the estate, when the said executors, and par ticularly William P. Ellison, induced their said sister, Margaret Ellis, to instruct her said trustee to desist from attempting to so surcharge them, and at the same time pledged the said Margaret Ellis not to communicate the facts to your petitioner.

"Your petitioner further avers that the said executors were, at the time they were acting as executors until the filing of their account, engaged in commercial business in the city of Philadelphia under the firm name of John B. Ellison & Sons. During that time they During that time they used the money of the estate of the said John B. Ellison in the said business, and at the risk of the said business. Your petitioner further avers that during the time aforesaid large profits were made by the said executors in the business aforesaid, and that the said estate, by reason thereof, was entitled to share in the profits of the said business during the years aforesaid. The said executors were permitted at the said audit, in violation of law, with the consent of the parties present, to testify to certain alleged facts relating to the purchase of the business of the said John B. Ellison by the said executors in his lifetime. Your petitioner never consented to such testimony being admitted, personally, nor did she ever authorize William P. Ellison (one of the said executors, her trustee, who represented her throughout the proceedings) either so to testify, or to permit his coexecutor to testify, nor had she any knowledge that they had so testified until January, 1893. By the testimony aforesaid the executors were enabled to show a state of facts which tended to relieve them from a surcharge of many thousands of dollars, as your petitioner believes, and expects to be able to prove to the satisfaction of your honorable court. No explanation of any kind was given to your petitioner by the said William P. Ellison, her trustee, or by either of the said executors (her said brothers), as to the acts be ing done in the settlement or adjudication of the said estate; but your said petitioner was, by the willful concealment of the facts from her by the said William P. Ellison, her trus tee and brother, defrauded of a large portion of her share of the said estate. That both of the said executors profited thereby, to the extent of many thousands of dollars, in fraud of the rights of your petitioner, as your petitioner believes, and expects to be able to prove.

"Your petitioner further avers that she was, by the fraudulent acts of the said William P. Ellison and Rodman B. Ellison, executors as aforesaid, prevented from properly protecting her interest in the said estate at the audit of the account of the said executors, and was prevented by them from attending the said audit. By reason of their relation to her as the executors of her father's will, and as her brothers, and (in respect to the said William P. Ellison) as her trustee, they sustained such a relation of confidence to

your petitioner that they were bound to disclose to her the facts hereinabove recited, and by failing to do so they have procured a decree of the court in fraud of the rights of your petitioner. The said William P. Ellison has, from the date of the said adjudication until the present time, acted as the trustee of your petitioner of the funds received by him from the executors of the said estate, and your petitioner was first informed of the facts relating to the settlement of the said estate, as herein recited, since the 1st of January, 1893. of January, 1893. The said William P. Ellt. son having notified your petitioner that he was about to resign the trust, your petitioner placed the matter in the hands of counsel, and thereupon, on information disclosed by the sister of your petitioner and by Ellis D. Williams, the trustee of her said sister, for the first time, discovered the facts hereinabove recited. These facts were brought to the attention of your petitioner by a copy of a letter written by Ellis D. Williams, Esq.,to William P. Ellison, bearing date on the 9th day of January, 1893. This copy of a letter was furnished to your petitioner by her sister, Margaret Ellis, with the consent of William P. Ellison. The copy of the letter so received is as follows:

