(106 A.)

well as of the court below, to determine | in their value during life tenancy inured to rewhether or not the decision is founded upon maindermen, and not to estate of life tenant. a proper basis. McCauley v. Imperial Woolen Co., supra.

[3, 4] Appellant's contention is that the findings of the referee do not show his conclusions to be based upon proper testimony of experts to the effect that the disease from which Murdock died was the result of the injury received at the time of the accident, and, further, they also fail to indicate he was not exposed or subject to other conditions from which the disease might have been contracted, and that consequently the conclusion of the referee was without proper foundation in fact. With this contention we cannot

agree.

Appeal from Orphans' Court, Philadelphia County.

The Pennsylvania Company for Insurances on Lives and Granting Annuities, guardian of John J. Loewer and Bertha E. Loewer, and others appeal from a decree dismissing exceptions to an adjudication in the estate of John J. Loewer, deceased. Decree reversed, and record remitted to court below, with directions.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ.

M. B. Saul and Raymond M. Remick, both of Philadelphia, for appellants Pennsylvania Company for Insurances on Lives and Granting Annuities and others.

Henry Budd and William C. Stoever, both of Philadelphia, for appellants Wm. C. Loewer and Anna Elizabeth Loewer Gross.

Frederick J. Knaus, of Philadelphia, for appellee.

The findings of the referee clearly show the injury to the chest resulted in continuous pain from the time of the accident until the trouble was diagnosed by the physician as lobar pneumonia, and we find nothing in the record to justify the inference that, between the time of receiving the injury and the development of the disease, there were other causes from which pneumonia might have been contracted. That the physician failed to discover a fractured rib does not detract from the weight to be given the undisputed MOSCHZISKER, J. Testator gave a life facts that a blow on the chest received was estate in the fund here in question to his widfollowed by continuous pain, resulting a week ow, with remainder to his children; and the later in the disease which finally caused orphans' court made an award thereof to the death. The nature of the injury and its re-life tenant, upon entry of security. Instead sultant effects, followed so closely by the of abiding by and taking advantage of this development of the disease, constitute suffi-award, the widow filed a petition averring cient evidence to support the conclusion of she was desirous of "avoiding the care of the the referee and the court below, particularly

as a consideration of the record Indicates ample expert medical testimony upon which the referee based his conclusion that the injury to the chest was the proximate cause of the disease which terminated in the death of

In re LOEWER'S ESTATE.
Appeal of PENNSYLVANIA CO. FOR IN-
SURANCES ON LIVES AND GRANT-
ING ANNUITIES et al.

(Supreme Court of Pennsylvania. Feb. 10,
1919.)

estate," and praying the appointment of the West Philadelphia Title & Trust Company as visions of the will." This prayer was joined trustee, to take charge "according to the proin by all the remaindermen who were of full age, and by the widow, as the mother of the only one then a minor, the latter, upon becoming of age, at no time disaffirming the action of his parent; and on January 21, 1905, the court below appointed the trustee, as prayed for by all parties in interest.

Among the assets of this estate were 125 shares of trust company stock, appraised at $50 a share, although then worth more, and now enjoying an actual value of $148 a share. Upon the death of the life tenant the trustee filed an account, and at the audit claim was made by the widow's executor for this increase in value, amounting to some $12,000, LIFE ESTATES 15(1) — INCREASE IN VALUE and also for the increase in value of other OF SECURITIES-RIGHTS OF REMAINDERMEN. securities occupying the same position, less a Where a will gave a widow of testator a small loss on the sale of certain cold storage life estate in personal property consisting part- stock, all of which formed part of the estate ly of securities, and she refused to enter se- of the deceased at the time of the appointcurity as a life tenant, and the court at her instance appointed a trustee under Fiduciaries ment of the trustee. The court below allowed Act, § 23, to whom securities were handed the claim and awarded the stock and securiover in kind, and in whose hands they remained ties to the personal representative of the life unconverted until widow's death, any increase tenant, on payment of the appraised value For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(106 A.)

"Mr. Krauss: Now take L. B. Langkott L 1 OTTO R. BRENNER, Limited, v. LOEB- Sumatra. That is a well-known tobacco, is it

Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit by Otto R. Brenner, Limited, against Loeb-Nunez Tobacco Company to recover damages for breach of contracts for failure to deliver tobacco. Verdict and judgment for plaintiff for $2,866.79, and defendant appeals. Affirmed.

Errors assigned were as follows:

(1) That the learned trial judge erred in allowing evidence to be given as to the value of

tobacco on April 11, 1917, as follows (Appendix,

page 52a):

"Mr. Krauss: Can you tell me, or the court and jury, what was the fair market value of triple A Java, first lengths, on or about April 11, 1917?

not? A. It is a well-known brand.

