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own sale. Any purchase he may make will nection that the testimony shows that after be held for the benefit of the parties inter the purchase in the name of Garland, and ested, is voidable at their election, and may for the benefit of the syndicate, a new corbe set aside by the court. A large num poration, called the American Vault, Safe & ber of cases are there cited which fully Lock Company, was formed, to which this support this statement. In Moody's Lessee property was transferred, which has been v. Vandyke, 4 Bin. 31, 5 Am. Dec. 385, Chief | carrying on business since the purchase; Justice Tilghman says: “Now, even if the and, as to this personal property, it would administrators had power to sell, they ought now be impracticable to set aside the sale not to have made the sale to one of them and require the receiver to resell. The only selves, because the power, being joint, ought practicable method of adjusting the rights to have been executed by all of them, and of the parties is by surcharging the receiver. (which is of far greater consequence) be The only answer made on behalf of the recause the policy of the law forbids a person ceiver to this liability is that the sale to to be the purchaser of that which he is ap Garland was a public sale, and that the pointed to sell. It requires but a small receiver is protected thereby. Nearly all of knowledge of the world to be sensible of the cases in which the question has arisen, the wisdom of this rule. The person intrust and in which the trustee has been held guilty ed with the sale has so perfect a knowl of a breach of trust in purchasing, are cases edge of the subject, and so great an oppor- of public sales, and the cases are clear that tunity of taking advantage, by appointing the principle applies equally whether the the time and place of sale, and employing sale be public or private. Wallington's Esthe agents who conduct it, that to permit tate, 1 Ashm. 307. But in the present case him to become the purchaser would be pla the sale to Garland was in no sense a pubcing too much confidence in the infirmity of lic sale. There was no competitive bidding human nature.' In Webb v. Dietrich, 7 at all. The receiver applied to the court, Watts & S. 401, Mr. Justice Sergeant says: by petition, for leave to sell the property to 'The rule of equity which probibits a trustee Garland for a fixed sum, stated that he had for sale from purchasing the trust property accepted ten per cent. of the purchase money is not founded on his being necessarily guilty on account, and recommended that said sale of fraud in so doing. It is a rule of public be made, whereupon he received authority policy which applies in all cases, whether to make sale direct to the purchaser. This there be fraud or not, and, indeed, its great certainly does not constitute a public sale. object is to prevent fraud by taking away Your auditor is therefore of the opinion that the temptation to commit it. Another rea the receiver should be surcharged with the son for the rule is the difficulty, if not im difference between the amount realized for possibility, in many instances, of ascertain the personal property on the sale to Garland ing whether there was fraud or not.' The and the value of that property. liability of the receiver, under the facts “(3) As to the receiver's right to commisfound, does not seem to the auditor to ad sions: Commissions are a compensation almit of doubt. A further question arises as lowed for the faithful performance by a to whether this liability of the receiver can trustee of his duties. Mere neglect, of itself, be enforced by a surcharge on the present might not require the disallowance of comaudit. That question seems to be settled missions, but the action of the receiver in by the case of French v. Pittsburg Vehicle, this case goes far beyond mere negligence. etc., Company, 184 Pa. 161, 39 Atl. 63, where It resulted in a total loss to the creditors of a receiver made a sale of the trust property the value of a large part of the personal propto a firm in which he was to become inter erty coming into his hands at the date of his ested upon the winding up of the receivership. appointment as receiver; and, as we have He did become interested in the firm, and found, he has been guilty not merely of a upon the filing of his account was surchar lack of good faith towards the court touchged with the difference between the ap ing the property remaining in his hands, and praised value of the property, as shown by his connection with the sales of that propthe inventory, and the amount realized on erty made by him, but also of concealing his the sale. In Rosenberger's Appeal, 26 Pa. connection with these sales, and of selling 67, executors were authorized to sell real es the property at a grossly inadequate price, tate at public sale, and one of them became and being interested in the purchase. Uninterested with a third party in purchasing der these circumstances, the auditor recomthe property, which the purchasers subse mends that the commissions be disallowedquently sold at an advance; and, upon

set

especially so in view of the fact that the retlement of the executors' account, they were ceiver has not been surcharged with the surcharged with the entire amount of profit value of the personal property lost by him made by the purchasers. In Wallington's prior to September 29, 1894. 27 Am. & Eng. Estate, 1 Ashm. 307, President Judge King | Ency. of Law, 187, and cases cited. fully discusses this same question, and sustains a surcharge for the difference between

