terests of the heirs. He had shortly before discovered that Salter, in the written agreement which he had made with his client in reference to his contingent fee, had not mentioned him; and he doubtless thought that, because he would not have hesitated to take an unfair advantage of Salter, as in fact he did, Salter might be willing to take an unfair advantage of him. He no doubt came to the conclusion that it would be more certainly profitable to him to go over to the other side. This, of course, is largely conjecture, but conjecture not only resting on its inherent probability, but also on evidence. He afterwards said to Salter's clerk, Spofford, in explanation of his conduct, he could not see any money on Salter's side, and so he went over to the other side; and he said to Salter, if Salter is to be believed: 'I guess I am the best heir now. You get your $1,400 first [alluding to an offer of settlement which Salter had made to the heirs], and I will show you dollar for dollar.'

"I have said that it is probable that Martin went to Newark in consequence of some understanding between himself and some one representing the interest of the heirs. Smith and George Mullaney both deny that they had any such understanding. Their testimony may be, and very probably is, literally true, but they are only two of the fourteen persons interested. Martin's testimony is that, when he started to go to Newark on that Sunday afternoon, he intended to see Erwin about a horse, and did not intend to go to Mrs. Mullaney's. He is diverted from this purpose only because the trolley car had carried him a block or two beyond Erwin's house. He goes to Mrs. Mullaney's 'for no purpose whatever.' He finds her 'in a horrible condition,' notwithstanding the fact that the excitement of the trial was over, and the evidence appeared to be very favorable to her. He reaches Smith's house, in Bayonne, after eight o'clock in the evening. Between that and ten he not only concludes the bargain, but Smith sees George Mullaney and gets his consent to it, and Mullaney or Smith gets Dr. Forman's consent to go to Elizabeth early the next morning. There is no bargaining over terms. The four hundred dollars, three hundred of which were in hundred dollar bills, are in readiness for the consummation of the affair before the banks opened on Monday morning. Where this money came from, or how Smith happened to have so much money at hand, in such large notes, does not appear. The most singular fact of all is that no one on either side suggested that the transaction should be consummated with the assistance of the counsel engaged in the case. In this regard the only explanation that suggests itself is that the representatives of the heirs were unwilling to let the high-minded gentlemen who were conducting their case in court know what was going on. They doubtless

feared that if they were informed of it they would insist that the settlement should be made by Mrs. Mullaney under the advice of her own counsel, and that this would defeat their purpose; and so it was arranged that the settlement should be made in another town, in the office of a lawyer who was ignorant of all the important facts. If the transaction was an honest transaction, there was absolutely no reason why it should not and would not have been consummated in the office of Mr. Hughes or Judge Hudspeth. There was every reason why it should.

"Again, why all this haste? Was it not feared that, even if the consummation of the plan were delayed for a few hours, it might become impossible? Another significant circumstance indicative of collusion was the place of meeting, viz., the Central Railroad Depot in Elizabeth. Martin, in his direct evidence, swore that this place was suggested by Mrs. Mullaney, but on cross-examination this must have appeared to him so unlikely that he finally said that he had himself suggested it. Why he did so is obvious. It was accessible from Bayonne, and it was out of the way. That he would have fixed that place, and that early hour on the morning of the next day, unless there had been some previous understanding, is not probable.

"The rule of law applicable is clearly stated by Mr. Justice Magie in delivering the opinion of the Court of Appeals in Dundee Chemical Works v. Connor, 46 N. J. Eq. 582, 20 Atl. 51. He says: 'Courts will not weigh the relative skill of parties to contracts, and, merely from a disparity between them, avoid a contract obtained from the less skillful party. It is only when the contract is got from the illiterate, the weak-minded, or distressed party under circumstances which indicate that it was procured by artifice or deception, or by undue pressure and importunity, inducing action without advice or time for deliberation, or by advantage taken of distress, or for no or an inadequate consideration, or is otherwise inequitable, that it will come under condemnation. Therefore, when a disparity of capacity appears, courts should scrutinize the transaction with extreme care. But if, when so examined, there is disclosed no ground of objection except such disparity, the contract cannot be impeached.' Every element mentioned by Mr. Justice Magie as ground for avoidance seems to be present in this case. The artifice of Martin in representing himself as coming from Salter; the deception which he practiced when he told her that her case had been settled, that the estate had been found to be dissipated, and that it was Salter's advice to her to sign the release; his importunity, inducing action without advice or deliberation; and an inadequate consideration are all obvious. It is said, however, that, conceding this to be so, Martin was Mrs. Mullaney's agent, and the heirs are not responsible for his misconduct. I do not so

