Offers of proof by Error to the Common Pleas of Lancaster County. never is real estate, and is only treated as such dating the deed about three months. within a limit, which all the cases agree, is the the defendants of declarations made by the grantor first transmission. To quote again from Hay's within periods of fifteen months before the alleged insanity began, or eighteen months before the execution of the Appeal, it descended as personalty, which it deed, that he intended to execute "this conveyance," or actually was. The provision in the Act of As-"a deed" to the defendants, were rejected by the Court, sembly extended no farther than to regulate the partly on the ground that they were too remote in time: first descent, and prevent the fund from passing Held, to be error. directly from the wife to the husband. After it had vested in the heirs" (and it is to be remembered that in that case as in this, it never did vest in possession) "it was no longer real estate Ejectment by John Rice, Catharine Stewart, for any purpose." And in the language of and Charles S. Stewart, her husband, Jacob Rice, SHARSWOOD, J., in Foster's Appeal (74 Pa. 397), Susan Whiteside, and George Whiteside, her "conversion is altogether a doctrine of equity. husband, Sarah Stewart, and Alexander Stewart, It is admitted only for the accomplishment of her husband, and Rebecca Pearson, against Daniel equitable results. It may be termed an equitable E. Rice, Jr. and Joseph S. Rice, to recover sixfiction, and the legal maxim in fictione juris sem-eighths of a certain tract of land in Lancaster per subsistit æquitas, has redoubled force in appli-County. All of the parties to the suit were cation to it. It follows, of necessity, that it is children of Daniel Rice, Sr., who died intestate, limited to its end... When the purpose April 15, 1884, with the exception of Rebecca of convenience is attained, conversion ends." Pearson, a grandchild. When therefore the real estate of Peter Emerick Upon the trial, before PATTERSON, J., plainwas sold, Wilhelmina's share of the proceeds tiffs showed that Daniel Rice, Sr., obtained passed to her as real estate, but having vested in title to the property in question from Daniel her, either in possession or in remainder, after E. Rice, and wife, by deed, dated March 23, her mother's life interest, the purpose of the 1875 (consideration, $4725); and died intestate, equitable or constructive conversion was fully leaving to survive him, a widow, and the parties accomplished, and the money resumed in law to the suit as heirs-at-law, and rested. its actual character as personalty, and as such passed to her son, and through him to his father, and then to the father's personal representative. Decree affirmed. July '88, 72. Rice v. Rice. C. K. Z. May 20, 1889. In a contest as to the validity of a will, on account of the incapacity of the testator, or on the ground of fraud, it is proper for the jury to be informed what had been the testator's intentions when his understanding was unquestionable; and the same rule applies to contests as to the sanity of the grantor in a deed. Irish v. Smith (8 S. & R. 573), and Wilkinson v. Pearson (23 Pa. 117), followed. Declarations of the grantor made subsequent to the execution of a deed, are competent evidence on the question of sanity. No limit of time can be absolutely fixed in regard to declarations admitted for such purpose, although, of course, the more remote they are, the less weight they are entitled to. In an action of ejectment, defendants relied upon a deed dated July 25, 1882. Plaintiffs showed that an inquest in lunacy on January 19, 1884, found that the grantor was insane, and had been so for one year and nine months preceding, the lunacy of grantor, therefore, ante Defendants offered in evidence a deed from Daniel Rice, Sr., and Mary A., his wife, to them for the property in question, dated July 25, 1882 (consideration, $2250), and rested. In rebuttal, plaintiffs showed that on December 7, 1883, proceedings in lunacy were instituted against Daniel Rice, Sr., and on January 19, 1884, there was a finding by the inquest that he was of unsound mind, and had been for one year and nine months preceding, his lunacy, therefore, antedating the execution of the deed to defendants about three months. This finding was duly traversed and the trial thereupon is still pending. The Court held that the finding of the inquest was prima facie evidence of the lunacy of Rice at the time he executed the deed, and that the burden of proving him sane was upon defendants. Numerous witnesses were then called by defendants to prove that Rice was sane, and by plaintiffs to prove that he was not. Defendants made the following offers of proof : (1) We propose to ask this witness [Samuel Hughes] to repeat the conversations that he had with Daniel Rice within