from the jury, but when the cause of the action was severable in its nature, although it will be presumed prima facie, that the judgment includes the whole, this presumption may be rebutted by clear evidence that it extends only to a part."

In the present case, as we have already pointed out, the defendant never was liable upon the judgment notes. When he was sued upon them, it was as though he had been sued upon notes made by another person. But under the facts as found by the jury he was liable for the money loaned, and that was a different issue from that presented and tried in the former case. The notes did not operate as a merger of the partnership indebtedness; for the defendant, a member of the firm, was not a party to them. Nor were they a satisfaction of the partnership indebtedness, as they were not accepted as the individual obligation of Emmott, the partner who signed the notes with the firm name. See Hoskinson et al. v. Eliot et al., 62 Pa. 393. It was there held that the questions whether money was loaned on the credit of a firm, or on that of the partner who received it, and whether a note was received as the individual obligation of the partner who gave it, in satisfaction of the firm debt, were questions of fact for the jury. The case at bar involved questions of the same character which were submitted to the jury in a charge to which no exception was taken, and of which no complaint is made, on this appeal. The assignments of error are overruled, and the judgment is affirmed.

Argued before BROWN, C. J., and MESTREZAT, STEWART, FRAZER, and WALLING, JJ.

Alex. Simpson, Jr., Paul C. Hamlin, Albert L. Moise, and A. J. & L. J. Bamberger, all of Philadelphia, for appellants. Frank P. Prichard, Jesse S. Shepard, and John G. Johnson, all of Philadelphia, for appellee Guarantee Trust & Safe Deposit Co.

WALLING, J. This is an action of replevin to recover fourteen diamond rings and two pairs of diamond earrings. In 1914 defendant John W. Emery was a contractor, doing a large business, and reputed to be a man of wealth, but, being in need of funds to use in his business, was advised by the cashier of a bank, not the Guarantee Trust & Safe Deposit Company, to buy diamonds on long credit and pledge them for a loan. For that purpose he obtained an introduction and recommendation to plaintiffs, who were engaged in the jewelry business; and on June 2, 1914, obtained from them on inspection some loose unmounted diamonds, leaving a memorandum therefor. Those he shortly returned and on June 24th secured from plaintiffs seven diamond rings and one pair of diamond earrings, leaving a memorandum, stating, in effect, that they were taken on inspection and approval, and meantime to remain plaintiffs' property. On July 6, 1914, Mr. Emery executed to plaintiffs a long-time lease for said jewelry, providing for monthly payments of rent. Prior, however, to executing said lease he had pledged the diamonds to his codefendant, who received same in good faith, as security for a loan. Later, on August 4th of same year, Mr. Emery obtained from plaintiffs possession of another pair of diamond earrings and seven additional diamond rings, giving therefor a like memorandum, and later on August 26th, a Strangers to a written instrument may show lease therefor of like import with the former. the actual transaction by parol evidence, without reference to the rule limiting the admissi- Subsequently, under similar circumstances, bility of the evidence as between the original he pledged the diamonds last mentioned to parties.

(254 Pa. 569)

A. SIMON & SONS v. EMERY et al.

(Supreme Court of Pennsylvania. July 1, 1916.) 1. EVIDENCE 424-PAROL EVIDENCE AFFECTING WRITINGS-STRANGERS TO WRIT

ING.

his codefendant for an additional loan. Emery failed, and the two loans, amounting at time of trial to $4,941.25, were not paid. The jewelry here involved is valued at about $10,000, and as rent therefor Mr. Emery made plaintiffs some small payments.

About February 1, 1915, plaintiff's learning that said jewelry had been pledged to the Guarantee Trust & Safe Deposit Company, and being unable otherwise to secure possession thereof, sued out this writ of replevin.

There is nothing in said memoranda or leases authorizing Emery to pledge the jewelry, but at the trial defendants were permitted to offer parol evidence tending to show that such instruments did not contain the entire transaction between Emery and the plaintiffs, and that as a matter of fact

Action of replevin by Abraham Simon and another, copartners as A. Simon & Sons, against John W. Emery and another. From a judgment for plaintiffs, conditioned upon their paying defendant Guarantee Trust & Safe Deposit Company $4,941.25, plaintiffs all of said diamonds were delivered to him appeal. Affirmed. by them with the express understanding that

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 488, 489; Dec. Dig. 328.] 2. WILLS 671 - CONSTRUCTION CONVEYED.