“Conclusions. the real value and the price obtained at the "Your auditor therefore recommends that public sale. It should be noted in this con the receiver's account le restated, so as to

charge bim with the amount realized from the sale of real estate, less the expenses of making such sales, charging him with the amount received for the personal property, and surcharging him with the difference between the amount received from the personal property sold to Garland and the value of that property, and also surcharging him with the deficit arising from his operation of the works between October 11, 1893, and September 29, 1894.”

Exceptions to auditor's report were dismissed by the court.

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

E. P. Douglass, for appellant. J. H. Beal, 0. P. Robertson, J. P. Patterson, H. L. Goeb. ring, J. H. Reed, Edwin W. Smith, and Geo. E. Shaw, for appellees.

(205 Pa, 62) In re WEHRLE'S ESTATE. (Supreme Court of Pennsylvania. Jan. 6,

1903.) EXECUTORS-RELEASE FROM DISTRIBUTEE

LACHES. 1. One of two executors paid a legatee certain money, taking a release of her interest, and gave to his coexecutor a release for his own share of the estate, and for all demands whatever against the same. Thereafter the legatee repudiated her release, and obtained an order that the coexecutor should pay her the full amount of her interest. Held, that the other executor could not, 40 years after the death of the testator, and after the death of the coexecutor, recover from the latter's estate the sum of money which he had paid to the legatee.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Francis J. Wehrle, deceased. From a decree dismissing exceptions to adjudication, Herrman Fischer appeals. Affirmed.

MESTREZAT, J. We have considered the questions raised on this appeal in connection with the appeal of Lewis McMullen, trustee,

has this day been filed. 54 Atl. 504. After an examination of the numerous assignments of error, we are not convinced that the auditor, whose report was confirmed by the court below, bas committed any reversible error in his disposition of the case. The exceptions to the report are principally to the findings of fact, and, under our well-settled rule, when the court below has approved the finding we will not reverse unless clear error is shown. Here there was evidence to warrant the auditor in reaching his conclusions of fact, and the appellant has failed to point out wherein they are clearly erroneous.

The investigation by the auditor was most careful and thorough and the appellant was afforded the fullest opportunity to have the alleged errors corrected on exceptions to two reports. The learned judge of the court below carefully examined the report and exceptions thereto, and, in confirming the report, says he is “convinced that the auditor's report reaches a result as nearly just and equitable as it is possible to arrive at, considering the manner in wbich the business was conducted by the receiver, and the accounts kept by him." We agree with this conclusion.

There is no merit in the exceptions to the learned auditor's conclusions of law. The surcharges were properly made, and the receiver's commissions disallowed. The reckless and negligent manner in which the receiver conducted the affairs of the trust estate, and the consequent loss to the creditors, legally deprived the receiver of the right to commissions. The law does not compensate an officer for inefficiency and willful neglect of duty. It does, however, hold bim strictly responsible for property placed in his hands, and imposes upon him the duty of fully accounting for it.

