"Sangerville, Me., Oct. 19, 1914. "Know all men be these presents that I Edwin G. Bailey have this day leased my Farm to C. H. Southard of Easton, Me. One year (said farm is located in Sangerville on road running from Silver's Mills to Dover) together with all the farming tools, One pair Horses now on farm Dairy Ütencills now on farm this years crop Hay, together with grain and straw three acres incilage corn in silow eight cows or their equivlent. The same amount of wood to be left as when taken. Said Farm is to be carried on in a husbandlike manner.

"Amount of Rent is to be five hundred dollars and taxes. Lease of farm begins Nov. 1st, 1914 and runs one year.

"Same amount of fodder to be left in Barn as when taken.

Edwin G. Bailey. "C. H. Southard."

The second and last lease was made November 18, 1915, covering the same premises, and including the personal property, but differed from the first in these provisions, viz.: "Said lessee takes said premises with the crop of hay and straw for the year 1915 on said premises and it is agreed and understood that the same shall be fed on the premises.

"At the expiration of this lease, said Southard is to leave on the said premises four bins (streaked) of the same kind of grain that was there when he took said premises and also one small bin of grain (streaked)."

It will be noted that in both leases "the crop of hay and straw" for 1915, and fodder, were the subject of special mention, showing clearly that for purposes of his own the plaintiff controlled the hay crop of 1915, and Mr. Southard so understood it, and from the testimony it appears performed his contract.

The plaintiff contends that there was a mutual mistake in the last lease, that there should have been in addition to the foregoing reservations further concessions by the lessee affecting the crop of 1915, to the same extent and in the same manner as in the lease for 1914; but this claim is not supported by the testimony. This conclusion makes unnecessary further reference to the point raised by plaintiff's counsel that there was a mistake made which justified and made admissible evidence showing that the last lease should have contained other provisions limiting the rights of Southard, the lessee, under the last lease. That the plaintiff admitted the right of Southard to sell surplus hay in 1915 appears from a letter written by him to Southard June 3, 1916, in which he says: "If there is a car of hay left over or a car load by pressing some straw it would be best to let it go, give more room for this year's crop. Let me hear from you soon as it would want to be pressed very soon.'

And again, on June 8th, after Southard had written him that the hay for 1915 was to be fed on the premises, the plaintiff wrote in reply:

hay last year was only crop, and the grain was light on account of season. 12 tons for a car. If you want to press a car and there is not hay enough make the Bal straw. I will give you shipping directions, this is likely the old hay left over last year, it ought to be shiped the mice will eat it all up.

"There will be no chance for any trouble on contra if you have used what hay you wished and Bal shiped to me, so to make room and save the hay from getting older and drop in price "Raining most of the time and cold. "Resp. yours, E. G. Bailey."

The surplus hay amounted to 22 tons, and there was some straw, all of which the plaintiff took and did not account for, which if left on the farm would have been sufficient for the stock on the farm, in 1916. The case clearly shows that the lessee owned the hay crop of 1916, that he had the right to sell the same to Mr. Bean or any other person. In this case he sold to Mr. Bean, who from the evi

dence was a purchaser for value, and with

out notice of any defect in the title of Mr. Southard, if a defect had existed. But no

mistake of the parties or defect in title appears. The defendant is therefore entitled to judgment in both cases and judgment for a return of the property. Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462.

So ordered.

(117 Me. 578)

CLARK v. LUCE et al. (Supreme Judicial Court of Maine. Nov. 27, 1918.)

NEW TRIAL 71-MOTION CONFLICTING EVIDENCE.

Where the evidence on questions for the jury was conflicting, the verdict will not be set aside on motion for new trial.

On motion from Supreme Judicial Court, Penobscot County, at Law.

Action of assumpsit by David A. Clark against Joseph W. Luce and another. There was a verdict for plaintiff, and defendants move for a new trial. Motion overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

L. B. Waldron, of Dexter, for plaintiff. W. B. Peirce, of Bangor, for defendants.

HANSON, J. The plaintiff in this action of assumpsit sued to recover for money loaned, and for wages for his personal labor on the defendants' farm. The jury returned a verdict for the plaintiff in the sum of $152.56, and the case is before the court on defendants' general motion for a new trial.

