in the county of Washington, state of Pennsylvania; said options calling for an acreage of 2,237 acres, more or less, and to convey the same to said party of the second part, or his asssigns, by deeds of general warranty in fee simple and free of all incumbrances, provided that on or at any time before March 2, 1901, said second party gives to said first party notice in writing that the said second party elects to accept the property described in said options, a schedule of which is hereto attached and made part hereof, said property being more particularly described in said options. In consideration whereof said second party, for himself or his assigns, agrees to pay to said first party the sum of $1.00, the receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay said party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of $40.00 per acre for each and every acre which may be taken up, and to which good titles are to be had, payable as follows: When the deeds are delivered from the present owners the payments to the farmers to be as stipulated in the options and the same may be determined by surveys. This agreement to be binding upon and inure to the benefit of the heirs, executors, administrators and assigns of the parties hereto."

On March 15, 1901, Steck notified Strasser in writing of his election to take and accept the coal franchises and privileges, which had been granted by the landowners under the options. Steck, however, failed to exercise his right to purchase from the farmers, and denied any liability to Strasser. It appeared that the amounts mentioned in the various options ranged from $28 to $35 per acre.

Plaintiff presented the following point: "(1) That if, prior to and at the time of the making of the contract between the plaintiff and defendant, the defendant directed the plaintiff that, upon the making of deeds of conveyance for the several tracts of coal referred to in plaintiff's statement of claim, such deeds should be made directly from the several owners to the defendant, and if the jury further find that the defendant continued from that time down to August 3, 1901, to state to the plaintiff that the deeds should be drawn, and that the plaintiff acquiesced therein, then such evidence is to be construed as a construction of the contract entered into between the parties and defendant. Answer: Affirmed."

The court charged in part as follows: "If you find for the plaintiff, then he is entitled to recover what he lost. He alleges that he lost these options, as I understand the testimony, by reason of this conduct on the part of the defendant; that is, postponing the carrying out of this during the summer, and then towards the end of the options (I don't

remember how soon they expired, but my recollection is within a month from August 2d) that he then broke his contract, and by reason of that the plaintiff lost his rights under the options. If that be true, if you find that, by reason of a breach of this contract on the part of the defendant, the plaintiff lost all rights that he had under those options, and was compelled to surrender them, then he is entitled to recover what he lost, and what he lost was the value to him of those contracts, the money that he would make out of those contracts provided the defendant had carried out his part of this contract of purchase. That means, ordinarily, the difference between the purchase price and any expenses which were attached to it by reason of the plaintiff's duties in carrying out his contract. If you find that the plaintiff is entitled to recover because the defendant made an unreasonable demand, and, because of the plaintiff's inability to comply with that unreasonable demand, he declared the contract off, then, if the plaintiff is entitled to recover, he is entitled to recover whatever he lost. If he lost these options because of that, then he is entitled to recover the value of those options to him, provided they had been carried out."

Verdict and judgment for plaintiff for $20,358.14. Defendant appealed.

ELKIN, J. If the agreement entered into between the parties to this action was a contract for the sale of land, the judgment must be reversed; if it was a contract for the sale of options, the case was properly disposed of in the court below. Prior to February 21, 1901, when the contract in question was made, appellee had procured options from 15 landowners giving him the right to elect to purchase the coal underlying their respective properties within certain limits and at certain fixed prices. In addition to the optioned coal, he owed or controlled a couple of tracts in his own right. The appellant had been engaged in buying and selling coal lands, coke plants, and coal operations for a long period of years, and was familiar with the prevailing method of handling such deals through options. He knew that the optioned coal did not belong to appellee, and that the only interest Strasser had to sell was his right or privilege to elect to purchase under his options. This, however, was a substantial interest in land which could be conveyed to a vendee. Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526; People's Street Railway Company v. Spencer, 156 Pa. 85, 27 Atl. 113, 36 Am. St. Rep. 22. Appellee had the legal right to sell his options. Did he do so? The con

