the sale, and, if nothing more appeared in the case, they might now well contend that the condition of their bond was performed. They are bound only as their obligation binds them, and their liability is not to be extended beyond the express words of their covenant (Weightman v. Union Trust Co., 208 Pa. 449, 57 Atl. 879); but, while this is so, they are not to be permitted to escape liability under a mere mask of performance. The performance contemplated by their bond was real, and not a sham. In standing upon their alleged performance, the law will sustain the appellants if they performed in good faith, and with the intention of honestly complying with their obligation. If, on the other hand, after they had bid $11,000, they induced an irresponsible person to bid more, for the purpose of relieving themselves from their bid and all liability on their bond, they were not discharged from its obligation, and the jury were so instructed by the learned trial judge. The testimony of the receiver, if believed by the jury, was all-sufficient to lead them to the conclusion that the appellants, instead of acting in good faith, had fraudulently attempted to evade responsibility for their bid. George B. Hill, the vice president and treasurer of the Doubleday-Hill Electric Company, one of the obligors in the bond, attended the sale and bid $11,000, but subsequently, according to the testimony of the receiver, he said to Klein, the irresponsible bidder: "Klein, you bid another $50, making the bid $11,250, and I will return you the $250 if you will come to my office in the morning, so that the park will only stand you $11,000:" This was denied by Hill, but it was for the jury to determine whether he or the receiver was telling the truth. The real issue was the good faith of the receiver in selling, and of the appellants in bidding. The latter complain that the former had neglected his duty in failing to get 15 per cent. of the $11,250 in cash at the time of the sale, as directed by the order of court. As to this the court thus correctly instructed the jury: "You will notice this order says that the terms of sale shall be cash; that is, the terms of sale shall not be credit. The court ordered that this sale should be so much cash, and that time be given for the balance. The order means that the sale shall be for cash, 15 per cent. upon the day of sale at the time of sale, and the balance upon the confirmation of the deed. In ordinary transactions embracing considerable sums of money—that is, in the usual and ordinary course of business-the payment is by check. And the court is construing this order, which says the terms of sale shall be cash, to mean in contradistinction to credit. * * So, gentlemen of the jury, in arriving at your verdict in this case, as the court has suggested to you, the whole matter then depends upon the facts

and circumstances arising out of this sale. If this receiver had knowledge, or if there were grounds sufficient to lead a reasonably prudent person to believe that Klein was an irresponsible bidder, and he had been notified to obtain the hand money, and, under such notice, he then said, in substance, 'I will assume the responsibility of this bid and take the chance myself,' and the defendants had in good faith made their bid, then they would be relieved from any liability under this bond, for that would be the fault and the neglect of the receiver in making the sale, in not insisting upon having a proper check or cash in such a shape that he knew that the hand money was good. Now the burden is on the plaintiff in this case to establish to you under the weight of this evidence that this receiver did conduct that sale in good faith under this order of court, and that he exercised the proper care, as the court has already said, in carrying out this order of court, and the sale consummated so far as in his power could be done as receiver. If there was no fault upon his part, or if the defendants, through their own fault, caused this sale to be knocked down to an irresponsible bidder and a check received for which there were no funds in bank, then they have no defense in this case, as they were bound then to appear at any future sale and make good under their bond a bid of $11,000."

The verdict conclusively establishes the good faith of the receiver and the bad faith of the appellants at the sale, and the only question for determination on this appeal is whether any reversible error was committed by the court in the submission of the case to the jury. Eight of the 30 assignments of error complain of rulings on offers of evidence. We find nothing in them calling for a reversal of the judgment. The admitted offers were pertinent to the matter at issue. No rule of evidence was disregarded in the rulings which are the subjects of the first eight assignments, and they are therefore dismissed without further discussion.