The record discloses much conflict in the testimony, and the jury believed the plaintiff and his witnesses. The questions legally arising in the case were all for the jury, and on examining the evidence we find no reason to interfere with the verdict.

(262 Pa. 80)

CONNELLSVILLE.

And thereafter he stated that he did not

On appeal from award of viewers, testimony of a properly qualified expert witness that, at a date of taking, the market value of property was a certain sum, should not have been stricken merely because he elsewhere stated that he would have given that sum if he had wanted it as a residence, which he did not. 2. EVIDENCE 488-OPINION AS TO VALUE OF PROPERTY-QUALIFICATION. Witness who had lived in borough 15 years and owned store property near condemned land for six years before condemnation, and who thereafter bought property on street on which it was located, and who had inquired of owners in vicinity as to value of their properties, was qualified to testify as to value of condemned land.

MARKET AVAILABILITY FOR

4. EMINENT DOMAIN 202(4) VALUE EVIDENCE BUILDING LOTS. On appeal from award of viewers, plaintiff's point that, if the jury believed land available for subdivision and that the market value would be increased by dividing it into smaller building lots, the jury might consider such availability, was proper.

Appeal from Court of Common Pleas, Fayette County.

Guela F. Soisson and husband appealed from an award of viewers in eminent domain proceedings by School District of the City of Connellsville. From a judgment on a verdict for plaintiffs, the defendant district appeals. Affirmed.

From the record it appeared that the school district of the city of Connellsville on May 9, 1916, appropriated four adjoining lots in the said city for the purpose of erecting thereon a high school building. Plaintiffs, Guela F. Soisson and William H. Soisson, the owners of one of the lots in question, appealed from the award of viewers which was in their favor. Thereafter an issue was framed in the common pleas, and on the trial of the appeal a verdict was rendered in favor of the plaintiffs.

[1] At the trial a duly qualified expert, after testifying that in his opinion the market value of the property in question was $10,000, subsequently stated on cross-examination when asked what would have been offered for the lot if it had been made known that it was for sale in the early part of May, 1916, answered:

"That is a pretty hard question to answer. You might get people there, just as I said before, that would bid it up above that and some that would bid it up about that; but if I

had one. Plaintiffs moved to strike out the testimony of said witness because of his answers on cross-examination. The trial judge overruled the motion. (1)

[2] A witness called for the plaintiffs testified that he had lived in Connellsville 15 years and owned a store property 40 feet from the condemned land prior to the condemnation thereof, and thereafter bought a property on the street on which the condemned land was located, and before the condemnation had made inquiries of two property owners in the immediate vicinity, as to the value of their properties with a view of purchasing a property for himself. The trial judge overruled defendant's objection to the competency of such witness to express an opinion concerning the value of the condemned property. (2)

[3] The trial judge refused to permit defendant to show the price defendant had bid for the land in question in March, 1912. (3) [4] The court affirmed plaintiffs' point for charge, which was as follows:

"If the jury believe that the land was available for subdivision and that the market value thereof would be increased by subdividing it into smaller building lots, then they have the right to consider such availability as an ele ment of value in making up their verdict." (8) Verdict for plaintiffs for $6,784.11 and judgment thereon.

Errors assigned, among others, were various rulings on evidence (1, 2, and 3), and the charge of the court (8).

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

E. C. Higbee, of Uniontown, for appellant. James R. Cray, of Uniontown, for appellee.

PER CURIAM. The issue in the court below was for the ascertainment of damages to which the plaintiffs were entitled for land taken for school purposes. The assignments of error do not call for discussion. It is sufficient to say of them that they disclose no reversible error, and the judgment is, accordingly, affirmed.

(262 Pa. 100)

PENNIMAN et al. v. HOFFMAN et al. (Supreme Court of Pennsylvania. July 17, 1918.) INJUNCTION

189-BUILDING RESTRICTION -SCOPE OF RELIEF-USE OF BUILDING-REMOVAL.

