appoint a trustee to enforce the charitable [tion is that testator intended the bequest trust (Frazier v. St. Luke's Church, 147 Pa. solely for the charitable uses of the legatee 256, 23 Atl. 442); and, upon a dissolution of society; and there is an implied trust that an unincorporated association, the courts the money shall be so used. Jeanes' Est., will care for its charity funds in accordance supra, 14 Pa. Co. Ct. R. 619; Magill v. with their dedication (Bethlehem Borough | Brown, Brightly's Reports 406 note, Fed. v. Perseverance Fire Co., 81 Pa. 445; Thom- Cas. No. 8,952. Moreover, where the legatee as v. Ellmaker, 1 Pars. Eq. Cas. 99, approv- society has two purposes, one clearly charied in Humane Fire Co.'s App., 88 Pa. 389. table and the other not, its charitable use 392; see, also, Centennial & Memorial Asso- funds will be protected by the courts against ciation of Valley Forge, 235 Pa. 206, 213, any character of diversion: Sharswood, J., 83 Atl. 683). on Mayer v. Society for Visitation of Sick, 2 Brewster, 388.

Finally, where a legacy is given in gen- The assignments of error are overruled, eral language to an association organized and the decree of the court below is afchiefly for charitable purposes, the presump-firmed; costs to be paid out of the fund.

(107 A.)

(264 Pa. 51)

In re KRUGER'S ESTATE.

pended upon by petitioners were not sustained, and refused to change its prior allowance of

Appeal of THIRD NAT. BANK OF PHILA- the claim. The petitioning creditors have appealed.

DELPHIA et al.

(Supreme Court of Pennsylvania. Feb. 24, 1919.)

1. PAYMENT 35-RECEIPT IN FULL TO COR

PORATION-CLAIM AGAINST PRESIDENT.

In April, 1912, Purdy, who is engaged in the plumbing business, told Kruger that the Philadelphia Rapid Transit Company, of Which the latter was president and general manager, had been illicitly tapping fire lines connected with certain of its carbarns, and that, if he, the informant, were awarded a contract to meter all such lines, he could arrange it so the city would make no claim for water previously used therefrom. Kruger ac cepted this suggestion, and entered into an

Where president of corporation made oral contract to have its fire lines metered at cost of construction, plus 10 per cent., and further sum of 15 per cent. on resulting savings, the contractor's receipt of corporation's check "in full payment" for services rendered did not bar his recovery of savings percentage under pres-oral arrangement with Purdy, whereby it was ident's subsequent personal, written contract, which, after reciting his oral contract, agreed to pay fixed savings percentage, in consideration of services rendered to corporation and to

himself.

2. CORPORATIONS 327-INDIVIDUAL CONTRACT BY PRESIDENT-CONSIDERATION.

Where president of corporation, after his oral contract to pay cost of construction work for corporation plus 10 per cent., and 15 per cent. on resulting savings, and after corporation's check to contractor "in full" for services, executed his personal written contract, in consideration of services rendered to corporation and to himself, agreeing to pay a fixed amount of savings percentage, such contract was based on a valuable consideration.

agreed that, after making required investigations in the water department of the city, Purdy should meter the fire lines wherever necessary, he to be paid the cost of construction, plus 10 per cent., and also the further sum of 15 per cent. on the savings due to such metering.

his actual construction work; and, early in Purdy was paid by the transit company for 1915, received from that concern two checks, or vouchers, for $1,500 each, the last paid February 7th, containing this statement: "In full payment for all services rendered Philadelphia Rapid Transit Co. to Jan. 31, 1913."

At the same time, Purdy was pressing Kruger for settlement of the percentage compensation which the former alleged to be due

Appeal from Orphans' Court, Montgomery him on account of the savings effected by his County.

From a decree dismissing their exceptions to adjudications in the estate of Charles O. Kruger, deceased, allowing a claim of William B. Purdy at the audit of his executor's account, the Third National Bank of Philadelphia and Charles R. Wannemacher appeal.

Affirmed.

Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, WALLING, and SIMPSON, JJ.

Stanley Folz, Nicholas H. Larzelere, Humbert B. Powell, and Mowitz & Solis-Cohen, all of Philadelphia, for appellants.

Montgomery Evans, of Norristown, and Weaver & Drake, of Philadelphia, for appellee.

MOSCHZISKER, J. Charles O. Kruger died, insolvent, October 4, 1914. At the audit of his executor's account, a claim for $19,300 was presented by William B. Purdy, being the balance due on a contract under seal, wherein the decedent acknowledged himself indebted to Purdy in the sum of $25,000. The claim was allowed; but, subsequently, certain creditors petitioned for a reconsideration of the adjudication. After weighing the testimony relating to this application, the court below determined that the grounds de

work; and, in this connection, on May 1, 1913, Kruger prepared and presented to Purdy the written contract upon which he bases his present claim.