tract itself must furnish the answer. We think the second clause clearly indicates that it was a contract to sell the options. This clause is as follows, to wit: "In consideration whereof said second party for himself, or his assigns agrees to pay to said first party the sum of one ($1.00) dollar, the receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay said first party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of forty ($40.00) dollars per acre for each and every acre which may be taken up and to which good titles are to be had, payable as follows: When the deeds are delivered from the present owners, the payments to the farmers to be as stipulated in the options and the same may be determined by surveys." Here, then, in express terms, it is provided that when the agreement becomes absolute by election and notice, which were subsequently made and given, appellant agreed to pay appellee, not $40 an acre, the full price agreed upon for the coal, but the difference between the optioned price and $40 per acre. In other words, this difference represented the profit and compensation of the appellee in taking up the options. Again, it is provided that, when the deeds are delivered, not by appellee to appellant, but from the "present owners," the "farmers" are to be paid "as stipulated in the options." Paid by whom? Clearly by Steck, the purchaser of the options. His covenant was to pay, first, Strasser, the difference between the prices fixed in the options and $40 per acre, and, second, the farmers according to the terms of the options-all of which is inconsistent with the contention that the optional agreement was a contract whereby appellee agreed to sell and convey to appellant the coal lands under option.

If Steck was contracting to purchase the optioned coal land from Strasser, why did he insert in the agreement the covenant about the delivery of the deeds from, and the payment of the purchase money to, the "farmers"? It is true appellee did, in the first clause of the agreement, covenant to grant, bargain, and sell the coal land owned and optioned by him, and these words are ordinarily used in the conveyance of absolute title; but they may be used in the conveyance of any estate, or interest, which may be transmitted to a vendee, and it follows that appellee had such an interest under his options as could be granted, bargained, and sold. In the present case the legal effect of the whole contract was to grant, bargain, and sell options. In the options with the landowners, it was provided that the conveyance should be by "good and sufficient deed," while in the optional agreement between appellant and appellee the covenant was to convey by deed of general warranty free

of all incumbrances. It is strongly urged that Steck by this covenant contracted for the warranty of Strasser, and not for that of the landowners. If this covenant stood alone, without explanation or qualification by other parts of the contract, there could be no doubt as to the correctness of this position. It, however, must be read and understood in connection with the whole contract and the subject-matter about which the parties were contracting. When so construed, there can be no doubt that the intention of the parties as gathered from the four corners thereof was that, if any landowner failed to convey to appellant by deed of general warranty free of all incumbrances, or other satisfactory conveyance, appellee would not be entitled to receive the difference between the optioned price and $40 per acre as his compensation for that option. If the title was not good according to the covenants of appellee, the appellant might refuse to elect to take, and, in that event, appellee would not be entitled to receive the consideration or compensation provided for him in the optional agreement. Throughout the whole transaction, appellant knew that appellee did not own the coal lands, and only had the options to purchase them, and this is what he bargained for. When appellant, on March 15, 1901, notified appellee in writing of his election to take and accept the coal franchises and privileges, which had been granted by the landowners under the options, the optional agreement was exercised, and the rights and liabilities of the parties thereto were fixed thereby. He then became the equitable owner of the options, and could enforce his rights therein, not only against appellee, but also against the landowners. Frick's Appeal, 101 Pa. 485. If he failed to exercise his right to purchase after he became the owner of the options, the fault was his, not that of appellee. This being our construction of the contract, we can see no error in the submission of the case to the jury by the learned trial judge in the court below as to the measure of damages and all other questions involved in the controversy.

the order, and whether the subcontractor knew it.

Appeal from Court of Common Pleas, Allegheny County.

Action by Scott A. White against A. M. Turner, trustee. Judgment for plaintiff, and defendant appeals. Affirmed.