a period of six months preceding April, 1882, the time of the stroke of paralysis, in which conversations Daniel Rice declared his intention to execute this conveyance to Daniel and Joseph, giving his reasons therefor, namely: that they had done more for him than his other children, and that he had spent enough on the other children, naming them. (2) To prove by this witness [Henry Girvin], that he knew Daniel Rice, Sr., intimately, for many years before his death, and in the year 1881, when Rice was unquestionably of sound mind, repeatedly heard him say, that he, the said Daniel Rice, Sr., intended to execute a deed to the defendants for the property in controversy, giving his reasons for such intention. (3) To prove by this witness [Ellwood Knox] that he knew Daniel Rice, Sr., intimately, for many years before his death, and in the year 1881, when Rice was unquestionably of sound mind, repeatedly heard him say, that he, the said Daniel Rice, Sr., intended to execute a deed to the defendants for the property in controversy, giving his reason for such intention. Objected to. Objection sustained. Exceptions. The jury found for plaintiffs for six-eighths of the land in question. Defendants took this writ, assigning for error the rejection of their offers, as above. Benjamin F. Davis and J. Hay Brown, for plaintiffs in error, cited— Irish v. Smith, 8 S. & R. 579. W. M. Franklin and H. M. North, for defendants in error. None of the cases cited by plaintiffs in error are applicable here. All of the Pennsylvania cases arose in contests about wills, and related entirely to gifts, and do not apply to the case of a bargain and sale, and conveyance of real estate. May 29, 1889. THE COURT. This case is clearly ruled by Irish v. Smith (8 S. & R. 573). In regard to the competency of evidence as to the sanity of the maker, there is no difference in principle between a will and a deed, and the authorities have not admitted any. on the authority of Irish v. Smith that the evidence was competent on the question of sanity. The declarations offered in the present case seem to have been excluded partly on the ground that they were too remote in time, though what period of time the Court fixed is not clearly discoverable from the evidence printed in the paper book. It may be doubted if any limit of time can be absolutely fixed in regard to declarations admitted for the purpose in question, though of course the more remote they are the less weight they will properly be entitled to. The finding of the inquisition dated the insanity of Rice from the stroke of paralysis in April 1882, and the deed in controversy was made in July of the same year. The declarations offered were made in 1881 and the early part of 1882. None of them therefore was more than fifteen months before the alleged insanity began, or more than eighteen months before the disputed deed. They certainly were not too remote. In Wilkinson v. Pearson the interval was more than two years but no question seems to have been raised on that ground. Nor is the variance between the declarations offered and what Rice subsequently in fact did, of any weight. The first offer was of "an intention to execute this conveyance," and was not open even to this argument. The others were of an intention to execute "a deed." There was not therefore any real variance at all. But even if the declared intention had been to make a gift as it seems to have been regarded by counsel, it would have been an altogether immaterial variance, as the fact that a grantor made a better bargain for himself than he had declared his intention to do when unquestionably sane, was certainly some proof of his competency to know what he was doing when he did make the grant. The rejection of this evidence was therefore erroneous. Judgment reversed and a venire de novo awarded. Opinion by MITCHELL, J. H. C. C. The case of Irish v. Smith arose upon a contest as to a will, but the reasoning of C. J. TILGHMAN is equally applicable to the case of a deed. "The will of 1814, was impeached on two grounds: 1. for incapacity of the testator; 2, because it was obtained by fraud and improper management. In both points of view, it was proper for the jury to be informed what had been Jan. '89, 291. the testator's intentions when his understanding was unquestionable." And in Wilkinson v. Pearson (23 Pa. 117), similar declarations were ad- Master and servant—Compensation—Dismissal mitted in a contest as to the sanity of the grantor, in a deed, and KNOX, J., put the admissibility expressly upon the principles of Irish v. Smith. In Chess v. Chess (1 Pen. & Watts, 32), the same principle was applied to the much more doubtful case of declarations made subsequently to the execution of the deed, the Court holding March 13, 1889. Emery et al. v. Steckel. before expiration of term of employment-Burden