It will be noticed that this contract, which we are about to recite, adjusts and fixes the amount of the percentages, then in controversy and unascertained, at $25,000, which sum Purdy agreed to accept in full; further, the writing contains an acknowledgment that Kruger, personally, had originally agreed to pay these percentages. The contract, signed and sealed by both Purdy and Kruger, individually, reads as follows:

"Whereas, William B. Purdy has, this first day of May, 1913, agreed to accept the sum of twenty-five thousand dollars, in full payment for the metering of all fire lines on the properties of the Philadelphia Rapid Transit Company in the city of Philadelphia, through information obtained by Secretary Frank B. Ellis, on April 23, 1912, for which I then agreed to pay the said William B. Purdy fifteen per cent. on all savings on fire lines in addition to his regular ten per cent. on all other surface lines, for the vast amount of money that he saved the Philadelphia Rapid Transit Company by meterin consideration of the faithful and efficient ing all fire lines, as well as yearly saving. That, service rendered by you to the Philadelphia Rapid Transit Company, and to me in the matter of metering of fire lines for the company, there is due to you the sum of twenty-five thou

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sand dollars. Now, know all men by these presents, that I, Charles O. Kruger, president of the Philadelphia Rapid Transit Company, do hereby bind myself, my heirs, executors and assigns, and the said Philadelphia Rapid Transit Company, to protect the said William B. Purdy, his heirs and executors or assigns, for the full amount of twenty-five thousand dollars. It is further agreed that I will see the above sum is paid you in amounts as may be required by you from time to time for your personal use. Witnesseth, whereas the said Charles O. Kruger, president of the Philadelphia Rapid Transit Company, agreed to pay or cause to be paid the above amount, I, the said William B. Purdy, agree to accept the same as above mentioned. In witness whereof the parties to this agreement have hereunto set their hands and seals on the day and year first above written."

Appellants contend: (1) That the contract just quoted "was not based upon a valuable consideration entitling Purdy to participate in the distribution of Mr. Kruger's insolvent estate with creditors whose claims were based on a valuable consideration"; and (2) that it "was obtained by fraud." In disposing of these contentions, the learned president judge of the court below, after discussing the testimony, states: "I fail to find satisfactory evidence of either fraud or want of consideration."

We cannot say the court below erred in its conclusion that no fraud had been shown. The allegation in this regard is that Purdy had fraudulently deceived Kruger into the original agreement, not that the contract here involved grew out of a fraud against the city; but, even had the latter charge been made, we are not prepared to hold the evidence would sustain it; so the effect thereof need not be discussed.

But, it will be noted, this finding is not that all the terms of the original agreement between Kruger and Purdy, particularly as to the percentage on savings, were then ratified; and, in the opinion filed after the testimony was before the court, there is no mention whatever of ratification. Be this as it may, however, the written agreement, signed by both Kruger and Purdy, demonstrates that, as between them, it was not intended Kruger should be discharged from his personal liability; and Judge Solly's second opinion proceeds upon the basis that the testimony shows Kruger, from the first, throughout his dealings with Purdy, assumed a personal liability.

The court below says, inter alia:

"The work of metering the fire lines was done for the company, under the order of its president, and paid for by the company; but the agreement as to the percentage on the savings of water charges which Purdy was to receive was the express promise of Kruger."

This finding is not formally complained of; but, if it were, we could not say there was error therein.

In

With the finding just quoted accepted as a fact, there is nothing in the receipt given by Purdy to the transit company which operates against a recovery here; the document simply states the money then accepted by Purdy to be in full payment of all services rendered that corporation, not for services rendered Kruger, or even in full for all services rendered in connection with metering the fire lines of the transit company. other words, the recital of this receipt contains no declaration which is inconsistent [1, 2] As to the alleged lack of considera- with Purdy's present claim against Kruger; tion, appellants contend the settlement with for, by the written contract in suit, Kruger the transit company in February, 1913, shows expressly agrees to pay Purdy, "in considerPurdy to have been paid in full for all work ation of the faithful and efficient service renand services rendered by him in metering that dered by" him, "to me [Kruger]," not for corporation's fire lines; and they argue that, metering the lines of the transit company, under these circumstances, when the contract but "in the matter of metering" those lines. in suit was subsequently signed, there was As suggested by the court below, it may no personal liability on the part of Kruger well be that Kruger thought it was his duty, to Purdy, first because the entire original as general manager, to have originally debt had been discharged by the latter's re-achieved the savings and annual economies ceipt to the transit company, and, second, because this transaction showed that Purdy recognized Kruger as representing a disclosed principal, who thereby ratified its agent's acts. After carefully considering these contentions, and all they involve, we are not convinced the orphans' court erred in refusing to sustain them.

