(112 A.)

the vicinity of the bridge was not lighted, HILDEBRAND v. HINES, Director General of and stepped off the cement walk onto a triangular piece of ground covered with cin

Railroads.

(Supreme Court of Pennsylvania. March 21, ders, belonging to the defendant, bounded

1921.)

Railroads 303 (1)-Not liable for dangerous condition of premises causing injuries to pedestrian missing way at dark crossing.

A railroad is not liable for injuries to a pedestrian who, in seeking to cross tracks at a plank crossing, left the provided cement sidewalk on account of darkness and fog, step

ped onto a triangular piece of ground belonging

to the railroad and covered with cinders, and walked across it until he reached a stone retaining wall, the top of which was at the level of the cinder covered lot, and fell 15 feet into | the bed of a creek, sustaining serious injuries.

Appeal from Court of Common Pleas, Allegheny County; J. McF. Carpenter, Judge. Action by Samuel A. Hildebrand against Walker D. Hines, Director General of Railroads. From judgment for defendant, plaintiff appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SADLER, and SCHAFFER, JJ.

by Grant avenue, the railroad tracks, and Pine creek. He walked on this piece of ground, which was some 2 inches lower than the cement pavement, until he reached a stone retaining wall, constructed by the railroad company along the bank of the stream, the top of which was at the same level as the cinder covered lot, and fell a distance of 15 feet into the bed of the creek, sustaining serious injuries.

The railroad company had erected no fence or other barrier to safeguard persons from falling from the wall down the declivity, although at its nearest point the wall was but 8 feet away from the cement walk. Plaintiff does not claim that he traversed only 8 feet from the cement sidewalk until he fell. It is certain that he covered more than this space, because he walked from somewhere near the point of the triangle to its opposite side, and, when he stepped off the cement, in he had to travel not parallel to, but at an order to reach the spot from which he fell, angle from, the sidewalk, to avoid a telegraph pole erected within a foot or two of the pave

Edmund K. Trent and Prichard & Trent, ment and close to the bridge, so that, alall of Pittsburgh, for appellant.

though he could not give the exact number of A. T. C. Gordon, F. B. Ingersoll, and Gor-steps he took after leaving the cement walk, don & Smith, all of Pittsburgh, for appellee.

it is reasonable to conclude that he must have traveled at least 15 feet. Plaintiff was thorSCHAFFER, J. Plaintiff, who appeals oughly familiar with his surroundings, havfrom a judgment entered against him after ing used the street and bridge for four years a verdict in his favor, alighted from a trolley on his way to and from work. He contends car, on a dark, foggy night, and was walking that to permit this unguarded declivity to along Grant avenue, in the borough of Etna, exist on the defendant's land in such close toward his home, when he received the in- proximity to the highway was negligence, enjuries to recover damages for which this ac- titling him to receive damages for his intion was brought. To reach his destination, juries at the defendant's hands. Notwithhe had to cross the tracks of the Baltimore standing the able presentation of this case by & Ohio Railroad, at grade, and a highway plaintiff's counsel, we are forced, in view of bridge directly beyond them, which carries established legal principles, to conclude that Grant avenue over Pine creek, a stream flow-the conditions which the defendant permitted ing 15 or more feet below the bridge. The to exist on its land were not, as between it distance from the place where he alighted to and plaintiff, negligent. the bridge is approximately 50 feet, and, in The creek existed, of course, before the traversing it, had he kept within the street highway or the railroad, and its steep bank lines, he would have walked first on the paved at its present distance, from the highway had roadway of the street to which he stepped been one of the natural features of the from the car, then on a cement sidewalk un- ground in the locality; whether the constructil he reached the railroad tracks, where tion of the retaining wall increased the danthere was a planked crossing, and, after ger the testimony does not disclose; the crossing the tracks, upon another cement side- pleadings do not allege that it did. So walk, which would have carried him to the we have a natural condition on the defendedge of the bridge, where the footway was ant's land, containing elements of danger, 8 again of plank. Instead, however, of keep-feet from the footwalk of a public highway; ing within the street lines and on the side- no case called to our attention, and none walk provided for pedestrians, after travers- which our own research has produced, badges ing the planked crossing of the railroad and such a condition, under the circumstances disstepping on the cement pavement between it closed by the evidence, as negligent. and the bridge, he missed his way owing to the darkness and fog, and to the fact that an electric light maintained by the borough in

