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with it the income as it accrues, but for the direction to accumulate it for capitalization. The statute permits of accumulations only during an existing minority, and for the benefit of the minor. If income is to be lawfully accumulated, it must be that of the minor, and the fund must be paid to the minor upon arriving at the age of 21. As the directions to accumulate in the present case do not meet these conditions, they are void, and the gift of the accumulations falls, as does the gift of the income. It does appear, however, that there is in the will a present, residuary gift, which carries with it everything which has not been otherwise disposed of in a valid way.

not. The opinion in that case is very would have been entitled thereto if such short, and simply affirms the decree of the accumulation had not been directed." As court below, without any extended discus- was said by Judge Penrose in Martin's Est., sion of the principles involved. The court 185 Pa. 51, 39 Atl. 841: "The inquiry, therebelow there held that, under the will, the fore, must, in the first instance, always be, income did not belong to the minor, and the who, under the provisions of the will, as direction to accumulate was therefore void; fairly interpreted, such persons are." In but, in considering the question of the dis- Washington's Estate it happened that under tribution of the fund unlawfully accumu- such inquiry the minor was found to be such lated, he said that it was decided in Wash- a person. In the present case the minor is ington's Est., 75 Pa. 102, "that if a will di- evidently not the person who would have rected unlawful accumulations to be made been entitled, if the accumulation had not during the minority of an infant to be cap- been directed; she is neither residuary legitalized, and the interest of the capitalized atee nor next of kin; nor is there a gift to accumulations to be paid to the person, her of any present vested interest in the formerly an infant, during life, from and aft-principal of the estate which would carry er the attainment of majority, the unlawful accumulations are the property of the minor." And he then decided, in conformity with this view of the decision, that the accumulations which had been unlawfully made should be the property of the minors. But in Washington's Estate the reason for declaring that the direction to accumulate was an excess, and therefore void under the act, was that the fund to be accumulated during the existing minority was not given to the minor. If she lived to be 21 years of age, she was to have the interest only which might thereafter accrue upon the accumulations, but no part of the accumulations themselves. The fund released from the accumulations unlawfully directed in that case went to Annie Dorsey Washington, not because she was the minor in question, but because she was the person who would have been entitled thereto if such accumulation had not been directed. So that it would seem that the result in Stille's Appeal was reached through a misapprehension of the real ground upon which the fund in Washington's Estate was awarded to the minór. It was the residuary estate itself in that case which was the subject of the void provision. The report of the auditor shows that the whole estate was regarded, after the payment of debts and subject to annuities, as substantially a residue, and therefore, if there was an intestacy as to any part of the property, it must have gone to the next of kin. And it was as heir and 1. MUNICIPAL CORPORATIONS (§ 764*) DEnext of kin that the minor in that case took the fund. As the decision in Stille's Appeal was thus based upon a misapprehension of one of the points decided in Washington's Estate, it cannot be regarded as authority upon the particular point in question. The same may be said of Farnum's Est., 191 Pa. 75, 43 Atl. 203, in which by similar inadvertence, in supposed conformity with Washington's Estate, it was announced that accumulations unlawfully made during a minority are to go to the minor absolutely upon arriving at maturity. Under the act of 1853, such accumulations are to "go to and be received by such person or persons as

We think the present case is not to be distinguished in principle from Weinmann's Estate, 223 Pa. 508, 72 Atl. 806, and that the doctrine therein elaborately discussed in the opinion of the court below, and affirmed by this court, is conclusive as to the question of the distribution of the fund unlawfully accumulated in this case.

The decree of the orphans' court is re versed, and the record is remitted for further proceedings.

(227 Pa. 121)

COLLINS et al. v. CITY OF PHILA-
DELPHIA.

(Supreme Court of Pennsylvania. Feb. 14,
1910.)

FECTIVE SIDEWALKS
SKATES.

USE OF ROLLER

A city is required to keep its sidewalks safe for ordinary requirements, but has no obligation to provide safe pavements for roller

skates.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 764.*] 2. MUNICIPAL CORPORATIONS (§ 801*)-—DEFECTIVE SIDEWALKS-LIABILITY OF CITY.