The assignments of error are overruled, and the decree is affirmed.

appointed Herrman Fischer and Francis J. Wehrle executors of his estate. An executors' account was filed in Allegheny county on April 18, 1862, but there was no audit. Instead, receipts and releases were taken from the distributees. Helena Weber, a daughter and legatee of the decedent, was paid $1,000 by Fischer, and gave a receipt for her share of the estate, and released the executors. Thirty-five years after the account was filed she repudiated her release, and issued a citation calling upon the executors to pay her her distributive share of her father's estate. The orphans' court, in 1898, awarded her one-third of the balance shown by the account of 1862. The decision rested solely on her testimony that she understood little English and did not comprehend her release. The court further found that Wehrle was the acting executor, and charged him individually with the whole amount found due. Helena Weber testified that she had received in 1862 from Herrman Fischer, the coexecutor, $1,000. Herrman Fischer claimed that this payment entitled him to subro. gation, and that he now stands in Helena Weber's place, and can recover this amount from the Wehrle estate. On July 22, 1874, Fischer gave Wehrle a receipt and release for his share of his father's estate, "and of and from any and all other sum or sums of money of, touching, or concerning the estate of said Stephen Fischer, and of and from all accounts, reckonings, payments, suits, actions, accounts, claims, and demands whatsoever for or concerning any matter, cause, or thing whatsoever.” The trial court dismissed the claim, Hawkins, P. J., filing the following opinion:

"Herrman Fischer, acting on the suggestion thrown out by the Supreme Court in Wehrle's Appeal, 189 Pa. 179, 42 Atl. 8, has come into this court asking appropriation of the credit allowed on the decree in favor of

Mrs. Weber against Mr. Wehrle. What was but actively aided and abetted the inconsistsaid by the Supreme Court does not amount ent claim made by Mrs. Weber. He had his to an adjudication. If it had been thought day in court, and, having misled Wehrle to that there was enough evidence of record his injury, there can be no returning footthat court would no doubt have made a de steps. He is estopped by his release, by the cree accordingly, but it did not do so, and it statute of limitations, by gross laches, and must be assumed that the question of his by acquiescence in Mrs. Weber's claim. On right was left open for determination of this the other hand, it would be a hardship at court.

this late day to call on Wehrle's personal rep“Assuming that the Columbiana county, resentatives, who have not the advantage Ohio, conveyance was on account, it does not which he would have had, to answer this, necessarily follow that Herrman Fischer is which is certainly an inconsistent claim. It entitled to subrogation as against his coexec seems clear, therefore, that Fischer has no utor, Wehrle. Foremost in his way stands equity to relief." a release of all claims against the estate. Argued before MITCHELL, DEAN, FELL,

"Nearly forty years have elapsed since its BROWN, MESTREZAT, and POTTER, JJ. date without, so far as appears, any claim

William A. Golden, A. V. D. Watterson, having been made by him of subrogation.

and A. B. Reid, for appellant. Frank PenIn his answer to Mrs. Weber's petition by

rose Sproul and Thomas M. Marshall, Jr., admitting her claim he impliedly concedes

for appellee. that he has none, and his subsequent conduct in that proceeding is in entire harmony

PER CURIAM. The decree is affirmed on with that concession. He made direct claim

the opinion of Judge Hawkins. for his own share under the will, but to nothing through Mrs. Weber. He made no denial of her assertion of failure of his title

(95 Md. 751) to the Columbiana county property, and con

SELLMAN et al. v. WHEELER. sequent failure of consideration. If he had asserted a claim in opposition to Mrs. Weber (Court of Appeals of Maryland. Nov. 20, 1902.) in the first instance, the whole matter could ASSAULT AND BATTERY-EVIDENCE-ADMISand should have been disposed of at once. SIBILITY OPINION EVIDENCE - HEARSAYWere Mr. Wehrle living now, the disadvan

JOINT TORT FEASORS-INSTRUCTIONS. tage of raising another issue would be ob 1. Testimony by plaintiff that his injury made vious. Having died, the disadvantages to

him very nervous, and he could not sleep nights,

and when he weut to stoop over he had great his representatives are greatly increased, for pain, and that he suffered a good deal of pain they are not likely to know of the actual from the testicle, going along the cord into his condition of affairs. Appeal of Bentley's

stomach, was not inadmissible as opinion evi

dence. Ex'rs, 99 Pa. 500. There is nothing in the

2. Testimony by a physician, in an action for case which calls for the interference of a

assault, that he examined plaintiff, who came chancellor.

