bottle of Coca-Cola in which there was a cigar stub, and the Supreme Court of Tennessee in its opinion said: court, the Court of Appeals of New York, | juries caused by its negligence in selling a speaking through Chief Judge Ruggles, said: "The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained. "If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue of his contract of sale, this action cannot be maintained. If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.'s obligation to build the wagon faithfully arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence; and such negligence is not an act imminently dangerous to human life. * * But the case in hand stands on a different ground. The defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label. Gilbert, the defendant's agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. * A chemist who negligently sells laudanum in a vial labeled as paregoric, and thereby causes the death of a person to whom it is administered, is guilty of manslaughter. * # * In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant's counsel. No such imminent danger existed in those cases. The defendant's negligence put human life in imminent danger. * In Longmeid v. Holliday, 6 Law and Eq. Rep. 562, the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom he contracted. and on the ground that negligence is a breach of the contract." * "Practically all the modern cases are to the effect that the ultimate consumer of foods, medicines, and beverages may bring this action against the manufacturer for injuries caused by the negligent preparation of such articles." Co., 132 Tenn. 545, 179 S. W. 155, L. R. A. In the case of Crigger v. Coca-Cola Bottling 1916B, 877, where the suit was instituted to recover for injuries caused by drinking a bottle of Coca-Cola, sold by the defendant to a dealer and by him sold to the plaintiff, containing a decomposed mouse, the Supreme Court of Tennessee, after a careful review of the authorities in that and other states, said: "This liability is based on an omission of duty or an act of negligence, and the way should be left open for the innocent to escape. However exacting the duty or high the degree of care to furnish pure foods, beverages, and medicines, we believe with Judge Cooley, as expressed in Brown v. Marshall, supra. 47 Mich. 576 [11 N. W. 392, 41 Am. Rep. 728], that negligence is a necessary element in the right of action, and the better authorities have not gone so far as to dispense with actual negilgence as a prerequisite to the liability. In fact, there is no logical basis of liability for personal injury without some negligent act or omission." Rep. 298, the court, in sustaining the judgIn Norton v. Sewall, 106 Mass. 143, 8 Am. ment for the plaintiff, said: the statements in the bill of exceptions, the jury "Upon the allegations in the declaration, and must be taken to have found that the defendant, as and for tincture of rhubarb (a well known and an apothecary, by his servant, negligently sold, harmless medicine), two ounces of laudanum, a dangerous and deadly poison, to Patten, who procured it for the purpose of administering it, and did administer one ounce of it, as a medicine, to his servant, the plaintiff's intestate, from the effects of which he died." In all of the other well-considered cases relied on by the appellee it will be found upon careful examination that where the suit was not against the immediate vendor the right to recover was based upon some averment and evidence of guilty knowledge, fraud, deceit, or negligence of the defendant or his agents, or some statute imposing absolute liability upon the manufacturer or vendor of the article in question. We have quoted from Thomas v. Winchester at some length because it is referred to by the appellee, and in many of the later cases as the leading case on the subject, and because it shows conclusively that the plain- The only case in this state having any beartiff's right to recover was based on the aver-ing upon the question here involved is the ment and proof of the defendant's negligence case of State, use of Hartlove, v. Fox, 79 Md. in labeling and selling a deadly poison. 514, 29 Atl. 601, 24 L. R. A. 679, 47 Am. St. In the case of Hoover et al. v. Peters, 18 Rep. 424, where a suit was brought to recovMich. 