found a verdict accordingly. It was shown during the trial that the assessments due by Albert De Grote in consequence of his membership and rights in the Ancient Order of United Workmen were paid by him.

Edward Brady, for appellant. Alfred Frank Custis and William C. Shipman, for appellee.

PER CURIAM. According to the record, as amended prior to the trial, this was a feigned issue between Johanna Frederika De Grote, as plaintiff, and Mary Jane De Grote, as defendant, to determine which of the parties was entitled to the money paid into court by "the Grand Lodge of the Jurisdiction of Pennsylvania, Ancient Order of United Workmen," the original defendant in the suit. The issue came on for trial, and the learned judge who presided thereat directed the jury to find for the defendant. The subjects of complaint are: (1) Refusal of the court to continue the case on application of the plaintiff; (2) refusal "to grant the plaintiff a new trial"; and (3) that the court erred in directing the jury to find for the defendant. This last specification was filed at bar by leave of court. We have considered the record with special reference to each of these specifications of error, and are all of opinion that neither of them should be sustained. Except in clear cases of abuse of discretion, refusal of the court to continue a cause or to grant a new trial is not assignable for error; and there is nothing in this case to make either an exception to the general rule. The first and second specifications are therefore dismissed. As to the binding instruction complained of in the third specification, we think the learned trial judge committed no error. There is nothing in either of the specifications that requires discussion. Judgment affirmed.

FIDELITY INSURANCE, TRUST & SAFEDEPOSIT CO. v. FIDELITY INSURANCE, TRUST & SAFE-DEPOSIT CO. et al.

(Supreme Court of Pennsylvania. April 6, 1896.)

DEED-CONSTRUCTION-PROPERTY CONVEYED.

A spendthrift executed a deed conveying to a trustee all the personal property which the grantor was possessed of or entitled to as one of the legatees or distributees under the will of his father. Under the will he was entitled to an annuity, charged on land, and payable to himself, heirs or assigns. The will was subsequently construed in the state in which testator died, and in which the land was situated, and the annuity decreed to be a charge on the land, and descendible to the grantor's heirs as real estate. The annuity was not included in the schedule accompanying the first deed. Afterwards he executed a second trust deed conveying the annuity in trust for certain other purposes. Held, that the annuity passed under the second, and not the first, trust deed.

Appeal from court of common pleas, Philadelphia county.

Bill by the Fidelity Insurance, Trust & Safe-Deposit Company, trustee under deed of trust of Elisha Lewis, Jr., dated October 18, 1890, against the same company, trustee under deed of trust of Elisha Lewis, Jr., dated April 10, 1877, and others. From a decree for complainant, defendants appeal. Affirmed.

The bill of complaint states that Elisha Lewis, Sr., died on the 7th day of January, 1868, leaving issue five children, for one of whom the Fidelity Insurance, Trust & SafeDeposit Company is committee. Decedent devised, under the terms of his will, certain real estate in the city of Baltimore to his oldest son, in fee, subject to the payment of annuities of $1,000 each to his other four children, their heirs and assigns, and provided that, in the event of the real estate renting for less than $6,000 per annum, the annuitants should receive $900 per annum, and declaring the annuities to be "a lien and charge" upon the estate. On the 18th day of September, 1878, at the instance of the devisee, said will was construed by the court, and it was decreed not to have been the intent of testator to impose upon said devisee personal liability for the payment of annuities, but that said estate "became vested in him in fee simple, subject to a charge and lien thereon in favor of said annuitants from the rents of the property." When the gross rental of the property amounted to $6,000 or more, after the payment of taxes and charges, the devisee was directed to pay from the rentals $1,000 to each of the annuitants; and, if the net rentals were insufficient to pay the annuities, then the net balance should be divided among the annuitants. During the years that the gross rental was less than $6,000, the devisee was directed to pay from the rentals $900, and, if the net rental was insufficient, the balance was directed to be equally divided among the aunuitants; and it was directed that the devisee should be held free from personal liability by reason of accepting the devise. It was further adjudged and decreed "that the interest of each annuitant in said property, and the right of each to receive his or ber annuity from the same, do and shall constitute a lien and charge upon said property, and upon the income thereof, which right, lien, and charge upon said property is hereby decreed to be the absolute property of each annuitant, descendible to is or ber heirs at law as real estate." And it was turther adjudged: "In the event of sale of the property, the proceeds should be applied to the payment to each annuitant of a sum sufficient to produce, at 6 per cent. interest, $1,000 per annum, and, if the proceeds were insufficient, then to be applied to pay each annuitant a sum sufficient, at 6 per cent., to produce $900; the residue of the proceeds to be the property of the devisee, his heirs and assigns,