In suit to enjoin erection of garage in alleged violation of building restriction against offensive occupations, in which preliminary injunction restrained use of building as a public garage, but where it was thereafter completed, apparently for use as public garage, refusal to

decree its removal on final hearing was not error, as the court could not say as matter of law that it was erected in violation of injunction, but could only act when use of building became offensive.

Appeal from Court of Common Pleas, Philadelphia County.

Bill in equity by James H. Penniman and others against Joseph B. Hoffman and others to restrain the erection of a garage building. From a decree refusing prayer of bill, complainants appeal. Affirmed.

From the record it appeared that plaintiffs and defendants held their respective properties subject to the following covenant and

restriction:

"And subject also to the express condition and agreement that no slaughterhouse, skin-dressing establishment, hose or engine house, blacksmith shop, carpenter shop, glue, starch, soap, or candle manufactory, livery stable, or other building for offensive occupation shall at any time hereafter be erected or used upon any part of the aforesaid lot of ground."

The lower court found that the neighborhood immediately surrounding the property upon which the building was erected was exclusively residential in character. The defendants' premises were Nos. 4317 and 4319 Walnut street, Philadelphia. The plaintiffs were owners of property in the same block. The opinion of the Supreme Court further

states the case.

The lower court entered a decree perpetually restraining defendants from using or permitting others to use the buildings on the lots in question for the purpose of a public garage or storage house for automobiles. Thereafter the defendants continued the erection of the building having such appearance. The lower court refuses to decree the removal of the building. Plaintiffs appealed.

Error assigned was the decree of the court. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, and WALLING, JJ.

Ira J. Williams and Charles L. Guerin, both of Philadelphia, for appellants.

PER CURIAM. The final decree in the proceedings instituted against the appellees enjoined them from using, or permitting any one to use, any buildings on the lots described in the bill "for the purpose of a public garage or storage house for automobiles,"

and the mandatory order asked for by the appellants was properly refused for the following reason, given by the learned court below: "Between the time of the grant of the preliminary injunction and the final hearing the defendants had proceeded with the erection of the building substantially without change from the one originally projected. It bears all the appearance of a building erected for use as a public garage. The plaintiffs have requested the court to conclude as a matter of law that, the buildings having been erected in violation of the terms of the injunction, the court should now require the same to be removed. With this view we cannot concur. The character of the

architecture of the building erected upon the tract of ground is one over which this court may not exercise supervision. It is only when the use to which the building is put becomes offensive that this court may act." Decree affirmed, at appellants' costs.

(262 Pa. 136)

ALCORN v. D. L. WARD CO. (Supreme Court of Pennsylvania. July 17, 1918.)

1. EQUITY 359-VOLUNTARY DISMISSAL OF BILL-EFFECT.

The complainant may generally move to dismiss his own bill with costs at any time before the decree, it being a matter of course to permit him to do so; and, when the bill has been dismissed and costs paid, the suit is terminated. 2. EQUITY

JUNCTION.

359-DISMISSAL OF BILL-IN

Where bill in equity for an accounting has been withdrawn by leave of court and costs have been paid by plaintiff, who thereafter brings an action at law for the same cause of action, defendant cannot maintain a motion entitled in former equity suit to enjoin plaintiff from proceeding in his action at law.

Appeal from Court of Common Pleas, Philadelphia County.

Bill in equity for accounting by Samuel S. Alcorn against the D. L. Ward Company. Motion by defendant for an order to restrain the plaintiff from proceeding at law refused, and defendant appeals. Appeal dismissed. Argued before BROWN, C. J., and POTSTEWART, MOSCHZISKER, and TER, FRAZER, JJ.

S. Heckscher and Alfred Aarons, both of Philadelphia, for appellant. William T. Connor and John R. K. Scott, both of Philadelphia, for appellee.