read the facts. I think the evidence shows not only that the heirs are seeking to hold an advantage which Martin's fraud has given them, but that their representatives, or one or more of them, took some part in promoting the scheme. Martin, in this transaction, appears to have acted for himself and for them, and not for Mrs. Mullaney. She still has the money, and offers to return it. "There is some evidence tending to show that since she left her husband she has been living with two colored men. This evidence is controverted, and the matter is left in doubt. As I view the case, it has little to do with the decision of the present controversy. It may become of consequence hereafter, when she sues for her dower."

Corbin & Corbin, for appellants. Wm. D. Salter, for respondent.

GUMMERE, C. J. The decree appealed from is affirmed, for the reasons stated in the opinion of Stevens, V. C., in the court below.

(205 Pa. 428)

SAMUELS v. LUCKENBACH. (Supreme Court of Pennsylvania. May 4, 1903.)

REAL ESTATE BROKER-RIGHT TO

COMMISSIONS.

1. The fact that a broker had previously made a sale of property, and had been paid a commission therefor, is insufficient to entitle him to commissions on a subsequent sale made by him for the same vendor without request or employment.

2. Plaintiff was employed to sell one of two tugs specifically named, and brought a person who rejected them, but afterwards purchased from the defendant a third tug, in relation to which there was no contract with the broker. Held, that he was not entitled to recover commissions thereon.

Appeal from Court of Common Pleas, Philadelphia County.

Action by William S. Samuels against Lewis Luckenbach. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Edward F. Pugh and Henry Flanders, for appellant. John F. Lewis and Francis C. Adler, for appellee.

MITCHELL, J. The dealings of the parties were altogether by telegrams and letters. The contract, therefore, having to be gathered from the writings, its terms and construction were for the court, and the defendant's point to this effect should have been affirmed. But as it does not appear that the construction of the contract was really left to the jury, except negatively by the failure | to charge otherwise, the error would not be material if the case was in other respects properly submitted.

A much more important error, however, was contained in the instructions upon the

requisites of the plaintiff's cause of action. On this subject the judge charged: "The question in this case, as the court will leave it to you to be determined, is whether or not this plaintiff brought these parties together, and was the efficient means of effecting the sale of this boat. That is what you will have to consider and determine; and the court will charge you that, if he was the efficient means of producing the sale of this boat, he is entitled to his commission, but, if he was not the efficient means, he is not entitled to his commission." This was inadequate in overlooking the element of employment or authority. A mere volunteer is not entitled to commissions, though he brings the parties together, and is the efficient means of procuring the sale. Even a broker whose business it is to bring buyer and seller together "must establish his employment as such, either by previous authority, or by the acceptance of his agency, and the adoption of his acts." Keys v. Johnson, 68 Pa. 42. The fact that a broker had previously made a sale and been paid a commission will not entitle him to a commission on a subsequent sale made by him on behalf of the same vendor, but without request or employment. Mayer v. Rhoads, 135 Pa. 601, 20 Atl. 158. And, as a necessary corollary, the employment must be to sell the thing for the sale of which commissions are claimed.

The employment of the plaintiff, gathered, as it must be, from the writings, was to sell or find a purchaser for one of two tugs specifically named. The correspondence opened by a telegram from plaintiff to defendant inquiring as to tugboats for sale, and asking particulars and lowest cash prices. Defendant replied by a letter offering a large tugboat not named and the Ocean King. Plaintiff wrote again, asking "more complete information" about the Ocean King, and saying the price of the large tug was too high. Defendant again replied with further particulars about the Ocean King, and saying: "The other tug I don't think your party wishes to purchase on account of the price being too high. My price is $30,000" (evidently a slip of the pen, as $85,000 was the price named both previously and later). Plaintiff next wrote that the Ocean King might suit his clients, but the larger tug, which, though not previously named, he seems to have recognized as the Edwin Luckenbach, would suit them better, "but not at the price, $85,000." Several letters, not now material, followed, in regard to prices and the payment of commissions, and then one from plaintiff saying: "My commission of five per cent. must be included in the prices named for boats, as follows: Ocean King, $30,000; Edwin Luckenbach, $85,000. Should I sell either boat, the commission to be based on the price they actually sell for." To a telegram a week later, asking a reply, defendant answered by letter, saying: "Your telegram duly received this a. m. asking for

me to accept your proposition for the five per cent. commission to be paid to you on the sale of either the Ocean King or Walter A. Luckenbach. You mentioned the tug Edward Luckenbach. These latter two tugs were built last year, and they are the same size and power, so kindly change your mind from the Edward to the Walter A. I will only sell one tug, either the Ocean King or the Walter A. Luckenbach, and you shall have your commission of five per cent. if you sell either one of the above-named boats for me." This closed the correspondence, so far as the contract is concerned.

