lant. Rody P. Marshall and Thos. M. Marshall, for appellee.

POTTER, J. This was an action of trespass brought by Marie B. Crooks against the Pittsburg Railways Company to recover damages for the death of her husband, Everett E. Crooks, who was run over and killed by one of defendant's cars on East street in the city of Allegheny about 10 o'clock on the evening of February 19, 1905.

Mr. and Mrs. Crooks had been spending the evening at the house of a friend on East street. It was their intention to return home by a trolley car running south on that street. It appears from the evidence that the cars made sufficient noise in passing to be plainly heard inside the house. When Mr. Crooks was about ready to leave the house, a car was heard to pass, and some remark was made about missing it. Hearing another car coming, Mr. Crooks went out of the house, followed first by his friend, Mr. Erhardt, and then by Mrs. Crooks. The Erhardt house was on the east side of the street, while the single track traversed by defendant's cars was laid about three feet from the curb on the other or west side of the street. From the steps of the house to the rail was a distance of about 17 feet. It was Mr. Crooks' intention to stop the car at the corner of an alley, almost opposite the house, and, in order to do this, he attempted to cross in front of the approaching car, as the opening to admit passengers was at the rear platform, upon the other side of the car. While in the very act of stepping or leaping across the track, Mr. Crooks was struck by the car, and killed. Mr. Erhardt who was close behind, sprang backwards, and saved himself. Plaintiff produced a number of witnesses, who testified that the car was running very rapidly, and did not come to a stop until it reached a point about 200 feet beyond the place of the accident. It was also shown by plaintiff's witnesses that there was no headlight on the front of the car. But the car was lighted upon the inside, and the light shone through the windows, and a great deal of noise was made by the car as it ran, so that it could be heard at some distance.

It is clear from the testimony that the deceased heard the car while he was in the house, and saw it after he came out upon the street, as it approached, and then attempted to cross in front of it, for the purpose of stopping and boarding that particular car. The railway consists of a single track, and the space between the rails was about five feet. Two, or at most three, steps, would have cleared it entirely; and as Mr. Crooks was struck while he was between the rails, it is apparent that he could have taken but one or two steps from the time he entered upon the line of the track until he came in contact with the car. In other words, his stepping within the line of the rail and the coming of the car to that particular spot

must have been practically instantaneous. Where a foot passenger walks or steps directly in front of an approaching car, and is struck at the instant he sets his foot between the rails, there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence. It is idle to estimate and suggest, as did some of the witnesses in this case, that a car can travel 100 or 150 feet in the fraction of a second which passes while the foot is being rapidly raised and set to the ground in taking a step. If there had been any appreciable distance between him and the car, a foot passenger walking rapidly or running, as was Mr. Crooks in this case, would have crossed the line before it could reach him. The deceased was a tall, agile man, and, as one of the witnesses said, the rapidity of his movements was such that a leap or two would take him across. If, then, as is shown by the testimony, the car caught him in the space between the rails, while he was crossing thus rapidly, it must have been almost within touch as his foot left the ground to take the one fatal step that put him in the way of danger.

The testimony is undisputed as to the manner in which this most unfortunate accident occurred. As we have seen, one step, or at the most two, carried the deceased from a point outside the line of the track into collision with the car. It must have occurred in less than a second of time. The facts speak for themselves. The action of the deceased can only be characterized as contributory negligence, and the judgment is reversed.

(217 Pa. 53)

HAYS v. COLONIAL TRUST CO. (Supreme Court of Pennsylvania. Feb. 4, 1907.) PARTNERSHIP-CONTRACT-CONSTRUCTION.

Plaintiff and defendant had agreed in writing that plaintiff should take up options on certain stock at $10 a share. He was to be paid $100 a month, and if he sold the stock at a price satisfactory to defendant, was to receive a commission of 25 per cent. of the profits, and if he determined to take up the option himself, he was to have a salary, and his investment was to be repaid with interest, and he was also to have 25 per cent. of the profits of the sale. Held, not to constitute a partnership, so that defendant was not bound to consult plaintiff as to a sale of the stock. [Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 23.1

'Appeal from Court of Common Pleas, Allegheny County.

Bill by Milton D. Hays against the Colonial Trust Company. Decree for plaintiff. Defendant appeals. Reversed.