on defendant to show that plaintiff might have obtained employment elsewhere. cient excuse, he is entitled, prima facie, to recover the Where a servant has been discharged without suffiextent of his wages. for the whole term. He is bound, however, to use reasonable efforts to obtain employment of the same or a similar character in the same neighborhood; but the burden of showing that he might have found such employment is on the defendant. Error to the Common Pleas of Northampton D. Emery and T. B. Brown, trading as T. B. The facts are fully stated in the opinion of the The defendants requested the Court to charge, until July 25, 1887, when without cause or sufficient legal excuse he was discharged. He avers that he stood ready and willing at all times cording to the nature and terms of his employduring the period stated to perform his duty, acthat is to say according to the rate of compensament, but his services were refused; his claim is for damages upon the footing of his contract, tion agreed upon. The defendants deny the existence of such a contract; they allege that the plaintiff was employed at the rate of $70 per month, but for no determinate period; that his withdrawal from the defendants' service was (2) "That it was incumbent upon Steckel to exercise due diligence to obtain other employ failed to discharge the duties which he undervoluntary; that Steckel was incompetent, and ment, and if the jury found that he did not ex- took to perform, and that the defendants were ercise such due diligence, there can be no recovery." Answer. This point, as an abstract justified upon either or all of these grounds in principle of law might be true, but there is noth-discharging him from their employment. The ing in this case that involves the application of facts in dispute, however, have been settled by the legal principle, because the defendants, upon the jury, and in the further consideration of the whom the burden of proof rests, have not shown case here we must proceed upon the plaintiff 's that he did not attempt to obtain employment, theory of the ease on the facts. or that he might have obtained employment and inter alia, as follows: refused it." The Court, REEDER, J., charged the jury, inter alia, as follows: "There is no evidence in this cause which you can take into consideration in mitigation of damages, excepting the testimony showing that Mr. Steckel was employed during a part of these nine months, and for which he received a hundred dollars, I believe the testimony is. You will recollect what the testimony is upon that subject. The burden of proof was upon the defendants to show that he might have received other employment had he sought it." Verdict for plaintiff for $410.14, and judgment thereon. Defendants took this writ, assigning for error (1), the answers to the point, and (2), the portion of the charge quoted. Edward J. Fox (Edward J. Fox, Jr., with him), for plaintiffs in error. Before plaintiff was entitled to recover wages, when a promise for continuing employment is broken, he must establish that he used due diligence in endeavoring to obtain employment, but was not successful. Beckham v. Drake, 2 H. L. Cases, 606. May 6, 1889. THE COURT. The contention of Steckel, the plaintiff below, was that he had been employed by T. B. Brown & Co. to keep their books, etc., for a period of nine months from the fourth day of June, 1887, at the rate of $70 per month; that he remained in defendants' service and was paid at the rate agreed upon defendants' counsel, in substance, requested the In anticipation of this finding by the jury the Court to instruct the jurors that it was incum bent upon Steckel after his discharge to exercise due diligence to obtain other employment, and if they should find that he did not exercise a proper degree of diligence to that end he could below declined so to instruct the jury, saying not recover. The learned Judge of the Court that the burden of proof was upon the defendeither failed to seek employment or refused it ants, and that as it was not shown the plaintiff when offered, or that he might have obtained employment had he made a proper effort, the point of law suggested had no application to the case. "There is no evidence in this cause," said the learned Judge in his general charge, 66 which you can take into consideration in mitigation of damages, excepting the testimony showing that Mr. Steckel was employed during a part of the nine months and for which he received a hundred dollars," etc. “The burden of proof was upon the defendants to show that he might have received other employment had he sought it," etc. The answer to this point, and this portion of the charge, to the same effect, are the only matters embraced in the several assignments of error. It is well settled that where a servant has been discharged without