We have not been persuaded that this case ought to go to another jury on account of the inadequacy of the charge. Nothing appears in those portions of it complained of, nor in the answers to the points assigned as error, which could have led the jury away from the single question before them or beclouded them in passing upon it. That question was the good faith of the parties to this proceeding at the sale on September 23, 1908. It was one of pure fact, and, having been determined against the appellants, they must submit to the judgment upon it. The amount they will have to pay is what they owe, under properly admitted evidence, as a penalty for failure to faithfully perform as they had promised.

Judgment affirmed.

(243 Pa. 253)

DOMINION TRUST CO. v. HILDNER. (Supreme Court of Pennsylvania. Jan. 5, 1914.)

1. BILLS AND NOTES (§ 129*)-CONSTRUCTION -"ON DEMAND."

The words "on demand" in a note do not make the demand a condition precedent to a right of action, but import that the debt is due immediately, or at least that the commencement of a suit therefor is a sufficient demand.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 283-292; Dec. Dig. § 129. For other definitions, see Words and Phrases, vol. 6, p. 4970.]

2. BILLS AND NOTES (§ 188*)-DEFENSE-IN

AND NOTES.

Where a bank officer offers a note to the bank for discount, the bank is not chargeable with such officer's knowledge of fraud or want of consideration acquired in transactions not connected with his duties as a bank official. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 282-287; Dec. Dig. 8 116.*]

4 BILLS AND NOTES (§ 481*)-AFFIDAVIT OF

DEFENSE-SUFFICIENCY.

In an action on a negotiable instrument, an affidavit of defense which amounted merely to an averment of constructive notice, and did not charge that plaintiff took the note with actual knowledge of anything of a suspicious nature, or that he acted in bad faith, was insufficient.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1530-1532, 1559-1561; Dec. Dig. § 481.*]

Appeal from Court of Common Pleas, Allegheny County.

Assumpsit on note by the Dominion Trust Company against one Hildner. From judgment for plaintiff, defendant appeals. Affirmed.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Robert H. Leitch, of Pittsburgh, for appellant. Louis Caplan, George E. Reynolds, Scandrett & Barnett, and T. C. Noble, all of Pittsburgh, for appellee.

POTTER, J. [1, 2] This is an appeal from a judgment entered for want of a sufficient afidavit of defense. The plaintiff brought suit against the defendant as maker of a promissory note payable on demand. It is suggested that the statement of claim does not show that plaintiff made demand upon defendant for payment before bringing suit. This was not necessary. As this court said in Andress' Appeal, 99 Pa. 421, "the words 'on demand' in a note do not make the deand a condition precedent to a right of

action, but import the debt is due and demandable immediately, or at least that the commencement of a suit therefore is a sufficient demand." To the same effect is the decision in Swearingen v. Sewickley Dairy Co., 198 Pa. 68, 47 Atl. 941, 53 L. R. A. 471, where it was held, as set out in the syllabus: "On an obligation for the payment of money on demand, the statute of limitations begins to run at once. Suit is a sufficient de

mand, and must be brought within six years." Nor was it necessary that the note should have been indorsed by the party from whom plaintiff purchased the note. It was indorsed in blank by the defendant, which was equivalent to making it payable to bearer. After that the note was negotiable by delivery. Section 30, Negotiable Instruments Act May 16, 1901 (P. L. 194).

[3, 4] In the affidavit of defense it is alleged that the note was purchased from Mr. Lyon, who was at the time president of the plaintiff company, and that Lyon had knowledge of facts which would constitute a good defense to the note. But, as the court below says, his knowledge of the facts was not gained while acting in any way for the trust company. He was acting for himself, or for another concern, in a different transaction. And in selling the note to the plaintiff company, his interests were antagonistic. It is true that in another capacity he was the agent of plaintiff. But, as was said in Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa. 327, 37 Atl. 550, 59 Am. St. Rep. 650, "no agent who is acting in his own antagonistic interest, or who is about to commit a fraud by which his principal will be affected, does in fact inform the latter, and any conclusion drawn from a presumption that he has done so is contrary to all experience of human nature." In the same opinion reference is made to the authorities which hold clearly that a bank officer who offers to his bank a note for discount is to be regarded in that transaction as a stranger, and the bank is not chargeable with the officer's knowledge of fraud or want of consideration for the note. This principle must be regarded as settled law. See Merchants' Nat. Bank v. Lovitt, 114 Mo. 519, 21 S. w. 825, 35 Am. St. Rep. 770, and the cases there cited. We agree with the court below that the affidavit of defense contains no sufficient averment of actual notice to the plaintiff of any defense to the note. The affidavit is evasive, and amounts merely to an averment of constructive notice. This is not enough. It is admitted that the note was genuine, was negotiable in form, and that appellee purchased it for value. There is no averment that plaintiff took the note with actual knowledge of anything of a suspicious nature, much less that it acted in bad faith in any way, in the transaction.