The following is the statement of facts and opinion of Shafer, J., of the court below:

"On September 15, 1900, the plaintiff and defendant entered into an agreement in writing, by which it was provided that the plaintiff should take up options on the capital

stock of the Pittsburg & Castle Shannon Railroad at $10 per share, and that if the defendant should determine to take up these options, the plaintiff was to have 25 per cent. of the profits of the sale of the stock of the road, after the defendant should receive the full amount of his money invested, with 6 per cent. interest, 'and a salary also for his time given to same,' and that the defendant should have full control of the stock of the road. The plaintiff was also to have $100 per month, and that the defendant might terminate the agreement at any time by giving 10 days' notice in writing, which was done in February, 1901. The agreement contains other provisions which are not now in question. The plaintiff had by this time procured from the owners of the stock options at $10 a share, and procured such options on 5,225 shares of the stock, and delivered them to the defendant, who exercised the rights therein granted and purchased the stock, and the shares were transferred to the defendant and other persons at his direction on the books of the company.

In March, 1901, the defendant pledged to the German National Bank as collateral security for a loan of $40,000, about 4,900 or 5,000 shares of this stock, and these shares were transferred partly to J. W. Friend and partly to F. N. Hoffstott, who were each officers of the national bank which made the loan. A supplemental agreement was made between the parties in August, 1900, which recites that the defendant has purchased a majority of the stock of the railroad company, and is about to dispose of the same at a profit to John S. Scully of Pittsburg, and agrees that the profits of the sale so to be made shall be reinvested in a proposed railway company. In August, 1901, the defendant being then the owner of the majority of the stock, purchased from Mr. Bailey the greater part of the remainder of the stock for $25 per share, and the stock was delivered to him in November, 1901. In December, 1901, 2,446 shares of the stock were transferred on the books of the company to Mr. Hoffstott and 2,430 to Mr. Friend, these transfers being made on the books of the company for the purpose of electing directors at the next meeting of the railway company. January of 1902, the bank called upon Jutte to pay the loan for which the stock was pledged, and he replied that he could not do so, and that he was willing to sell the stock at $12 per share, and this was done and the loan was canceled by Mr. Friend and a check for $20,000, being the difference between the price of 5,000 shares at $12 per share and the note, was sent to Mr. Jutte. The testimony as to this sale was only that of Mr. Jutte, examined by the plaintiff as for cross-examination, and that of Mr. Friend, who was claimed to have taken part in the collusive sale, and other parties connected with the defendant. The conduct of Jutte in his negotiations with Mr. T. A. Noble, a proposition

In

made by him shortly before the actual sale to Mr. Friend and some other matters, which appear in the evidence, together with the very contradictory and unsatisfactory account given by these parties of their transactions, undoubtedly throw grave suspicion upon the bona fides of the sale by Jutte. There is not enough, however, in the evidence to justify the court in finding that Jutte received, or was to receive, more than $12 per share for the stock, or that he was guilty of positive bad faith in selling at that price, and the exceptions relating to the bona fides of the sale are therefore dismissed.

"We have carefully considered the exceptions of the plaintiff and the findings of fact upon which it was founded filed herein. The exceptions are numerous, and cover almost every item of the account. The first exception is to the charge of proceeds of sale of 5,000 shares at $12 a share, the plaintiff's claim that the accountant should be charged with this stock at a much higher price. The other exceptions are to two items of credit claim, and are all dismissed, the items of credit being sufficiently discussed in the opinion here. tofore filed. The finding in regard to the charge for stock sold to which plaintiff excepts is that there is not sufficient evidence to justify the court in finding that Jutte received or was to receive more than $12 per share for the stock, or that he was guilty of positive bad faith in selling at that price; and the charge against Jutte of the stock sold at the rate of $12 per share only was thus put solely upon the ground that it did not positively appear that he in fact received a greater price than that for the stock. As suggested in the opinion filed, the evidence in regard to the sale of the stock, all of which came from Jutte and the purchaser from him, was highly unsatisfactory. In the first place the defendant stated the account of the number of shares sold by him and the price at which they were sold as if from his books, in a way which could hardly be correct, but which he stuck to in his testimony until it became evident that it could not be correct, when his counsel asked leave to amend his account. The statement of the account thus made was such as to show that nothing at all was coming to the plaintiff. It further appeared that upon negotiation for sale of the same stock six months before, he insisted upon the stock being put in along with other property at the price of $12 a share, and the other property put in at a price higher than was asked for it by the seller, so as to cover the difference between $25 a share and $12 a share. He afterwards bought other stock at $25 a share. When in the winter of 1902 the stock was actually sold for $12 a share to an officer of the bank who was practically in charge of the defendant's affairs, the transaction has a very artificial appearance, being carried on by correspondence in writing between the parties practically in the same office. Considering these circumstances, and

the numerous contradictions and inconsistencies in the testimony of the parties to the transaction, we cannot help seriously doubting its good faith and suspect very strongly that the sale was merely a pretended one for the purpose of depriving the plaintiff of his share of the proceeds of the purchase of the stock. We would not, however, feel justified in finding the fact to be so.