At the trial it appeared that Jackson & Fulton were general contractors for the building of a schoolhouse, and that Scott A. White was a subcontractor for the roofing of the building, On October 7, 1901, Jackson & Fulton gave to Scott A. White an order on the school board for $4,000. This order was accepted. Within four months from the giving of the order Jackson & Fulton went into bankruptcy, and A. M. Turner was appointed their trustee. The latter demanded the amount of the order from the school board, but was refused. The board paid the money into court. At the trial counsel for plaintiff offered in evidence the records of common pleas court, No. 3, at No. 266, February term, 1903, in the case of Scott A. White v. Homewood school board on this order, for the purpose of showing that the result of this conditional order was litigation against the Homewood school board. Objected to as incompetent and irrelevant. Objection sustained and bill sealed for defendant. Mr. Dalzell: "I propose to show by witness that he had a contract for the roofing of the Homewood school, and, further, that he completed

that contract. That he received an order from the parties with whom he had the contract on the school board for the contract price of the roof; that the order was presented to the school board, and by it accepted. And I propose to offer in evidence the contract between this witness and Jackson & Fulton, the general contractors, as well as the accepted order. This for the purpose of showing Mr. White's right to the fund which has been paid into court." Objected to: First, as incompetent, irrelevant and immaterial generally. Second, it sets up a new contract between the school board and the plaintiff that is without consideration, and which by the pleadings has been the cause of litigation against the school board. The school board had no authority to make the contract, and its acceptance, therefore, was ultra vires and void. Third, because under the pleadings the offer raises a mixed question of law and fact, and is therefore too general. Objection overruled, and bill sealed for defendant.

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

Robert B. Ivory, for appellant. R. H. Hawkins, for appellee.

PER CURIAM. This was a feigned issue to determine the right to a fund in court. The general contractors for a school building made a subcontract with plaintiff for part

of the work, and gave him an order on the school board which the board accepted. Subsequently the general contractors went into bankruptcy, and their trustee demanded the money for plaintiff's work on the ground that the order was an illegal preference. The board paid the amount into court. The questions of consideration and of a new contract by the board, ultra vires, argued by appellant are not in the case. The board by payment into court declined to raise them, and the appellant is not in position to do so. And the evidence as to litigation against the school board was irrelevant for the same reason. At the trial, therefore, there was nothing in issue but the alleged illegal preference. That depended on whether the contractors were insolvent when they gave the order. and whether plaintiff knew it at that time. The jury found these facts in plaintiff's favor.

In an action by a minor against his employer to recover for injuries received because of an alleged defect in a machine, plaintiff, after he has arrived at age, and more than three years after the accident, cannot amend his statement by charging a defect in a different machine, failure to instruct as to the dangers thereof, and failure to inspect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39. Pleading. § 694.1 3. INFANTS

-ACTIONS ATTAINMENT OF MAJORITY PENDING SUIT.

A minor sued by his father, as next friend, for personal injuries, and pending the action came of age. Held. that the record could be so amended as to allow plaintiff to appear in his own right instead of through his father as next friend.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Infants, §§ 253, 254.]

Appeal from Court of Common Pleas, Allegheny County.

Action by Garrett Mahoney, for himself and as next friend of William Mahoney, against the Park Steel Company. From an order refusing motion to amend statement in case, plaintiff appeals. Affirmed.

The errors assigned were:

"(1) The court below erred in its conclusion, as follows: It is proposed now to amend the narr., and the amendments are herewith submitted. After an examination of the same we are of opinion that several new and distinct allegations of negligence are set up.

"(2) The court below erred in not allowing the amended statement to be filed.

"(3) The court below erred in not allowing William Mahoney to intervene as plaintiff.” Argued before MITCHELL, C. J., and FELL, MESTREZAT, ELKIN, and STEWART, JJ.

L. C. Barton, for appellant. John S. Wendt and Johns McCleave, for appellee.

ELKIN, J. This case is somewhat belated in coming here. The suit was instituted April 27, 1900, by the father in his own behalf and as the next friend of his minor son, who was injured while in the employ of the defendant company. The accident from which the injuries resulted for which damages are claimed occurred January 24, 1900. The original statement of claim was filed October 23, 1901, and the case came on for trial April 29, 1903, at which time a judgment of compulsory nonsuit was entered against the father, and the case was continued as to the son, for the purpose of permitting his counsel to move to amend the statement of claim. The bar of the statute of limitations could be interposed against any new cause of action after January 24, 1902. The minor son, appellant here, became of age April 27, 1903, and on May 2d following, through his counsel, moved the court for leave to intervene as a party plaintiff and to file an amended statement. This motion was refused on the ground that the amended statement set up new and distinct allegations of negligence after the statute of limitations had run. The case was still at issue as to appellant, however, on the original statement, when it came on for trial the second time, October 17, 1905. A jury was called and sworn, but no testimony was taken, whereupon the learned trial judge directed a judgment of compulsory nonsuit to be entered.

