(217 Pa. 545) REAL ESTATE TITLE INS. & TRUST CO. v. MCNICHOL.

(Supreme Court of Pennsylvania. April 22, 1907.)

ARBITRATION AND AWARD-UNCERTAIN AWARD.

An agreement for arbitration provided that the amount found should be considered a debt presently payable, for which judgment might be entered. Held, that an award providing that to an amount fixed other items might be added without fixing their amount was void for uncertainty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Arbitration and Award, §§ 298-309.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by the Real Estate Title Insurance & Trust Company against Patrick McNichol. From an order discharging rule to strike off judgment, defendant appeals. Reversed.

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

Wm. Morgan Montgomery and John C. Bell, for appellant. J. H. Brinton and Geo. McCurdy, for appellees.

BROWN, J. The partnership of D. & P. McNichol was dissolved by the death of Daniel McNichol on or about April 9, 1900. The partnership accounts not having been settled, and there having been various matters in dispute between the executors of the deceased partner and the appellant, they agreed on December 6, 1901, in writing, to submit the settlement of the partnership accounts and the various matters in dispute between the parties in relation thereto to an arbitrator under a stipulation that this decision should be final and conclusive, and that the amount found by him to be due from either party to the other should be considered a debt presently payable, for which judgment might be entered by the party in whose favor the award should be made. On August 16, 1902, the arbitrator or referee made his report awarding to the estate of Daniel McNichol the sum of $3,679.81, but to this definite award he added the following: "To this sum are to be added one-half of any amounts received by the surviving and liquidating partner, Patrick McNichol, since February 11, 1901, for account of the old firm, together with one-half of any book accounts and municipal claims owned by the firm." This at once destroyed the certainty of the award.

It was the intention of the parties to the submission that the referee should pass upon the unsettled partnership accounts and the various matters in dispute, and finally settle, by a definite and certain award, the liability of the surviving partner, or the representatives of the deceased, and for the amount of the award judgment was to be entered against the party against whom it might be made. It is a cardinal requisite of every

award that it be certain. Henness v. Meyer, 4 Whart. 358. The stipulation in this case was that the amount found by the referee should be considered a debt presently payable, for which judgment might be entered against the party found to owe it. But for what amount could judgment be entered on this award? No definite amount was found to be due by Patrick McNichol. The arbitrator directs that to the sum he finds due other items be added, without fixing their amount. He clearly regarded these items as being among those he was to settle, or he would not have directed them to be added to the sum awarded, and, if they were within the terms of the submission, it was his duty to definitely find their amount and embody it in his award. He could have found what amounts had been received by the surviving partner since February 11, 1901, on account of the old firm, and could readily have ascertained the amount of the book accounts and municipal claims owned by them. Instead of so finding, though he makes these items the subject of liability by the appellant, he leaves what they amount to for future ascertainment by someone else. This may cause litigation between the parties, though the very purpose of the agreement was to settle all the partnership matters without any litigation. The award, if allowed to stand, instead of preventing it, may lead to it, for, under the direction of the referee una scertained items, which may be disputed, are to be added to the award.

The very essence of awards is certainty. They are to put an end to controversy between the parties and are to be certain and final. Spalding v. Irish, 4 Serg. & R. 322. In Zerger v. Sailer, 6 Bin. 24, there was an award for £60 "to be paid by the plaintiff deducting an unsettled account of the plaintiff's against the defendant." The award was held to be void, and it was said by Tilghman, C. J.: "It is neither certain, final, nor conclusive. How much was to be paid by the plaintiff to the defendant? No man can say. Before that question is answered, you must settle the plaintiff's account and the settlement of that action may involve the parties in another suit." So here, to determine what moneys were received by the liquidating partner since February 11, 1901, and what book accounts and municipal claims are owned by the firm and held by the surviving partner, may involve him and the representatives of a deceased partner in another suit. The judgment entered on this award should have been stricken off. No reason was given by the court for allowing it to stand.

The first and second assignments of error are sustained. The order of the court below discharging the rule to strike off the judgment is reversed, and the record is remitted, with direction that the said judgment be stricken off.

(80 Conn. 716)

BLOCH v. DE LUCIA. (Supreme Court of Errors of Connecticut. June 5, 1907.)