"There is, however, another view of the case which we believe was not heretofore sufficiently considered. The defendant was as to this stock a partner with the plaintiff. It is true that the contract between them provided that the defendant should have 'full. control of the stock of said road,' but that does not mean that he should sell when and as he pleased without consultation with the plaintiff or notice to him, and perhaps does not refer to the sale of it at all, nor does it mean that he should pledge it for his own individual debt. The duty of the defendant under the contract was to sell the stock, if he sold it all, in the usual way, upon the open market, and to procure for it the best price that could be had. What the defendant did, was to pledge it for his own debt, and thus to put the control of it more or less out of his own hands, and then without notice to the plaintiff, who was entitled to receive onefourth of the profits, without notice to the public, and without notice to or consultation with any of the several parties who had been negotiating for the stock from time to time and whose offers had been rejected, to sell it for less than one-half of what he had paid for similar stock not long before and less than one-half of what he had been offered for it not long before, to the officer in control of the bank which held it as collateral, and in whose name one-half of it actually stood at the time upon the books of the company. And this sale was made of the whole of the 5,000 shares, although only two-thirds of the amount supposed to be received was required to pay the note for which it was pledged. It is true that no sales of the stock were made upon the open market by anyone before this transaction, but we have no hesitation in finding from the evidence that the stock was worth $25 a share at the time it was sold by the defendant at $12 share. We think that the defendant having sold the stock under the circumstances above stated, is not in a position to complain that he is charged with the last price at which any of the stock was actually sold. The exceptions to the findings as to the charge for the stock are therefore sustained to the extent above stated, and the account stated in opinion heretofore filed is to be modified by charging the defendant with 5,000 shares of stock at $25 per share, instead of $12 per share. This adds $65,000 to the debit side of the account and increases the same to be divided between the parties by that amount, making the same $69,206.46, instead of $4,206.46. Of this amount 75 per 66 A.-10

cent. belongs to the defendant and 25 per cent., or $17,301.61, to the plaintiff, from which is to be deducted $911.86, leaving a balance in favor of the plaintiff of $16,389.75.

"Let a decree be drawn that there is due from the defendant to the plaintiff the sum of $16,389.75 upon the account between them, which amount the defendant is ordered and directed to pay the plaintiff, and that the costs be paid, one-fourth by the plaintiff, and three-fourths by the defendant."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Samuel McClay, for appellant. 8. S. Robertson, for appellee.

MITCHELL, C. J. In September, 1900, plaintiff and Jutte, appellant's decedent, made an agreement in writing by which plaintiff was to take up options on certain stock at $10 a share. He was, to be paid $100 a month, and in case he sold the stock at a price satisfactory to Jutte he was to have 25 per cent. of the profits. If, however, Jutte determined to take up said options himself then Jutte was to have a salary for his time, his investment was to be repaid with interest and then plaintiff was to have 25 per cent. of the profits on the sale of the stock. Jutte was to have "full control" of the stock. A subsequent agreement was made in August, 1901, relating to the investment of the profits in a proposed coal and railroad company, but not materially affecting the provisions of the first contract. The learned judge below, though apparently after much doubt and hesitation, came to the opinion that the parties as to these transactions were partners, and that Jutte was bound to consult, or, at least, notify plaintiff, and "to sell the stock if he sold it at all, in the usual way upon the open market." We cannot, however, concur in this construction of the agreement. It overlooks at least one attribute of partnership, the community of liability for losses. The case belongs rather to that class where compensation may be measured by a proportion of profits without making a partnership. Haines & Co.'s Estate, 176 Pa. 354, 35 Atl. 237.