"Law Offices of Hannis, Parrish & Williams. William C. Hannis, Joseph Parrish, Ellis D. Williams, Joseph T. Bunting. Telephone Communication. 526 Drexel Building, Fifth and Chestnut Sts. Philadelphia, January 9th, 1893. Mr. William P. Ellison, 24 South Sixth St., Philadelphia-Dear Sir: Referring to your inquiry as to the relation of yourself and your brother to the estate of your father, in settling your accounts as executors, I beg to say that my recollection is as follows: (1) That I, as trustee of Mrs. Margaret Ellis, objected to your claiming credit for the "loss on investment in bond and mortgage, Chalkley Summers, $4,000," and failing to account for any interest thereon, the investment account stating, "Bond and mortgage, Chalkley Summers has been charged off, and account is worthless, and nointerest collected thereon from the time it was taken by the executors on January 1st, 1868." This objection was made on the ground that it was an illegal security, being upon New Jersey real estate, and that you, as individuals, or members of the firm of J. B. Ellison & Sons, had sold to yourselves, as executors, this mortgage, or had loaned Mr. Summers money from your father's estate to pay this (Mr. Summers') account on your books, or in some manner for your individual profit or interest, or that of your firm. I have an impression that the transaction grew out of some of your dealings with Elwood Matlack. This mortgage, proper investigation would have shown, as it subsequently turned out, was secured upon practically worthless property. You, on further consid eration, recognized this, and agreed to besurcharged with the amount of this mort

gage, with interest from the date it was taken, viz. January 1st, 1868. (2) That you failed to account to Mrs. Ellis for any income from the Dewing interest in the estate of John Moore, and that you likewise recognized and agreed that Mrs. Ellis was entitled to and should be paid the same. (3) That in the account you filed you made no charge for commissions. Subsequently, when, on Mrs. Ellis' behalf, I criticised the matters referred to in items 1 and 2, and the questions arose as to your settlement for your father's interest in the firm, you suggested that you ought to have charged commission for settling the estate, but upon its being pointed out to you that, after your firm had paid to the estate the supposed value of your father's interest in the firm, you used large sums belonging to the estate for the firm's purposes (which fact, upon presentation to the court, would have probably prevented the court from allowing you any commission), you finally agreed that no commissions should be claimed by you. (4) The next question that arose was as to your father's relations to the firm of John B. Ellison & Sons. You, as executors, filed an inventory containing the following item: "Interest in firm of John B. Ellison & Sons, $100,000," while in filing your account you included the following item: "Amount loaned J. B. Ellison & Sons, January 1st, 1865, at 6 per cent., $100,000." A question arose whether you would not have to pay to the estate this $100,000, as well as $100,000 for interest in firm, with which you had been charged by the inventory and appraisement, from the fact of your mouths being closed as witnesses, and by reason of nothing appearing upon the books of John B. Ellison & Sons to show that the sale of the interest in the firm had actually been made; and my recollection is that after examining the books, and failing to find any entries evidencing the sale, we adjourned to meet again to give you the opportunity of finding some evidence on this point, and that you failed to do so, and we had to rely upon your unsupported evidence, which evidence the law would not have allowed you to have given, had not Mrs. Ellis and I, as representing her, withdrawn any objection thereto. I would say that there has been no impression left upon my mind of anything that could be considered as properly designated by using the expression "mutilation of books;" but that there was a singular absence of essential and natural entries, for such an important transaction, I am clear. It would occur to me that the easiest way for you to obtain evidence upon this point would be for you to exhibit to the parties in interest, or some one representing them, the books referred to, and have the books speak for themselves, and not trust to memory, so liable to do injustice. The raising of these questions was attended with intense anxiety on your part, and appeals were made to both Mrs. Ellis and myself; and I,

after having obtained the permission in writing from Mrs. Ellis, consented to permit you to testify on your behalf to the effect that the interest of John B. Ellison in the firm, valued on the firm books at $149,000, had been bought out by the new firm on January 1st, 1865, for the sum of $115,000, of which $100,000 remained due by the firm at the time of your father's death. The only other criticisms made in the settlement of the estate, that I remember, arose from the fact of your using the moneys of the estate in your firm, subject to the risks of the business, and without security, and from the fact that your brother, Mr. Rodman B. Ellison, borrowed from the estate, June 1, 1870, $18,000, and July 5, 1871, $2,000, and, while giving the estate a mortgage therefor, failed to record it, so that it was, so far as the widow was concerned, no protection against creditors. In writing this letter, you must bear in mind that the matters spoken of occurred about eleven years since, and it has required very considerable labor and thought, and reference to papers, to make this statement; but I think I have fairly stated everything of importance that arose at that time. This whole subject is necessarily an unpleasant one, and I regret exceedingly that you have brought me into the matter, when long ago the unpleasant differences were legally adjusted and ended. I trust that if I have made any errors you will call my attention to them, and, if there is any further information absolutely necessary to be given, that you will call upon me. Yours, very respectfully.'

