Act of June 24, 1895, P. L. 236, as those which have been discussed and decided in Rodebaugh v. Phila. Traction Co., opinion filed herewith. It is not necessary to do more than refer to that opinion [page 24]. The only additional points in the present case are that the plaintiff was at the time of the injury and still is a minor, and that a suit was brought in her behalf, within the statutory period against the Atlantic Railroad Company, which is alleged to be operating "to a certain extent" the boats of the present defendant. Court of Common Pleas No. 2, ALLEGHENY COUNTY. WOLF v. ALTMEYER et al. An architect was employed to draw plans and make estimates of cost of remodeling a building, changing it from a theatre into a brewery, and to superintend such change for a specified commission. After having completed part of the work the building burned. Held, that the architect was entitled to receive a reasonable compensation for the work done by him before the building was burned, and that the contractor was not relieved by this destruction. No. 188 April T., 1898. Reserved question. Opinion by WHITE, P, J. Filed June 17, 1899. The defendants, contemplating the conversion of a theatre building into a brewery, employed the plaintiff, an architect, to prepare preliminary plans for that purpose, and an estimate of the cost. If they concluded to go on, after receiving the preliminary plans and esti mate, he was to prepare all plans and drawings necessary for the completion of the work, and to superintend the work, for which he was to receive as compensation five per centum on the cost, which was estimated to be from $80,000 to $100,000. He was paid $500 after preparing the preliminary plans and estimate, which was to be credited on account if they concluded to go on with the enterprise. The Act of 1895 as held in the case referred to, is a general act in the nature of a statute of limitations. Its terms are general, and make | no exceptions in favor of persons under disability. The settled rule is that infants as well as all others are bound by the provision of such statutes. "A saving from the operation of statutes for disabilities must be expressed or it does not exist:" Warfield v. Fox, 53 Pa. 382. "There is no limitation in the act which excludes persons under disabilities. Any person' means every person. If persons who are minors should be excluded by reason of their disability to make contracts they would be deprived of the benefit of the act, and that would be a hardship to which they ought not to be subject without express words of exclusion:" Williams v. Ivory, 173 Pa. 536. It was accordingly held in this latter case that as the Act of 1842 made no distinction of persons in providing for discharge from arrest for fraudulent indebtedness, on making a general assignment for the benefit of creditors, therefore a deed of assignment for such purpose was valid not withstanding the general disability of the grantor by reason of infancy. It would be difficult to find a stronger illustration of the force of gen-action is to recover compensation to the plaineral statutes with regard to persons under disability. The second point has no basis. A prior suit against another party cannot help this one. If the right party was there sued the issue should be fought out there, and if the wrong party was sued there the right one cannot be brought in by amendment, still less can he be sued by a new writ and deprived of the benefit of the statutes of limitations by making it relate back to a former writ to which he was not a party. The present suit must stand or fall on its own merits, and not only was there no evidence of the identity of the defendant and the Atlantic Railroad Company as to liability to the plaintiff, but such evidence, even if it had been given, would have been of no avail. Judgment affirmed. After receiving the preliminary plans and estimate, they concluded to go on, and directed the plaintiff to prepare the full plans and specifications, which he did. A preliminary contract was made for remodeling the theatre. The third day after the contractor began work the theatre was totally destroyed by fire and the defendant abandoned the enterprise. This tiff for his labor and expenses in preparing plans and specifications after he was directed to go on and before the fire occurred. The contention of the defendants is, that as the fire made it impossible to go on with the improvement and impossible for the plaintiff to perform his contract in full without any default on part of defendants, the plaintiff can sustain no action. This is not an action to enforce the peformance of a contract which by an accident has been rendered impossible, as in the English case of Taylor v. Caldwell, 3 B. & S. 826, and the cases which have