Jutte was to be the owner of the stock

throughout the transactions. The sales by plaintiff under the options he took were to be "at a profit satisfactory to" Jutte; no such provision as to the satisfaction of plaintiff was made as to sales by Jutte; the latter was "to have full control of the stock;" and he could terminate the agreement on ten days' notice in writing. It is clear that Jutte was the owner, the principal, and plaintiff only an agent to purchase, and within limits to sell. He was, however, an agent with an interest in the proceeds of the sales which entitled him to an account and to the exhibition of good faith on the part of Jutte in getting the best price obtainable. For mistakes by which he missed sales at higher

prices than he could subsequently obtain, or other errors of judgment Jutte was not liable; but he was bound to good faith towards plaintiff. At the first adjudication the learned judge below stated the account on these principles, and found a balance due of only $139.51. But on the second adjudication upon exceptions filed to the first, he raised the amount to $16,389.75. The difference arises from the different views of a sale of a large block of the stock at $12 a share. This sale was attacked as fraudulent and collusive with the purpose of defrauding plaintiff. On this the court said: "Considering these circumstances and the numerous contradictions and inconsistencies in the testimony of the parties to the transaction, we cannot help seriously doubting its good faith and suspect very strongly that the sale was merely a pretended one for the purpose of depriving the plaintiff of his share of the proceeds of the purchase of the stock. We would not, however, feel justified in finding the fact to be 80."

He did, however, find that as there was a partnership the sale by Jutte was such a failure of duty to plaintiff as his partner as to make him liable for the price that the stock was actually worth and had been sold for within a comparatively short time.

But, as already said there was no partnership; Jutte had three times the amount at stake in the profits that plaintiff had, and he not only had the right as owner to determine when and upon what terms he would sell, but the agreement shows that plaintiff trusted Jutte's judgment on that subject. The latter can only be held liable for actual bad faith. This was the basis, moreover, on which plaintiff's bill was filed. The learned judge below, having in his opinions on both hearings explicitly refused to find actual fraud, the decree cannot be sustained.

Decree reversed, and decree on first hearing reinstated, with leave to appellee to file exceptions de novo.

(217 Pa. 63)

any

HOLMES v. STANHOPE. (Supreme Court of Pennsylvania. Feb. 4, 1907.) WILLS-CONSTRUCTION-ESTATE Devised. Testator in his will directed that his interest in certain property described, or other that he might own, should be divided between S. and J., with the provision that, if S. or J. should die. their share was to go "to the one remaining, if both to E., or his mother if living, then to him." Held, that S. and J., on surviving testator, took a fee; the contingency of the death of S. or J. being referable to the time of testator's death.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Sallie B. W. Holmes against John B. Stanhope. Judgment for defendant, and plaintiff appeals. Affirmed.

Case stated to determine title to real estate. The real estate in question belonged

to Elizabeth P. Powell, who died leaving a will as follows:

It is my wish that after all my debts and funeral expenses are paid, and that all my interest in the Third street property, or any other I may own, be equally divided between Sallie A. Swayne and John P. Howell. For Gertrude H. Stanhope I leave the Bond John now holds and to Willie at her death. I think the prospects of the rest of my nieces and nephews are brighter, and what I have to leave is not worth dividin between so many.

"I would like so much to leave them something more than love, but I see nothing now but bright prospects for them all, and mine would be such a mite. If Sallie or

John should die, their share is to go to the one remaining, if both to Edward Wilson Holmes, or his mother if living, then to him."

The plaintiff claimed that the devise to Sallie A. Swayne and John P. Howell gave a life estate only, and that as they were both dead she took an undivided interest in the land under the will as Sallie A. Swayne. Defendant claimed a fee as the successor in title to the interest of Sallie A. Swayne and John P. Howell.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Charles Markill, Hood Gilpin, and Gans & Haman, for appellant. Frederick C. Newbourg, Jr., for appellee.

PER CURIAM. The language of the will is: "It is my wish * that all my interest in the Third street property or any other that I own be divided between Sallie A. Swayne and John P. Howell." This, under our statute, carries a fee, unless a contrary intent of the testatrix appears. An estate in fee plainly given is never cut down to a lesser interest without clear evidence of intent to do so. Flick v. Forest Oil Co., 188 Pa. 317, 41 Atl. 535. So far is this will from showing such intent that, in addition to the presumption from the general rule, the testatrix in the same paragraph expressly indicates her actual intention to give the named devisees her whole estate by an apology or explanation to her other relatives: "I think the prospects of the rest of my nieces and nephews are brighter, and what I have to leave is not worth dividing between so many."