1. PRINCIPAL AND AGENT AGENCY - EVI

DENCE.

The question whether an agency has been created by the conduct of the parties is a matter of fact, to be determined by the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 722.] 2. APPEAL-REVIEW-QUESTIONS OF FACT.

An assignment of error that the court erred in deciding from the facts found that an alleged agent had authority from defendant to enter into any contract with plaintiff does not present any question of law on appeal, where it appears that from the facts found the court might properly draw the conclusion that defendant authorized such agent to act for him; such conclusion being one of fact, for the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3318.]

Appeal from District Court of Waterbury; Frederick M. Peasley, Judge.

Action by B. K. Bloch against Frank De Lucia to recover the price of goods sold. From a judgment for plaintiff, defendant appeals. Affirmed.

Francis P. Guilfoile, for appellant. MIchael J. Byrne, for appellee.

HAMERSLEY, J. There is no material question of law presented by the record in this case. The complaint alleges that on May 16, 1905, the plaintiff sold to the defendant, at an agreed price of $132.55, five barrels of whisky in bond, and delivered to the defendant a United States bonded warehouse certificate, which entitled the defendant, upon presentation thereof, to have said whisky delivered to the defendant in accordance with its terms; that said whisky remains in said warehouse, and the defendant still holds said certificates; that the defendant has not paid any portion of said purchase price, and the same is wholly due and unpaid. The answer admits that the defendant has paid no part of said purchase price, and denies each of the other allegations. The trial court found the issues thus raised by the pleadings for the plaintiff, and adjudged that the plaintiff recover the amount of said purchase price. This judgment is the true conclusion of the law upon the facts as alleged and found, and must be affirmed, unless it appears from the record that the trial court erroneously decided adversely to the defendant some question of law which was distinctly raised at the trial and which is specifically stated in the reasons of appeal, and that such error is a material one or inju riously affected the defendant.

It appears from the record: That the alleged contract of sale was made by a selling agent of the plaintiff at the place of business of the defendant, and its terms contained in a written order signed by the plaintiff's agent and to which the name of the defendant was signed as purchaser. By this 66 A.-49

The

order it appeared that the purchase price was to be paid in installments, payable two, four, six, and eight months from date. amounts thus payable were further witnessed by five negotiable notes, to which the name of the defendant was signed, and which were delivered to the plaintiff's agent. That the name of the defendant was signed by his son, Martin De Lucia, who as clerk and bartender was in charge of the defendant's saloon. That Martin, having arranged with the plaintiff's agent the terms of the sale, told him he would have to consult his father, the defendant, before closing the transaction, and the two then went to the defendant, who was in an adjoining room in the same building, where he worked as a cobbler when not engaged in tending his saloon, and there, in presence of plaintiff's agent, the defendant and his son conversed. The defendant spoke with difficulty very little broken English, and the conversation was carried on in his native tongue, as was his custom when his son wished to consult him about purchases, which language was unknown to the plaintiff's agent. Martin, with the agent, thereupon returned to the saloon, where Martin signed his father's name to the order and promissory notes, and upon delivering the same to the plaintiff's agent received from the agent the warehouse certificate, which certified that the five barrels of whisky purchased and described in the contract of sale were stored in the designated United States bonded warehouse for account and subject to the order of the defendant, Frank De Lucia, and placed this certificate in the defendant's cash register, where it remained until after this action was commenced. The defendant daily removed from his cash register, where said certificate was kept, the proceeds of each day's sale. He spent some time in his saloon when his bartenders were away, and usually spent several hours in his saloon each evening, waiting upon customers. The defendant refused to pay each of the five notes as they fell due. The foregoing are in substance the evidential facts which the court incorporated in its finding in pursuance of the defendant's request for a finding. It further appears from the record that the defendant, his son Martin, and the plaintiff's agent all testified upon the trial, in chief and upon crossexamination, in respect to the conduct of the parties and the disputed question of agency, and that the court found from the evidence that the defendant's son acted as the defendant's agent in the transaction of sale. The question whether or not an agency has been created by the conduct and acts of the parties is a matter of fact depending upon all the evidence in the case, and as such is to be determined by the trior of facts; i. e., the trial court or the jury, as the case may be. Torry v. Holmes, 10 Conn. 499, 513, General Hospital Society v. New Haven Rendering Co., 79 Conn. 65 Atl. 1065.