followed that lead. The statement was filed on that theory, but amended at the trial to claim on a quantum meruit for the work done before the fire. The plaintiff had no contract to erect the building or to do any part of the work on it. His contract was to prepare the plans and specifications and superintend the work in the construction. He prepared the plans and specifications, and did all he was required to do under the contract to the time of the fire. He was ready to go on and perform fully his contract when the fire occurred and the defendants abandoned the enterprise. He was in nowise responsible for the fire or the failure to ge on with the work. He now claims simply a reasonable compensation for the work he performed prior to the fire. seem to have been before our Supreme Court. But similar cases have been before the courts of other States and decided adversely to the contention of the defendants in this case. In New York-Niblo v. Binsse, 1 Keyes. 476, and Wolfe v. Howes, 20 N. Y. 197; Massachusetts-Cleary v. Sohier, 120 Mass. 210, and Butterfield v. Byron, 153 Id. 517; Illinois-Schwartz v. Saunders, 46 Ill. 18, and Rawson v. Clark, 70 Id. 656; Wisconsin-Cooke v. McCabe, 53 Wis. 250; Tennessee-Wilson v. Knott, 3 Humphreys, 473. The question of law reserved is decided in favor of the plaintiff, and it is ordered that, on payment of the verdict fee, judgment be entered for the plaintiff against defendant for the amount of the verdict. To which opinion and order defendants except and bill sealed. The amount of the verdict is very reasonable on the evidence if plaintiff is entitled to recover. The motion for new trial is therefore refused. For plaintiff, Charles A. Fagan and Thomas Herriott. His contract is entirely different from that of a contractor who had undertaken to erect and complete the building for a definite sum. Had it been a new building, the fire would not relieve the contractor from his contract. As it was the changing and remodeling of an existing building, the fire made the completion of the contract impossible, and in that case, according to the old English and some Amercian cases, neither party would have an action against the other. But that doctrine has not been applied to those who had not the general contract, but | George P. Murray. did some work or furnished some materials in the building. They are entitled to be paid by the employer, the contractor or the owner. In the case of Taylor v. Caldwell, the plaintiff had rented a hall for giving entertainments on certain days. The hall was destroyed by fire. The plaintiff sought to hold the defendant to the contract. The court held that, as the : contract was in reference to a certain thingthat is, the hall-when it ceased to exist without fault in either party, the contract was abrogated. For defeudants, Dalzell, Scott & Gordon and Court of Quarter Sessions, DAUPHIN COUNTY. COMMONWEALTH v. JOYCE et al. In Pennsylvania it is illegal to sell spirituous or fermented liquors in any army "canteen" or other place, without a regular court license. No. 253 June Sess., 1899. Selling liquor without a license. The undisputed facts were that a sergeant and two civilians (one a recently discharged soldier) were operating the canteen system-i. e., selling beer and wine to soldiers and civilians, at Camp Meade, under the authority of the officer in command of said camp, who claimed that the canteen was instituted by him under the regu The sergeant was detailed to see that the regulations were complied with, but took part in the The two Pennsylvania cases referred to do not fit this case. In Lovering v. Coal Co., 54 Pa. 291, the railroad company had contracted to deliver coal at certain times and prices. It was well known that the railroad connected with a navigation company, and only by that connection could deliver the coal. A great flood pre-lations of the United States War Department. vented for a while the delivery of the coal That excused the railroad company from a strict performance of the contract. In Scully v. Kirkpat-sale of liquor. rick, 79 Pa. 324, Scully was surety for Gumberts to appear at a certain date to answer on a bench warrant for a fraudulent debt. He was prevented from appearing on that day by reason of sickness, and his bond was forfeited. Suit was brought against Scully. Gumberts appeared before the judge as soon as he was able and ready to answer. It was held that sickness was a good excuse for not appearing on the day, and that would relieve the surety. For the Commonwealth, Stranahan. SIMONTON, P. J., June 17, 1899, in charging the jury, called attention to the Act of Congress of June 13, 1890, supplement to Revised Statutes, Vol. I, page 757, which provides, "That no alcoholic liquors, beer or wine shall be sold or supplied to