51, where the purchaser, who pur-er for the death of Hartlove, alleged to have chased for consumption, was allowed to re- been caused by glanders contracted from a coup for meat that was unsound on the horse purchased by the decedent's brother ground of an implied warranty of soundness, from Fox, and where this court, after reviewthe court said in reference to sales to a ing many of the cases relied on by the appeldealer: lee in this case, said through the present Chief Judge: "It seems to be settled by many authorities that no implied warranty of soundness arises where such articles are purchased by a dealer to sell again." In the case of Boyd v. Coca-Cola Bottling Works, 132 Tenn. 23, 177 S. W. 80, suit was brought against the bottling works for in present various phases of such questions as may "We have referred to a number of cases which reflect upon the one before us. Without deeming it necessary to pass upon all of them, or to has gone, we are of the opinion that the authorigo to the full extent that Thomas v. Winchester ties, and a proper regard for the protection of case that they mixed, made, manufactured, or compounded the whisky sold to the plaintiff, or that they introduced wood alcohol into the same. innocent persons fully justify us in the conclu- | preparations" there is no evidence in the sion that if a vendor sells any property, which he knows to be imminently dangerous to human beings and likely to cause them injury, to an innocent vendee who is not aware of the danger and to whom false representations have been made as an inducement to the sale, he may, under proper allegation and proof, be held responsible not only to the vendee, but to such person or persons as the vendee may in the ordinary course of events call upon to take charge of the property for him." [3] There is no allegation of a breach of warranty in any of the counts to the declaration, and even if there was, Sonneborn did not sell to the plaintiff, and the cases to which we have referred and others cited by the appellee recognize the established rule that the action cannot be maintained on the theory of an implied warranty where there is no privity of contract. In the case of Roberts v. Anheuser-Busch Brewing Association, 211 Mass. 449, 98 N. E. 95, in a suit to recover for ptomaine poisoning from a bottle of Malt Nutrine, the court said: * * "While there may be no inherent difficulty in maintaining an action of tort upon a false warranty, it yet remains true that there cannot be a warranty where there is no privity of contract. It cannot be found that there was a particular contract when there was no contract whatever." If there has been "no contractual relation between the plaintiff and defendant, the action cannot be maintained upon the ground that there was any warranty by the defendant of the good qualities of its mixture. Davidson v. Nichols, 11 Allen (Mass.) 514. Nor did the plaintiff state such a cause of action." [4] It is said in 1 Shearman & Redfield on Negligence, § 13, that the violation of a statute, "established for the benefit of private persons," is itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur, and that the true rule in such cases is that the violation is presumptive evidence of negligence, and the plaintiff contends that the defendants have violated section 211 of article 27, volume 3 of Bagby's Code, which provides that: "Any person, firm or corporation engaged in the business of making, manufacturing, compounding or dispensing drugs, medicines, medicinal or chemical preparations for human consumption, who shall in person or by his, their or its agents or employés, make, mix, manufacture, compound, dispense, sell, or deliver to any person, any drug, medicine, medicinal or chemical preparation, intended for internal use, wherein ethyl, or grain alcohol usually enters as part of, or is in any wise employed in the making, mixing or manufacture, compounding or preparation of such drug, medicine, medicinal or chemical preparation; who shall, in the making, mixing, manufacturing or compounding of such drug, medicine or medicinal or chemical preparation, substitute or use, in part or in whole, methyl, or wood alcohol, in the place and stead of ethyl, or grain alcohol, or who shall in any manner put or introduce methyl, or wood alcohol, into such drug, medicine, medicinal or chemical preparation, shall be guilty of a misdemeanor," etc. Even if it could be said that the defendants were "engaged in the business of making, manufacturing, compounding or dispens [5] It is the duty of every person to so conduct his business as not to knowingly or negligently expose others to imminent danger, and where an injury is sustained in consequence of the violation of that duty, without any negligence on the part of the party injured, justice demands that the guilty party should be held responsible. And there may be cases where the presence of a dangerous ingredient in the article sold may in itself justify an inference of negligence on the part of the defendant. But such an inference is not warranted where a merchant deals in an article not generally regarded or known to be dangerous and simply sells it in the condition in which he buys it, without any reason to suspect, or any means of detecting the presence of the dangerous quality except by a chemical analysis. [6] What we have said in reference to the evidence in regard to Sonneborn applies to the defendant Flaccomio. There is no evidence that he or his agents knew that the whisky contained wood alcohol, or that they