owners of said property." On April 10, 1877, Elisha Lewis, Jr., one of the annuitants, by deed duly recorded, granted and conveyed unto the Fidelity Insurance, Trust & SafeDeposit Company "all the personal property and estate, whatsoever and wheresoever, which he, the said Elisha Lewis, is possessed of or entitled to as one of the legatees or distributees mentioned in the last will and testament of his father, Elisha Lewis, senior, deceased," in trust to apply the income from said estate for the use of the settlor during life, with the remainder over. In the schedule accompanying this deed the annuity was not included. On October 18, 1890, this annuitant made a second deed of trust, granting and conveying all his right, title, and interest in the real estate described in his father's will, and in the annuity charged upon said real estate, to the Fidelity Insurance, Trust & Safe-Deposit Company, in trust to apply the income to the settlor for life, with remainder over to persons other than those described in the first deed. The bill further set forth the sale of the real estate out of which the annuities were payable, and the receipt by the trustee of the share of principal money to which the said Elisha Lewis, Jr., would have been entitled. Notice was given by a party in interest, requiring the investment of this principal sum in accordance with the terms of the earlier deed of trust, claiming that the interest passed to the trustee under the terms of that deed. The prayers for relief were: First, an order to restrain interference with the investment of the fund in accordance with the later deed of trust; second, that a decree be made that said fund should be held by the trustee in accordance with the provisions of said later deed; and, third, general relief. The answer admitted the death of the said Elisha Lewis, Sr., the terms of his will set forth in the bill of complaint, and the decree of court construing said will, together with the execution of the two deeds. The answer alleges that, at the time of the execution of the earlier deed, settlor was a spendthrift and incapable of managing his estate, and that the deed was executed for the purpose of protecting his family and himself from the effects of his extravagance, and all power of revocation was intentionally omitted therefrom; that it was the intention of the said settlor, in executing said deed, to convey the annuity, together with other property derived from the estate of decedent, saving an undivided interest in a farm. The answer further declares that the settlor, by his conduct at the time and subsequently, recognized, acted upon, and has often since ratified and confirmed, this construction of the deed, and from and after the execution thereof the trustee named therein collected the annuity as trustee, and accounted for, and paid over to the settlor, the amount thereof. It is alleged in the answer that the subsequent deed of trust was one of numerous efforts directed to breaking the

prior deed to enable the settlor to squander his estate. The settlor was never seised or vested with any right, title, or interest in the real estate, further than the lien of his annuity, which said right was personal property, and passed to the trustee upon the execution of the prior deed. Respondents claimed that the money derived from the sale of the property should be held by the trustee under the terms of the first deed of trust.

J. Willis Martin, Victor Guillou, and Charles Marshall, for appellants. John G. Johnson, for appellee.

PER CURIAM. This bill was filed by the trustee named in the deed of trust dated October 18, 1890, against the trustee named in the deed of trust dated April 10, 1877, and others. It so happens that the same corporation is trustee under each of said deeds, but the trusts which it represents are separate and distinct. The case was heard and disposed of on bill and answer, and it was adjudged "and decreed that the second prayer of complainant's bill be granted, and that the money realized from the sale of the Baltimore property be retained and accounted for by the trustee in accordance with the provisions of the deed of trust of October 18, 1890." We are satisfied, from an examination of the record, that the decree was warranted by the facts shown by the pleadings. There is nothing in the case that requires discussion. Decree affirmed and appeal dismissed, with costs to be paid by the defendants.

LAPHAM et al. v. OSBURN et al. (Supreme Court of Pennsylvania. April 6, 1896.)

Appeal from court of common pleas, Cameron county; C. A. Mayer, Judge.

Action by George A. Vail, John J. Lapham, and others. co-partners as H. G. Lapham & Co., and the Elk Tanning Company, a corporation, against Robert C. Osburn and others, for specific performance, and for an injunction, in which a temporary injunction was issued. From a decree continuing the temporary injunction, defendants appeal. Affirmed.

George A. Jenks and Johnson & McNarney, for appellants. Green & Calkins, C. H. McCauley, and John G. Johnson, for appellees.