"Q. What was the fair market value of that tobacco on or about April 11, 1917? (Objected to by counsel for defendant. Objection overruled. Exception to defendant.)"

(3) That the learned trial judge erred in refusing to charge the jury as requested by the defendant under point 2, as follows (Appendix, page 121a):

"2. That the fact that the defendant, in its letter of April 11, 1917, offered to deliver the 10 bales of Java tobacco to the plaintiff upon receiving satisfactory settlement from the plaintiff for the same is conclusive proof that the plaintiff could not have suffered any damage by reason of the defendant's failure to deliver said tobacco, as the plaintiff could have obtained same from the defendant at the prices contracted for."

(4) That the learned trial judge erred in refusing to charge the jury as requested by the defendant under point 3 as follows (Appendix, page 121a):

"3. That the action of the plaintiff in acceptbacco from the defendant with knowledge that ing and retaining the one bale of Sumatra tothe defendant could not deliver an option on seven more bales prevents the plaintiff from making any claim on the seven bales, and the plaintiff's letter of March 17, 1917, acknowledging the receipt of the one bale and exercising its option on the seven bales is not binding on the defendant."

(5) That the learned trial judge erred in refusing to charge the jury as requested by the defendant, under point 6 as follows (Appendix, page 122a):

"6. That under all the evidence in the case the verdict of the jury must be for the defend

ant."

(6) That the verdict was against the evidence. (7) That the verdict was against the weight of the evidence.

(8) That the verdict was against the law.

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Irwin L. Sessler, of Philadelphia, for appellant.

Sidney L. Krauss, W. Horace Hepburn, and William A. Carr, all of Philadelphia, for appellee.

SIMPSON, J. [1-3] We might well af

firm the judgment in this case on the ground that all the assignments of error violate the rules of this court. The first has no exception to support it, and both it and the second violate rule 28, in that defendants do not "Mr. Sessler: I object to that unless the ques-print in the assignment the evidence admittion is modified to include the character, kind, ted; the next three violate rule 27, in that and quality of the tobacco that the defendant

was to sell to the plaintiff."

(2) The learned trial judge erred in allowing evidence to be given as to the value of tobacco on April 11, 1917, as follows (Appendix, page 53a):

they do not quote the answers to the points referred to; and the last three are not assignments of error at all, but only the general reasons usually specified on a motion for a new trial-that the verdict is against

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the evidence, the weight of the evidence, and the law. The judgment, however, must be affirmed on the merits.

[4] Two different contracts are involved in the litigation. By the first defendant agreed in writing to sell and deliver to plaintiff ten bales of "Java AAA 1" tobacco, according to a sample exhibited to plaintiff at the time the contract was made. As to this contract defendant says in its paper book:

"There can be no dispute as to the fact that there was a breach of contract due to the defendant's failure to deliver this tobacco, and there is no dispute between the parties or counsel as to the law regarding the measure of damages."

It claims, however, that the sample was of tobacco that was six or eight years old, that such tobacco deteriorates with age, and that there was no evidence as to the market value of tobacco of that age. On the other hand, plaintiff's witnesses, including defendant's salesman who sold the tobacco to plaintiff, testified that the sample exhibited to plaintiff was of tobacco in perfect condition, and stated its market value in that condition. It follows, of course, that if the jury believed the evidence of plaintiff, and the verdict establishes that they did, he was entitled to recover, as in fact he did, the difference between the market price of that kind of tobacco in perfect condition and the contract price at which defendant agreed to deliver it.

[5] The second contract was in writing also, and by it defendant sold to plaintiff one bale of Sumatra tobacco, with an "option of seven more ten days after arrival." The

there is therefore nothing we are called upon to consider.

SIMPSON, J. [1] There is a single assignment of error in this case. It avers that the court below erred in refusing five separate and distinct points for charge, all of which, option was plaintiff's, and not defendant's with the answers thereto, are embodied in and was unconditional, except that it had to the one assignment. By rule 26 of the rules be exercised within ten days after the arrival of this court such joinder constitutes “a of the first bale. When the latter was receiv-waiver of all the errors so alleged"; and ed defendant was at once notified that plaintiff exercised his option to receive the seven additional bales. Defendant refused to deliver them, alleging as an excuse that when it sent the one bale it notified plaintiff, "We have no more of this lot," and that plaintiff accepted the one bale with full knowledge of that fact. If we were to give to that notice the effect defendant claims for it, that no more bales would be delivered, he would not be helped thereby. A seller cannot escape liability by partial performance of his contract, with notice that he will not fully perform. To so hold would mean nothing less than that notice of an intended breach would excuse the breach, and that acceptance of part performance would be a waiver of full performance. Happily the law countenances no such inequitable contention.