were guilty of negligence in handling or selling it. According to the proof in the case the bottles were filled from the demijohns in which he purchased the whisky, and it was sold in the condition in which he bought it. In 1 Elliott on Contracts, 222, it is said: "If food is sold to the purchaser to be used directly for domestic consumption, there is, as between the dealer and consumer, an implied warranty that the articles are sound and wholesome and fit for the purposes for which they were sold." Many of the earlier cases in support of this general statement of the rule are collected in a note to Hunter v. State, 1 Head (Tenn.) 160, 73 Am. Dec. 164, and some of the later cases dealing with the same question are referred to in 11 R. C. L. pp. 1118-1121, and 35 Cyc. 406, 407. Sections 35 and 36 of article 83 of the Code of 1912, which are a codification of sec tions 32 and 33 of the Uniform Sales Act of 1910, c. 346, however, provide: "35. Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description," etc. "36. Subject to the provisions of this sub-title and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: "(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. tion from a seller who deals in goods of that "(2) Where the goods are bought by descrip ufacturer or not), there is an implied warranty [ that the goods shall be of merchantable quality. "(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. "(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade-name, there is no implied warranty as to its fitness for any particular purpose," etc. In the case of Wren v. Holt, [1903] 1 K. B. 610, the action was brought to recover damages for a breach of warranty in respect to beer bought by the plaintiff in the beerhouse of the defendant and consumed on the premises. "The house was a tied house, and the only beer supplied was that of Messrs. Holden & Co., Limited. The plaintiff was aware of this fact, and in his evidence he said that when he went to the defendant's house he expected to get Holden's beer, and nothing else. The allegation was that the beer contained arsenic, and that he had suffered from arsenic poisoning." The jury found that the plaintiff did not rely for the good quality of the beer on the skill and judgment of the defendant. Lord Justice Vaughan Williams, after quoting subsections 1 and 2 of the English Sale of Goods Act of 1893, which are the same as subsections 1 and 2 of section 36 of article 83 of our Code, said: "Speaking candidly, I do not think, taking the generally accepted view of lawyers as to the meaning to be attached to the words 'by description' as applied to a sale, that a sale of goods over a counter, where the seller deals in the description of goods sold, is a sale of goods by description within this subsection. But in this case we have to consider the findings of the jury. They departed from their first finding, that the customer did rely on the skill and judgment of the seller, and adopted the suggestion of the learned judge that the plaintiff went to this beerhouse in which Holden's beer was kept for the purpose of sale, and asked to be supplied with beer of that description. The reason of the jury for ultimately saying that the plaintiff did not rely on the skill and judgment of the defendant was that the plaintiff was asking for beer of a specific description. Under these circumstances, and in this particular case, though the sale was one of beer in a beerhouse, if the finding of the jury is accepted there was a sale by description. If so, there was an implied warranty under subsection 2 that the goods should be of a merchantable quality. This beer, by reason of the presence in it of arsenic, was not of a merchantable quality." Lord Justice Stirling said that he was of the same opinion, and Lord Justice Mathew said: The sec In the case of Quemahoning Coal Co. v. Sanitary E. S. Co., 88 N. J. Law, 174, 95 Atl. 986, the Court of Errors and Appeals of New Jersey held that in a contract to sell a quantity of a certain kind of coal gotten from certain mines and known by the trade-name of "Randolph Smokeless Coal," came under subsection 4 of the Sales Act relating to sales of a specific article under its patent or other trade-name, and that there was no implied warranty as to its fitness for any particular purpose. In the case of Gearing v. Berkson et al., 223 Mass. 257, 111 N. E. 785, L. R. A. 1916D, 1006, the Supreme Judicial Court of Massachusetts quotes subsections 1 and 3 of the Sales Act, and then says: "Even before the enactment of this statute, it was recognized as the law in this commonwealth, that where the buyer at a shop relies on the skill and judgment of the dealer in selecting food, and it is made known to the dealer that his knowledge and skill are relied on to supply wholesome food, he is liable if it is not fit to be eaten; while, in case the buyer himself selects provisions, the dealer's implied warranty