The first two assignments of error relate to the refusal of the court below to allow the amended statement of claim to be filed. It is conceded, as it must be under our authorities, that, if the amendment set up new causes of action, it was properly refused. An amendment to a declaration will not be allowed if a new cause of action is thereby introduced which is barred by the statute of limitations. Wright v. Hart's Adm'r, 44 Pa. 454; Smith v. Smith, 45 Pa. 403. A party cannot be permitted to shift his ground or enlarge its surface by introducing an entirely new and different cause of action, when, by reason of the statute of limitations, it would work an injury to an opposite party. Trego v. Lewis, 58 Pa. 463. To the same effect is Fairchild v. Dunbar Furnace Co., 128 Pá: 485, 18 Atl. 444; Grier v. Northern Assurance Co., 183 Pa. 334, 39 Atl. 10.

The real question to be decided on this branch of the case is whether the proposed amendment introduced new causes of action. In the original statement the negligence charged was that the defendant company had failed to maintain the rest or guide attached to the rolls at which appellant was working in

a reasonably safe and secure condition, but had allowed it to become loose so that when he stepped upon the guide, as was his duty, it turned or slipped by reason of which he was thrown upon the rolls which caught and crushed his leg and foot. The statement set out in detail the duties of the appellant in the performance of his work, the manner in which the accident occurred, and the defective machinery which caused it, charging in specific terms that the negligence relied on was the defective step or guide to the rolls. The proposed amended statement, not allowed by the court below, added four additional and distinct charges of negligence, to wit: (1) That the spanner, or handle, attached to the screw at the housen, was in a defective condition; (2) that the defendant company, through its employés, had proceeded to change the rolls while they were revolving, which was so dangerous as to make the attempt negligence; (3) that appellant had not been sufficiently instructed as to the dangers and risks incident to his employment; (4) that the defendant had neglected to properly inspect the rolls and machinery before appellant was put to work in operating the screw. It is quite apparent that the plaintiff was attempting to shift his ground by introducing new causes of action, which cannot be done. He was not willing to go to trial upon the negligence charged in the original statement; nor did he confine himself to a substantial restatement of the original cause of action, as in Stoner v. Erisman, 206 Pa. 600, 56 Atl. 77; nor did the amended statement specify and define what the original claim left general and indefinite, as in Fricke v. Quinn, 188 Pa. 474, 41 Atl. 737. An amendment may define or specify in different form the original cause of action, or one substantially and generally the same, but cannot shift or enlarge the ground by adding causes of action, substantially different from that originally specified. The only notice to the defendant company contained in the original statement was the defect in the rest or guide plate on the rolls. In the proposed amended statement defendant is charged with a defect in another and different machine, failure to instruct as to the dangers incident to his employment, and failure to inspect. These were not charged in the original statement of claim, and certainly new causes of action are set up on which the appellant now relies to recover. The amendment comes too late.

The third assignment of error relates to the refusal of the court to permit the plaintiff to intervene. We do not see that there was any necessity for a petition and formal order of court allowing him to intervene. Under the act of May 12, 1897 (P. L. 62), the right of action for such a wrongful injury accrues to the child, and also to the parent. It is therein provided that the "action shall be redressed in only one suit brought in the names of the parent and child." This action was properly instituted as provided by the act of Assembly.

Upon the arrival of the minor at full age, the action did not abate; but he had the right to move the court to amend the record, so that he could appear in his own right as a party plaintiff, instead of through his father as next friend, if he so desired. This could be done on motion, and the court should allow it when asked. It must not be overlooked, however, that, in this case, appellant was a party to the record from the date of the institution of the suit, and was a party at the time judgment of nonsuit was entered against him, and, since the entry of this judgment has not been assigned for error, it stands against him, and is the end of his case. At the time of the trial, he could have proceeded on the original statement; but, having failed to do so and the judgment of nonsuit having been entered and not assigned for error, he is precluded thereby.