Before the testimony contained in the present record was considered, the court below, in its original adjudication (after referring to the payment made by the transit company in February, 1913) said:

"The company therefore ratified the action of its president in contracting with Purdy for

subsequently accomplished by Purdy, in connection with, or "in the matter of," metering the transit company's fire lines; and that he always intended, if, for any reason, that corporation might be unwilling to pay a compensation commensurate with what he considered the value of Purdy's services, to discharge that responsibility himself. If this was Kruger's attitude (and the paper in suit strongly indicates it was), then his assumption of liability would be quite lawful; and, when the unpaid amount due Purdy was finally settled between them, it, like any other lawful debt, might be put into the form of a written obligation. Thus viewed, the con

(107 A.)

sideration; therefore, we cannot say the [a brakeman, wherein it appeared that brakecourt below erred in sustaining its validity. The assignments of error are overruled, and the decree is affirmed.

men were directed to notify conductors if they saw trespassers on the trains and that conductors would attend to their removal, it was error to instruct that, unless it was within scope of brakemen's employment to eject trespassers, there could be no recovery.

7. RAILROADS 281(3)-INJURY TO TRESPASSER-DEGREE OF NEGLIGENCE-INSTRUC

TION.

In action for injury to boy 12 years old from being forced or scared from a moving train by a brakeman, a charge that plaintiff could not recover unless defendant's employés OF willfully and with gross negligence caused injury by recklessly driving him from train was error; the test in such case being lack of due care under the circumstances. 8. APPEAL AND ERROR 994(2)—TRUTH OF

282(5) EMPLOYMENT GUARD ON TRAIN-EVIDENCE. Evidence that a man dressed in usual garb of a brakeman and carrying a red flag or other implement with which such trainmen are usually equipped was seen performing police duty on defendant's train is sufficient to sustain a find

ing that he was an employé guarding defend

ant's property.

2. RAILROADS 282(3) - ACT OF EMPLOYÉ GUARDING PROPERTY-COURSE OF EMPLOY

MENT-PRESUMPTIONS.

When an act of a railroad employé is under investigation which if properly done would be consistent with his duty of guarding property, it may be inferred, in the absence of contrary evidence, that the action was performed in the course of his employment.

3. RAILROADS 281(1)-ACTS OF EMPLOYÉS IN COURSE OF EMPLOYMENT-PRIVATE

STRUCTIONS.

TESTIMONY-REVIEW.

Court will not pass upon the honesty of plain

On the review of a jury trial the Supreme

tiff's evidence; that being for the court below by granting a new trial if convinced that the weight of the evidence is decidedly against plaintiff.

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by Felix Petrowski, by his father and next friend, John Petrowski, and John Petrowski in his own right against the PhilIN-adelphia & Reading Railway Company to recover damages for personal injury to Felix Petrowski. Verdict and judgment for deReversed, fendant, and plaintiffs appeal. with a venire facias de novo.

Private orders to brakemen to perform their duties in a specified manner differing from the way in which the particular employé acted at the time involved will not make his act any the less an act in furtherance of railroad's business, if it apparently falls within general scope of his employment. 4. RAILROADS

276(3)-DUTY OF TRAINMEN AS TO INFANT TRESPASSERS ON TRAINS. While trainmen are not required to search out and care for infant trespassers, yet when one is found on a car those in charge must see that they do not start train until he has alighted, or, if train is moving, not to commit any overt act likely to injure him, and on a breach of such duty it is not essential to a recovery for injury that there be any recklessness, but proof of mere negligence is enough.

5. NEGLIGENCE 7-CARE AS TO CHILDREN-
"WILLFUL" OR "WANTON" NEGLIGENCE
"INTENTIONAL."

Where one, knowing that a child of tender years is trespassing upon a vehicle under his care, negligently acts in such a manner as to injure the trespasser, his conduct is viewed in law as "intentional," or "willful," and "wanton." [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Intentional; First and Second Series, Willful; Wanton.] 6. RAILROADS 281(3)—INJURY TO TRESPASSER ON TRAIN-ADMISSION OF EVIDENCE. In action for injury to boy of 12 from being forced or scared from a moving train by

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ.

John J. McDevitt, Jr., of Philadelphia, for appellants.

Wm. Clarke Mason, of Philadelphia, for appellee.

MOSCHZISKER, J. Felix Petrowski sued in trespass, alleging that, on March 31, 1915, when but 12 years old, he was seriously injured upon defendant's railroad, through its negligence; judgment was entered on a verdict for defendant, and plaintiff has appealed.

Young Petrowski claimed, and presented evidence to prove, he boarded one of defendant's cars while it was standing still; that, when the train was moving "pretty fast" he was chased therefrom by a man, carrying a club and flag, who wore overalls and a cap, "with a shiny black band around it"; that this man ordered plaintiff to "get off," and, upon failure to obey, threw his club at him, which made the boy dodge and fall, thus causing his injury.

On the other hand, defendant claimed, and produced numerous witnesses to prove, plaintiff was injured while attempting to steal a

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ride on a moving train, and that his story of | yet, when a child of tender years is observed the accident was a fabrication without basis upon a railroad car, it is the duty of those of fact.