sustained on the ground that one is but an enlargement of the other. "Findings of Fact. in that year the plaintiff, Stevenson, and several other parties were endeavoring to form a limited partnership to carry on the furniture business, having in contemplation obtaining the use of a disused cotton mill in Allegheny for the purpose of a furniture salesroom and warehouse. "1. In the year 1892, the plaintiff and one It is further contended that the statute Stevenson were in the employ of one Wilof limitations must be specially pleaded, and liam R. Hamilton who was conducting a furthat, inasmuch as no special plea was enter-niture business in the city of Allegheny, and ed in this case, such a defense cannot pre vail. As to actions of assumpsit this is true, because both at common law and under the procedure act of 1887 (P. L. 271) such a plea is required if relied on to defeat a recovery. This rule has no application to the case at bar which is an action of trespass brought by the widow to recover for personal injuries resulting in the death of her husband. At common law she had no such right of action, and the act of 1855 (P. L. 309), upon which her claim is based, requires that "the action shall be brought within one year after the death and not thereafter." The procedure act of 1887 in express terms provides that "the only plea in actions of trespass shall be 'not guilty.'' Certainly under this general statutory plea the defendant either by the record or by evidence introduced at the trial may show that the action was not brought within the time definitely fixed by the act, which has expressly provided that suit should not be brought after the time limited, and, when this fact is established, the right to recover is defeated. All of these matters were properly raised by learned counsel for appellee at every stage of the case under the plea of the general issue, and nothing more was required. Judgment affirmed. (227 Pa. 41) "2. Through Stevenson, Dr. Howard L. Baird was induced to join with Stevenson and Ferree in the purchase of this cotton mill, to be leased to the furniture company, and the property was purchased by Baird from the owners for $80,000; $10,000 in cash, and the balance to be secured by purchase money bond and mortgage. Stevenson being unable to pay his share of the cash payment, Baird took two-thirds of the title, and paid two-thirds of the $10,000, and Ferree took the other third, paying one-third of the cash payment. "3. Although plaintiff furnished one-third of the money, he for some reason did not desire to appear in the transaction, and he turned over his money to one Robert F. Ramsay, to whom the deed was made and by whom the money was paid to the vendor, and by whom the purchase-money mortgage and bond were signed with Baird. Baird knew that Ramsay was in some way holding the title for the plaintiff, but not as to the arrangement between them, or as to who had paid the cash. "4. A limited partnership was thereupon formed in January, 1893, under the name of Ferree, Stevenson & Co., Limited, of which Ferree and Stevenson, but not Baird, were members, and the cotton mill was leased by Baird and Ramsay to the limited company. "5. In July, 1896, Dr. Baird became uneasy about his association with Ramsay in the apparent ownership of the property, and feared that Ramsay, whom he believed to be a man of no property, might become involved and thereby precipitate a sale of the property subject to so large a mortgage, and spoke to James Balph about the matter, and it was arranged between them, and apparently Ferree, that Ramsay should convey the title he had to R. A. Balph. A deed was accordingly made by Ramsay to R. A. Balph for the expressed consideration of $1,000, but admit Shafer, J., of the court below, filed the fol- tedly a voluntary deed without consideration. lowing opinion: "The bill is to enjoin the defendant Balph from transferring 44 shares of stock in the United Storage Company, and for an account in regard to those shares and other matters connected with the storage company in which Balph is alleged to be trustee for the plaintiff. This deed was registered in the city of Allegheny on July 8, 1896. The deed having been lost before recorded another deed was procured from Ramsay to R. A. Balph for the consideration of $1, which was recorded. "6. The firm of Ferree, Stevenson & Co., Limited, having made an assignment for the benefit of creditors, and being unable to pay the rent, the building remained unoccupied and the rent unpaid for some time before March, 1898, except that plaintiff occupied a small part of it without paying any rent and used it as a storage warehouse to a small extent. at the time; his certificate of stock was made out in his name for 44 shares, which, however, he never took out. "10. The cash capital and other moneys raised by loans was used in strengthening the building so as to render it fit for storage purposes, the purchase of wagons and other equipment, and the plaintiff was at first employed as manager and continued in that capacity for some time, when he was discharged. "11. Some time about January, 1900, the