Judgment affirmed.

(216 Pa. 316)

OHIO RIVER JUNCTION R. CO. V. PENNSYLVANIA CO. (Supreme Court of Pennsylvania. Jan. 7, 1907.) INJUNCTION-REMOVAL OF SIDE TRACK.

A bill in equity alleged that plaintiff's railroad was built by defendant railroad company as a side track, partly on its own land and partly on a right of way of a firm for whose accommodation it was built. It was agreed that the road should be under the control of defendant, and removable at its option on 60 days' notice. The notice was given prior to the filing of the bill. Plaintiff had acquired the rights of a private firm to the property, and procured under Act April 4, 1868, a charter as a railroad, and applied for the appointment of viewers to fix the terms of a connection with defendant road, which proceeding had been pending for some time when the bill was filed. Defendant was enjoined from removing such siding. Held insufficient to sustain the bill, but on a finding by the court below that an immediate severance would cause injury to plaintiff the injunction would be continued for four months to allow plaintiff in its proceeding for the appointment of viewers to establish its rights.

Appeal of Court of Common Pleas, Beaver County.

Bill by the Ohio River Junction Railroad Company against the Pennsylvania Company. Decree for plaintiff, and defendant appeals. Modified and affirmed.

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

James L Hogan and John M. Buchanan, for appellant. William A. McConnel, for appellee.

PER CURIAM. Some very serious questions are suggested in this case, though they belong perhaps more properly for purpose of decision to another branch of the same controversy which is not yet before us. The plaintiff's railroad, or the contested part of it, was built by the defendant company as a side track of its own road, partly on its own land and partly on a right of way furnished by the Parks, a private firm for whose ac

commodation and at whose instance it was constructed. By the agreement under which it was built it was to be and has continued under the management and control of the defendant, and subject to removal at its option at any time upon 60 days' notice. Such notice has been given, the time has expired, and, so far as any rights derived from the agreement are concerned, neither the Parks nor the appellee have any title available to sustain this bill. But the plaintiff has acquired the rights of the Parks in the property in question, and has procured a charter as a railroad under the act of April 4, 1868, P. L. 62. Claiming the right under the Constitution and the act of 1868 to make a connection with the defendant's railroad, it has filed a petition in the common pleas of Beaver county for the appointment of viewers to determine and fix the terms of the connection. The viewers were appointed more than three years ago, but, so far as we are informed, nothing further has been done, and the delay is not explained. It is in this proceeding that the questions alluded to supra will properly arise. Whether, under the circumstances, the plaintiff is entitled to the rights of a railroad as against the defendant; whether, conceding such title, a new railroad can, by simply inserting it in its charter route, take a siding which is the property and on the land of a senior railroad, these and other questions of a like character will apparently be involved in that proceeding.

So far as present rights are concerned the plaintiff has failed to sustain its bill, and in strictness it should be dismissed. But in view of the finding by the court below of the nature and extent of the injury that would be done by the immediate severance of the existing connection, we conclude to maintain the status quo by allowing the injunction to stand. The plaintiff, however, must push the other proceeding with diligence to have its rights determined. The injunction, therefore, is limited to four months from this date. So modified, the decree is affirmed.

(216 Pa. 331)

In re FORQUER'S ESTATE. (Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. WILLS- CONTINGENT CONDITIONS - CONSTRUCTION.

Testator stated in his will his intention to travel, and that, knowing the uncertainty of a journey, he bequeathed his real estate and personal property to his wife, and also all judgments owned by him and notes due, and, should anything befall him while away, all his estate and property of every kind, both real and personal, was set over to his wife for her sole benefit. Held, that the will was not merely contingent on testator's death during the journey, but continued operative after his safe return and his death thereafter.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49. Wills, § 200.]

2. SAME--REPUBLICATION.

Where a will is contingent or conditional, and the contingency does not occur, its repub