PER CURIAM. This appeal is from the decree of August 10, 1895, containing the preliminary injunction theretofore granted, "without prejudice to the rights of Gleason & Sons," who were not then parties to the proceeding, but who, on August 29th, before this appeal was taken, were made parties defendant by amendment of the bill. The subject-matter of the contract set out in the bill is within the jurisdiction of the court; and if some of the defendants, nonresi dents of the county, have not been regularly served with process, it is not too late to correct the error, if any there be. In the present undeveloped condition of the case, we are not prepared to say there was any error in continuing the injunction. In view of this, and of the further fact that new parties defendant have been added, we think a reversal of the decree

1. Where an administrator's account blends the proceeds of the real and personal estate, a creditor is not prejudiced by allowing its withdrawal, in order to separate such proceeds in the account, and to account for certain items not included in the inventory found to be collectible, the account being afterwards restated in proper form.

2. The approval by the orphans' court of the payment, by an administrator, of the proceeds of real estate, to a judgment creditor, is proper, where the judgment was a lien on decedent's land, and was entitled to be paid out of such funds, though there is no distinct finding by the auditor that the judgment was a first lien, in the absence of any controversy before the auditor as to the validity of the judgment or the priority of its lien, and of any exception to his failure to find on such question.

Appeal from orphans' court, Lycoming county; John J. Metzger, Judge.

Judicial settlement of the account of Mollie Spellisy, administratrix of the estate of John Spellisy, deceased, to which Patrick J. O'Brien filed objections. From a judgment overruling exceptions to and confirming the auditor's report, O'Brien appeals. Affirmed.

Charles J. Reilly and H. C. Parsons, for appellant. H. W. Whitehead and J. F. Strieby, for appellee.

FELL, J. In her first account, the administratrix blended the proceeds of the real and personal estate of the decedent. Upon exceptions being filed by the creditors, she petitioned the court for leave to withdraw her account, in order that she might separate the account of the real from that of the personal estate, and in order that she might account for certain items not included in the inventory, and which she had found to be collectible. The court granted her permission to restate her account within 20 days. The account as restated was in proper form. The separate account of the real estate shows that the balance of the purchase money after the deduction of the expenses of the sale went to the payment of a judgment creditor, John Spellisy, and that the whole of the personal estate had been used in payment of preferred claims. The account as filed might have been restated by the auditor. That the accountant was allowed to restate it, in order to separate the items, and to include others which would have been proper subjects of surcharge, in no manner affected the rights of the appellant. He had every fair chance under

the second account that he had under the first. There is no testimony which shows, or tends to show, that the property was not all accounted for, or that the payments were not properly made, or which calls into question in any way the correctness of the accounting. There is not a distinct finding by the auditor that Spellisy's judgment, to the payment of which the fund was awarded, was first in point of lien. He reports, however, that the validity of the judgment was not attacked, and that there was nothing to establish the illegality of its payment, and that "there has been neither testimony produced, nor has any legal reason been advanced, in order to show why this amount of $700 should be surcharged against the administratrix. The sole argument of exceptants has been that the judgment was improperly paid, because Mrs. Spellisy assumes it to be wrong that one claim should be satisfied while another may remain unpaid." The learned judge of the orphans' court, in confirming the report of the auditor, says that the judgment was unquestionably a lien on the real estate of the decedent, and was entitled to be paid out of the fund arising from the sale of the real estate. It would have been more regular if the auditor had reported a distinct finding upon this subject; but neither the validity of the judgment nor the priority of its lien were in controversy before him. No exception was taken in the orphans' court to his failure to so report, and there is not now, nor has there been throughout the whole proceeding, from the beginning to the end, even a denial that the judgment was valid, first in lien, and entitled to payment. When the end has been reached through the course of a regular and orderly procedure, and it is manifest that justice has been done to all parties concerned, there is no ground for a reversal for trifling irregularities, not objected to at the time, and not affecting the merits of the cause. The assignments of

error are overruled, and the order of the court is affirmed, at the cost of the appellant.

JOHNSON CO. v. MILLER. (Supreme Court of Pennsylvania. April 6, 1896.)

INSOLVENT RAILROAD COMPANIES-SALE OF ROLL-
ING STOCK TO CREDITOR-VALIDITY-
WHO MAY QUESTION.

1. An insolvent railroad company, which has not constructed its road, may resell to a creditor, in discharge of indebtedness, so as to prefer such creditor, rails bought to be used in constructing the road, and for which it has no present use.