ESTATES

they were to be pledged by him as security not extend to any cause when the balance has for loans of money. This was all denied by been actually paid and discharged, is applicable plaintiffs, and the evidence was very conflict- tition for the review of the account of such a to accounts of testamentary trustees, and a peing. The learned trial judge fairly sub-trustee might properly be refused, where it is mitted the case to the jury, with instructions not filed until after distribution. that if they found there was no such express understanding, to render a verdict for plaintiffs, and if they found there was, then to render a verdict for plaintiffs on condition A devise by the donee of a special power of that they pay the defendant company the appointment of all the donor's estate to which amount loaned on the security of the dia- the power of appointment applies, to the only monds, which conditional verdict was so ren- son of the donee, his heirs and assigns, but prodered. The jury also found that the trans-viding that, if at the donee's death he have other children living or the issue of a deceased action did not constitute a sale of the dia- child, he gives the residue to his children and monds to Emery.

[1] The real controversy in this case was not between the original parties, but between plaintiffs and the said Guarantee Trust & Safe Deposit Company; and therefore the court below was right in admitting parol evidence as to the actual transaction, which a third party may do without reference to the rule limiting the admissibility of such evidence as between the original parties. As to strangers such rule does not apply. Commonwealth, for Irwin, v. Contner, 21 Pa. 266, 272; Galbraith v. Bridges & Williams, 168 Pa. 325, 32 Atl. 20. ·

"Third persons are not precluded from proving the truth, however contradictory to the written statements of others. Strangers to the instrument, not having come into this agreement, are not bound by it, and may show that it does not disclose the very truth of the matter." Sigua Iron Co. v. Greene, 88 Fed. 207, p. 217, 31 C. C. A. 477, 487.

[2] If, as the jury found, plaintiffs delivered the diamonds to Emery that he might pledge them as security for loans, and he did so, then, to reclaim the diamonds, they must pay the loans.

The conditional verdict taken in this case was authorized by section 6 of the act of April 19, 1901 (P. L. 88), which provides, inter alia:

the issue of a deceased child in trust, neverthethe donee's death, "that he or they may enjoy less, in all events for 20 years immediately after the income thereof," the property to be equally divided among them at the expiration of that period, creates a trust only if the donee dies the direct devise is made, and if this contingency leaving other children than the one to whom does not occur, the devise conveys the residue to the son absolutely.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1577, 1578, 1586; Dec. Dig. 671.] 3. WILLS 629-CONSTRUCTION-VESTED OR CONTINGENT INTERESTS.

The construction of a will, if it is necessary to resort to the established rules, should be in favor of an absolute or vested estate, rather than a defeasible or contingent one.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1461, 1462; Dec. Dig.

629.]

4. POWERS 36(4) — EXECUTION

PARTIAL

INVALIDITY. Where a will gave a power of appointment on trust for such of the children or issue of the donee as he shall, by will or codicil, appoint, the invalidity of a provision in the will of the donee in the event of failure of his issue within 20 years after his death, in favor of the brother of the donee, does not invalidate the execution of the power of appointment in other respects.

[Ed. Note. For other cases, see Powers, Cent. Dig. § 142; Dec. Dig. 36(4).]

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of William Car"If any party be found to have only a lien upon said goods and chattels, a conditional ver- ter. From a decree, dismissing a petition for dict may be entered, which the court shall en- bill of review to open and revise an adjudicaforce in accordance with equitable principles." tion, Richard Champion Thomas Carter The affidavit of defense, while asserting appeals. Affirmed. that said jewelry was purchased from plaintiffs by Emery, does repeatedly aver that it was pledged by him to said Guarantee Trust & Safe Deposit Company with the knowledge and consent of the plaintiffs, and, in our opinion, was sufficient to admit of that defense at the trial.

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

(254 Pa. 565)

In re CARTER'S ESTATE. (Supreme Court of Pennsylvania. July 1, 1916.) 1. TRUSTS 328-ACCOUNTING BY TRUSTEEREVIEW-TIME FOR PETITION.

Argued before MESTREZAT, POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ.

I. Hazleton Mirkil, of Philadelphia, for appellant. Joseph T. Bunting, of Philadelphia, Rufus B. Sprague, of Boston, Mass., and Thomas S. Williams, of Philadelphia, for appellee Carter. F. B. Bracken, of Philadelphia, for appellee Fidelity Trust Co.