-

The only error in deciding any question of law (aside from questions of evidence), specified in the reasons of appeal, is expressed in varying forms, and is in substance this: The court erred in deciding from the facts found that Martin De Lucia had authority from the defendant to enter into any contract with the plaintiff. This assignment does not, under the circumstances of this case, present a question of law. It does not clearly appear from the finding that in drawing its inferences of fact the trial court has violated the plain rules of reason, or that some fact found is inconsistent with the conclusion reached. Metcalf v. Central Vermont Ry. Co., 78 Conn. 614, 619, 63 Atl. 633. On the contrary, it appears that, in view of the facts thus found, and of all the inferences the court might properly draw from them in connection with the incidents of the trial the conclusion that the defendant authorized his son to act for him is one of fact, which the court might reach without adopting any erroneous principle of law and without violation of the plain rules of reason. General Hospital Society v. New Haven Rendering Co., 79 Conn. - 65 Atl. 1065. The rulings upon evidence were correct or harmless. The exceptions to the finding are not supported by the record.

There is no error in the judgment of the district court of Waterbury. The other Judges concurred.

(80 Conn. 26)

MUELLER v. RHEIN et ux. (Supreme Court of Errors of Connecticut. June 5, 1907.)

ESTOPPEL-EQUITABLE ESTOPPEL-TERMS OF

LEASE.

Where, in an action for room rent, the tenants pleaded a written lease of a store and the rooms and payment thereunder, on proof that the landlord executed the lease, he was estopped to assert he never knowingly consented that it and the rental thereunder should include the rooms; no fraud or improper conduct on the tenants' part being charged.

Appeal from City Court of Hartford; Herbert S. Bullard, Judge.

Action by John Mueller against Rudolph Rhein and wife on the common counts to recover a month's rent of a tenement of three rooms. Judgment for the plaintiff, and appeal by the defendant. Reversed.

J. T. Robinson and L. H. Katz, for appellant. J. L. Barbour, for appellee.

THAYER, J. The plaintiff's bill of particulars claims rent for the month of October, 1906. The answer of the defendants alleges that the plaintiff executed a written lease to Ida Rhein, one of the defendants, wherein it was stipulated that she was to have "the store occupied and used as a grocery situated and located at No. 51 John street, in said Hartford, also the three rooms in the rear of said store and used and to be used as a

tenement and living apartments," for a monthly rent of $25; that the tenement mentioned in the plaintiff's bill of particulars is the tenement referred to in the lease; and that the defendant "Ida Rhein had paid to the plaintiff $25 for the rent of the store and tenement, No. 51 John street, for said month of October, in total fulfillment of the terms of said lease." The plaintiff's reply admits the execution of a lease to Mrs. Rhein of the grocery store, but denies that when said lease was executed it contained the words "also the three rooms in the rear of said store and used and to be used as a tenement and living apartments," and alleges that if said words appear in said lease they were inserted after he had signed the same without his knowledge or consent. The case was tried upon these pleadings, and the court found that the words "also the three rooms in the rear of said store and used and to be used as a tenement and living apartments" were contained in the lease at the time of its execution; that the lease was read to the plaintiff ; and that he took it and appeared to read it and handed it back to the attorney who had drawn it, with the remark, "It is all right." and then signed it. The court also found from something which appeared in the evidence that the plaintiff is a poor reader of English, and did not notice or comprehend that the quoted words were in the instrument, and that he did not knowingly agree that they should be included in it, and that he understood that the lease was a lease of the store alone. The plaintiff, after the trial, at the suggestion of the court, amended his reply by adding "or if said words appeared in said lease when it was signed it was without the knowledge or consent of the plaintiff, who never knowingly agreed that said words should be included in said lease, and never knowingly agreed that the rental of said three rooms in the rear of the store to be used as a tenement should be included in said sum of $25, which, according to the plaintiff's understanding, was to be the monthly rent for said grocery store only." The defendants having declined, to offer further evidence upon the issue thus attempted to be raised, although given an opportu nity to do so, the court ruled that the lease was invalid, upon the ground that there was no meeting of the minds of the parties, that it furnished no defense to the action, and rendered judgment for the plaintiff.

