimony, we are not convinced of

error.

The order appealed from is affirmed.

(273 Pa. 6) JAWER v. BORNER. (No. 140.) (Supreme Court of Pennsylvania. Feb. 6, 1922.)

Judgment 68 (5)-Evidence held at variance with allegations of petition to open judgment by confession.

On a rule to open a judgment by confession on a warrant contained in a lease, evidence that after notice to terminate an existing tenancy

The decree of the court below is affirmed. on May 15, 1921, a parol agreement for a new

(273 Pa. 8)

LAWS v. MAXWELL.

(Supreme Court of Pennsylvania. Feb. 6,

1922.)

Bills and notes 443 (2)-Maker of note held liable to payee for use of another.

Where defaulting employee gave a note to cover balance due his employer, which was

lease for three years was entered into, was
at variance with the allegations of the petition
that a parol lease was made on or about Feb-
ruary 25, 1920, for a term of three years be-
ginning May 15, 1920.
2. Landlord and tenant

116(7)-Permitting tenant to remain at agreed increase in rent after notice to terminate tenancy held withdrawal of notice and continuance of lease.

That a tenant, after notice was given to terminate the existing tenancy, was permitted

(116 A.)

to remain for another year at an agreed in- | Vt. 386, 390, 15 Atl. 332; Despard v. Walcrease of rent, without any agreement for a new bridge, 15 N. Y. 374, 376; Schuyler v. Smith, term, amounted to a withdrawal of the notice 51 N. Y. 309, 313, 10 Am. Rep. 609; Adriance and a continuance of the existing lease at the v. Hafkemeyer, 39 Mo. 134, 135; Moore v. Harter, 67 Ohio St. 250, 253, 65 N. E. 883. Abrams v. Sherwin, 269 Pa. 31, 33, 112 Atl. 235, is readily distinguishable in its facts from the case at bar.

new rent.

Appeal from Court of Common Pleas, Philadelphia County; William C. Ferguson, Judge.

Proceeding for judgment by confession on a warrant contained in a lease, by Fannie E. Jawer against A. Carl Borner. From an order discharging a rule to open the judgment, defendant appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, ᏦᎬᏢᎻᎪᎡᎢ, and SCHAFFER, JJ.

Edward H. Cushman and J. Quincy Hunsicker, both of Philadelphia, for appellant.

Owen J. Roberts and George G. Chandler, both of Philadelphia, for appellee.

PER CURIAM. [1, 2] We adopt the following excerpts from the opinion of the court below, discharging a rule to open a judgment entered by confession, on a warrant contained in a written lease:

"The petition * avers that, on or about February 25, 1920, the then landlord entered into a parol lease of the premises in question, for a term of three years, beginning May 15, 1920. Defendant's evidence is to the effect that, after a notice to terminate the existing tenancy on May 15, 1921, had been received by him, a parol agreement was entered into for the execution of a new lease for three years, the only other term agreed upon being the amount of the rent, which was to be at the rate of $10 per month more than the rent defendant was then paying. When the new lease was to commence was not shown; this is greatly at variance with the averment of the petition [in support of the relief asked], and, in itself, is sufficient to justify us in discharging the rule. We are not convinced, however, that *

an agreement [for a new period of three years] was made. There was discussion touching a new lease, which never, verbally or otherwise, was reduced to definite terms. The fact that the The fact that the tenant was permitted to remain for another year, at an [agreed] increase of rent [in the absence of proof of the alleged agreement for a new term of three years, dependent on by appellant] must be regarded as a withdrawal of the notice and a continuance of the existing lease [at the new rent]."

For correct statements of the ruling principles involved, see Walker v. Githens, 156 Pa. 178, 180, 27 Atl. 36; Whitehill v. Schwartz, 27 Pa. Super. Ct. 526, 529. See, also, opinions by Judge Allison in Taylor v. Winters, 6 Phila. 126, and by Judge Stroud in Pittfield v. Ewing, 6 Phila. 455, 457, 458. The following cases, from other states, also are enlightening: Higgins v. Halligan, 46 Ill. 173, 180, 181; Amsden v. Blaisdell, 60

The order appealed from is affirmed.

(272 Pa. 518)

SHEPLAN et al. v. KRAMER WOODWORK-
ING CO., Inc.

(Supreme Court of Pennsylvania. Feb. 6,
1922.)

Municipal corporations 821 (9)-Whether defendant was negligent in piling lumber in street held for jury.

Whether a manufacturer of wooden articles was guilty of negligence in the manner of piling logs and lumber in the street so as to make it liable for injuries to a child from being struck by a log which rolled from the pile held for the jury.

Appeal from Court of Common Pleas, Philadelphia County; Wessel, Judge.

Action by Bernard Sheplan, by his next friend and father, Charles Sheplan, and the latter in his own right, against the Kramer Woodworking Company, Incorporated. Judgment for defendant, and plaintiffs appeal. Afirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

Max Aron and Jacob Weinstein, both of Philadelphia, for appellants.