BROWN, C. J. On February 1, 1917, Samuel S. Alcorn, the appellee, filed a bill in equity in the court below for an accounting by the defendant on a contract of employment. A demurrer to the bill was overruled and an answer filed. When the case was called for hearing on September 28th of the same year, the plaintiff withdrew his bill and subsequently paid the costs. In the following November he brought an action at law on the same contract, and on January 30, 1918some four months after the bill had been withdrawn-the appellant filed a petition in the equity proceeding, asking for an order enjoining the plaintiff from proceeding in his action at law. This petition was denied, on the ground that the equity proceeding was no longer pending, as the bill "had been withdrawn upon motion and with permission before the taking of testimony before the court."

[1, 2] If the equity proceeding was at an end at the time appellant's petition was filed, the court could make no order in it, and ap pellant's remedy, if entitled to the restrain

ing order asked for, was by a bill filed by it against the appellee. That the equity proceeding had been fully ended is not open to question by the appellant. The bill was withdrawn by leave of court, and this was a dismissal of it by the court's permission. "In a court of law the plaintiff may suffer a nonsuit at any time during the trial until the jury are ready to give in their verdict, and even then he might, were it not for our act of assembly. This is often a great hardship upon defendants. So it is the general rule in a court of chancery that a complainant may move to dismiss his own bill with costs, at any time before the decree, and it is a matter of course to permit him to dismiss it. Cummings v. Bennett, 8 Paige [N. Y.] 79; 4 Milne & Craig, 194, Curtis v. Lloyd. And even upon the hearing of the cause, if the court has merely directed an issue, the plaintiff may, before the trial of the issue, obtain an order to dismiss the bill with costs, because the directing of an issue is only to satisfy the conscience of the court preparatory to its giving judgment." Saylor's App., 39 Pa. 495.

In the present case the appellee had offered no testimony at the time he withdrew his bill. When the case was called for hearing he abandoned it, and the appellant having presented to him its bill of costs and received payment of the same-not due until the cause had finally ended-is not now to be heard that the proceedings is still pending and an order can be made in it. This being so, it is unnecessary to determine whether the action of the court below in denying appellant's petition was interlocutory or final. Whatever it was, the appellant has no standing to complain of it.

Appeal dismissed, at appellant's costs.

PER CURIAM. The plaintiff recovered a verdict of $406.33 for damages sustained in an automobile collision. The issue was legal liability on the part of the defendant. As is usual in this class of cases, the testimony was sharply contradictory. The jury sustained the plaintiff's contention, and the evidence abundantly justifies the verdict. The responsibility was placed, where it belongs, on the defendant.

HARVEY v. HARVEY. (Supreme Judicial Court of Maine. Nov. 16, 1918.) On Motion ty, at Law. Action by Fred H. Harvey against from Supreme Judicial Court, Aroostook CounSimon Harvey. Verdict for plaintiff, and defendant moves for new trial. Motion overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN. and MORRILL, JJ. Shaw & Thornton, of Houlton, for plaintiff. Powers & Guild, of Ft. Fairfield, D. L Theriault, of Ft. Kent, and Benedict F. Maher, of Augusta, for defendant.

PER CURIAM. Verdict was rendered for plaintiff and defendant moves for new trial on the customary grounds. The plaintiff claimed that he was deceived by the defendant in a trade for exchange of horses, that the defendhorse was "all right in every way," that the ant stated, when the trade was made, that the horse, in fact, was wind-broken and of an ugly disposition, which facts were well known by the defendant at the time the trade was made, and that finally the horse sickened and died. The defendant denied any representations as to the conditions of the horse at the time of the trade, and urged that the plaintiff's ill treatment of the horse after he obtained him was the real cause of the bad condition of the horse and of his death. We must judge the testimony from the colorless pages of a printed record. The jury saw the witnesses, heard them testify, and weighed the testimony in the light of such opportunity to see and hear. We have examined the record carefully, and are unable to say that the verdict, based upon the nesses, was so clearly wrong, or was the result testimony as the jury saw and heard the witof such bias or prejudice, as would warrant us in declaring that the verdict is a palpable Motion overruled. error.