The assignments of error are dismissed, and the judgment is affirmed.

(243 Pa. 292)

DU BRUILLE et al.

(Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. TRIAL (§ 139*)-DIRECTION OF VERDICT

EVIDENCE.

Where the evidence, though conflicting, was sufficient to sustain findings for plaintiff, in an action to determine the validity of a will, the court properly refused to direct a verdict for defendants.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 332, 333, 338-341, 365; Dec. Dig. § 139.*]

2. WILLS (8 400*)-PROCEEDINGS TO DETERMINE VALIDITY-APPEAL-JURISDICTION.

On appeal from judgment of the court of common pleas from a verdict for plaintiff on trial of issue to determine questions of fact relating to the execution of a will, the question whether the facts found showed proper execution under Act April 8, 1833 (P. L. 249), was one of law to be determined in the first instance by the orphans' court, and not by the common pleas, and hence was one which could not be passed on in the Supreme Court on appeal from the court of common pleas until the findings of fact had been certified to the orphans' court, and the question there decided.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 869-873; Dec. Dig. § 400.*]

wealth Trust Company.

The

have only to do with the trial of the disputed ELKIN, J. [1] In the present case we questions of fact submitted by the orphans' court to the court of common pleas. Under its precept, the orphans' court submitted three distinct and separate questions relating to the execution of the paper purporting to be the last will and testament of Cyrus C. Brock, deceased, for the determination of a jury in the court of common pleas. jury found all the facts submitted in favor of the proponents of the will, and, unless there was reversible error in the submission, the findings must be considered conclusive as to the facts submitted. Appellants contend that the evidence was not sufficient to warrant some of the findings, and that a verdict should have been directed in their favor. With this contention we cannot agree. While the evidence may have been conflicting, it was ample to sustain every finding, and it would have been error to have withdrawn the case from the jury, or to have

From the record it appeared that the orphans' court had ordered a precept to the court of common pleas to try certain questions of fact. The questions and answers of the jury thereto were as follows:

"1. Is the signature attached to the paper dated March 29, 1906, purporting to be the will of Cyrus C. Brock, deceased, his signa

ture? Answer: Yes.

"2. Did Cyrus C. Brock write the words written on the reverse side of the patch?

Answer: Yes.

"3. If the signature on the patch is the signature of Cyrus C. Brock, did he attach the patch to the paper, or authorize any one to attach it for him. Answer: Yes."

The court entered judgment on the ver

dict.

Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

F. P. Iams and J. D. Iams, both of Pittsburgh, for appellants. James G. Hays, of

justify a reversal of the judgment.

[2] It is argued for appellants that the facts found by the jury in favor of the proponents of the will are not sufficient to show a proper execution of the will under the Act of April 8, 1833 (P. L. 249). This position is the main reliance of their learned counsel. It need only be said by way of answer that this is a question of law for the orphans' court, and not for the court of here as to what constitutes a proper execucommon pleas. All of the questions argued tion of a will may be raised in the orphans' court, when the findings of fact in the common pleas have been properly certified. Appellants will not be concluded by anything decided in the present case from raising the questions of law relating to the effect to be

given the instrument purporting to be the

will of the deceased, and whether it was properly executed as required by law. But, in considering these questions, the facts found by the jury must be accepted as conclusively established. Judgment affirmed.