The

It appeared at the trial that the customer with whom the plaintiff had been in communication went to New York, saw the defendant and the two boats mentioned, declined to buy either of them; but, after looking about, and negotiation, did buy from defendant another boat, the Lewis Luckenbach, for commissions on the sale of which this suit is brought. There was no question that the purchaser had gone to defendant in consequence of his previous communication with plaintiff, but the testimony was conflicting as to whether or not he informed defendant of that fact. It was not, however, material whether he did or not. contract between plaintiff and defendant conveyed no general authority, even by implication. On the contrary, the agency was expressly limited to the specific boats named, at specified prices, and neither of them was sold. As to any other boat, even if his communications with the purchaser be considered as the efficient means of the sale, the plaintiff was only a volunteer, without precedent authority or subsequent acceptance of his services as an agent. That they gave him a claim in natural justice to a fair compensation is plain, as the jury no doubt felt; but on the clear and indisputable limits of the contract it was not a claim enforceable at law, and the jury should have been SO instructed. If there were any grounds for claiming a fraudulent effort of the defendant to avoid payment of commissions by the sale of another boat, a different question would be presented, but the evidence shows that the boat sold was an independent selection by the purchaser after investigation of the vessels in the market at the time and place.

The case of Holmes v. Neafie, 151 Pa. 392, 24 Atl. 1096, cited by appellee, was very different. There, after the failure to make sale of the particular boat first considered, there were negotiations in which the broker took part, which resulted in the contract afterwards made. The point of that case was in the fact that, the vendors having to go into competition with other bidders, before finally getting the contract, did not destroy the broker's title to commissions for bringing the parties together.

Judgment reversed, and now judgment entered for defendant.

(205 Pa. 432)

BROMMER v. PHILADELPHIA & R. RY.

CO.

(Supreme Court of Pennsylvania. May 4, 1903.)

MASTER AND SERVANT-VICE PRINCIPAL-INJURY TO EMPLOYE-NEGLIGENCE.

1. A train dispatcher is a vice principal of the railroad company which employs him.

2. A brakeman sued for personal injuries received in a collision. The evidence showed that the train dispatcher directed an engineer to run on a certain track carefully, and stated that there were cars at a street named. The engineer collided with such cars some 1,200 feet nearer than the point named. Held error to direct a nonsuit.

3. Where a collision occurs, and plaintiff, a brakeman, is injured, an alleged defect in the sill of the tender cannot be treated as negligence contributing to the accident, as a requirement that such sill should be strong enough to resist the force of a collision would be impracticable.

Appeal from Court of Common Pleas, Philadelphia County; Willson, Judge.

Action by William H. Brommer against the Philadelphia & Reading Railway Company. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Richard P. White and Andrew C. Wylie, for appellant. Gavin W. Hart, for appellee.

MITCHELL, J. It is conceded that under the decisions the train dispatcher, within the limits of his employment, was a vice principal. Lewis v. Seifert, 116 Pa. 628, 11 Atl. 514, 2 Am. St. Rep. 631. The negligence charged in the plaintiff's statement includes, among other things, erroneous information, and a misleading direction by the yardmaster, which were averred as at least in part the cause of the accident. The direction complained of was as stated by the engineer: "My orders were to run the south-bound track carefully. That there were fifteen cars on the south-bound at Front street, and that an engine was coming from Richmond to move them to Richmond. That I should follow those cars down carefully, and, after they were shifted, the engine would go in the house." The engine and tender were accordingly run carefully, as alleged, but met the standing cars at Second street, instead of Front, as expected, with the result of a collision, in which the plaintiff was injured. The character of these orders on the question of negligence was for the jury. It may be that in railroading, where distances are so entirely a matter of time and speed, a direction to run carefully, and be on the lookout for an obstruction at a point named, is sufficiently accurate and specific, though the obstruction be met in fact 1,200 or 1,300 feet nearer. If the order was not negligent under the customs and common understanding in the business, then the defendant is not responsible,

1. See Master and Servant, vol. 34, Cent. Dig.

495.

for that is the only negligence averred on which the plaintiff can recover. But, as that is not the only, or even the prima facie, deduction from the order, it must go to the jury on the evidence.