to him complaining of a pain in his testicle; “ 'Courts of equity will sometimes refuse

that he found him suffering from an enlarge

ment of the testicle, and suggested treatment, to grant relief, although the statute of limi

and stated that if it coutinued he would have tations cannot be pleaded in bar, and al to have an operation performed; that he did though presumptions cannot arise from lapse not thoroughly diagnose the case; that the next

time he examined plaintiff he saw that an operof time, or may be conclusively rebutted.

ation had been performed; that he knew nothIn such cases they proceed upon the ground ing about the cause of the trouble-was not irthat public convenience will not allow old relevant and immaterial, and stale claims to be investigated, when

3. The evidence was not hearsay.

4. Reasons assigned in support of an excepmany of the parties and witnesses are dead

tion to a prayer as not supported by the evi. or their memories impaired or vouchers lost. dence, which fail to specify the particulars in And so, acquiescence in a transaction may

which the evidence is defective, will not be con

sidered. bar a party of his relief in a very short pe

5. Testimony by plaintiff in an action for as. riod. Thus, if one has knowledge of an act,

sault that on the day following the assault he or it is done with his full approbation, he was obliged to lie down most of the day; that cannot afterward have relief. He is es

from October to May he had not been able to do

manual work, and that when testifying, May topped by his acquiescence, and cannot undo

16th, he suffered great pain from the testicle; what has been done. So, if a party stands that for the first time in his service there had by and sees another dealing with property been complaints about his work as operator;

that the pain in his testicle began with the as. in a manner inconsistent with his rights, and

sault, and continued to the trial-together with makes no objections, he cannot afterward

a physician's testimony that he examined plainhave relief. His silence permits or encour tiff, and found an enlargement of the testicle. ages others to part with their money or

and told him if it continued an operation would

be necessary, tended to show that the assault property, and he cannot complain that his

was the cause of the injury, that medical and interests are affected. His silence is acqui surgical attendance was made necessary thereby, escence, and estops him.' Perry on Trusts, and that plaintiff's capacity for manual labor and 88 869, 870.

his efficiency as a telegraph operator might be

diminished thereby, and warranted the granting "Here Herrman Fischer not only made no

of plaintiff's prayer, laying down the rule for claim in his own behalf for nearly 40 years, assessing damages in such a case.

h. In an action for an assault and battery, the tain prayers of defendants.. The first and burden was on defendants to prove the truth second exceptions present closely analogous of all the matters set up in their pleas of confession and avoidance.

questions. Plaintiff, as a witness, bad de7. The burden was on plaintiff to establish scribed the circumstances which led to and the assault and resulting injury.

characterized the assault, testifying that he 8. If plaintiff entered a store, in which de

had entered the building in a quiet and orderfendants kept a post office and general store, to inquire about a car he had ordered, and one

ly manner to inquire about a car he had orof the defendants called him a liar and a thief, dered; that Robert Sellman said plaintiff bad and told the other defendant, who was the post ordered no car, and he replied that he had, master, to throw him out, which the latter im

but that Sellman bad taken it for his own mediately proceeded to do, the defendants would be jointly liable for the assault.

use, and that Sellman said he was "a damn 9. A prayer is properly refused where every liar and thiet"; that at that time Alonzo B. thing properly embraced in it is covered by an.

Sellman, the postmaster, son of Robert Sellotber prayer which is given. 10. An instruction to find for the plaintiff if

man, came in, and Robert Sellman said, the jury found the facts to be as stated in a "Throw the damn thief out," and Alonzo certa in prayer given for the plaintiff, unless Sellman seized him by the back of the neck they found the additional facts stated in a cer

and the bottom of his pants, or by the suspentain other prayer given for defendants, was not calculated to mislead the jury.

ders, and he was thrown out, from a porch

eight or nine feet wide and five feet high, Appeal from Circuit Court, Carroll County;

to the ground. He further testified, subject Thomas, Judge.