the enlisted men in any canteen, or post trader's store, or in any room or building at any The precise question in this case does not garrison or military post, in any State or Terri tory in which the sale of alcoholic liquors, beer Allegheny Council No. 445, Royal Arcanum; or wine is prohibited by law." and Charles B. Gracey was a member of the same council. And further instructed the jury that the sales as testified to were illegal and a violation of the law of the State prohibiting the sale of spirituous and fermented liquors without license, and that if they believed the uncontradicted evidence they should convict the defendants. Defendants were convicted. Orphans' Court, ALLEGHENY COUNTY. In re Estate of WILLIAM J. HUSSING, Deceased. A guardian should be surchared for the loss of the insurance in a beneficial society made by the deceased person in his lifetime in favor of his minor children and of whose estate he was guardian, when it appears from the fact as follows: That after proof by him of the fact that the minors he represented were the persons entitled to the insurance, the draft of the insurance company was made out to him as their guardian, was indorsed by him and deposited by his attorney to his own credit, and not that of the guardian, and kept by the latter. More than four months later he signed a release to the company but did not at that time, nor up to the time of his attorney's death, collect from the latter the insurance and had not at the time of the audit of his, account made any apparent effort to collect it. In re first and final account of Charles B. Gracey, guardian of the estates of the minor children of William J. Hussing, deceased. No. 45 March T., 1899. Sur exceptions to guardian's account. Opinion by MESTREZAT, J., of the 14th Judicial District, specially presiding. Filed July 12, 1899. We find the following facts material to the disposition of the issue before us: 1. William J. Hussing died in Allegheny county on the 18th day of June, 1895, leaving to survive him a widow, Elizabeth Hussing, and the following minor children: Caroline D., Estella M., William W. and James E. 2. Charles B. Gracey, the accountant, was appointed guardian of the estates of said minor children by this court on the 8th of July, 1895. 3. Gracey, as guardian, gave bond in the sum of $5,000, and Charles E. Cornelius acted as attorney in presenting said bond and having the same approved. 4. The said minors were jointly entitled to receive $400 from the estate of their grandparents; and $2,000, insurance money, from the Royal Arcanum. 5. The Royal Arcanum is a beneficial insurance association. Its primary object is insurance; and every member in good standing is entitled to insurance. 7. William J. Hussing was insured in said Royal Arcanum for $3,000, $1,000 payable to his widow, Elizabeth Hussing, and $2,000 to his said minor children. 8. On July 23, 1895, Charles B. Gracey made an affidavit before James K. T. Galbraith, a notary public of Allegheny county, in the matter of the collection of the insurance held by William J. Hussing in the Royal Arcanum, in which he recited the benefit certificate of said that his said wards were the persons referred to association held by said Hussing and declared in said benefit certificate. 9. On January 14, 1896, Charles B. Gracey, as guardian of said minors, in conjunction with the widow of said Hussing, signed a special release in which they acknowledged to have received from the Supreme Conncil of the Royal Arcanum the sum of $3,000, under the benefit certificate held by said Hussing, in which said certificate is recited and identified by a member, and in which said Hussing is recited as having been a member of said Allegheny Council No. 445; and on the same day Charles B. Gracey, guardian, appeared before said James K. T. Galbraith, a notary public, and acknowledged said special release to be his act and deed. 10. In August, 1895, the Royal Arcanum issued its draft for the sum of $3,000, payable to the order of the widow of William J. Hussing and to the order of Charles B. Gracey, guardian of the minor children of said Hussing. This draft was deposited by Charles E. Cornelius to his own credit in the National Bank of Western Pennsylvania, on August 30, 1895. This draft had been indorsed "Chas. B. Gracey," and was returned for full or proper indorsement, to wit, "Charles B. Gracey." After its return, the draft remained in the custody and possession of the bank at least over one night and, the improper indorsement having been corrected, the draft was sent East and paid. 11. Charles B. Gracey was a brother-in-law of Charles E. Cornelius. 