A girl 15 years old was returning on roller lighted street to her home. The sidewalk was skates at night on the sidewalk of a dimly 4 feet wide between the house steps and the curb. There was a box extending from the paved surface 16 inches from the curb to a stopcock in a water pipe. The lid had been off for some three months, and the front wheel of plaintiff's skates and her foot went into the

opening and she fell, resulting in permanent | actual or constructive, there could be doubt injuries. Held, that a verdict for plaintiff as to its liability. That she was on roller would be sustained. skates does not affect the question of lia[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1662; Dec. Dig. §bility, unless her fall was due to that fact, 801.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Catherine Collins, by her next friend, Patrick Collins, and by Patrick Collins, in his own right, against the City of Philadelphia. Judgment for plaintiffs, and defendant appeals. Affirmed.

and of this there was no evidence. The test is whether the sidewalk was reasonably safe for ordinary use. The danger was one common to all in the use of the pavement, and differing only in degree as to individuals and modes of traveling.

The judgment is affirmed.

(227 Pa. 90)

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEW-PITTSBURG CONST. CO. v. WEST SIDE ART, and MOSCHZISKER, JJ.

Robert Brannan and Frederick Beyer, Asst. City Sols., and J. Howard Gendell, City Sol., for appellant. Thomas A. Fahy and Walter T. Fahy, for appellees.

FELL, C. J. One of the plaintiffs, a girl 15 years of age, on roller skates, was returning at night on the sidewalk of a dimly lighted street from a playground to her home. The sidewalk was only four feet wide between the housesteps and the curb. Sixteen inches from the curb there was a box extending from the paved surface down to a stopcock in a water pipe. The lid of this box had been off for three months, leaving an opening 6 inches square and 18 inches deep. The front wheels of the plaintiff's skate and her foot to the instep went down into the opening, causing a fall that resulted in permanent injuries of a serious nature.

BELT R. CO. et al. (Supreme Court of Pennsylvania. 1910.)

Feb. 14,

1. GUARANTY (§ 4*) DIRECT LIABILITY OF SURETY.

Where a railroad company contracted in writing with another for the construction of its railroad, and the other party contracted in writing with a construction company, with the railcontract being identical with those of the first, road company's consent, the terms of the second except as to consideration, and, immediately after the signatures to the second contract, the railroad company agreed in writing to "guarantee and become surety for the payment of the money mentioned in the within contract as the same becomes due and payable," the railroad company was liable directly, either as principal or surety, to the construction company for the amount due; the agreement not being one of guaranty on the part of the railroad company.

[Ed. Note.-For other cases, see Guaranty,
Cent. Dig. §§ 3-6; Dec. Dig. § 4.*]
2. ARBITRATION AND AWARD (§ 82*)—WAIVER.
Where a railroad company and construction
company arbitrate under an arbitration clause
in a construction contract, the proceeding being
started by notice from the railroad company,
and the investigation being exhaustive, each
side producing witnesses and cross-examining
opposing witnesses, the railroad company will
be deemed, as matter of law, to have waived
an alleged previous final estimate, made by its
chief engineer, but retained by the railroad com-
pany and never submitted to the construction
company.

and Award, Dec. Dig. § 82.*]
[Ed. Note.-For other cases, see Arbitration

3. ESTOPPEL (§ 119*)-WAIVER-QUESTION OF
LAW OR FACT.

Waiver rests fundamentally on the doctrine of estoppel, and is ordinarily one of fact for the jury; but, when the facts are undisputed, it becomes a matter of legal inference.

In determining the liability of the city it should be conceded that the measure of its duty was to keep its sidewalks safe for the ordinary requirements only, and that it was under no obligation to provide pavements safe for roller skating. If a wheel of the plaintiff's skate had caught in the narrow opening between paving stones or between bricks or between the parallel bars of an iron grate over an opening to a basement, there would be no liability on the part of the city, because there is no duty on it to guard against such dangers, but only against those reasonably to be apprehended in the ordinary use of the sidewalk. But in this case there was a hole, of the existence of which there was constructive notice, six inches square, near the middle of a narrow sidewalk and in the direct line of ordinary travel. It was more or less dangerous to all When it can be inferred from the record persons passing, whether walking or on skates. that the merits of the controversy were not The foot of a small child would have gone passed upon in a rormer action, but that the down in it, and the toe or heal of a shoe of determination proceeded upon some technical oban adult was as likely to be caught in it as jection not affecting plaintiff's ultimate right to a roller skate. The plaintiff was not making the second action; and hence, where a corporasue, the first judgment will constitute no bar to a forbidden use of the pavement. She was do- tion not registered in the commonwealth, under ing nothing unlawful. If in the dark she had Act April 22, 1874 (P. L. 108), making it unfallen into an open trench across the pave lawful for a foreign corporation to do business in the commonwealth until it shall have filed a ment or fallen over an object negligently left certain statement with the Secretary of the comon its surface, of which the city had notice,monwealth, sues in the state, and judgment is •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

[Ed. Note.-For_other cases, see Estoppel, Cent. Dig. § 309; Dec. Dig. § 119.*] 4. JUDGMENT (§ 562*) RES ADJUDICATA JUDGMENT AGAINST FOREIGN CORPORATION NOT ON MERITS.