THURSTON v. BENTON & FAIRFIELD ST. R. CO. (Supreme Judicial Court of Maine. July 3, 1918.) On Motion from Supreme Judicial Court, Kennebec County, at Law. Action by Alzada Thurston against the Benton and Fairfield Street Railroad Company. Verdict for plaintiff. On motion. Motion sustained, unless certain damages be remitted. F. W. Clair, of Waterville, for plaintiff. Weeks & Weeks, of Fairfield, for defend

ant.

PER CURIAM. In this case the jury found a verdict for the plaintiff for $3,737.50. The case comes up on the usual form of motion. The verdict of the jury upon the question of liability cannot be disturbed. But the damages are manifestly excessive. It is the opinion of this court that $1,500 is ample and liberal. It is therefore ordered: Motion sustained, unless the amount of the verdict above $1,500 be remitted within 30 days from the certification of this decision.

PURCELL v. INTERNATIONAL MOTOR CO. (No. 94.) (Court of Errors and Appeals of New Jersey. March 4, 1918.) Appeal from Supreme Court. Proceeding by Patrick Purcell under the Workmen's Compensation Act, opposed by the International Motor Company, employer. From a judgment of the Supreme Court (103 Atl. 860), affirming an award, the employer appeals. Affirmed. Kalisch & Kalisch, of Newark, for appellant. Codington & Blatz, of Plainfield, for appellee.

PER CURIAM. The judgment under review

pressed in the opinion delivered by Mr. Justice Bergen in the Supreme Court.

TRENCHARD, PARKER, and KALISCH, JJ., dissent.

PARKER, J. (dissenting). The award rests on a finding of permanent injury to the eyesight which in my judgment is not supported by any evidence in this case. At the trial both sides rested without any testimony of the permanent character of the injury. Petitioner had not lost either eye, and claimed only impairment of vision. The court called attention to lack of evidence of permanency of impairment, and petitioner recalled an expert previously examined, who declined to give any opinion that it was permanent; and an examination of the whole of his testimony makes it clear that he considered the petitioner a malingerer. He said in substance that injuries of that character were sometimes permanent but usually not. Further he would not go. The court, in deciding the case, said that as the injury was not shown to be temporary he must conclude it was permanent. This manifestly reversed the burden of proof. I take it for granted that in a workmen's compensation case the petitioner must bear the burden imposed on other plaintiffs who seek to deprive defendant of money or property by a claim of damages, of proving the amount of damages to which he was entitled. Of course, if he has lost an arm, or a leg, or an eye, the situation itself speaks, because we know the missing member will not grow again. But when the injury is not claimed to be more than a functional impairment of vision, the court must depend on the knowledge and experience of experts and if no expert testimony points to permanent impairment, the court should not assume it. I think the judgment should be reversed.

STERLING LEATHER WORKS v. LIBERTY TRUST COMPANY et al. (No. 52.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1917.) Appeal from Court of Chanery. Interpleader by the Sterling Leather Works against the Liberty Trust Company and S. Schwarzwaelder, as executor of one Ronan. From a decree of the Court of Chancery (102 Atl. 841), the Liberty Trust Company appeals. Affirmed. Archibald F. Slingerland, of Newark, for appellant. Lintott, Kahrs & Young, of Newark, for appellee.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Lane (102 Atl. 841).

Affirmed. Ar

R. W. HARTNETT CO. v. POULTRY FANCIER PUB. CO. (Supreme Court of Pennsylvania. July 17, 1918.) Appeal from Court of Action by the Common Pleas, York County. R. W. Hartnett Company against the Poultry Exceptions to Fancier Publishing Company. report of Ray P. Sherwood, Esq., auditor, appointed to distribute proceeds of the company, dismissed, and report confirmed, and C. J. Delone, a creditor, appeals. gued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ. V. K. Keesey, of York, for appellant. John J. Bollinger, of York, for appellee. PER CURIAM. To sustain this appeal, findings of the auditor, confirmed by the court below, would have to be disturbed, and, as we have not been convinced that there should be such disturbance, the decree of distribution is affirmed, at appellant's costs.