to exception, that while being carried across Action by Julian D. Wheeler against Rob

the porch he had an aching and burning ert Sellinan and another. Judgment for

sensation in his left testicle, which pain had plaintiff, and defendants appeal. Affirmed.

continued ever since. He further testified Jas. A. C. Bond and F. Neal Parke, for that a short time after the assault he left the appellants. Guy W. Steele, for appellee. place, and said: “I then went up the road

through a woods of mine, and when I got PEARCE, J. This is an action of trespass

in the woods I looked at my testicle, and vi et armis for an alleged assault and bat

found a red stripe over it, and it was very

much swollen; and two or three weeks after tery by the appellants upon the appellee. The narr. contains but one count, in the

that I found an injury there, and I went to

Baltimore and had it taken out. Question. usual form, charging the defendants as joint tort feasors, and alleging special damages

How did this injury that you speak of affect

you? Answer. It made me very nervous, and by reason of expense incurred for medical and surgical attendance. The defendants

I could not sleep at night, and, when I went

to stoop over to do anything, I had great pleaded non cul., and also filed three pleas ip confession and avoidance, in all of which it

pain. Question. What is your condition at was alleged that at the time of the assault

present? Answer. My condition at present charged they were possessed of a building

is that I suffer a great deal from the pain in which the plaintiff was trespassing, and

from the testicle going along the cord into from which, though requested, he refused to

my stomach.”

The defendants moved to strike out the depart, and that they then removed him,

testimony above embraced in quotation using no more force than was necessary. The second and third of these pleas also alleged

marks, and the first exception was taken to

the refusal to strike this out. that the defendants kept the United States

In support of

this exception, defendants rely upon (be post office at Watersville, and a retail store in the building, and that plaintiff, wbile in

rule that the opinions of nonexpert witnessthe building, made a noise and disturbance

es are not evidence, and they argue that the

testimony objected to is merely the opinion therein, and conducted himself in a rude and quarrelsome manner. The plaintiff joined is

or inference of the plaintiff. They admit that sue on the first plea, and replied to the sec

he can testify as to his condition befure and ond, third, and fourth pleas, alleging the use

after the injury, in order that from these of more force than was necessary in his re

facts the jury may form its opinion and draw moval. Issues were joined on these replica

its inferences as to the cause of the injury; tions, and an agreement was filed waiving all

but they say that to ask the witness, "How errors in pleading, and providing that either

did this injury which you speak of affect party might offer any testimony admissible

you?" is to ask the very question the jury han under any state of the pleadings.

to decide, and that to permit the witness to There are four exceptions presented by the

answer, “It made me nervous,” etc., is to give record: Two with respect to evidence ad

probative force to the mere inferences of the mitted subject to exception, and subsequently

witness as to the cause of the injury. It cerrefused to be stricken out; one to the ruling tainly cannot be seriously contended that the upon special exceptions to certain prayers of

rule invoked excludes that part of the tosplaintiff for want of evidence to support

timony objected to, which precedes the questhem; and one to the granting of certain

tion as to how the injury affected him, since prayers of plaintiff, and the rejection of cer

that is a simple description of his physical

condition and of facts which he knew. City T 6. See Assault and Battery, vol. 4, Cent. Dig. $ 36. Pass. Ry. Co. v. Nugent, 86 Md. 360, 38 Atl.