(243 Pa. 351) TARHAYI v. ALLEGHENY VALLEY ST. RY. CO.

(Supreme Court of Pennsylvania. Jan. 5,

1914.) STREET RAILROADS (§ 117*)-INJURY TO CHILD -NEGLIGENCE-QUESTION FOR JURY.

Where, in an action for injuries to a child from being struck by a street car, the evidence presented an issue of fact as to whether the child suddenly ran from the sidewalk in front of the car, and was not in view of the motorman until struck, or whether she was standing in the narrow space between the tracks, and hemmed in by the advance of the car and a wagon, and in full view, when the car started, the court properly refused to direct a verdict for defend

ant.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]

(243 Pa. 361)

MULLIGAN et al. v. HOMESTEAD
BOROUGH.

(Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. MUNICIPAL CORPORATIONS (§ 804*)-DanGEROUS SIDEWALK-INJURY TO CHILD-CONTRIBUTORY NEGLIGENCE.

Where a child 11 years and 6 months of age was injured from coming in contact with the loose ends of a barbed wire fence extending only with the degree of care ordinarily to be over a narrow sidewalk, she was chargeable expected of a child of her age.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1674-1676; Dec. Dig. § 804.*1

2. NEGLIGENCE (§ 85*)-INJURY TO CHILDCONTRIBUTORY NEGLIGENCE.

Trespass by Stef Tarhayi, in his own behalf, and in behalf of Johanna Tarhayi, his minor child, against the Allegheny Valley Street Railway Company, a corporation, for personal injuries. From judgment for plaintiffs, defendant appeals. Affirmed.

Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ.

A. Wilson McCandless and Stone & Stone, all of Pittsburgh, for appellant. J. M. Friedman, of Pittsburgh, for appellee.

PER CURIAM. A girl six years old was returning from school with a number of children of about the same age, and was injured by the defendant's car on a village street where it had two tracks. The car had been stopped on the south track to await the removal of a horse and wagon which were in front of it. After these were removed, the car was started quite slowly, and had moved twice its length when the girl was struck. When the car was started the track in front of it was clear; but a horse and wagon moving in the opposite direction were advancing on the north track. The questions of fact at the trial were whether the girl had suddenly run from the sidewalk, and was not in view of the motorman until the moment she was struck, or whether she and other children were standing in the narrow space between the tracks, and in full view, when the car was started.

The assignments of error are to the refusal to direct a verdict for the defendant. Whether the children were between the tracks and the motorman saw or should have seen them, or whether, hemmed in by the advance of the car and the wagon, they were in such position that, under the impulse of fright, they would be apt to run across the tracks, were questions for the jury. They were submitted with most careful instructions, to which no exceptions were taken. The judgment is affirmed.

of his age and intelligence.

[Ed. Note. For other cases, see Negligence,

Cent. Dig. §§ 121-128; Dec. Dig. § 85.*1

Appeal from Court of Common Pleas, Allegheny County.

Trespass by Eleanor Mulligan, a minor, by her father and next friend, Thomas F. Mulligan, and another, against the Borough of Homestead, for personal injuries. From judgment for plaintiffs, defendant appeals. Affirmed.

PER CURIAM. [1] The negligence of the defendant in permitting, for many months, the loose ends of a barbed wire fence to extend over a narrow sidewalk of a borough street was not denied at the trial. The main ground of defense was that the plaintiffs were negligent in walking on the sidewalk in the dusk of the evening, with knowledge of the condition of the fence, when a safe and convenient way on another street was open to them. The learned trial judge found that this defense was sustained as to Thomas Mulligan, the father, who had used the street daily, and entered judgment against him non obstante veredicto. His daughter, the other plaintiff, who suffered the entire destruction of an eye by coming into contact with the wire, was 11 years and 6 months of age. The instruction as to her was that she should be held to only the degree of care that was ordinarily to be expected of a child of her age. This instruction was clearly right.

[2] The measure of a child's responsibility