POTTER, J. [1] This is an appeal from the decree of the orphans' court, dismissing a petition for a review of the adjudication of the account of the trustee of the estate of William Carter, deceased. The authority for Act Oct. 13, 1840 (P. L. 1841, p. 1) 81, granting a review by the orphans' court is giving the orphans' court power to review the accounts of executors, administrators, and Act Oct. 13, 1840 (P. L. 1841, p. 1) § 1. It guardians, but providing that such power shall refers to the accounts of executors, admin

in twenty years after my death, without issue, then I give, devise and bequeath the said residue lutely to my brother, Richard Champion Thomof my father's real and personal estate absoas Carter, to him, his heirs and assigns forever." The auditing judge held that the remaind"but if," was "clearly an alternative appointment to take effect only if he should die leaving other children or issue of deceased children." Appellant contends, on the other hand, that the portion of the clause, beginning "in trust nevertheless" was intended to apply to the gift to Hugh-William, as well as to gifts to other possible children or

istrators, and guardians, but it would seem that it may properly be construed as including accounts of testamentary trustees. But the act contains a proviso that it "shall not extend to any cause when the balance found due shall have been actually paid and dis-er of the clause, beginning with the words, charged by any executor, administrator or guardian." The opinion of the court below, and the docket entries, show that distribution had been made in accordance with the adjudication before appellant filed his petition for review. It might very well have been refused for that reason. The adjudication also shows that the question raised by the petition for review was raised and consider-issue of deceased children. In support of this ed at the audit. Appellant is not therefore seeking a review for the purpose of presenting a question which was overlooked. It is rather in the nature of an application for a reargument. However, the court below chose to treat the petition, as in the nature of an exception to the adjudication. In so doing it gave the fullest consideration to the claim of petitioner, as possible ultimate remainder

man.

[2, 3] The power of appointment given by William Carter to his son is as follows:

"Upon trust for such of the children or issue of the said Joseph James Thomas Carter in such shares and manner as he shall by will or codicil appoint."

The donee of the power, after reciting his intention to execute the power, provided: "I give, devise and bequeath all the residue of my father's real and personal estate over which I have the power of appointment under his said will, to my only living son, Hugh-William Carter, to him, his heirs and assigns."

This language standing by itself, would unquestionably vest an absolute interest in the donee's son, who is the only member of the class to which the power was restricted. But the donee goes on to say:

"But if at the time of my death I have other children living, or the issue of a deceased child living, then I give, devise and bequeath the said residue of my father's real and personal estate over which I have the power of appointment as aforesaid, to my children and the issue of any deceased child, to be equally divided among them share and share alike, the issue of a deceased child to take the share a parent would take if then living, in trust nevertheless in all events for a period of twenty years immediately after the date of my death, that he or they may enjoy the income, interest and use thereof during that time, and at the expiration of that period, I give, devise and bequeath the said residue of my father's real and personal estate absolutely to my child or children, and the issue of any deceased child, living at the expiration of the above named period of twenty years, to them, their heirs and assigns forever, the issue of a deceased child to take the share a parent would take if then living, provided, however, that if all my children die during my lifetime or with

The

contention appellant calls attention to the use
by the donee of the words "in all events,"
"he," "child," and "all my children."
court below, although admitting that there
was much force in appellant's contention,
adopted the construction of the auditing
judge, saying: "The expression 'in trust,'
in our opinion, refers to the alternative gift
and to that alone." We agree with this con-
clusion. The gift to Hugh-William, which is
expressly "to him, his heirs and assigns,"
indicates plainly that he was to take a pres-
ent absolute interest, and as against this, the
intention of the testator in the latter part
of the clause, is, to say the least, not free
from doubt. "In cases of doubtful construc-
tion the law leans in favor of an absolute,
rather than a defeasible, estate."
App., 23 Pa. 9. "The construction, if it is
necessary to resort to the established rules,
should be in favor of
an absolute

Smith's

or vested estate rather than of a defeasible or contingent one." Jackson's Est., 179 Pa. 77, 83, 36 Atl. 156, 158. If the appointment to Hugh-William was not valid, he would, under the will of William Carter take, only in case he attains the age of 21 years. But no such condition was imposed upon the appointees of Joseph.

[4] It must be admitted that the latter exceeded his authority in attempting to create an estate in his brother who was not a member of the class to whom the power of appointment was limited. But that feature of the will is separable from the valid portion, and may be disregarded. We are satisfied that the power of appointment conferred by the will of William Carter was properly exercised in the will of his son Joseph, and that under the true interpretation of the latter will, Hugh-William Carter took an absolute present estate.

The assignment of error is overruled, and the decree of the court below, dismissing the petition for review, is affirmed.