B4 A-33

779. Nor do we perceive any valid objection tiff in an action for personal injuries, made to the two following questions and the an to his physician, as to his symptoms at the swers thereto. Each of these questions call time, if made for the purpose of medical ed for the statement of facts only, descriptive treatment and advice, is admissible in his of his physical condition, to which he was favor, though the interview was only a day certainly competent to testify, and the an or two before, or possibly during, the trial. swers contained nothing but such statements And in N. P. R. R. V. Urlin, 158 U. S. 275, of facts. Neither the questions nor the an 15 Sup. Ct. 840, 39 L. Ed. 977, the text of swers dealt with the cause of the injury. Greenleaf and the case just cited are approvThat related exclusively to its effect. The ed. It will be observed that the only stateMaryland cases cited by the appellants up ment made by plaintiff to Dr. Hering was of on this point have no pertinency to the ques his suffering at the time, though it was held tion here; nor does the language of Lord in Roosa v. Boston Loan Co., 132 Mass. 439, Mansfield in Carter v. Boehm, 3 Burr. 1918, that a physician may testify to a statement quoted upon their brief, have any greater per or narrative given by his patient in relation tinency, when the case is examined. That to his condition, symptoms, sensation, and case concerned an insurance effected through feelings, both past and present, and that a broker, who testified "that he did not be these are admitted from necessity, because lieve the insured would have meddled with in this way only can the bodily condition of the insurance if he had seen certain letters" the party be ascertained. We are not rein evidence, and it was of this "belief" that quired, however, to go to that extent here. the court said: “It is an opinion which, if It was also held in that case—and we think rightly formed, could only be drawn from the properly—that this does not extend to the pasame premises from which the court and tient's declaration of the cause of the inthe jury were to determine the cause, and jury. In the case before us there was no therefore it is improper and irrelevant in the such declaration by plaintiff, and Dr. Hermouth of a witness." We find no error in ing expressly testified that he knew nothing this ruling.

of the cause. We think this ruling of the Dr. Joseph Hering, a practicing physician, court was correct. then testified that plaintiff came to him in The third exception was to the overruling December (the assault having been in Sep of the special exceptions to the plaintiff's tember), and further testified, subject to ex eighth prayer as modified by the court, for ception, as follows: "I examined Mr. Wheel the reason that the evidence does not suler, who came to me complaining of a pain port the prayer. We think there is ample in his testicle. I found him to be suffering evidence to support this prayer, which lays with an enlargement about the testicle. I down the rule for assessing damages so fasuggested some treatment for him, and that miliar in cases of this character. Five reaif it continued he would have to go to the sons are assigned in support of the special hospital and have an operation performed. exception. Of these, the first and second I did not thoroughly diagnose the exact con fail to specify the particulars in which the dition, but there was an enlargement of the proof is supposed to be defective, and need left testicle. I next examined Mr. Wheeler not, therefore, be considered. The third alyesterday morning, and saw that an opera leges there is no evidence that the plaintiff tion had been performed, from a scar." Up was disabled or unfitted for pursuing his oron cross-examination, Dr. Hering testified: dinary occupations; the fourth, that there is "I know nothing of the cause of the trouble." no evidence to show that the injury com

The second exception was taken to the plained of resulted from the alleged assault; refusal of the court to strike out this testi and the fifth, that there is no evidence that mony. The ground of the objection is that the medical attention and the operation was this testimony was immaterial, irrelevant, necessitated by the alleged assault. Wheeler and hearsay. But if Dr. Hering had not testified that he had been telegraph operator been sworn it would have been a legitimate at Watersville for 17 years; that he was at argument to the jury that the plaintiff had the time of the assault engaged in handling failed to produce the best available evidence and shipping baled hay; that on the day folof the character and extent of his injury. lowing he was obliged to suspend this work Upon that point, therefore, his testimony aprl lie down most of the day; that from Occannot be either immaterial or irrelevant. tober following the assault in September, Nor is it hearsay. Mr. Greenleaf says (vol. until May, he had not been able to do any 1, $ 102, 14th Ed): "The representations by manual work; and that when testifying, May a sick person of the nature, symptoms, and 16th, he suffered a great deal of pain from effects of the malady under which he is suf the testicle; also that for the first time in fering at the tine are original evidence. If his service there had been complaints about made to a medical attendant, they are of his work as operator. His own testimony greater weight as evidence; but, if made to shows that the pain in the testicle began any other person, they are not on that ac with the assault, and continued up to the count rejected.” In Fleming v. Springfield, time of the trial. Dr. Hering's testimony 154 Mass. 520, 28 N. E. 910, 26 Am. St. Rep. was that, if the enlargement continued, an 268, it was held that a statement by plain operation would be necessary, and that on

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