-

entered against it, not on the merits, but be- | is followed by a due execution by the parties cause of its failure to register, and thereafter, named. The authority of the president of prior to Act May 23, 1907 (P. L. 205), provid- the railroad company to enter into this obliing that whenever a foreign corporation doing business in the commonwealth shall have contracted without having taken the steps required by the former act, such contract shall be binding upon the parties, provided the corporation has subsequently, and prior to the passage of the latter act, complied with the former act, registers under the former act, and then sues the same defendant a second time, the second action is not barred by the prior judgment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1009; Dec. Dig. § 562.*]

Appeal from Court of Common Pleas, Allegheny County.

gation on behalf of the company is conceded. With Scully and Barnsdall we have no present concern; our inquiry relates only to the railroad company, and the measure of its liability. In this action it is sought to charge it as a principal, primary debtor, notwithstanding by the written terms of the obligations the liability expressed is that of guaranty and surety. This presents the first question for our consideration.

On behalf of appellant it is claimed that the obligation it incurred was that of guarAction by the Pittsburg Construction Com-antor, and that its liability, therefore, is secpany against the West Side Belt Railroad Company and others, receivers. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

Thomas Patterson, for appellants. Samuel McClay and Edwin W. Smith, for appellee.

STEWART, J. In considering this case it is necessary first of all to determine the legal relation inter se of the parties to the controversy. The defendant company, here the appellant, having determined upon an extension of its railroad, accepted the bid of one Petrie, who had been secretary of the company, but had resigned to enter into new relation towards it, for the entire completion of the proposed work according to the plans and specifications prepared by the company, for the sum of $400,000 in cash, and a like amount in the mortgage bonds of the company. A formal contract was thereupon entered into between Petrie and the company, by which the former engaged to construct and complete the proposed work in the manner and within the time called for by the specifications, and the latter agreed to pay for the work accordingly. This contract is dated April 25, 1901. On May 24th following Petrie, with the consent and approval of the railroad company, entered into a written contract with the Pittsburg Construction Company, here the appellee, which contract, except as it differs with respect to the consideration to be paid for the work, is simply a transcript of the contract between Petrie and the railroad company, and was an undertaking by the construction company to do the work which Petrie by his contract with the railroad company had engaged to do, but upon which he had not entered. Immediately following the signature of the parties to this later contract this appears: "For value received the Westside Belt Company and John S. Scully and F. S. Barnsdall do hereby guarantee and become surety for the payment of the money mentioned in the within contract as the same becomes due and payable." This

ondary. Much depends on the answer to be given. Assuming a secondary liability on the part of the railroad company, the argument derives conclusions most prejudicial to the construction company's present demands, as will appear later on. The assumption, however, takes account of but a single covenant in the obligation, whereas there are two distinct covenants, one of guaranty and one of suretyship. There is no contention that the obligation is to be considered in any other way than in accordance with its express terms. It is not even suggested that the clear distinction that exists in law between the two relations of guarantor and surety was overlooked, and that all that was intended was a contract of guaranty. The assumption is palpably without warrant. Having once entered into a covenant of both guaranty and suretyship, it could not thereafter be optional with the covenantor to determine in which of the two relations it would stand; it was, however, for the other party to elect under which it would pursue its remedy for any default. As surety, the railroad company here took upon itself a direct and immediate liability. Suretyship always implies original undertaking, and the measure of liability in such case is the extent of the principal's liability. A surety assumes to perform the contract of the principal debtor, if the latter should not, and the undertaking is immediate and direct that the act shall be done, which, if not done, makes the surety responsible at once. Reigart v. White, 52 Pa. 438; Riddle v. Thompson, 104 Pa. 330; Phila. & R. R. Co. v. Knight et al., 124 Pa. 58, 16 Atl. 492. If regard be had to the situation of the parties and the object they had in view, it would require no strained construction of the obligation to impose on the railroad company the obligations of a principal debtor. So far as concerns this dispute, the distinction would come to nothing, for the liability to the appellee would be the same whether principal or surety. The appellant under either contract was to pay the money. It contracted with Petrie that it would pay to him. Petrie, under his later contract with the construction company, contracted that the railroad