(39 R. I. 516)
FREESE. PAVLOSKI et al. (No. 4865.)
(Supreme Court of Rhode Island. Dec. 4,
1916.)

CONTRACTS94(1)—FRAUD OF THIRD PARTY.
If, in the making of an advertising contract
with a newspaper, there was such misrepre-
sentation or concealment of material facts by
the advertising agency as to entitle the news-
paper to maintain an action of deceit against
the agency, the fact did not affect the liability
of the advertisers on their contract with an ad-
vertising agent, who, in order to obtain com-
mission, had the advertising placed with the
paper by the agency; it not having been with-
in the contemplation of the advertisers or the
agent to carry the contract out by fraudulent

means.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 420, 428, 430, 1160; Dec. Dig. 94(1).]

On motion for reargument. Motion denied. For former opinion, see 99 Atl. 13. Thomas A. Jenckes, of Providence, for plaintiff. William J. Brown, of Providence,

for defendants.

BAKER, J. The defendants have moved for a reargument on the ground that the court misconceived the evidence, apparently because in the opinion certain portions of the testimony were not discussed in considering the claim of fraudulent conduct. As we did not before discuss with particularity the ground on which he now urges the claim of fraud, we will now consider it.

tract with the Journal Company at open space rates, but had it placed through the Boston agency in order to get part of the commission. The contract of the Boston advertising agency with the Journal Company as to the Kissel-Kar advertisements is not

in evidence, and we are not informed as to its express terms. There is no evidence of any misrepresentation or concealment of material facts in its making. The Boston agency was acquainted with the rates of advertising of the Journal Company. It is possible to conjecture, if not to conclude, that, notwithstanding some of the provisions of the rate card, all contracts made by it with advertising agencies calling for the use of a definite amount of space in one year are under the stated special open space rates. The control of advertising business by agencies, which apparently leads to the allowance to them of discounts or commissions on

business brought by them, although discounts and commissions are not mentioned in the statement of advertising rates on the card, may also be an inducement to extend to such agencies some consideration in the matter of the rates themselves. But we do not regard this as important whatever the fact may be. For even if in the making of the contract with the Journal Company there was such misrepresentation or concealment of material facts by the Boston agency as to entitle the Journal Company to maintain an action of deceit against the agency, this fact would not affect the liability of the defendants on their contract with the plaintiff, as there is in the record no suggestion that it was within the contemplation of either party thereto to carry it out by fraudulent means. We find, therefore, nothing in any of the transactions described which can justify the defendants in refusing to pay the balance due for the advertising.

The testimony shows that one of the defendants sent for the plaintiff in order to make a contract for this advertising; that after a talk and discussion, as to terms and different rates which might be obtained in the newspapers, the plaintiff submitted a proposition, which was later accepted by the defendants. As already stated, this agreement was that the defendants were to use 10,000 As indicated in the opinion already delivlines of advertising space in one year in the ered, we think the cases cited by the defendJournal and Bulletin, and the plaintiff was ants as to the nonenforceability of contracts to procure this advertising under the special fraudulent as to third persons are not in open space rates as they appeared upon the point. In them attempts were made to enrate card of these papers. This in form was force contracts to pay money in consideration a perfectly legal contract by which the plain- that one refrained to bid at an auction, or tiff bound himself to the defendants to se- that a stockholder voted a certain way at cure certain work done for them by other the meeting of the stockholders of a corporapersons for a stated price. He assumed tion, or to recover commissions for acting whatever risk there might be in obtaining as agent for both parties to a contract for the work done at the price named. The the purchase and sale of property, without claim of fraud is based chiefly on these facts, disclosing to them the fact that he was so namely, that on the rate card the words acting. These and similar contracts are, in "open space rates" is preceded by the word some instances, held void as against public "foreign," and followed by the words, "For policy, or as operating as a fraud upon some general advertisers, not applicable to local one to whom, under existing conditions of advertising," and the statement by the plain-association, a duty is owing. Such cases are tiff in cross-examination that the defendants clearly distinguishable from the case at bar, themselves as local dealers could not have placed this advertising at open space rates, although the car manufacturers could have done so. The plaintiff, however, also says that he personally could have placed the con

and it cannot rightfully be claimed that the contract now sued on contemplated the perpetration of a fraud upon the Providence Journal Company.

The motion for a reargument is denied.

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

Interrogatories, relating to immaterial alle(Supreme Court of Rhode Island. Nov. 29, gations in a bill, while objectionable, do not affect the bill.