"In conclusion, your petitioner avers that she was at the time of the adjudication aforesaid a married woman, and has been under coverture from that time until the present. Your petitioner therefore prays that a citation may issue to Rodman B. Ellison and William P. Ellison and to Margaret Ellis and Ellis D. Williams, trustee for Margaret Ellis (being all the parties in interest), to appear and show cause: First. Why the adjudication of the accounts of Rodman B. Ellison and William P. Ellison as executors of the will of John B. Ellison, deceased, should not be reopened and a rehearing granted, and the said Rodman B. Ellison and William P. Ellison be surcharged with the profits earned by the moneys of the estate by their use in business of the said Rodman B. Ellison and William P. Ellison from 1865 until 1882. Second. To show cause why the record of the said orphans' court should not be amended by striking therefrom the adjudication so fraudulently procured to be entered upon the account of the said executors as hereinbefore set forth. Third. Why the said Rodman B. Ellison and William P. Ellison should not state an account of the profits earned by the said moneys of the estate by their use in the business aforesaid, and make payment of the proper portion thereof to your petitioner.

John G. Johnson, William W. Porter, and Frederick J. Geiger, for appellant. William C. Hannis, for appellees.

STERRETT, C. J. The facts upon which appellant's prayers for a citation and relief are grounded are fully set forth in her petition, and need not be repeated. It is stated in the opinion of the court below that the plea and answer filed by appellees were withdrawn by agreement, and the general demurrer, on which the case was heard and disposed of, was substituted. As the learned judge correctly says, "The facts set out in the petition, being thus accepted as verities, raise the single point whether they place the petitioner in a position to demand relief;" and then, for the purpose of argument, he assumes "that the money of the testator was used by the executors for their own profit after his death; that the respondents concealed from the petitioner the circumstance that an effort to charge the executors, of whom one was her trustee, had been abandoned at the earnest solicitation of accountants; and that, by agreement of the respondents, testimony which, without the consent of all parties, was incompetent, had been introduced at the audit, that resulted in finding that the testator, in his lifetime, had sold out his business interests to his executors, and had loaned them $100,000 of the purchase money." After considering the questions involved the learned court held, in substance, that, by reason of her laches and acquiescence, petitioner was not entitled to relief in any form, and her petition was accordingly dismissed.

The subject of complaint in the third specification is in finding, as therein recited, that "the filing of the account, and its audit and settlement, were fully known at the time by the petitioner, and her acquiescence in the proceedings continued unbroken, for all that appears upon the record, down to April 3, 1893, when she presented this petition for review." This, as well as the holding complained of in the fourth specification, appears to have been unwarranted. They are both in conflict with averments contained in seyeral paragraphs of the petition. In one of them, after stating that the executors were permitted, contrary to law, to testify at the audit to certain alleged facts relating to the purchase of testator's business in his lifetime; that she never consented, nor authorized any one to consent for her, to the admission of said testimony, etc.,-appellant avers she had no "knowledge that they [the executors] had so testified until January, 1893." Again, referring to the same subject, she avers: "Your petitioner was first in

of said estate, as herein recited, since the 1st of January, 1893." In another paragraph she avers that: "No explanation of any kind was given to your petitioner by the said William P. Ellison, her trustee, or by either of said executors (her said brothers), as to the acts being done in the settlement or adjudication of the said estate; but your petitioner was, by the willful concealment of the facts from her by the said William P. Ellison, her trustee and brother, defrauded of a large portion of her share of said estate," etc. In the next paragraph she avers that by the fraudulent acts of said executors she was "prevented from properly protecting her interests in said estate at the audit of the account of the said executors, and was prevented by them from attending the said audit." We have considered the averments embodied in the petition, and giving to them that weight, as evidence, which they are entitled to under the pleading, we are of opinion that upon the case as presented the appellant is entitled to relief. The assignments of error are sustained. Decree reversed, with costs to be paid by the appellees, and record remitted for further proceedings, including leave to the appellees to answer, etc.