company would pay directly to the construc- | Pittsburg Construction Company, subcontracttion company. The debt incurred in building or, and A. S. Petrie, contractor for West Side the railroad was in either case to be paid by Belt Railroad Company." the railroad company. It is somewhat anomalous for one to become surety for the payment of money due from himself; and yet if we confine ourselves to the strict letter of the obligation, that is what the railroad company did in this instance. When it signed the obligation of suretyship "for the payment of the money mentioned in the within contract as the same becomes due and payable," since the money was due from itself, it might well be argued that it was an assumption of liability as principal debtor. The subsequent dealings between the parties show very conclusively that both so understood the relations between them. We conclude on both grounds that the written contract between Petrie and the construction company is the law governing the present case, quite as much as though the appellant's name appeared therein as a contracting party.

*

About September

For a correct understanding of the actual dispute a further recital of facts is here required. At the inception of the transaction, McRoberts was chief engineer. Later on as the work progressed he was made consulting engineer, and H. T. Douglas was substituted as chief engineer. The work of construction was very largely in excess of what was originally contemplated. The entire work was to have been completed within a year, but 18 months more were required, and it was not until June 11, 1903, that through the chief engineer, Douglas, the construction company was notified of its acceptance. Thereupon Douglas began preparations for making an estimate of the work done. 10th following he completed his estimate, which showed there was due the construction company the sum of $82,324.03. This estimate, signed by himself and certified by the consulting engineer, McRoberts, as correctly summarized, was handed to Mr. Donnelly, the vice president of the railroad company. The day following McRoberts obtained this estimate from Donnelly, and in the latter's office entered upon it the following items: "Less liquidated damages on account of nonfulfillment of contract $92,970.74." "Over payment on contract $14,676.71." Thus bringing the construction company in debt in the sum of $25,323.42. McRoberts testified that he did this at the instance and request of Donnelly, and in this he is not contradicted. The day following Donnelly submitted the award as thus amended to the counsel of the railroad company, and was advised that the items added by McRoberts did not properly fall within the purview of a final estimate, but were proper subjects for consideration and judgment by the chief engineer as arbiter, and that inasmuch as McRoberts, as chief engineer, was named as arbiter in the contract, he should be reappointed to that place. His appointment accordingly was made September 16, 1903. Immediately thereupon he served the following written notice, prepared by counsel of the railroad compány, upon the construction company: "Gentlemen: I have about completed the final estimate for your work under your contract with the West Side Belt Railroad Company, and as the chief engineer mentioned in the contract, to whom has been committed the final decision of all disputes between the parties, before finally submitting the estimate to you I wish to notify you that the railroad company claims of me a deduction for credit on the final estimate of the damages sustained by the railroad company owing to the delay in the completion of the contract. If you wish to be heard upon this question, I will meet your represent

The contract between Petrie and the construction company, as well as the earlier contract between Petrie and the railroad company, contained the following provision: "When this agreement, in all its parts and in the manner herein provided, shall have been completely performed on the part of the contractor, and such performance shall have been accepted and so certified in writing by the said chief engineer, a final estimate of the quantity, character and value of the work done and materials furnished, according to the terms of this agreement, shall be made by the chief engineer, and thereupon and not otherwise sooner, except at its own election, the railroad company shall within thirty days thereafter pay to the said contractor * * all sums of money so certified by the said chief engineer to be then remaining due and unpaid upon the work performed under this agreement, after first deducting therefrom any and all sums herein provided to be retained by the said railroad company; it being expressly understood that such final estimate and certificate of the chief engineer shall be conclusive upon the parties." Both contracts contained this further provision: "And it is mutually agreed and distinctly understood that the decision of the chief engineer shall be final and conclusive in any dispute that may arise between the parties to this agreement relating to or touching the same, and each and every of said parties do herein waive any right of action, suit or suits, or any other remedy in law, or otherwise by virtue of said covenant so that the decision of said Chief Engineer, James H. McRoberts, shall in the nature of an award be final and conclusive on the rights and claims of said parties." The present action was brought to recover on an award made under the lastquoted provision by the chief engineer, Mc-ative and the representatives of the railroad Roberts, for $332,750.98 in favor of appellee as against Petrie. The document purports to be the report of an "arbiter between the

company at my office in the Farmers' Bank Building on Monday, September 21st, at 10 o'clock a. m.; or, if this time may be in

prepared by its own counsel. It contained
an express acknowledgment that up to that
time no final estimate had been completed,
and an equally express acknowledgment that
the final estimate, when made, was to be
made by McRoberts. The language of the
notice was: "I have about completed the final
estimate.
Before finally submitting
the estimate to you I shall," etc. It was pur-
suant to this notice that the defendant com-

