against the person whose interest may | with Barbara Schwarz was made by be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living or competent person." In Wright v. Hanna, 210 Pa., 349, it was held that, "where one of the parties to an agreement is dead, and no living witness has been called to testify in regard to any matter relative to the agreement that occurred prior to the death of the decedent, the surviving party is not competent to testify as to what took place prior thereto "; and in Thomas v. Miller, 165 Pa., 216, that "it will be observed that the subject-matter of the proposed contradicting evidence must be something that occurred between the witness and another living competent person, or something that occurred in the presence or hearing of such other living competent persons. ***We think the Act of 1891 was intended to apply to conversations, or to events transpiring between, or in the presence or hearing of, the witness and the other parties, and not to mere physical facts or to states of fact described by the other witnesses in their testimony." In Montelius v. Montelius, 209 Pa., 541, it was held that "the surviving party to a contract may testify as to matters that occurred in the lifetime of the deceased party, only where there is a person living at the time of the trial between whom and the surviving party the matter relevant to the issue occurred, and where such person is competent to testify and actually did testify to such matter at the trial." Mr. Justice Brown, in delivering the opinion of the Court, said: "From Roth's Estate, 150 Pa., 261, decided in 1892, down to Rudolph v. Rudolph, 207 Pa., 339, we have uniformily held, when it has been urged that the purpose of the Act of 1891 is very broad, that its words have but one meaning, and that the lips of one who would have been incompetent before its passage are sealed only when its conditions of his competency arise on the trial." See, also, Kauss v. Rohner, 172 Pa., 481. him for his father. It does not appear that the plaintiff himself had anything to do with any of the transactions. It is true that Frank J. Rieker was not examined as to whether or not his principal was to be responsible for the repairs referred to; but he was called and testified in behalf of the plaintiff in support of the account, and, in fact, he was the only witness called to support it. In view of these facts, we are now of opinion that Mrs. Schwarz fell within the provisions of the Act of 1891, and was competent to testify concerning the transactions had between her and the living witness. The only other question raised was, whether or not Frank J. Rieker could be called by the defendant on crossexamination. We decided that he could not, and excluded the testimony, and in this regard we also feel that an error was committed. The Act of May 23, 1887, P. L. 158 (section 4) declares that, "in any civil proceeding before any tribunal of this Commonwealth, or conducted by virtue of its order or direction, no liability merely for costs nor the right to compensation possessed by an executor, administrator or other trustee, nor an interest merely in the question on trial, nor any other interest, or policy of law, except as is provided in section five of this Act, shall make any person incompetent as a witness." Section 7 enacts that, “in any civil proceeding, whether or not it be brought or defended by a person representing the interests of a deceased or lunatic assignor of anything or contract in action, a party to the record or a person for whose immediate benefit such proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examinun-ation, subject to the rules of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so crossexamined shall become thereby a fully competent witness for the other party As was before stated, Frank J. Rieker was manager of the plaintiff during his lifetime. Whatever contract was made as to all relevant matters, whether or not these matters were touched upon in his cross-examination." Under prior Acts, Frank J. Rieker could not have been called as a witness on cross-examination; but the Act of 1887 seems to make no exceptions, and the fact that one appears in a representative capacity does not excuse him from being called on cross-examination by the other party. Of course, if he is so called and examined, the opposing party, who survives, cannot be a witness to contradict his testimony; for, as was held in Roth's Estate, 150 Pa., 261, the competency of the surviving party "is to be determined by the condition of things at the time he is called, and he is not rendered competent by the fact that the other side subsequently calls the living witness"; and in Lahey v. Lahey, 55 Pitts. Leg. Journal, 55, it was expressly decided that the plaintiff cannot make herself a competent witness by calling one of the defendants. The Act only contemplates the calling of the witness by the party representing the deceased. Therefore, we think that the case was mistried, and, because of this, we make the rule absolute. Rule made absolute. C. P. OF LANCASTER COUNTY. Agency-Sale on approval. When on suit for the price of a horse the evidence shows that the plaintiff bought the horse as agent for the defendant and delivered it to him, the plaintiff is entitled to recover although the horse died the next day. Even if it was a sale on approval as claimed by defendant, the fact that the defendant used the horse a whole day and part of the next before he was taken sick, and telephoned plaintiff's wife to tell her husband to buy him two more of the same kind was sufficient to acceptance of the horse. November, 1908. No. 54. July 9, 1910. Opinion by HASsler, J. This action was commenced by the plaintiff to recover the amount expended by her decedent, Milton O. Helm, as of a horse and also for his services in agent for the defendant, in the purchase. doing so. No proof of the value of the services rendered was offered, and