PERRINE et al. v. JERMYN. (Supreme Court of Pennsylvania. Oct. 1,1894.) SALE TO AGENT TERMINATION OF AGENCY-NOTICE-EVIDENCE-BURDEN Of Proof.

1. Plaintiff sold goods to an hotel on the order of C., knowing when the first sales were made that C. was managing it as agent of defendant. In the meantime C. became the lessee. Plaintiff testified that he did not know of the change till after the sales were made. C. testified that he told plaintiff at the time of the change, and produced bills from plaintiff; those for goods sold before the change being made to "C., Manager," and those for goods sold thereafter to "C." He also produced five checks drawn by him individually in favor of plaintiff. Held, that the question of notice of the termination of the agency was for the jury.

2. The burden of showing notice of the termination of agency, where plaintiff commenced to sell goods for a hotel on the order of C., knowing that he was manager for defendant, and continued the sales after C. became proprietor, is on defendant.

Appeal from court of common pleas, Lackawanna county; R. W. Archibald, Judge.

Action by M. Perrine and J. S. Perrine, trading as M. & J. S. Perrine, against John Jermyn, for the price of goods sold. Judgment for plaintiffs. Defendant appeals. Affirmed.

S. B. Price, for appellant. E. N. Willard, Everett Warren, and Henry A. Knapp, for appellees.

MCCOLLUM, J. It was shown on the trial, and not disputed, that from April 1, 1888, to April 1, 1889, Joseph Curt managed the Westminster Hotel, in Scranton, as agent for the

defendant, who was the owner of it, and that on the last-mentioned date he leased the property, and thereafter conducted the business on his own account. The plaintiffs, in June, 1888, with knowledge of the capacity in which he was then acting, sold goods for the hotel on his order, and continued to do so, from time to time, up to and including the 6th of August, 1890. All the goods were shipped, and charged on their books, to "Joseph Curt, Manager." It is admitted that the payments made on account of the goods so sold and delivered are sufficient to pay for the goods sold before April 1, 1889, and therefore this action appears to be for goods sold after that time. This showing made a prima facie case for the plaintiff's for the balance of their account. But the defendant contended, and introduced evidence to show, that the sales made after April 1, 1889, were with notice to the plaintiffs that the relations between him and Curt were changed, and that the latter was then acting for himself only. In support of this contention, Curt testified that he told plaintiff's agent on the 22d of March, 1889, that he had leased the property from the 1st of April, and would have to be answerable for all bills that were unpaid. He produced a number of bills made out and sent to him by the plaintiffs, some of which were for goods sold before, and some for goods sold after, April 1, 1889. Those for goods sold before that date were made to "Joseph Curt, Manager," and those for goods sold after it to "Joseph Curt," but it is not pretended that they were all the bills he received from the plaintiffs during the 26 months that he purchased goods from them for the hotel. He also presented five checks drawn by him individually in favor of the plaintiffs, but he did not allege that these were the only checks they received from him on account, or that the others were signed in the same manner. He testified that after he leased the hotel he procured a new register, on which he appeared as proprietor; but he admitted that he used the old register after that time, and did not state how long he used it, or when he obtained the new one. The evidence thus summarized constituted the principal reliance of the defendant in his effort to show notice to the plaintiffs, and it was met in rebuttal by the testimony of their agent, who positively denied Curt's statement in respect to notice on the 22d of March, and distinctly asserted that he did not know of the change in the relations between Curt and the defendant until some time after the goods were sold.