T. Raeburn White and H. W. Moore, both of Philadelphia, for appellee.

PER CURIAM. Plaintiffs sued to recover for injuries to Charles Sheplan, a 10 year old child, alleged to have been suffered by him through defendant's negligence. The issues involved were submitted to the jury, who found a verdict for defendant, upon which judgment was entered; plaintiffs have appealed.

Defendant manufactures articles made of wood; one of its places of business is located on North Ninth street, Philadelphia, in front of which was piled a quantity of boards and logs; one of these logs rolled upon, and injured, the minor plaintiff, while he was playing around the pile. Plaintiffs' evidence tended to prove that the logs were so carelessly piled that an accident of the kind here complained of was apt to happen, while defendant's evidence showed due care, and the verdict indicates the jury believed the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

latter. After reading the testimony and ex- Zophar C. Howell, out of whose estate priamining the entire record, we find no re-marily arises the fund in question. By his versible error.

The judgment is affirmed.

(273 Pa. 50)

In re HOWELL'S ESTATE. (Supreme Court of Pennsylvania. Feb. 6, 1922.)

will, he devised an undivided sixth of his estate to Rebecca L. Howell for life, with remainder over to the children of her deceased brothers and sisters (D. Zophar Howell is the child of a deceased brother), and to her brother and sister living in equal shares, the children of her deceased brothers and sisters to take by representation, with a proviso that should his daughter marry, and leave a child or children surviving her, then the share should go to such child or children. Rebecca L. Howell died unmarried and without issue. It is conceded under the terms of the will, D. Zophar Howell had a vested remainder in the share of the estate bequeathed to his aunt. In addition to this interest in the estate, he had a further share in it, as one of the five children of testator's deceased son, Darius M. Howell, to whom was given another undivided sixth. It is a matter of importance, as will hereafter appear, to carry in mind that D. Zophar Howell's interest under the Where a preliminary agreement for an as- provision of the will last mentioned was signment of an interest in an estate and the as-1/30, whereas as remainderman under the signment contained internal references to each other, and were connected by oral evidence, it was proper to receive the former in evidence to explain the latter, which was to be construed.

1. Wills 742-Assignment of interest in estate held not to include his interest therein as remainderman upon death of life tenant. Where assignor of an interest in an estate had a 1/30 interest, and in addition thereto, under a clause of the will creating a life estate in an aunt, he was entitled as a remainderman to a 1/25 interest in the estate, facts held to show that the assignment did not include the

interest in remainder.

2. Assignments 72-Preliminary agreement to assign held admissible in construing the assignment.

clause creating the life estate for Rebecca L. Howell, his interest was 1/25.

On October 28, 1910, D. Zophar Howell executed the assignment to Joshua R. Jones, the construction of which is here involved.

Appeal from Court of Common Pleas, Phil-Prior to that time, the executors of Zophar adelphia County; William C. Ferguson, Judge.

C. Howell had distributed all his personal estate, and there remained undistributed only In the matter of the audit of the final ac- certain real estate situated in Pennsylvania, count of the guardian of Rebecca L. Howell, New Jersey, West Virginia, and Delaware. an insane person, now deceased. From a de- In order to provide for the carrying of the cree denying their right to participate in the real estate, so that it might be more advandistribution of the principal of her estate, the tageously sold, all parties in interest executCommonwealth Title Insurance & Trust Com-ed the paper referred to in the assignment as pany and others, as executors of the last will the "tripartite contract," which plays a most of Joshua R. Jones, deceased, appeal. Af-important rôle in the determination of the firmed. rights of the parties under the assignment.

Argued before MOSCHZISKER, C. J., and After reciting that by the will of Zophar C. FRAZER, WALLING, ᏦᎬᏢᎻᎪᎡᎢ, and SCHAFFER, JJ.

Hector T. Fenton and Joseph W. Shannon, both of Philadelphia, for appellants.

Robert T. McCracken and Roberts, Montgomery & Keehan, all of Philadelphia, for appellee.

Howell, his executors were directed to sell the real estate, for the purpose of making a division among those entitled to its proceeds within five years of testator's death, that the estate undistributed consisted entirely of real estate situated in Pennsylvania, New Jersey, and elsewhere, and that it was to the advantage of those in interest that a forced sale should not be had, the contract providSCHAFFER, J. In this proceeding, the ed that the Pennsylvania real estate should audit of the final account of the guardian of be conveyed to the Howell Corporation, to Rebecca L. Howell, an insane person, de- be organized under the laws of that state, ceased, the executors of Joshua R. Jones ap- the New Jersey real estate to the Howell peal from a decree denying their right to par-Realty Company, a corporation to be created ticipate in the distribution of the principal of under the laws of that state, and that the her estate.

The claim of appellants is based on an assignment made by D. Zophar Howell to Joshua R. Jones; the former was the son-in-law of the latter, and Rebecca L. Howell, his (Howell's) aunt. She was the daughter of

real estate elsewhere located should be conveyed to D. Zophar Howell in trust, to hold and dispose of as directed by the board of di rectors of the Howell Realty Company, for the benefit of the parties in interest. The contract further provided for the distribu

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