The rule as to responsibility of a landowner to passers-by for excavations or other dangerous conditions on his property, deducible

In the present case, the landowner could not be held to a foresight which would take into account that a traveler on a cement side walk, provided for the very purpose of affording him safe and comfortable passage, would step from this way, out of his line of travel, While ordinarily questions not raised both and, even unintentionally, trespass upon the by pleadings and proof should not be considered

(112 A.)

on the trial of an equity case, yet where the court and the parties by failure to make objection under equity rule 62 treated as raised questions not presented by the pleadings, the appellate court will do likewise.

4. Appeal and error 877(2), 1033(1) — No review of matters not disadvantageous to appellants or with which they have no concern. Matters not disadvantageous to appellants, and with which they had no legal concern, will not on their appeal be reviewed.

5. Contracts 9(1)-The courts are reluctant to destroy an executed agreement for uncertainty.

The courts are reluctant to destroy an executed agreement of the parties, though it might be too uncertain to be specifically enforced were it still executory.

6. Contracts 9(3)-Period of duration may be deduced from the nature of the subjectmatter.

Bill by Susan W. Rossmassler and another against Louis N. Spielberger and others. From a decree for defendants, plaintiffs appeal. Affirmed, and appeal dismissed.

Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON,. SADLER, and SCHAFFER, JJ.

Joseph J. Brown and Henry P. Brown, both of Philadelphia, for appellants.

Archibald T. Johnson and Stevens Heckscher, both of Philadelphia, for appellee Franklin P. Kirkbride.

SIMPSON, J. Plaintiff, one of the appellants here, filed a bill in equity against nine individuals, alleging therein that she had been the legal and still was the equitable owner of certain shares of the preferred and common stock of the Nice Ball Bearing Company (hereinafter called the Nice Company); / that by sundry agreements, which she recites, five of the defendants became voting

Where no period of duration of a contract is stated, it will not be held void for uncertainty if the period can be ascertained from the sub-trustees of all of the stock of the company, ject-matter.

and held the legal title thereto; that Kirkbride, another defendant and appellee here, also claims to be the equitable owner of all the stock; that a special meeting to elect officers of the corporation was about to be held, at which Kirkbride, unless restrained, would require the voting trustees to vote all the stock in favor of the candidates he had selected, and would prevent plaintiff from voting the shares of which she was the equitable owner; and prayed an injunction there against and other consonant relief. Subsequently the other appellant, claiming to be the equitable owner of a like number of shares of each class of stock, and to be in the same situation as plaintiff, applied for and was given leave to join in the suit. Four of the defendants specifically answered all the averments of the bill, denying plaintiff's alleged ownership; one demurred; one appeared, but did not answer; and the other three neither appeared nor answered. Without discontinuing the suit as to those not answering, without having the demurrer disposed of, without joining the corporation and the other shareholders, in like situation with themselves, as parties to the suit, and without amending the bill in any respect, plaintiffs filed a replication and set the case down for trial; and thereat, without defendant Kirkbride filing a cross-bill, they and he proceeded to try the title to all the stock of the company, resulting in a decree that ne owned it all, and that the bill should be dismissed. Plaintiffs appeal therefrom, without objecting to the irregular procedure above referred to, alleging as error only the decision in favor of Kirkbride's claim of ownership. With hesitancy we overlook these irregularities and consider only the objections now made by appellants.