After proof that he executed the lease set up in the answer, the plaintiff was estopped to deny that he was bound by its terms. No fraud or improper conduct or act on the part of the defendants inducing the plaintiff to sign the lease is alleged, and, if he signed it without knowing its terms, it would appear to have been through negligence so gross that a court of equity upon proper pleadings would refuse to cancel or correct the lease. It is unnecessary to determine this question. however. This is an action at law for rent,

Testator gave all his property to a trustee to pay the interest and income thereof to testator's wife and daughter, during their lives, in equal proportions. The will provided that, if the daughter should survive the wife, then the whole income should be paid the daughter, and after the death of both wife and daughter the residue of the estate should go to the lawful heirs of the daughter. Held, that the gift to the lawful heirs of the daughter was void as contravening the statute of perpetuities.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39. Perpetuities, § 18.]

2. WILLS-DISPOSITION OF VOID BEQUESTS.

Where a gift by way of remainder was void as a violation of the statute against perpetuities, it became intestate estate, and vested in the heirs of the testator at the time of his death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 2165.]

3. SAME-ELECTION-PROVISION FOR SURVIVING WIFE.

The acceptance and enjoyment by the widow of a provision of the will expressly made in lieu of dower, without having claimed any further interest in the estate, debarred her from any share under the statute in the testator's personal estate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 2074.]

Case Reserved from Superior Court, Hartford County; William S. Case, Judge.

Action by George A. Harmon, trustee, against Israel Harmon and others. On reserved questions. Questions answered.

Hugh M. Alcorn, for plaintiff. Walter H. Clark, for Israel and Rufus Harmon and others. Wiam H. Teete, for Sarah C. Stiles, executrix, and others.

HALL, J. Julius Harmon died testate at Suffield, in this state, November 22, 1842. By his will, dated November 22, 1842, he gave all his property to a trustee to pay the interest and income thereof annually to his wife and his daughter, Sarah E. Denison, during their lives, in equal proportions. Then followed this language: "If my said wife should survive my said daughter and my said daughter should die leaving no children, then the said share of my daughter shall go to my said wife during her life, but if she, my said daughter, should leave children, then to go to said children, and if my said daughter

should survive my said wife then thereafter the whole of said rents, profits, interest and income shall go and be paid over to my said daughter during her life, and after the death of both my said wife and said daughter, the said trustee after retaining enough of my estate to pay him the sum of five hundred dollars, as a reward and compensation for executing the duties of the aforesaid trust, shall deliver and transfer the remainder and residue of said estate to the lawful heirs of my said daughter, Sarah E. The above bequest to my said wife is to be received by her in lieu and full satisfaction of her claim to dower in my estate." Mary Harmon, the testator's widow, died October 8, 1858. His daughter and sole heir at law, Sarah E. Denison, died March 11, 1905, leaving neither husband nor children, and leaving a will, the residuary legatee and the executor of which are parties to this suit. Her estate is in process of settlement in the probate court of the county in Massachusetts where she resided at the time of her death. Other parties to this suit are the administrator c. t. a. of the estate of said Julius Harmon, the children and the representatives of children of deceased brothers, and of a deceased sister of the testator, who survived him, and children and the representatives of children of a half-brother and of a half-sister of the testator's first wife, who survived her. The plaintiff is the successor of the trustee named in the will, and has now in his hands in this state personal property of the value of $3,250 and real estate in Massachusetts of the value of $250. The advice originally asked for by the complaint was whether the property in the trustee's hands should be distributed to the lawful heirs of Sarah E. Denison, as determined by the laws of Massachusetts, where her kindred of the full and half blood would share equally in her estate, or by the laws of this state, which would exclude her kindred of the half blood. Subsequently, by amendment, the plaintiff asked advice, first, as to whether the attempted disposition of the remainder after the death of Sarah E. Denison contravened the statute of perpetuities, and, if so, when and in whom the title to the remainder vested; and, second, whether, if such remainder was intestate estate, any portion of it vested in the widow of the testator and should be distributed to her heirs.