The judgment of the court below is affirmed.

[2] We are less regretful of this, because, upon the merits, there is nothing in appellant's contention. The suit was upon an agreement by which the stock of goods of the Plumville Lumber Company, belonging to Noah Seanor alone, was sold to a partnership consisting of Noah Seanor, the defendant, Fitt, and George H. Hileman; defendant and Hileman each personally agreeing to pay Seanor one-third of the appraised value thereof. When the stock was appraised, Hileman paid his one-third, but Fitt paid only a portion of his, and his attempt, at the two trials of the case, was to tangle up the matter with the later affairs of the partnership. In this he was unsuccessful, as he should have been. So far as the duty to pay was concerned, it was an individual, and not a partnership, transaction.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(106 A.)

The bill of sale of February 18, 1915, sug-| viewed on a matter of law, as of right he gested as releasing the defendant, relates on- should have. Grieb v. Kuttner, 135 Pa. 281, ly to "bills, notes, accounts, or other claims 19 Atl. 1040. In all cases of quashing writs, due and owing by said company." This suit, or otherwise interfering with a litigant's as stated above, is to recover a personal in- statutory rights, the record should be selfdebtedness of the defendant, and is not "due sustaining, and show why the court is asked and owing by said company." to act. The judgment is affirmed.

The order of the court below quashing the writ of foreign attachment is reversed, and a procedendo awarded.

Appeal from Court of Common Pleas, 2. CONTRACTS Westmoreland County.

'Proceeding by George W. Seanor, as executor of Noah Seanor, deceased, against John H. Fitt. Motion to quash writ of foreign attachment, with notice to George W. Seanor, executor, Benjamin H. Thompson, garnishee, and others granted, and defendant appeals. Reversed, and a procedendo awarded.

142-RESTRAINT OF TRADEUNREASONABLENESS QUESTION FOR JURY. The court cannot decide as a matter of law business of smoking and curing fish, limited that an agreement in restraint of trade in the to the states of Pennsylvania and New Jersey, for the protection of those engaged in a wholesale business in interstate commerce and in export and Canadian trade, is unreasonable. 3. APPEAL AND ERROR 1009(7)-FINDINGS OF TRIAL JUDGE-REVERSAL.

Argued before BROWN, C. J., and STEWART, WALLING, SIMPSON, and FOX, JJ. Where there is evidence sustaining the facts found by the trial judge in suit in equiHugh W. Walkinshaw and Lewis C. Wal-ty, which were approved by the court below, kinshaw, both of Greenburg, for appellant. Benjamin H. Thompson, of Pittsburgh, and H. K. Shaffer, of Mt. Union, for appellee.

SIMPSON, J. Plaintiff issued a writ of foreign attachment and summoned five garnishees, viz. himself, three other individuals, and John P. Kilgore, the sheriff of the county. Defendant moved to quash the writ as to all the garnishees, none of whom joined in the motion, without averring any reason therefor, but evidently upon the ground that money in the hands of a sheriff is in custodia legis, and not the subject of an attachment. The attachment was quashed expressly upon that ground, and plaintiff appeals.

the Supreme Court will not reverse such findings, unless clear and plain error has been shown.

Appeal from Court of Common Pleas, Philadelphia County.

Bill in equity for an injunction by Israel Sklaroff and others, trading as S. Sklaroff & Sons and others, against Harry Sklaroff and others, trading as the Pennsylvania Smoked Fish Company, H. Sklaroff & Son, Samuel H. Sklaroff, and others, to enjoin defendants from conducting the business of smoking and curing fish in the states of Pennsylvania and New Jersey, either in their own name or in any other name. From a decree for plaintiffs, defendants appeal. Affirmed, and appeal dismissed.

The court below should have refused to entertain the motion to quash until and unless defendant stated of record his reasons for asking the intervention of the court. The record was regular on its face; and the attachment, so far as appears, was properly issued. No affidavit of cause of action was asked for or filed, and no depositions were taken. Under such circumstances it was an abuse of discretion (if it was the exercise of a discretion) to quash the writ; for its effect, if sustained, would be to deprive plaintiff of an opportunity to have the action of the court below reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Joseph Gilfillan and Alex. J. Brian, both of Philadelphia, for appellants.

David Bortin, Jacob Singer, and Emanuel Furth, all of Philadelphia, for appellees.

SIMPSON, J. Plaintiffs since 1892 have been carrying on, in the city of Philadel