does not go beyond the implied assertion that he believes the food to be sound. **The application of this rule of law to the facts as found by the trial judge is decisive in the action of Percy A. Gearing. His wife, acting as his agent, left to the defendant the selection of the meat, and paid for it at the current price for sound, wholesome pork chops. See Hunt v. Rhodes Bros. Co., 207 Mass. 30, 92 N. E. 1001. The defendant Freshman undertook to make the selection so left to him. The meat was cooked, and was eaten by the plaintiff and his wife, and both were made sick 'because of the unwholesome, unsound, poisonous or unfit quality or condition of said pork chops.' The order of the Appellate Division in this action must be affirmed. In the action of the wife, Katherine Gearing, the Appellate Division ordered judgment for the plaintiff on the first count of her declaration, and from this the defendants appealed. The count is apparently framed in contract, for breach of an implied warranty or condition of fitness for food. The declaration purports to be in tort,' presumably on the theory that an action of tort may be maintained upon a false warranty. * * *The difficulty with the case on this ground is that there was no contractual relation, and hence no warranty, between Mrs. Gearing and the defendants. The only sale was that made to her husband through her as his agent; and a cause of action in contract accrued to him thereon, as above set forth. The implied warranty, or to speak more accurately the implied condition of the contract, to supply an article fit for the purpose required, as in the nature of a contract of personal indemnity with the original purchaser. It does not 'run with the goods.' After referring to the second count in Mrs. Gearing's case, which was in tort for negligence, the court further said: "But that is controlled by the finding of the judge, that no negligence in fact was shown on In the absence both the part of the defendants. of an implied warranty and of negligence on the part of the defendants, the action of Mrs. Gear "I am of the same opinion. tion we are concerned with is section 14. This case, in view of the finding of the jury that the plaintiff did not rely on the skill and judgment of the seller, cannot be brought within subsection 1, but in my judgment it comes within the plain words of subsection 2. The purchase by the plaintiff was of goods bought by descriptioning fails." from a seller who dealt in goods of that description, and it was an implied condition that the goods should be of a merchantable quality. The case does not come within the proviso, for the defect was not one that examination could reveal. It is not, to my mind, any answer to the set up by the plaintiff that the goods were bought across the counter. I agree, therefore, that the verdict for the plaintiff ought to stand." In Wasserstrom v. Cohen, Frank & Co., 165 App. Div. 171, 150 N. Y. Supp. 638, it was held that to bring a case within the Sales Act, subsection 1, it must appear that the seller was informed expressly or by implication of the purpose for which the goods were purchased, and that the buyer relied on the ed by the Vice Chancellor, and filed by inadvertence and mistake; that it was afterwards withdrawn from the files, and is therefore not expositive of the law of New Jersey. seller's skill and judgment, and in Kansas | ion was only a tentative memorandum, preparCity Bolt & Nut Co. v. Rodd, 220 Fed. 750, 136 C. C. A. 356, the court said that subsections 1 and 4 of the Sales Act enact the common-law rule, unless section 1 substitutes a On November 20, 1916, the Court of Errors question of fact for the presumption that the and Appeals of New Jersey filed a per curiam opinion in the same case, affirming a decree adbuyer relied on the seller's skill and judg-vised by Vice Chancellor Stevenson in the Court ment. We have referred to the above cases of Chancery. The Vice Chancellor's opinion as showing the views of the courts mentioned not having been printed, the West Publishing Company, by inadvertence and mistake, again as to the proper application of the provisions published the tentative memorandum inadverof the act in question, and we may refer also tently filed by Vice Chancellor Howell as an to the cases of Warren Glass Co. v. Keystone opinion and withdrawn by him, which appeared Co., 65 Md. 547, 5 Atl. 253, Farren v. Damer- in 99 Atlantic Reporter, at page 723, over the per curiam of the Court of Errors and Appeals, on, 99 Md. 323, 58 Atl. 367, 105 Am. St. Rep. also, by inadvertence, attributing the opinion 297, and Commercial Realty Co. v. Dorsey, to Vice Chancellor Howell. The opinion of 114 Md. 172, 78 Atl. 1099, for a statement of Vice Chancellor Stevenson has now been printed, and is to be found in 100 Atlantic Reporter, the rule in this state without reference to at page 52, and the per curiam affirmance at the Uniform Sales Act. page 55. The