we instructed the jury that they could not allow anything for them in their verdict. * * Edward Miller, a witness for the plaintiff, testified that he was present when the horse was delivered to the defendant on the morning of July 28, 1908, and that "Mr. Helm told him what he cost; he bought the horse for him for $200, and there wasn't much said about it *** Mr. Banzhof when he left to go into the office with an agent told Milt (Helm) to wait, he would He settle with him for the horse. waited about fifteen or twenty minutes. through with Mr. Banzhof yet and Mr. I suppose *this agent wasn't Helm walked in the office and told him to send him a check or settle that way for the horse." Harlan Helm corroborated much of this testimony. Sue E. Helm, who was the wife of Milton O. Helm, testified that the defendant telephoned her, later in the day, to know if Mr. Helm was home yet, and when she answered that he was not, he said, "Well when he comes home, tell him I would like him to buy me two more horses like the one he brought in." The only testimony on the part of the defendant that throws any light on the transaction, is that of Emmanuel Denlinger and John M. Banzhof. The former testified that the defendant said, 'Well what about the pay for the horse," and that Mr. Helm said, "Well you hitch him up and try him; if he suits send me a check; if not you know where you got him." And further that, "Mr. Helm said he was in a hurry." The other witness, J. M. Banzhof, corroborates this. The defendant used the horse the morning and afternoon of the day he was delivered, and again on the morning of the day following, when be became very sick. A veterinary surgeon was called in, who had him removed to his stable where he died later in the day. We gave binding instructions to the jury to find a verdict for the plaintiff, and the reasons for a new trial raise the question of the correctness of our having done so. If the plaintiff's decedent purchased the horse as the agent of the defendant, the latter assumed all risks, and would be liable for the amount expended no matter what happened to him. The uncontradicted testimony shows that he did act as agent of the defendant in the purchase of the horse. One witness heard Mr. Helm say in Mr. Banzhof's presence and hearing that he did so act, and it was not contradicted or questioned by the latter. Another witness testified that Mr. Banzhof after trying the horse sent a message to Mr. Helm to buy him two more horses like the one in question. Why would he have said buy two more for him, if the one brought in had not been bought by Mr. Helm, for him? The defendant's testimony does not contradict or question this, nor is it inconsistent with it. It does not show a sale on trial as defendant contends. At most it only amounts to an offer on Mr. Helm's part to take the horse himself, if upon trial the defendant was not satisfied with him. Having been bought for the defendant by his agent, it was the defendant's property, and Mr. Helm could not keep him, but he was willing to take him if the defendant did not want to keep him. If it did show a sale on trial, the plaintiff could not recover on her statement, as it does not make a claim on such a contract, but we do not agree with defendant's contention that if it were such a sale, and the statement did claim on such a contract, that the plaintiff would not have been entitled to binding instructions. The defendant did try the horse one whole day and part of the next, and showed that it did suit him by ordering the purchase of two more horses like him. This amounted to an acceptance, and would have placed all risk of the horse on the defendant. Such acceptance need not be in any particular form or manner, but may be | shown by any act of the vendee, signifying it. As we have said the plaintiff made out her case by testimony that is not contradicted, either directly or by inference, and was entitled to binding instructions, so that we think no error was committed in giving them, and we discharge the rule for a new trial. Legal Miscellany. O. C. ADJUDICATIONS. Adjudications were filed in the following estates: Jacob Gompf, city, $96.38. Lewis and Mary Whitman, West Cocalico, $796.38. Frederick Alsbough, city, $290.33. Jacob Hess, East Earl, $1,217.46. Benjamin Harnish, West Lampeter, $1,529.21. Frances C. B. Shenk, Providence, $2,433.04. Sarah Fasnacht, Denver, $12,558.26. Gottleib Gerstly, city, $6,771.29. John L. Long, Mount Joy borough, $6,623.55. John M. Shenk, Providence, $8,827.87. ject to the same discount for lighting LANCASTER LAW REVIEW. purposes; that the contract with the New Era Company is for five years, VOL. XXVII.] MONDAY, OCT. 31, 1910. [No.52. with the privilege of ten, subject to the Electric light companies-Discrimination It is not "an unlawful, undue or unreasonable discrimination" for an electric light company to divide its consumers into two classes, using respectively more and less than a certain quantity of light and power per annum, and to make a smaller charge to the larger than to the smaller consumers, under cn.racts by which the former agree to purchase from it exclusively for from three to five years. All discrimination by a public cr quasipublic corporation is not unlawful, but it is only so when undue and unreasonable. Evidence is therefore proper y admissible in such case, to show the reas ns on which the classification is based and the surrounding, circumstances and conditions. Appeal No. 22 of October Term, 1909, by A. J. Steinman and Chas. S. Foltz. Partners trading as Steinman & Foltz, publishers of "The Intelligencer," plaintiffs, from judgment of C. P. of Lancaster County on a verdict for the defendant. Suit for damages for discrimination. [For opinion refusing new trial see 26 LAW REVIEW, 178.] On the trial before Landis, P. J., the court allowed the following questions by the defendant to its witness, C. E. Titzel. discount of forty per cent. for current