plaintiff left the state without informing any one where he was going, and remained away without informing his family or anyone else of his whereabouts, and remained away over seven years without being heard from by any one, except as hereafter stated, so that he was by reason of such absence adjudged to be dead and his wife appointed administratrix, and the present suit was begun by her. "7. During the time the building was vacant Baird, with the assistance of James Balph, his attorney, attempted to make a sale of the property, but was unable to get an offer sufficient to cover the mortgage, and the property was not at that time worth anything over and above the mortgage securing the bond of Baird and Ramsay. It was then suggested by Ferree, or by Ferree's use of part of the premises as a storage warehouse, that the whole building might be utilized for storage purposes, and Baird endeavored to organize such a company and induced R. A. and James Balph to agree to take an interest. Mr. R. A. Balph claims that the first he knew that the property which he held in trust belonged to Ferree was about "12. Some few months after he went away this time, when negotiations were begun for a constable came to the storage company the formation of this company. The plain having in his hands an execution against tiff claims that Mr. Balph knew long before Ferree, to inquire about the interest of Ferthat he was the real owner of the interest ree in the company, and this fact came to the held by Balph. We deem it entirely imma- knowledge of R. A. Balph who made an interial to determine which of them is right investigation and sent some one to buy the this respect, as the ownership of Ferree was fully acknowledged by Balph and the property conveyed according to his direction. "8. A joint-stock association was formed as a temporary expedient until a charter could be obtained, the articles of association being dated March 28, 1898, and Baird and R. A. Balph conveyed the property to this association. On May 16, 1898, the United Storage Company was incorporated with a capital stock of 500 shares of stock of a par value of $100 each, which was distributed among certain parties, Ferree, however, not being mentioned, and shortly thereafter the limited company conveyed the property to the corporation. judgment, for the purpose, as he says, of preventing a stranger from coming into the company by a sale of Ferree's stock. He held this judgment for about a year, and then, having transferred it to the common pleas, issued an execution and sold Ferree's 44 shares of stock in the storage company and bought the same in for $57.46. "13. On March 10, 1904, Ferree wrote to R. A. and James Balph from Chicago inquiring about his stock, as to whether it was worth anything, and requesting that the certificate be sent to him. In answer to this a letter was sent him signed "R. A. and James Balph" in which he was told that the stock had been sold on February 28, 1901, on a judgment of H. A. Thompson, administrator of James C. Thompson, and that the stock had no market value, and that other people had been inquiring about him, and asking whether they should give them his address. To this Ferree replied that they should tell no one anything about his address or his whereabouts. "14. The present proceeding was begun to January term, 1908, by the wife of Ferree as his administratrix as above stated, and after an answer had been filed Ferree returned, and was under the act substituted for his administratrix and filed the bill, which is substantially the same as that originally filed. "9. The actual basis upon which this corporation was formed and its stock distributed was that Baird and Ferree should contribute the property in question, subject to the mortgage; that the two Balphs should contribute $10,000; that Baird and Ferree should have such share of the $50,000 capital as was represented by the amount of money which each of them had put into the property, with interest, and that the Balphs should receive the rest of the stock for the $10,000 to be contributed by them, together with the agreement that the two Balphs should act as attorneys for the company in the matter of its formation and management. "15. The defendants, R. A. Balph and This was somewhat modified by the agree James Balph above mentioned, are brothers, ment of Baird to put up one-third of the and are members of the bar, and from the $10,000 instead of the Balphs. The number time of the admission of the younger of them, of shares thus allotted to the plaintiff was about 1878, until after all the matters above 44, representing the amount of money which referred to had taken place, occupied offices he had put in, with interest, and this allot- together and held themselves out to the pubment was understood and agreed to by himlic as partners by the name of R. A. & James ing in this transaction of which Ferree has any right to complain, and with this transaction the trusteeship of R. A. Balph as to this property came to an end. Balph, although they were not in fact part- not at that time be sold for enough to pay ners but each carried on his own