*

convenient to you, upon your suggestion I will try and fix a date and place that will suit your convenience." At the first meeting under this notice the appellant company appeared and submitted its claim for damages amounting to $96,970.74; but it nowhere appears that, either then or at any subsequent meeting, appellant offered any evidence in support of the claim. The appellee, on the other hand, submitted a claim for extra work, which it alleged was not included in the esti-pany was present, through its representative, mate prepared by Douglas, amounting to nearly $300,000. It does not appear that any one connected with the construction company up to this time had any knowledge of the estimate prepared by Douglas, and by him delivered to the vice president of the railroad company. The written notice served by McRoberts, at the instance of the railroad company, clearly implied that no final estimate had as yet been made, and that none had been completed. The arbitration thus entered upon proceeded, and both parties participated in an exhaustive investigation, both upon the items embraced in the Douglas estimate as well as other matters in dispute, without objection or protest. The thoroughness and extent of the investigation may be judged from the fact that in the 52 hearings that were held more than 2,000 pages of testimony were taken, and 500 exhibits filed. Each side produced witnesses, and cross-examined the opposing witnesses, touching the claim asserted by the construction company. Upon this state of facts, undisputed, the trial judge held that there could be but one inference, namely, that both parties by common consent disregarded and ignored the Douglas estimate, and proceeded as though such paper had never existed. He accordingly directed a verdict for the plaintiff for the amount of the arbiter's award. This ruling necessarily implied a waiver by defendant of all claim under the Douglas estimate, and the contention now made on behalf of appellant, is that this was a question of fact that the jury alone could determine. The sufficiency of the Douglas estimate to meet the requirements of the contract need not be considered except incidentally.

It is quite true that ordinarily the question of waiver is one of fact for the jury, but it is not always so. When the facts are undisputed, it becomes a matter of legal inference. Waiver rests fundamentally on the doctrine of estoppel; but where the facts are ascertained, whether the doctrine applies is for the court to decide. Lewis v. Carstairs, 5 Watts & S. 205. The facts here relied upon as establishing a waiver are, first, the notice from McRoberts as arbiter; and, second, the active participation of the defendant without protest in an arbitration which asserted jurisdiction to make and conclude a final estimate regardless of what had been done before. The notice from McRoberts calling for the arbitration must be taken as the act of the defendant company; the demand for the

at the arbitration, submitted its claim for damages, and acquiesced, without protest or objection, in the jurisdiction asserted by the arbiter to hear and determine, not only all matters in dispute, but in particular such matters as were essential to the completion of a final estimate of the work done by the plaintiff company; never once asserting the Douglas estimate as a bar, or indicating any reliance upon it as the final estimate. In this connection it is to be remembered that the Douglas estimate remained in the hands of the defendant company. The fact of its existence had never been communicated to the plaintiff company; and, so far as appears, no copy of it was ever served upon the plaintiff company, the party best entitled to it, since as originally delivered it contained an award in its favor. Under such state of facts, about which there was no contention, it was not error in the trial judge to pronounce upon the effect of the evidence. He rightly concluded that had the case gone to the jury, and a verdict been rendered against such proofs, the court would have been bound to set it aside. "When it is the duty of a judge to control a verdict he is not to be reversed for exercising his authority in advance of the verdict, and saving thereby the delay and expense of a new trial." Graff v. Railroad Co., 31 Pa. 489. It follows that the McRoberts award became the true measure of appellant's liability, whether the latter be regarded as principal or surety. The assignments of error raise no question as to its sufficiency as an award under the contract between the appellee and Petrie. If sufficient under that contract, it fixes appellant's liability.

On the argument of the case it was urged upon our attention that the arbiter in his report expressly states that in reaching his conclusions he disregarded as irrelevant some evidence and claims which might be relevant in a final settlement between the appellant and the contractor. But we have no assignment of error challenging the sufficiency of the award as an award. When offered in evidence on the trial of the case a single objection was made to its admission, namely, that the award was "between the plaintiff and A. S. Petrie, subcontractor, for the doing of this work, but who is not a party to this suit.” This objection was properly overruled. The appellant was a party to the inquiry before the arbiter, was duly served with notice, attended the meetings, and participated in the investigation. It had all the rights Petrie

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