used for lighting purposes. State whether or not like terms were given to any other patrons or consumers applying, who you knew consumed a specified quantity or over? "MR. ATLEE: If the Court please, that offer is objected to, because the contracts speak for themselves and express the consideration to this defendant company for entering into the contracts. "THE COURT: That may be; but still, they would not show that the same contract was not offered to others. The contracts would not show that. "MR. ATLEE: I object as immaterial and irrelevant, further. "THE COURT: It goes to the question. of discrimination-unjust discrimination. BY MR. HENSEL: 66 "Q. Were those or like terms given to all other patrons or consumers, whose patronage amounted to a specified sum or excess? A. Yes, sir; they were given the same." (1) "Q. It has been testified here that, in this period between 1902 and 1906, there was no competing company in this city. Was there or not, in this city, besides yours, another organized and incorporated electric light company? "MR. ATLEE: If the Court please, that is objected to as immaterial and improper and irrelevant, as the contracts speak for themselves. "THE COURT: We will let him an swer. "A. The Lancaster Electric Light, Heat and Power Company were incorporated." (2) "Q. About what amount of money did you spend in the development and increase of your lighting facilities subsequent to the date of the execution of these contracts? "Q. I call your attention to the fact that the contract with M. T. Garvin & Company, made May 20, 1902, provides for a period of three years, with privilege of five, and that Garvin covenants and agrees to take all the electric current necessary for lighting and power used in the store, at a designated rate, sub- "MR. ATLEE: If the Court please, ject to a discount of forty per cent., that is objected to as immaterial, irrefor lighting purposes; that the contract levant and incompetent; because the conwith the Cochrans is for five years, sub-tracts do not set forth any special rea son other than that expressed in the contracts. They speak for themselves. "THE COURT: I do not see that it makes very much difference. I think we will let the facts come out. "BY MR. HENSEL: "Q. What amount of money? A. Our company spent about $300,000 on the power plant." (3) The Court charged the jury inter alia as follows: But, on the other hand, if the company, from proper motives and for proper business reasons, agreed with certain persons who consumed 500 Kilowatts per month, to furnish them electricity at a certain fixed rate, under certain conditions, and all persons of that class who wished to take advantage of that rate could do so, if they so desired, then there is no discrimination, simply because the parties of that class received larger discounts than the plaintiffs and other persons who did not consume that amount of electricity and were not embraced in that class. If, therefore, the jury find that such were the circumstances, and under such circumstances there was no unjust or unreasonable discrimination in the fixing of these rates in the contracts, then your verdict should be for the defendant." (4) The plaintiff submitted inter alia the following points: "1. Under the law and the evidence the verdict must be for the plaintiffs for such damages as they have proved. "Answer: The first point is reserved." (5) 3. Discounts based upon an agreement to take current from defendant company to the exclusion of other sources of supply, as a matter of law, are discriminatory per se." "Answer: If nothing else appeared in the case, of course, this would be true; but, if such contract were based upon reasonable causes, for proper business reasons, then it is not true, and the point could not, under such circumstances, be affirmed." (6) "4. Where the usual discount is ten per cent., a discount of forty per cent. is so gross as to be contrary to sound public policy, and, as a matter of law, is discriminatory per se." "Answer: That point, as stated, is refused, if the jury find that, as a matter of fact, a contract was made with a certain class of consumers, and that all those consumers had a right to accept its provisions and enter into a contract. If such was not the case, and certain persons, under the same conditions, and consuming electricity in the same way, were given a discount of forty per cent., and the plaintiffs only ten per cent., then, of course, there would be discrimination; but that, under the facts as shown to you, does not appear to be the case." (7) "6. If the jury from the fair preponderance of the evidence, believe that the defendant company has allowed any consumers of its electric current discounts in excess of those allowed plaintiffs, for use of the same current under similar circumstances, the plaintiffs are entitled to recover such damages as they have proved." But, "Answer: That point is affirmed. If the circumstances are similar in all respects, of course, they could not allow one person a certain discount and another person a different discount. as I have already said, the mere fact that a different sum is demanded of one person from that of another is not unfair and unjust discrimination, if for special reasons and in certain cases the company sees fit to stipulate for the furnishing of electricity to a class of individuals for a certain time, or in certain quantities, for less compensation than what is usual, necessary and reasonable, provided all others who are upon the same footing are furnished with an equal opportunity." (8) The defendant's third point was as follows: "3. Public utility corporations like the defendant may make a contract to supply one customer, who binds himself to take all his supply, to take a larger quantity and for a longer period than ordinary from the supplying company. and may give such customer larger discounts than the ordinary rate, provided it does not refuse to make like contracts |