It is not perceptible how the alleged defect in the sill of the tender can be treated as negligence contributing to the accident. The sill being the place where the coupling is attached for pulling the train, it is required to have strength to resist the tension of that operation, but there is nothing in its purpose or use to require that it shall be strong enough to resist the force of a collision. Such a requirement would be impracticable. The inference that, if the sill here had been stronger, the injury to the plaintiff would have been less, or would not have happened at all, is a mere guess, which the jury should not be permitted to make.

It is strongly urged by the appellee that the only proximate cause of the collision was the disregard of the rules of the company by the crew of the standing train, and it may be so, but it is not sufficiently established in the plaintiff's presentation of the case to justify the court in taking it away from the jury.

ed.

Judgment reversed, and procedendo award

(205 Pa. 413)

In re MYERS' ESTATE. (Supreme Court of Pennsylvania. April 27, 1903.)

TRUSTEE UNDER WILL-REMOVAL.

The

1. Under a will the beneficiary and another were appointed trustees and the beneficiary, an elderly woman, petitioned for the removal of her co-trustee showing the existence of an irreconcilable antagonism, resulting from the domineering behavior of the co-trustee. evidence showed that he had notified the tenants to pay rent to him, and not to the agent of the beneficiary, a nephew, who lived with her, and had long collected the rents at her request. Held, that a decree removing the trustee would be sustained.

Appeal from Court of Common Pleas, Philadelphia County.

In the matter of the estate of Simon S. Myers, deceased. Appeal by Mark Myers, trustee, from a decree removing him from his office. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ. Henry H. Rosenfelt, for appellant. Preston K. Erdman, for appellee.

PER CURIAM. The court below found that, owing to the hostile relations between the appellant and his co-trustee, the retention of the former would naturally work disadvantage, inconvenience, and great discomfort to the latter, and that the petition for appellant's removal was not the offspring of whim or caprice, but of irreconcilable antagonism, which "resulted largely from the dogmatic, domineering, and ungentle behavior of

the respondent [appellant] towards the petitioner." The court further found specifically that the facts as shown by the evidence brought the case clearly within the principles of Marsden's Estate, 166 Pa. 213, 31 Atl. 46, and Neafie's Estate, 199 Pa. 307, 49 Atl. 129. We have not been convinced that this view was erroneous. The appellee, besides being co-trustee, was tenant for life, and entitled to have her interests considered from a friendly and beneficial point of view in the management of the estate. The whole will is not before us, but, so far as appears, the principal use of a co-trustee is to protect the remainders. No doubt the testator also thought that his brother's business judgment, which is conceded to be good, would be serviceable to his widow. But this advantage is more than offset by the want of harmony in a relation in which harmony is essential to wise and profitable action. In the case of partnership, want of harmony and confidence may of themselves be sufficient to compel a dissolution, even in the face of positive agreement as to the term of continuance. Though not to the same extent, the same principles are applicable to the case of co-trustees and others required to act together for common benefit. How far mere manners and behavior, even though "dogmatic, domineering, and ungentle," as the court found here, may be sufficient cause to justify removal, depends so largely on the circumstances as shown in the evidence, that much room must be left for the discretion of the court. But one point in the present case is decisive. The petition charged that the appellant had notified tenants to pay the rents to him, and not to petitioner's agent. Appellant, in his answer, averred that what he did was to notify the tenants to pay rent either to petitioner or himself. The testimony shows that the two statements come to the same thing. The petitioner was a woman of about 60 years of age, and did not desire to collect the rents in person, but by the hands of her nephew, who lived with her, and had assisted her husband in the collection during his lifetime. Appellant appears to have supposed that he could compel her to collect in person or leave the collection to him, and his notice to the tenants, in whichever form it is regarded, was clearly intended to have that meaning. He had no such right. The collection of rents involves no delegation of discretion, but is a mere ministerial act, which a trustee may do by agent or attorney, as any other person. Appellant's notice to the tenants in its intention and effect was a plain effort to oust his co-tenant from the exercise of her unques tionable right of participation in the management of the estate, and gives a weight and significance to his domineering behavior which it would not have as a question of manners alone. The order of removal was fully sustained by the evidence.