By the repeated decisions of this court the testator's attempted gift of the remainder of the trust estate, upon the death of his daughter, Sarah E. Denison, leaving no children, "to the lawful heirs of my (his) said daughter," was void by our statute against perpetuities in force when the testator made his will and when he died. Alfred v. Marks, 49 Conn. 473; Leake v. Watson, 60 Conn. 498, 21 Atl. 1075; Gerard v. Ives, 78 Conn. 485, 62 Atl. 607.

By the laws of this state said remainder was intestate estate, and vested in the heirs

and judgment for defendant ordered.

As to the disposal of the real estate in Massachusetts, of the value of $250, over which we have no jurisdiction, we give no advice.

The gift to the widow of at least one-half, and possibly the whole, of the income of the entire estate during her life, was expressly made in lieu of dower, and was a valid gift, which she accepted and enjoyed, apparently without having claimed any further interest in the estate. The disposal of the entire income of the estate during the lives of nis wife and daughter was inconsistent with an intention on the part of the testator that the former should receive a further one-third share of his estate upon his death. The acceptance and enjoyment by the widow of the provision of the will for her benefit, without having claimed any further interest in the estate, debarred her from any share under the statute in the personal estate of the testator. Leake v. Watson, supra; Walker v. Upson, 74 Conn. 128, 49 Atl. 904; Grant, Adm'r, v. Stimpson, et al., 79 Conn. -66 Atl. 166.

These answers to the inquiries propounded by the amendment to the complaint render it unnecessary for us to consider the other questions asked.

The superior court is advised to render judgment in conformity with the above opinion. No costs will be taxed in this court. The other Judges concurred.

(80 Conn. 1)

SISTARE v. SISTARE. (Supreme Court of Errors of Connecticut. June 5, 1907.)

JUDGMENT-FOREIGN JUDGMENTS-ENFORCE

MENT.

A decree for the payment of maintenance which is inconclusive in its character by reason of the reservation to the court which made it of the unrestricted right to change or annul it at discretion, and which is not enforceable in the state of its origin except by special processes, exclusive of execution, or judgment thereon and execution, is not a decree creating such a debt of record as will justify extraterritorial enforcement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1497.]

Appeal from Superior Court, New London County; John M. Thayer, Judge.

Action by Mathilde Von Ellert Sistare against Horace Randall Sistare. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

In 1899 the plaintiff was by the courts of New York granted to separation from the defendant, her husband, and awarded the custody of their minor son. By the judgment it was further ordered, adjudged, and decreed that the defendant from and after the entry thereof should pay to the plaintiff for her maintenance and support and the maintenance and education of said son the sum of $22.50 per week, to be paid into the hands of the plaintiff's attorneys of record on each and every Monday. It was further ordered, adjudged, and decreed that the plaintiff have leave to apply from time to time for such orders at the foot of the judgment as might be necessary for its enforcement and for the protection and enforcement of her rights in the premises. Section 1771 of the New York Code of Civil Procedure then in force, under which this order for payments to the wife for her benefit and that of her son was made. provided that in actions for a separation the court might either in the final judgments or by orders made from time to time before such judgment give such directions as justice required between the parties for the custody. care, education, and maintenance of any of the children of the marriage, and, where the action should be brought by the wife, for her support. It was further provided that the court might upon the application of either party, after due notice to the other, by order annul, vary, or modify such directions. The right of the defendant to make such an application was conditioned upon leave of the court to make it having been first obtained. Section 1772 provided that the court might require the husband to give security for the payments which he might be directed to make as aforesaid, and that, in case of a failure on his part to make payments or give security as directed, his personal property and the rents and profits of his real property might be sequestered, a receiver thereof appointed, and the property thus sequestered applied under the direction of the court to the satisfaction of the payments ordered as justice should require. Section 1773 further provided that where a husband was in default of his payments, and it appeared presumptively that the proceedings specified in seetion 1772 would be ineffectual, the court might in its discretion institute proceedings against him for his punishment for contempt. The defendant made none of the payments required of him by said order and decree, and this suit was brought to recover the amount in arrears, which at the commencement of the action was $5,805. Judgment for that sum was rendered. The complaint recited the issuance of the order and its terms in full, that it still remained in full force and effect, and that payments had not been made as ordered to the amount of $8,500, and prayed for judgment for $10,000 damages.