sufficient excuse, before the expiration of his term of employment, he may in addition to the wages earned recover the damages actually sustained; prima facie, he is entitled to recover to the extent of his wages for the whole term. (Fereira v. Sayres, 5 W. & S. 210.) He is bound, however, to use reasonable efforts to obtain employment elsewhere; if he fails to find it of the same or a similar character in the same neighborhood he may recover to the | Jan. '89, 175. This would seem to be the doctrine of all the Our own cases are to the same effect. In King v. Steiren (44 Pa. 99), the rule is stated with much clearness, that in this class of cases the plaintiff is prima facie entitled to the stipulated compensation for the whole time. If so," says the learned Judge delivering the opinion, the burden of proof in regard to his employment elsewhere, or his ability to obtain employment, must necessarily rest on the defendant. All evidence in mitigation is for a defendant to give. In its nature it is affirmative and hence it is for him to prove who asserts it. But the possibility of obtaining other similar em- | ployment, or the fact that other employment was obtained, bears upon the case only in mitigation of damages, and is therefore a part of the defendant's case." This case was followed by Kirk v. Hartman (63 Pa. 107), where it is said that the question must be considered as settled in King v. Steiren (supra), and to the same effect are the cases of Wolf v. Studebaker (65 Pa. 459) and Chamberlin v. Morgan (68 Id. 168). The judgment is affirmed. Opinion by CLARK, J. W. M. S., Jr. March 13, 1889. Shaefer v. Senseman. Agreement under seal-Construction of, for the Court where no ambiguity exists-Meaning of the words loses his situation." A. brought suit against B.'s executrix upon an obligation in the following form: 66 Nazareth, March 29, 1875: Six months after the date when A. loses his situation as teacher at Nazareth Hall I promise to pay the said A. the sum of Three Thousand Dollars without defalcation for value received, provided that the said A. loses said situation at any time after the date of this note and previous to the date of my second marriage. In the event of the decease of my daughter (A.'s wife), before the said A. loses said situation this note shall be null and void. Witness my hand and seal. B. (Seal.) Witness: X. A. introduced evidence to show that at the time this obligation was given A. and his wife were living with B., that the latter was contemplating a second marriage, which was distasteful to them, and that they were about to move to another place, where A. had accepted a more lucrative position; that B. gave the above obligation in consideration of A.'s agreement to continue to live with him. On June 29, 1876, A. resigned his position and accepted a position at a smaller compensation than the one he had previously accepted. On July 11, 1876, B. remarried, and subsequently died, in December, 1887. This suit was then brought against B.'s executrix. The lower Court granted a compulsory nonsuit: Held, that the nonsuit was properly granted. There was no uncertainty about the terms of the contract, and his situation," does not mean a voluntary resignation. its construction was for the Court. The expression "loses The inducement to B. to give the obligation was that he might enjoy his daughter's society and have the assistance of herself and A. at his home, until such time as he might contract a new marriage. Error to the Common Pleas of Northampton County. Assumpsit by Eugene L. Shaefer against Caroline E. Senseman, executrix of Comenius Senseman, deceased, upon an obligation under seal. The facts of the case are fully given in the opinion of the Supreme Court, infra. The Court, REEDER, J., granted a compulsory nonsuit, saying: "This is a suit upon contract brought by the plaintiff in this action, against the executrix of Comenius Senseman, deceased. "The decedent executed the note in suit upon which the plaintiff seeks to recover. He agrees by this obligation to pay the plaintiff, Eugene Shaefer the sum of three thousand dollars, six months after the said Eugene Shaefer loses his situation as teacher at Nazareth Hall, provided he loses his situation previous to the date of his (Senseman's) second marriage. "The testimony in the cause is that of the plaintiff's witness. It establishes the fact that prior to the date of the second marriage of Co menius Senseman, Eugene Shaefer voluntarily in contemplation a second marriage with a cerwithdrew from his connection as a teacher at Naz- tain Mrs. Knauss. Mrs. Shaefer, with her husareth Hall. [He claims in this proceeding that band, lived at home with her father. The effusuch withdrawal under the circumstances was the sive character of the courtship, and the contemcontingency contemplated by the condition in plated