The single question to be decided is, there, By an agreement between the Steele Comfore: Was Kirkbride the owner of the shares pany and McAdoo, dated February 20, 1918, of stock of the Nice Company claimed by the former agreed that, if it was paid its plaintiffs? The court below held that the claim against the Nice Company in full beanswer to them depended entirely on the in- fore April 1, 1918, or if there was produced terpretation of certain agreements made by an executed agreement with satisfactory parthe various parties to the suit and a letter ties agreeing unqualifiedly to pay the debt written by appellee, giving as its reasons within 120 days from that date, it would that these papers apparently set forth all transfer to McAdoo its interest in the agree the rights and liabilities of the parties in ment of February 15, 1918, and its title to the relation to the stock, and there was neither one half of the common and preferred stock averment nor proof of anything added or of the Nice Company. McAdoo thereupon, as omitted by fraud, accident, or mistake. It agent for the old stockholders, including apbeing conceded that on this appeal we need pellants, sought to interest outside parties in look no further, our duty will be performed the business, and finally obtained a letter when we set forth the situation of the par- from defendant Kirkbride, dated April 1, ties at the dates of the agreements and let- 1918, by which the latter agreed to purchase ter, and then interpret so much of them as the Steele Company's interest on the terms bears upon the question at issue. stated therein, provided there was assigned The Nice Company, being in serious finan- to him (Kirkbride) the other one half of the cial difficulties, and indebted to the William preferred and common stock, for which McSteele & Sons Company (hereinafter called Adoo held voting trust certificates, "so that the Steele Company) in the sum of approxi- the entire capital stock, carrying with it the mately $250,000, conveyed its real estate and entire business and all the assets of every plant to the latter company as collateral se- nature, will then vest in the purchaser curity for said debt, and took back a lease [Kirkbride] free and clear of all incumthereof, agreeing to pay $2,095.77 at once brances," except certain ones not necessary and $3,000 each month until the debt was to recite. This letter will be further repaid. None of these payments were made ferred to later on when considering appelbecause other creditors objected, and threat- lants' contentions, which are largely foundened legal proceedings against the Nice Com- ed upon it. For the present it is sufficient pany, which probably would have resulted to say it was accepted by McAdoo for the in setting aside the deed. As a consequence stockholders, including appellants, and four negotiations were entered into resulting on agreements based upon it were drawn and February 15, 1918, in an agreement between executed on the same day: One between the Nice Company, the Steele Company, the Steele Company and Kirkbride, by which Henry M. McAdoo, agent for all the stock- the former transferred to the latter its inholders of the Nice Company (the agreement terest in the agreement of February 15, 1918, being assented to in writing by plaintiffs and including its interest in half of the stock of all the other stockholders), all the creditors the Nice Company; a second between the who had claims exceeding $1,000, and by five same parties by which the former transferof defendants who were therein named as red to McAdoo its claim against the Nice voting trustees. It provided, inter alia, that Company; the third between McAdoo and McAdoo should cause all the stock to be Kirkbride, by which the former transferred transferred to the voting trustees; that the to the latter all the rights he acquired under Steele Company should extend further credit the first and second of the above agreements; to the Nice Company; should relinquish its and the fourth also between the last-named claim upon some $50,000 of the machinery it parties, by which it was agreed, if Kirkbride held as security for its debt; should super- purchased the claims of the other creditors of vise and manage the business of the latter the Nice Company, some of which were not company; should surrender the lease; and parties to the agreement of February 15, should subordinate its claim to those of the 1918, he should receive a transfer of the othother creditors, who should be "paid in fuller one-half of both preferred and common at the end of one year from the date hereof, stock, "thereby vesting in him [Kirkbride] by this agreement shall end"; the Steele Company to retain title to the real estate in the meantime, and it or its nominee to receive one half of the voting trust certificates, representing one half of both kinds of stock; and McAdoo, as agent for the old stockholders, or his nominee, to receive voting trust certificates for the other half thereof. In accordance with this agreement the stock of the Nice Company, which was then of little or no value, was transferred to the

or

*

this agreement and by another agreement of even date herewith [the third above referred to] all of the capital stock of the said [Nice] Company." The letter of Kirkbride above mentioned is not referred to in any of these agreements.