12. Charles B. Gracey, after having been cited so to do, filed his first and final account as guardian of the minor children of William J. Hussing, deceased, on January 24, 1899, in which said account he failed to account for the said sum of $2,000 due said minors from the Royal Arcanum. 13. To this account the Fidelity Title and Trust Company, guardian ad litem of said minors, filed, inter alia, the following exception: 6. William J. Hussing was a member of The said guardian has failed to charge himself with the sum of $2,000, insurance money, which he received, or should have received, from "The Royal Arcanum," in which association the said William J. Hussing held a policy of insurance for the sum of $2,000, payable at his death to his children above named. The said sum of $2,000 has been paid or should have been paid by the said Royal Arcanum to the said Charles B. Gracey, guardian, and should be accounted for by him. From these facts, we find that Charles B. Gracey should account for the insurance money, to wit, $2,000, to which his wards were entitled from the Royal Arcanum. We do not think it necessary to determine whether or not Charles B. Gracey indorsed the draft for $3,000 issued to Mrs. Hussing and to himself as guardian, because his failure to collect this money under the facts disclosed by the evidence was gross negli- | gence. He was appointed guardian July 8, 1895. By his affidavit of July 23, 1895, it appears he knew at the date of the insurance in the Royal Arcanum and of the benefit certificate. The draft for the payment of this certificate was is- | sued to him and the widow August 24, 1895, and on August 30, 1895, was deposited by Charles E. Cornelius to his own credit in the National Bank of Western Pennsylvania. By the release of January 14, 1896, the widow and Gracey acknowledge that they "have received of The Supreme Council of the Royal Arcanum the sum of $3,000." Cornelius died in 1898. There is no evidence that would warrant us in finding that the guardian could not have collected this money from Cornelius prior to his death, but he makes no effort to collect it or its interest, and, in fact, so far as the evidence discloses, he does not take any note or other evidence of indebted ness of Cornelius to him. In a word, he ignores his duty in the premises entirely, and permits this money to be lost by his supine negligence. His whole conduct in the matter shows him to be guilty of the grossest carelessness and that by reason thereof this insurance money is not now in his hands to respond to the claim of the exceptants. No. 33 Sept. T., 1899. Exceptions to final account of Annie Fleisher, administratrix. Opinion by CRAWFORD, P. J., of the 13th Judicial District, specially presiding. Filed July 29, 1899. In her account filed, Annie Fleisher, administratrix, charges herself with a balance of $385.73. It was admitted at the hearing that items 4, 5, 6 and 11 on the credit side of her account had not been paid. She will, therefore, be surcharged with the amount of these items, or $1,273.54. This disposes of the several exceptions filed on that head. The exception to the amount of $2.50 paid for taking affidavit of proof of death (item 12 on credit side of account) was withdrawn. The only exceptions, then, undisposed of relate to the charges of $200 paid to S. R. Huss, Esq., as counsel fees. The money which came into the accountant's hands was realized in a compromise settlement between the accountant and the Travellers Insurance Company, in which company Eugene S. Fleisher was carried on an accident policy. Fleisher died from injuries received in falling from the Lincoln Avenue Bridge, and the circumstances attending his death were such that the insurance company refused to pay the whole amount of the policy, alleging that it was a case of suicide, and that they were relieved from payment under the terms of the policy. The matter was finally settled by the company paying Mrs. Fleisher $2,000. From all that appears in this case, we regard this as a most advantageous adjustment for the estate. The evidence tending to establish the theory of suicide was so strong that had the case been contested in court on that line, Fleisher's estate would in all probability have received nothing. The exceptions to the counsel fees paid Mr. Huss are not sustained. His management of the case was careful and judicious throughout, and the charge made for services is not excessive and will be allowed. With the surcharge we have already made, the amount in the accountant's hands for dis The first exception will be sustained and the tribution is $1,659.30. accountant surcharged $2,000. The second exception is dismissed. For accountant, W. T. Tredway. For exceptant, Rody P. Marshall. Estate of EUGENE S. FLEISHER, Deceased. Exceptions were filed to an item of credit of an executrix, consisting of $200 counsel fees. It appearing to the court that said