supposititious case which appears in 99 Atlantic Reporter, at page 723, does not appear in the permanent edition. (255 Pa. 599) [7] It is clear that in order to recover for a breach of an implied warranty, or in an action of tort for a false warranty, the plaintiff must by appropriate averments and proof bring the case within one of the sections of the Uniform Sales Act. There is, however, NATIONAL LIFE INS. CO. OF UNITED no allegation of a warranty of the article sold in any of the counts of the declaration in this case, and we are not, therefore, called upon to determine whether there is any evidence in the case to support such an averment. It follows from what has been said that there was error in the rejection of Flaccomio's first, second, fourth, and fifth prayers, and in the rejection of the prayers of the defendant Sonneborn, and the judgment must therefore be reversed. [8] If the judgment was against Sonneborn alone we would reverse it without awarding a new trial, as there is no evidence in the record to sustain a verdict against him upon any theory of the case. But as we cannot, according to the practice of this court, award a new trial as to one of the defendants without awarding it as to both (Ewing v. Rider, 125 Md. 156, 93 Atl. 409), we will reverse the judgment, without now awarding a new trial, but with leave to the appellee to apply to this court for an order granting a new trial, and then determine whether it shall be awarded. Judgment reversed, with costs to the appellants. COMMONWEALTH TITLE INS. & TRUST et al. (No. 26.) STATES v. HAINES et al. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. INSURANCE 47 — CASUALTY COMPANY "ADMITTED ASSETS" "NONADMITTED ASSETS"-STATUTE. "Admitted assets" of a casualty company are such investments as are authorized for such companies by Act June 1, 1911 (P. L. 573, 574) $$ 19 and 20, cash, and other items which may be regarded as the equivalent of cash, such assets as will be "admitted" by the insurance commissioner as legal investments of the capital and surplus of such company in determining its solvency; any other property or investment which duebills and unpaid checks, even though carit may hold are termed "nonadmitted assets"; ried by the company as such, are "nonadmitted assets.' [Ed. Note. For other cases, see Insurance, Cent. Dig. § 49. First and Second Series, Assets.] 2. INSURANCE 47 CASUALTY COMPANY In a proceeding in equity for an accounting, it appeared that complainant insurance company contracted to purchase all the capital stock of the casualty company for which defendants were trustees, and paid the trustees an amount based on the admitted assets of the company as shown by examination made by the state insurance department as of April 25, 1912, including an estimate of unpaid losses, and that such unpaid losses, when ascertained, greatly exceeded the amount estimated in the contract, and that the contract provided that from certain future payments to be made to the trustees by complainant deductions were to be made for loss by reason of the assets or net surplus based upon the "admit (Court of Chancery and Court of Errors and ted assets" being less than the contract estimate, Appeals of New Jersey.) Explanation. In the Advance Sheets of 95 Atlantic Reporter, at page 609, an opinion, in the above-entitled cause, appeared, attributed to Vice Chancellor Howell, of New Jersey, in which he held that, when so provided, after-acquired land became subject to the lien of a real estate mortgage. The Chancellor of New Jersey authorizes and requests the West Publishing Company to inform those whom it may concern that that opin and that damages to complainant were averred to exceed payments due to defendants. Held that, in stating the account, the court properly gave defendants credit for cash realized from certain duebills and checks turned over to complainant as cash, and afterwards converted into cash, and also for certain sums charged in the books of the company at the time of settlement as loans to stockholders which were shortly afterwards repaid. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 49.] 3. INSURANCE 47 CASUALTY COMPANY PURCHASE OF ASSETS-ACCOUNTING. In such case it was error to refuse to allow the complainant to show, as an element of damages under the contract deductible from the subsequent payments, the actual amount of unpaid losses which had accrued as of the date of the purchase, and had been adjusted and paid, for the purpose of charging the defendants with difference between such actual amount and the previous estimate thereof. sufficient upon which to base an accounting, without a formal order or decree to that effect, such accounting is now had, and it is determined and decreed that there is due and payable forthwith by the plaintiff, the National Life Insurance Company of the United States of America, to the defendants, James B. Haines, Jr., Thomas P. Jones, and Louis C. Sands, trustees for the stockholders of the Pittsburgh Casualty Company, the sum of $8,618.89, the said sum to bear interest from the date of the entry of this de [Ed. Note. For other cases, see Insurance, cree. Cent. Dig. § 49.] 