The decree, however, makes no provision for the protection of the remaindermen. The

interest of a life tenant is to rack the property for present income at the expense of the inheritance. This should be properly guarded against. It is intimated in the arguments that the question of the appointment of another trustee is still open. We therefore leave this branch of the subject without further discussion.

Decree affirmed, with costs.

(205 Pa. 418)

In re MOONEY'S ESTATE.

Appeal of WALSH. (Supreme Court of Pennsylvania. April 27, 1903.)

WILLS-ACTIVE TRUST-RIGHTS OF BENEFICIARY.

1. Testatrix devised all her estate to a trust company for the use and benefit of a beneficiary "during his life and after his death to his lawful children until the youngest is 21 years then to be divided share and share alike if he has no lawful children at his death then the property is to be divided with my four sisters or their children and my brother or his children absolutely share and share alike." Held, that the trust was an active one, and the beneficiary was not entitled to the possession of the personalty on giving security as life

tenant.

Appeal from Orphans' Court, Philadelphia County.

Petition of Michael N. Walsh for citation in estate of Ellen Mooney, deceased. From a decree dismissing the petition, he appeals. Affirmed.

The petition averred as follows: "(1) That Ellen Mooney died on June 29, 1900, leaving a will as follows: 'Philadelphia, September 15th, 1899. I Ellen Mooney been of sound mind and clear understanding do bequeath all my property in the City of Philadelphia State of Pennsylvania and Atlantic City New Jersey both real and personal to Michael Nelson Walsh for his use and benefit during his life to be held in Trust by the Continental Title and Trust Company during his life and after his death to his lawful children until the youngest is 21 years then to be divided share and share alike if he has no lawful children at his death then the property is to be divided with my four sisters or their children and my brother or his children absolutely share and share alike.' (2) That by the will a life estate is given to petitioner in both the real and personal estate. (3) That petitioner, as administrator, filed his account, and that the sum of $2,623.67, balance of personal estate, was awarded to the Continental Title & Trust Company, as trustee; that exception to the award was dismissed. (4) That petitioner is instructed that he is entitled, under the act of May 17, 1871 (P. L. 269), to the possession of the personal estate, and he is desirous of having the same surrendered into his possession. (5) That a citation should issue to show cause why the property should

not be turned over to him on his entering the proper security therefor."

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Edward A. Anderson and John H. Fow, for appellant. Ira Jewell Williams and Simpson & Brown, for appellee.

PER CURIAM. The manifest intent of the testatrix in creating a testamentary trust was not only to preserve the remainders under her will, but to prevent the property from coming into the control of the life beneficiary, and to put it under the management, control, and discretion of the trustee during his life and the minority of the youngest of his children. This was enough to bring the case within the principle of Watson's Appeal, 125 Pa. 340, 17 Atl. 426. Decree affirmed, with costs.

In re KING'S ESTATE. Appeal of DAVIS et al.

(205 Pa. 416)

(Supreme Court of Pennsylvania. April 27, 1903.)

WILL-CONDITIONAL DEVISE.

1. Testatrix, by her will, directed her trustees to hold a house "as a residence and home" for her grandnephew; he, at his majority, to have the election, "if he wishes said house as his permanent home." There was no condition precedent that he should occupy the house. Held, that a fee vested in him immediately on his election to take the house in good faith, though he subsequently abandoned it as a home. Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Mary L. King, deceased. From a decree dismissing exceptions to adjudication, Anna M. C. Davis and Minnie King Bennett appeal. Affirmed.

Testatrix left a will providing as follows: "I give, devise and bequeath unto my grandnephew Joseph Stever F. Kerr, his heirs and assigns forever my cottage situate at Hyannisport in the state of Massachusetts with all the grounds thereunto belonging and all the furniture therein contained. It being my wish that my said grandnephew shall continue to spend his summer at this said place under the care and superintendence of my said executors or either of them or in the care of such person or persons as they may appoint until he shall have attained his majority, and all costs, and charges for taxes and repairs and maintenance of said cottage to be paid by my executors from the corpus of my estate so far as practicable during the minority of my said grandnephew and I further desire that at and during these visits my said grandnephew shall always have the right of taking and having with him one friend of his own selection during his stay there and I further desire that at and during these and all other visits my grandnephew shall make to the said cottage that he shall