Kirkbride subsequently paid the Steele Company in full, and received an assignment of its interest in the stock of the Nice Company, and the voting trustees thereupon gave him, as nominee of the Steele Compa

(112 A.)

certificates. This ended the Steele Compa-, it is clear, since the Steele Company was to ny's interest in the stock and its connection supervise and manage the Nice Company with the Nice Company's affairs. He also pending the adjustment, gave up $50,000 of purchased the claims of all the other cred- its security, and subordinated its claim to itors of the Nice Company (except certain that of the other creditors, there is an ample ones paid by the company itself, without his outside consideration for the transfer of the knowledge or consent, prior to the agreement stock, and usury cannot be predicated of next recited), and received from the voting such an agreement; for "it is not in the powtrustees, at McAdoo's direction and as his er of the court or jury, under the evidence, nominee, the remaining half of the voting to separate that sum into parcels, and say trust certificates, thereby becoming the hold- how much [the Nice Company] was paying consideration of er, and, if the agreements are controlling, in the * * other the owner, of all of them, and entitled to re- benefits which [it] was getting under the ceive all the stock of the company, of both article, and how much it was paying in conclasses, when the voting trust should end. sideration of the satisfying" of the existing indebtedness. Guillinger v. Zahniser, 3 Sad. 555, 558, 6 Atl. 705. To the same effect is Heist v. Blaisdell, 198 Pa. 377, 48 Atl. 259. In addition, Kirkbride is a purchaser for value, at the Nice Company's request, and, not having been a party to the usurious agreement, even if there was one, cannot now be deprived of his rights by reason thereof.

*

[3] The other three contentions are all founded upon appellee's letter of April 1, 1918, above recited. Admittedly the provisions of this letter were not merged in the four agreements of even date therewith, and based thereon; and hence we are required to determine whether or not it has the effect of defeating the clear title to the stock, vested in appellee by the agreements themselves. It does not, directly do so; for, as already quoted, it distinctly declares that the stock should all belong to him. It states also, however:

By an agreement dated February 15, 1919, between the Nice Company, Kirkbride, McAdoo, and the voting trustees (assented to in writing by all the old stockholders of that company, including plaintiffs), it is recited that "Kirkbride is the holder and owner of all the issued and outstanding common and preferrred stock of the Nice Company" by virtue of the agreements and facts hereinbefore set forth; and the agreement of February 15, 1918, is thereby extended for a further period of six months "pending the submission of a plan satisfactory to the said Franklin B. Kirkbride relating to the operation of the Nice ✦✦✦ Company hereafter"; "all the other terms, conditions, stipulations, and provisions contained in said creditors' agreement of February 15, 1918 [to] remain in full force and effect in the same manner as though said agreement had provided for an extension thereof until August 15, 1918." No plan was thereafter submitted, nor was anything further done by the Nice Company, or its old stock"The purchaser [Kirkbride] to agree to reholders, after the last-mentioned date, look-serve annually from the net profits $25,000 to be paid to McAdoo et al. [old stockholders] being to their redemption of the stock, or com- fore payment of any dividends, and plying with the agreement of February 15, my further understanding [is] that the present organization will continue in the employ of the new owner, * [and I am] willing to consider the adoption of a bonus plan giving the executive officers an opportunity to share in the net profits of the company in excess of $175,000 per annum."

1918.

[1, 2] It is clear from the above agreements (all of which were drawn and approved by counsel for the respective parties, and hence, for this additional reason, must be presumed to fully set forth their intention) that Kirkbride became the equitable owner of all the preferred and common stock of the Nice Company, unless, aside from the agreements themselves, he had lost or not acquired the rights seemingly given to him thereby. Appellants allege four reasons why this is so. In the first place, they say the contract is usurious. This claim is founded on the fact that as, by the earlier agreements, the Steele Company was to receive the whole of their claim with interest, and in addition one-half of the stock of the Nice Company, the gift of the stock must be treated as an additional payment and hence usurious; and, since Kirkbride is but an assignee of the Steele Company, the contract Atl. 643; must be so treated as to him also. Laying Atl. 868;

*

It is alleged that these provisions are so indefinite and uncertain as to be incapable of enforcement, and that the last thereof shows a term of the contract had never been agreed upon, and hence the whole matter is at large, the title to the stock did not vest in appellee, and he is remitted to a recovery from the Nice Company of the amounts due him with interest. Since these questions were not suggested by any of the averments of the bill, they would, under ordinary circumstances, be dismissed because the pleadings as well as the proofs do not raise these issues. Thompson's Appeal, 126 Pa. 371, 17 Luther v. Luther, 216 Pa. 1, 64 Caveny v. Curtis, 257 Pa. 575, 101