2. A creditor of a corporation cannot question a sale of its personal property, effected by means of a written instrument executed by the proper officers pursuant to resolution passed by a unanimous vote at a meeting of the board of directors at which five of the eight members are present, where the property is delivered before

the sale is attacked, and no one interested in the company objects to the sale.

Appeal from court of common pleas, Schuylkill county.

Feigned issue, in which the Johnson Company is plaintiff and Richard E. Miller is defendant, to determine whether a certain alleged sale of railroad iron to plaintiff by the Inter-County Railway Company was valid, and passed title as against defendant, an attaching creditor of such railway company. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank P. Krebs, George M. Roads, and Fergus G. Farquhar, for appellant. H. B. Graeff and R. H. Koch, for appellee.

FELL, J. The issue in this case was framed to determine the title to certain steel rails seized by the sheriff of Schuylkill county under an attachment as the property of the Inter-County Street-Railway Company. The railway company was authorized by its charter to construct and maintain a railway from Tamaqua, Schuylkill county, to Lansford, Carbon county. After a part of the road had been built, the company was enjoined from proceeding further with its construction until the consent of the township and borough authorities and other parties in interest should be obtained. The railway company at this time was indebted to the Johnson Company for rails, spikes, bolts, and fish plates, and, being unable to use or pay for these articles, it resold them to the Johnson Company at the invoice price in partial discharge of the debt. Possession of the property resold was taken by the plaintiff before the attachment issued, and the only questions raised at the trial related to the right of the railway company to sell the property, and to the validity of the exercise of the right, if it existed. The property attached in Schuylkill county, the title to which is in dispute in this proceeding, consisted of 82 steel rails. These rails had been delivered along the line of the proposed road, but none of them had been used in its construction, if there had been any construction in Schuylkill county. The claim of the attaching creditor is based upon the ground that the railway company, being insolvent, could not lawfully prefer one of its creditors by a sale or transfer of property necessary for its operations. It is undoubtedly the rule that when the operations of a corporation are matters of direct public interest and concern, its property which is reasonably essential to the exercise of its franchises cannot be aliened by the corporation, or sold by its creditors piecemeal, so as to stop its operations, or defeat the object of its charter. Coal Co. v. Bonham, 9 Watts & S. 27; Reynolds v. Lumber Co., 169 Pa. St. 626, 32 Atl. 537. The grant by the state to the Inter-County Railway Company was for a use in which the public was interested, and it may be assumed that if

the company had reached the stage of active operation, and the rails in question had become a part of its roadway, they could not, under the circumstances, have been sold, as the company was insolvent, and the effect of the sale would have been to strip it of property necessary for the exercise of its franchises. The right contested, however, was that of a company which had not completed or operated any part of its road to sell rails which had not become part of its structure, and for which it had no present use. Its right to make the sale if the surplus had resulted from an overpurchase, or had been caused by the shortening of its route or the abandoning of a part of it, could not be questioned. Its franchises remained. It was merely forbidden to proceed with its work until the necessary consent should be obtained. Until this condition was complied with. it could not use these rails, and we see no reason why it was not at liberty to sell them. The sale was effected by means of a written instrument regularly executed by the proper officers of the company in pursuance of a resolution of the board of directors. At the meeting of the board five of the eight members were present, and the action was unanimous, and has not since been objected to by any one interested in the company. Under the circumstances disclosed by the testimony, the appellant has no standing to question it. The judgment is affirmed.

AMES et al. v. PIERSON. (Supreme Court of Pennsylvania. April 6, 1896.)

CONTRACT-OFFER AND ACCEPTANCE.

After defendant had sent plaintiffs, at their request, his prices for wheels, plaintiffs wrote and ordered 3.000 sets of wheels for the ensuing year, to which defendant replied that he could not undertake, at most, over 100 sets per month, without shutting out old customers, but that if it would be any advantage to plaintiffs to get wheels in lots "about as above mentioned,-100 sets per month,-I will do my best to serve you." Thereupon plaintiffs wrote, "You may enter our order for the 100 sets per month, as your letter indicates;" and defendant answered, "I will enter your order for 100 sets wheels per month for the ensuing year; and, if I can add to my facilities so as to enable me to do better than that, will do so.' Held, that this correspondence created a binding contract between parties.

་་

Appeal from court of common pleas, Chester county.

Assumpsit by F. A. Ames & Co. against Isaac M. Pierson. Judgment for defendant on a verdict directed by the court, and plaintiffs appeal. Reversed.

Robert S. Waddell and Thomas W. Pierce, for appellants. Alfred P. Reid, for appellee.