But in the next paragraph of her will testatrix directed, "if Sallie or John should die, their share is to go to the one remaining, if both to Edward Wilson Holmes, or his mother if living, then to him," and appellant argues that this reduces the first gift to a life estate. But here, again, we have not only the established presumption in such cases that testatrix meant death of the devisees in her own lifetime, but a clear expression of her actual intent. She knew, of course, that the devisees must die at some time, and

when she used the word "if" she must have referred to some definite time or occurrence. Her words do not admit of any other meaning, and the period or occurrence indicated was her own death, when the estate as given would vest in possession. In this latter paragraph, therefore, she was providing, not for a reduction of the estate in fee to one for life, but for a failure of the devise itself, partly or wholly, by the death of one or both the devisees before her own death had made it effective. Had she meant to reduce the first estate to one for life only, her natural and almost only reasonable expression would have been not "if," but "when," Sallie or John shall die.

1. TRUSTS ACCOUNTING BY TRUSTEE INVESTMENT IN CORPORATE STOCK.

On the organization of a corporation, only one-tenth of the capital stock was paid in in cash. One of the organizers sold to a brother a portion of his stock at par, paying for it with money which he had received from his brother for investment. The promoters of the company developed it by means of money borrowed on the company's notes with their indorsement, and not by paying up the balance of the capital, and thereafter the company property was sold at a very large profit. Held, that the promoter who sold stock to his brother must account for the profits in proportion to their respective holdings of the capital stock, and not in proportion to the funds furnished by his brother to all the money invested in the enterprise, whether borrowed on the company's notes or paid on account of the stock. 2. APPEAL-REVIEW-FINDINGS OF MASTER.

Where a master found as a fact that defendant sold certain bonds at par, and such findings were confirmed by the court below and were based on evidence, they will not be disturbed on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4015-4018.]

Appeal from Court of Common Pleas, Allegheny County.

Bill by Frank Donner against William H. Donner. Decree for plaintiff, defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

James H. Beal, William A. Stone, Reed, Smith, Shaw & Beal, and Robert J. Dodds, for appellant. John C. Bane and D. F. Patterson, for appellee.

POTTER, J. This case was here before on an appeal from the interlocutory decree of the court below, ordering an accounting. Donner v. Donner, 211 Pa. 409, 60 Atl. 1036. In that decree it was determined that the plaintiff was entitled to 4/55 of the interest of the defendant in the various companies named in the bill. We were of the opinion that the principle upon which the accounting

was ordered was sound, although we did not agree with the calculation by which the exact fractional interest was ascertained; but as no exception had been filed by the plaintiff, and no appeal taken by him, that feature of the case was not considered, and the decree was affirmed as it stood. Upon the return of the record, the court below ordered defendant to state and present to the court his account as trustee of the plaintiff, with leave to plaintiff, to file exceptions thereto. In pursuance of said order an account was filed by defendant, to which plaintiff filed exceptions. Thereupon the court appointed Joseph M. Swearingon, Esq., master "to state the account of Wm. H. Donner as trustee of Frank Donner in accordance with the findings of fact and law and the decree of this court and the opinion and decree of the Supreme Court therein, and to make report thereof to the court." The present appeal is taken by defendant from the dismissal of exceptions filed by him to the report of the master, and to the final decree, which confirmed the master's report, with a single modification.

Counsel for appellant have argued at considerable length substantially the same questions with regard to the basis of the proportionate interests of the appellant and the appellee which were decided on the former appeal. Due respect for the ability and force with which the argument in this particular was presented has led us to carefully reexamine the basis of our former decision; but, as a result, it has not appeared that we were under any material misapprehension as to the facts in reaching our former conclusion. Nor can we see anything wrong in the theory upon which the main question in the former appeal in this case was decided. The argument of counsel and our own investigation have tended to emphasize the fact, which appears clearly in the evidence, that the parties in control of the Union Steel Company did not pursue the ordinary and sound business policy of paying into the treasury of the company, in cash or its equivalent, the capital stock of the company. Instead of paying in the required funds as capital, they chose to put their contributions to it, into the form of a loan to the company, and took the demand notes of the company therefor. The result was that, instead of being amply provided with capital of its own, the company was placed in the position of being heavily in debt to its own stockholders. It matters not whether the notes thus taken from the company were discounted in bank or not. That is wholly immaterial. The notes were given to W. H. Donner and the Messrs. Mellon, and afterwards the payment of this indebtedness was made the excuse for the creation of an immense bonded indebtedness, which would have been wholly unnecessary for the purposes of the company, if the cash which had been paid in had been applied to capital stock. Strange as it may appear, there is no evidence that, of the