business, the mortgage, and Ferree received for his having his own clients and making no divi- one-third the same relative number of shares sion, of profits with the other. The connec- | which Baird received for his two-thirds intion of each of these gentlemen with the terest in the property, which were put into plaintiff as his attorney was as follows: the new company for about 132 shares out of About the year 1892, there was a partition of 500, as against the $10,000 to be contributed the estate of plaintiff's father, and James by the Balphs. As we have said, the properBalph represented the plaintiff in that trans-ty was really worth nothing. We see nothaction, having entered appearance, however, in the firm name, and on one occasion R. A. Balph at the request of his brother James went to a meeting of the heirs on the premises, where they were endeavoring to make a partition, and afterward upon adjustment made among the heirs the plaintiff, who took no land, received a certain sum of money which came into the hands of James Balph, who in December, 1896, transmitted to the plaintiff a check of R. A. & James Balph, with an account of the disposition of the money, including fees, which closed the trans-brother, for a long time. Ferree had disapaction in regard to the partition. In the peared, leaving no trace of himself, and his spring of 1894, James Balph drew an affida- creditors were inquiring about his property. vit of defense for the plaintiff in an action It was natural enough that the other stockagainst him on a book account, the appear-holders of the United Storage Company should ance being entered in the name of R. A. & prefer that the shares, if they were to be sold, James Balph. "16. James Balph examined the title to the cotton mill property when it was purchased as above stated by Baird and Ferree in Ramsay's name, and both R. A. & James Balph have been attorneys for the United Storage Company since its formation. "Conclusions of Law. "1. The plaintiff claims that upon the above state of facts K. A. Balph is a trustee ex maleficio for John W. Ferree of the 44 shares of stock above mentioned, as well as any other shares which he may have obtained for the plaintiff's one-third interest in the cotton mill property, upon the ground, as we understand it, that he was trustee of the plaintiff's interest in the land before it was conveyed to the storage company, and that he was attorney for the plaintiff, and therefore incapable of buying his shares of stock at sheriff's sale. "2. A great deal of testimony was taken as to Balph's holding the legal title to onethird of the cotton mill property. We are quite unable to see what difference it makes what the details of that matter were, as it is admitted on all hands that Balph did not claim any beneficial interest in the property and acted in Ferree's interest, and, as we have found, he conveyed it according to Ferree's direction for the issue of 44 shares of stock to Ferree. Ferree well understood that the 44 shares of stock was all he was getting for his interest in the cotton mill property, but as this is complained of as being in some way in bad faith on the part of the Balphs it may be observed that this interest of Ferree was really worthless. The property could "3. As to the purchase by R. A. Balph of the 44 shares at sheriff's sale, we are at a loss to discover any duty resting upon him to refrain from such purchase, or any reason why he should be held to be a trustee of the shares so bought. He was not at that time and had not in any form been an attorney for Ferree, even nominally as partner of his should be bought in by one of their number. But, however, this may be, as Balph was not attorney or trustee for him in any form for these shares, or in any manner connected with them, he had as good a right to purchase them at sheriff's sale as any one else. "4. The statute of limitations has been set up by defendants in addition to the other matters herein stated. All the matters here in complained of took place much more than six years before the beginning of this suit, and we see no reason why the statute does not apply. "The bill must therefore be dismissed, with costs to be paid by the plaintiff. Let a decree be drawn accordingly." Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. M. H. Stevenson and Wm. C. Boyd, for appellant. Robert B. Petty, for appellees. PER CURIAM. The decree is affirmed at the cost of the appellant on the opinion of the learned judge of the common pleas. (227 Pa. 10) BUCK v. CITY OF MCKEESPORT. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. APPEAL AND ERROR (§ 1002*)-REVIEWDISCREPANCIES IN TESTIMONY. A verdict in an action for personal injuries will not be reversed, because of discrepancies in the testimony of plaintiff and two of her witnesses, where there was sufficient, if believed by the jury, to justify the finding against defendant. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] 2. TRIAL (8 62*)-REBUTTAL EVIDENCE-CON- alone we cannot disturb the verdiet, for it is TRADICTING IMMATERIAL TESTIMONY. Where a witness has been asked an imma-only when, under all the evidence, but one terial question on cross-examination, another finding is to be drawn from it, that a differwitness cannot be called in rebuttal to contra-ent one cannot be permitted to stand. This dict the reply given. is not the case here presented, for even in [Ed. Note.-For other cases, see Trial, Dec. the inconsistent and discrepant statements of Dig. § 62.*] the plaintiff and her two material witnesses Appeal from Court of Common Pleas, Al- there was sufficient, if believed by the jury, legheny County. Action by Jennie B. Buck, administratrix, and Jennie B. Buck individually, against the City of McKeesport. Judgment for plaintiff, and defendant appeals. Reversed. to justify the finding that the cause of the injury was the stone pile negligently left in the street by the city, and the first and second assignments are therefore overruled. Mrs. Marshall Mains was a material and For former opinion, see 223 Pa. 211, 72 Atl. most important witness for the defendant as 514. to the cause of the accident. She saw it, and, according to her testimony, the buggy "tipped over" before it reached the stone pile. There had been two previous trials of this case, and, on the cross-examination of Mrs. Mains on this third and last trial, counsel for appellee were permitted, under objection, to ask her whether, at the time her husband was sub F. G. Holden, a witness for plaintiff, was called in rebuttal, and asked the following questions: "Q. Did you go to subpoena Mr. Marshall Mains to appear in court at the last trial of this case? A. I did. Q. Did his wife at that time, and in his presence, say: 'You didn't tell the right story the last time. You have got to tell it this time'? Defend-poenaed to appear as a witness at the second ant's counsel object because it was a matter that the plaintiff brought out herself on crossexamination, and as to which the witness was not interrogated in chief, or anything that would justify such a cross-examination. It having been admitted, the proposed testimony is further objected to as being entirely immaterial, and in no way showing any bias on the part of the witness. The Court: The objection is overruled and exception noted to defendant. Mr. Marshall: If the court will permit me to withdraw the witness, I will withdraw him and not go into it. The Court: You can do as you please about it; but it is the same now as if you asked him. (Last question repeated.) A. She did." Verdict and judgment for plaintiff as administratrix of R. J. Buck for $2,436, and for herself for $9,574. Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. W. B. Rodgers and W. E. Newlin, for appellant. Rody P. Marshall, Thos. M. Marshall, and Geo. O. Calder, for appellee. trial, she had not said to him, in the presence of the officer serving the subpoena: "You did not tell the right story at the last trial. You have to tell the right story this time." To this she replied that she had not. The question was asked her for the manifest purpose of showing bias on her part as a witness. A moment before she had been asked whether she had not taken quite an interest in the case, to which she answered that she had not and was in court because she had been subpoenaed as a witness. Not content with this, counsel for the plaintiff pursued her with the question that ought not to have been allowed. If she had admitted that she had said to her husband what the question attributed to her, it would not have been evidence of bias on her part as a witness. It would only have shown that she had reminded him that his account of the accident at the first trial had not been correct, and that he would have to tell it correctly at the second. As an unbiased and disinterested witness, she could have said this to him, and, being his wife, it was natural that she should have done so if she felt that he had been inaccurate at the first trial. For the purpose of discrediting her whole testimony, counsel for the plaintiff were allowed, in rebuttal, under objection and exception, to call F. G. Holden, who had served the subpoena at the second trial, to contradict her reply to the immaterial and irrelevant question that had been asked her on cross-examination. This was not permissible (1 Greenleaf on Evidence, § 449), and, as the effect of Holden's testimony in rebuttal may or must have been that for which it was intended, it was error to admit it, for which the judgment must be reversed. In this class of cases, in which juries are only too prone to find verdicts for plaintiffs in unwarranted amounts, even in meritorious cases, the risk of departure from the strict rules of evidence BROWN, J. When this case was here before (Buck v. McKeesport, 223 Pa. 211, 72 Atl. 514), we said of it that it appeared to be close on the facts. This we now repeat; but cannot say that, under the evidence, the negligence of the defendant and the contributory negligence of the plaintiff were not for the jury. It is earnestly and plausibly urged by the learned counsel for appellant that, in view of the discrepancies in the testimony of the plaintiff and in that of the two witnesses called by her to support her allegation