MCCOLLUM, J. The plaintiffs were manufacturers of wagons at Owensboro, Ky., and the defendant was a manufacturer of wheels

and spokes at Toughkenamon, Chester county, Pa. On the 12th of December, 1890, the plaintiffs wrote the defendant that they had not placed their contract for wheels for the ensuing year, and requested his "very best prices on all grades." On the 15th of December, 1890, the defendant replied to their letter, inclosing his price list, and stating the discounts he was willing to make from it on "lots of not less than ten sets." The defendant's letter was followed by an inquiry from the plaintiffs respecting freight rates, which was promptly answered by the defendant; and on the 24th of December, 1890, they requested him to enter their order for 3,000 sets of wheels for the next year. Το this request the defendant on the 30th of December, 1890, replied that the order was too big for him then; that he "could not, at most, undertake over 100 sets per month, without shutting out" his old customers; and he concluded his letter by saying, "If it will be of any advantage to you to get the wheels in lots about as above mentioned,-100 sets per month,-I will do my best to serve you." On the 2d of January, 1891, the plaintiffs wrote the defendant as follows: "Replying to yours of the 30th ult., will say, you may enter our order for the one hundred sets per month, as your letter indicates." This letter was acknowledged by the defendant in a letter to the plaintiffs under date of January 6, 1891, in which he said, "I will enter your order for 100 sets wheels per month for the coming year; and, if I can add to my facilities so as to enable me to do better than that, will do so." The plaintiffs claim that the correspondence to which we have referred, and the material parts of which we have quoted, created a contract between them and the defendant which bound him to furnish, and them to receive and pay for, 100 sets of wheels per month, or 1,200 sets of wheels during the year 1891, and that, although they repeatedly urged him to furnish the wheels in accordance with the contract, they were able to get from him during that year only 28 sets. The defendant, however, contends that the correspondence in question did not establish a contract between the parties to it, and his contention in this respect was sustained by the learned court below.

A construction of the correspondence which denied the existence of any contractual relation between the parties appears to us to have been unwarranted, and to have given to the words "I will do my best to serve you" an effect which was not intended or contemplated by either of them. It was a construction which failed, we think, to accord to other parts of the correspondence the consideration and influence they ought to have had, in determining whether there was a contract. It is very clear that the plaintiffs desired the defendant to furnish them 3,000 sets of wheels for the year 1891, and equally so that the defendant desired to secure their

custom. But his facilities were not sufficient to enable him to furnish the number of wheels they required, and at the same time to fill the orders of his old customers. To meet and overcome the difficulty thus presented, to retain his old customers and secure new ones,-he practically assured the plaintiffs of his ability to furnish them 100 sets of wheels per month, and of his willingness to undertake to do so. That they understood his letter of December 30th as containing an unconditional offer to furnish them 100 sets of wheels per month was shown by their letter of January 2d, and that he intended it as such sufficiently appeared in his letter of the 6th of January. In the light of the correspondence as a whole, and of the mutual purpose and understanding of the parties to it, the words "I will do my best to serve you" cannot be considered as constituting, nor the words "as your letter indicates" as recognizing, a condition in the offer which rendered it, and the acceptance of it, meaningless and nugatory. These expressions in the letters of December 30th and January 2d are plainly reconcilable with the plaintiffs' contention that the correspondence created a contract between the parties, and they do not warrant the claim the defendant now makes in regard to the effect of them. We think, therefore, that the learned court below erred in holding that there was no legally enforceable duty or obligation upon either party in reference to the manufacture, delivery, or acceptance of the wheels to which their correspondence related. The learned counsel for the plaintiffs properly confined their argument on this appeal to the question raised by the first and second specifications of error. The remaining specifications require no consideration at this time. They are based on the disaffirmance of the plaintiffs' points in relation to damages. The denial of the points was the necessary sequence of the conclusion that the plaintiffs had shown no contract which imposed a liability upon the defendant. The questions raised by the points were not considered by the court, and the disaffirmance of the latter was perfunctory. In holding as we do that the correspondence established a contract between the parties, we do not determine or consider to what extent the rights and liabilities of either party under it were affected by the default or misconduct of the other. The first and second specifications are sustained. Judgment reversed, and venire facias de novo awarded.

In re SNIDER'S ESTATE. Appeal of GELWICKS. (Supreme Court of Pennsylvania. April 6, 1896.)

CONSTRUCTION OF WILL.

A bequest to testator's wife of the income of one-third his estate during her life, “al