4. INSURANCE 47-CASUALTY INSURANCEPURCHASE OF ASSETS-NOTICE. In such case, in the absence of a provision in the contract requiring notice to be given defendants before settlement of claims or payment of losses, no such notice was necessary, though fraud or lack of good faith in the adjustment of claims could be set up as a defense. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 49.] And it is further ordered, adjudged, and decreed that the costs in this case be paid by the plaintiff, one-half thereof to be charged to the above-named defendants, trustees for the stockholders of the Pittsburgh Casualty Company, and deducted from the balance due of $8,618.89, as heretofore decreed to be payable by the plaintiff to the said defendants. Complainant appealed. Argued before BROWN, C. J., and POT5. INSURANCE 47-CASUALTY INSURANCE- TER, MOSCHZISKER, FRAZER, and WALCONSTRUCTION OF LING, JJ. PURCHASE OF ASSETS CONTRACT. In such case, where there was no stipulation L. A. Stebbins, of Chicago, Ill., and James as to what was to be done if the deficiency in A. Wakefield, of Pittsburgh, for appellant. assets should exceed the amount of the payments Thomas Patterson and F. R. Stoner, both of which were to be made by complainant to the trustees of the casualty company, there could be Pittsburgh, for appellees. no recovery, on the ground of mutual mistake of fact. POTTER, J. This was a bill in equity to [Ed. Note.-For other cases, see Insurance, secure an accounting filed by the National Cent. Dig. § 49.] 6. INSURANCE 47-CASUALTY INSURANCEPURCHASE OF ASSETS CONSTRUCTION OF CONTRACT-WARRANTY. In such case, where there was no stipulation as to what was to be done if the deficiency in assets should exceed the amount of the payments which were to be made by complainant to the trustees of the casualty company, there could be no recovery on the ground that the contract amounted to a warranty by the trustees of the casualty company. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 49.] Life Insurance Company of the United States of America, a corporation of the State of Illinois, against James B. Haines, Jr., Thomas P. Jones, and Louis C. Sands, trustees for the stockholders of the Pittsburgh Casualty Company, and numerous stockholders of the latter company individually. It was averred in the bill that on July 3, 1912, the complainant entered into a contract with the defendant trustees for the purchase of all the capital stock of the Pittsburgh Casualty Com Appeal from Court of Common Pleas, Al-pany, a Pennsylvania corporation, upon certain terms set forth in a written agreement, legheny County. the Bill in equity for an accounting by the Na- which was annexed to and made part of the tional Life Insurance Company of the Unit- bill. It was further averred that, pursuant ed States of America against James B. to the contract, complainant paid to the trusHaines and others, as trustees for the stock-tees the sum of $120,205.24, which was based holders of the Pittsburgh Casualty Company on the amount of the admitted assets of the and others, stockholders of that corporation, company as shown by an examination made, individually, defendants joining in as of April 25, 1912, by the insurance department of the state of Pennsylvania. This sum represented $100,000 capital, and $20,205.24 surplus, in the computation of which there was included unpaid losses estimated at $8,020.84. It was averred, however, that in truth and fact the net assets were $23,The court below entered the following de- 935.70, less than the amount taken as the prayer for an accounting. Decree that a certain sum was due and payable by the com plainant to defendants, and complainant appeals. Decree reversed, and record remitted for further proceedings. cree: And now, to wit, July 8, 1916, this cause came on to be heard at this term upon the findings of fact and conclusions of law of the trial judge and exceptions ex parte plaintiff thereto, and, upon consideration thereof, it is ordered, adjudged, and decreed that the exceptions of the plaintiff be, and the same are hereby, overruled and dismissed. basis of payment. The difference was due largely to the fact that, when the unpaid losses could be accurately ascertained, it was found that they amounted to much more than the estimate. It was also provided in the agreement that complainant was to pay the trustees 25 per cent. of certain And it is further ordered, adjudged, and de- premiums that were to be collected during creed that, it having been stipulated and agreed by counsel for the plaintiff and the defendants the first year after the transfer of the stock. that the testimony upon the present record is This percentage amounted to $14,304.96. |