of negligence, there ought not to have been a recovery, and with almost persuasive force we are asked to sustain the first and second assignments of error. Our finding as jurors might have been different; but for this reason For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes into which the trial court may be led by coun- | the defendant should assign the patent he sel is always a reversal of the judgment. A partnership agreement provided that one person should assign certain patents and any improvements thereon to the firm. A second agreement was substituted therefor, which contained no reference to future improvements. The bill alleged that an oral agreement was made under which such improvements would be contributed to the firm, and that it was omitted in the writing through the fraud of the partner who contributed the patents. Held, that the bill will be dismissed, where such allegation was positively denied and no proof of fraud was introduced. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 1852; Dec. Dig. § 122.*] Appeal from Court of Common Pleas, Allegheny County. Bill by Albert C. Munhall against William P. Wiemann. From a decree dismissing the bill, plaintiff appeals. Affirmed. then owned to the partnership absolutely, and that he should assign to it all that he afterwards obtained for a period coextensive with the period for which the partnership was to continue. The second agreement contained a recital of the formation of the partnership under the first agreement, the carrying on of business by it; that its assets consisted with other property of the three patents that had been assigned by the defendant; that the parties were dissatisfied with the agreement and desired to abrogate and cancel it, and "to make and enter into a new and different agreement in writing, wherein and whereby their rights, duties, and liabilities to and between each other as such copartners shall be stipulated." The second agreement provided for the carrying on of the business under the patents that had been assigned. It was silent as to patents that should be taken out in the future by the defendant. The evident purpose of the second agreement was to relieve the defendant from the obligation imposed by the first to assign patents afterwards obtained. There was a denial by the answer that any oral agreement had been made and that anything had been omitted from the second Argued before FELL, BROWN, agreement; that the defendant had inventTREZAT, POTTER, ELKIN, and STEW-ed the device he afterwards patented before ART, JJ. MES Charles W. Reamer and Blakeley & Calvert, for appellant. Robert H. Leitch, for appellee. the second agreement was made; and that any money of the partnership had been expended upon it, and that the device patented was intended to correct imperfections or improve the device the patents for which had been assigned to the partnership. In brief, there was a distinct denial of every material allegation in the bill. At the hearing all of the charges of fraud were withdrawn, and no proofs were offered that would sustain any of the plaintiff's allegations. There was no charge of a constructive fraud because of the violation of a fiduciary relation between partners, nor was there any proof that the patent obtained after the date of the second agreement was for an improvement on the device that the partnership was manufacturing. The charges having failed, there was nothing left on which the bill could be sus PER CURIAM. The substance of the plaintiff's bill is: That in 1906 he entered into partnership with the defendant for the purpose of manufacturing a mechanical device for purifying water in boilers of which the defendant was inventor and patentee. That, in pursuance of the agreement, the de fendant assigned to the partnership the patent he had obtained, and subsequently as signed to it two improvements he had invented and patented. That in 1908 the parties by agreement in writing canceled the articles of partnership and entered into a new agreement of partnership which contained no stipulation in regard to future im-tained. provements, but that there was an oral agreement that such improvements should become the property of the partnership, which was omitted from the writing through the fraud of the defendant. That at the time the new agreement was made the defendant had invented an improvement on the device, for which he afterwards obtained a patent, and had expended the money of the partnership in advertising it and in constructing machinery for its manufacture, and that the defendant had refused to assign the patent for the improvement to the partnership and was about to assign it to others. It was provided in the first agreement that The decree is affirmed, at the cost of the appellant. (226 Pa. 591) In re SIEGWARTH'S ESTATE. Testatrix gave a share of her estate to her executor to pay the income to her son, but no part of the principal to be given to the son for five years after her death, and then only when the executor determines that he is competent to take proper care of the same. Held that, on a sale by the son of such share within the five |