marriage of the father were exceedingly the note upon which depended the payment of distasteful to Mr. and Mrs. Shaefer, and on that the three thousand dollars. Whether this is so account they were making arrangements to reor not depends upon the construction, by the move from Nazareth to Bethlehem, where Shaefer Court, of the words, loses his situation as a had succeeded in being elected the Superintenteacher at Nazareth Hall.' It, therefore, in any dent of the Moravian parochial schools. It was event would not be a subject for your considera- at this particular juncture in the affairs of the tion, but a question of law for the interpretation family, on the 29 March 1875, the obligation in and determination by the Court.] suit was given, in the form following: "I am satisfied at this stage of the proceeding that the voluntary withdrawal of Eugene Shaefer as a teacher from Nazareth Hall, was not the condition that all the parties intended to express by the words used in this note, that is, so far as we can derive their manifest intent from the written letter of the contract. [A man loses his situation by his involuntary act. No person loses a place which he withdraws from on his own motion. Where he is forced by circumstances beyond his control to withdraw from the situation], either by the action of the authorities controlling it, or his health is in such condition that his life is endangered, or where his health is imperilled by his continuance in the position, it is not a voluntary withdrawal, but it would be a loss of his situation such as is within the letter of this contract. "But the evidence in this case discloses no such state of facts. It shows that Eugene Shaefer, because of his dissatisfaction with his father-inlaw's second marriage withdrew voluntarily from his position as a teacher in Nazareth Hall. That was not the event contemplated by this contract upon the happening of which the payment of the money became due. I therefore propose to make this motion for the entry of a compulsory nonsuit absolute and will discharge you from the further consideration of the case.' The Court having refused to take off the nonsuit, plaintiff took this writ assigning for error (1) The Court erred in entering a compulsory nonsuit against the plaintiff; (2) the Court erred in denying the motion of plaintiff to take off and vacate the compulsory nonsuit. NAZARETH, March 29, 1875. Six months after the date when Eugene L. Shaefer loses his situation as teacher at Nazareth Hall, I promise to pay to said Eugene L. Shaefer, the sum of three thousand dollars, without defalcation for value received. Provided, that the said Eugene L. Shaefer loses said situation at any time after the date of this note, and previous to the date of my second marriage. In the event of the decease of my daughter Jennie Shaefer, before the said Eugene L. Shaefer loses said situation, this note shall be null and void. Witness my hand and seal, C. SENSEMAN, (Seal.) Witness present SOLOMON SHAEFER. On the 29 June, 1876, Shaefer resigned his situation at Nazareth Hall, where he was receiving $800 per year, and accepted a position at Bethlehem, at a salary of $900; and on the 11 July following, Senseman was re-married. In the month of December, 1887, Senseman died, and on the 12 June, 1888, Shaefer brought this suit, to recover the amount specified in the bond, claiming that by his resignation, under the circumstances, he lost his situation at Nazareth Hall, within the meaning and according to the conditions of the bond. The obligation is certainly unique and original in its provisions, but it contains no words pertaining to art or trade; being written in plain and popular language, and as the facts and circumstances attending its execution and delivery are wholly undisputed, we can see no force in the suggestion, that the interpretation was for the jury. The case turns upon the true and proper construction of the obligation in suit, taken as a whole, in the light of the admitted facts and circumstances under which it was exeApril 8, 1889. THE COURT. It is conceded cuted. The construction in such case is a question that at the date of the obligation in suit, Eugene of law with which the jury has nothing to do. L. Shaefer was a teacher in the Moravian School The object of interpretation and construction at Nazareth, known as Nazareth Hall, of which is, if there be any uncertainty as to the meaning Rev. Eugene Leibert was the principal. Shaefer's of a contract, to find the intention of the parties. wife was a daughter of Comenius Senseman, the If the contract is clear and unambiguous there is obligor, who was at the time a widower, and had no room for construction. The parties, in the Herry W. Scott (W. D. Luckenbach with him), for plaintiff in error. Edward J. Fox, Jr., and Edward J. Fox, for defendant in error. |