fee was not excessive but was a reasonable charge for a difficult compromise settlement, the exception was overruled. Of this amount $15 will be awarded to Dr. Colhour for medical services rendered on the night of Fleisher's death, and the balance, or $1,644.30, less the proper audit costs, will be awarded pro rata to the creditors whose claims have been presented and proven. A decree of distribution will therefore be drawn accordingly. For accountant, S. R. Huss. For exceptants, Wm. A. Golden, Galen C. Hartman and Geo. C. Wilson. Opinion by STERRETT, C. J. Filed May 23, 1899. This appeal, from the judgment entered in an action on a life insurance policy issued by the defendant association and dated November 14, 1893, presents the single question, whether there was sufficient evidence of "good health" of the insured, at the time the policy was delivered, to go to the jury. On October 30, 1893, plaintiff's husband made appliciation to defendant association for insurance on his life in the sum of $5,000, payable upon his death to his wife, the plaintiff in this suit. Among other representations, the application contains the following: "That I am in good health and free from any and all diseases, sickness, aliments or complaints, trivial or otherwise." It is conceded that plaintiff's husband was in good health at the time his application was presented to and acted on by the defendant association. The policy was issued and sent to the local agent, Lewis L. Evans, for de Appeal of the Fidelity Mutual Life Association, defendant, from the judgment of the Court of Common Pleas of Luzerne county, in an action of assumpsit by Mary A. Barnes. The facts of the case appear in the opinion of livery upon payment of the premium. The the Supreme Court. Upon the trial, before LYNCH, J., the defendant submitted points for charge as follows: "1. That the application for insurance contains the following representation which is material to the risk: "That I am now in good health, and am free from any and all diseases, sicknesses, ailments, or complaints, trivial or otherwise,' and that the plaintiff's testimony shows that deceased was sick and confined to his bed at the time the first premium was paid and the contract delivered; the contract is therefore void and the plaintiff cannot recover in this action. "2. That one of the conditions upon which the contract of insurance was to be binding, was that a receipt for the payment, in cash or its equivalent, of the first premium, sigued by the president and treasurer of the company, and countersigned by the agent or person to whom payment is made, as evidence of such payment, be delivered with and accompany the policy within sixty days from the date hereof, and during the lifetime and good health of the person on whose life it is issued. That the plaintiff's testimony shows that claimant was sick on November 28, when the premium was paid and the policy delivered, had been sick since No vember 25, and that he died on November 30. That the policy is therefore void, and the plaintiff cannot recover in this action." latter was not paid until November 28, 1893, at which time the policy was delivered to plaintiff. At the foot of the policy is printed the following provision: "The policy issued hereon shall not become binding until the first payment due thereon has been actually received by the association or its authorized agent during my lifetime and good health." It was admitted that ths insured contracted an ordinary cold on November 25, 1893, and he died of pneumonia six days thereafter; but it was claimed by the plaintiff and the evidence tended to prove that pneumonia, the disease of which Mr. Barnes died, did not "set in" until the day after the premium was paid and policy delivered. As stated in the learned trial judge's charge, the questions in dispute were: "The real contention here, on the part of the plaintiff is, that while Mr. Barnes was sick and in bed from Saturday, November 25, until the night of Thursday, November 30, when he died, still the sickness up to and including the time when the policy was issued and the money paid by Mrs. Barnes, was simply trivial or temporary, as they believed, and that the serious illness which took Mr. Barnes' life set in the next day, or Wednesday evening, when he had a severe chill. The contention of the defendant is that Mr. Barnes was taken down on Saturday with a severe cold which steadily grew worse, and that at the time the premium was paid to Mr. Both points were refused. Verdict for plain- Evans, Mrs. Barnes either knew, or ought to tiff. Defendant thereupon appealed. For appellant, H. W. Palmer. Contra, J. T. Lanahan and E. A. Lynch. have known, her husband was a very sick man, and it was a fraud upon the company to have him insured." |