In view of the admitted and established facts we have stated, and of the evidence to which we have referred, the question of notice was clearly for the jury. Was the evidence fairly presented to them, and were they correctly instructed in the law of the case? We think there is no reasonable ground on which to base a negative answer to the first branch of this inquiry. As to the second branch of it there is very little, if any, room

for contention. The learned judge charged the jury that the burden was on the defendant to show notice to the plaintiffs of the termination of the agency, and if they found the plaintiff's had such notice their verdict should be for the defendant. He called their attention to all matters bearing upon the question, and fairly left it to them to find the fact upon a consideration of all the evidence. We think there was nothing objectionable in this. The fact to be ascertained was whether the plaintiffs knew that the agency was determined before they sold the goods in question, and this the jury were to find from the testimony. Notice of the revocation of an agency may be given by a written or oral communication from the principal or agent, or by circumstances and a course of dealing incompatible with the want of it. In either case, if the evidence is conflicting, the jury must decide the question. Deford v. Reynolds, 36 Pa. St. 325.

In accordance with these views, we overrule the specifications of error. Judgment affirmed.

GRAULEY v. JERMYN. (Supreme Court of Pennsylvania. Oct. 1,1894.) BEST EVIDENCE-HEADING OF HOTEL REGISTER. The best evidence of the heading of an hotel register is the register itself.

Appeal from court of common pleas, Lackawanna county; R. W. Archibald, Judge.

Action by Henry B. Grauley against John Jermyn for the price of goods sold. Judgment for plaintiff. Defendant appeals. Affirmed.

Defendant's first three specifications of error were as follows: "First. The court erred in refusing to allow the following questions (J. J. Curt, witness, on the stand): 'Q. Whether or not it was generally known that you were the proprietor of that hotel? A. I think it was everywhere. Q. By what was it known you were proprietor? (Objection to the question. Objection sustained. Bill sealed for defendant.)' Second. The court erred in refusing to allow the following question (J. J. Curt, witness, on the stand): 'Q. Now, Mr. Curt, state whether you had a register afterwards, and what was there on the heading of the register. (Objection, unless it is proved that this man saw it and

Objection sustained, and bill sealed for plaintiff.)' Third. The court erred in the admission of plaintiff's books showing an account with the Westminster Hotel, the hotel for which the goods were furnished, which was objected to as immaterial."

S. B. Price, for appellant. E. N. Willard, Everett Warren, and Henry A. Knapp, for appellee.

MCCOLLUM, J. We are unable to discover anything in the 1st, 2d, and 3d specifications of error which calls for a reversal of this judgment. Strictly speaking, the register

PER CURIAM. The first and second specifications relate to the charge of the court. The former quotes the instruction complained of thus: "The defendants do not appear, and have offered no evidence. If you believe the testimony of the plaintiff, he is entitled to recover the amount stated, $42.90. If you are satisfied that is the truth, we will take your verdict for that amount." The latter charges error in not instructing the jury that, "under the evidence and pleadings," plaintiff could not recover. In narrative form, the substance of plaintiff's testimony is that he worked for defendants,-hauled bark for them in August, 1893, to the amount of $48.75; that they were entitled to a credit for about $5.85, as nearly as he could tell, for store goods delivered by them; and that "the balance remains due and unpaid." In the absence of other testimony, this was quite sufficient to justify the instruction complained of. There is nothing in the pleadings to prevent a recovery for the balance indicated by plaintiff's uncontradicted testimony, provided the jury were satisfied as to its truthfulness; and as to that their verdict is conclusive. This disposes of the first two specifications, and leaves nothing on which to base the third and last assignment of error.

Defendants, in their history of the case, allege that at time of trial the plaintiff was "one of the associate judges on the bench." This is not only emphatically denied by the averment in the counter statement that plain

tiff "never was an associate judge; he is but a young man, only passed 21 years of age, and a laborer,"-but it is unsupported by anything in the record. If plaintiff's positive denial be true, the least that defendants should have done would have been to withdraw their erroneous allegation. The impropriety of injecting irrelevant, and especially untruthful, matter into any case must be manifest to every one. In examining the paper hooks with reference to the above-mentioned allegation and denial we became satisfied that on the merits the defendants had no case, and therefore concluded to affirm the judgment as though the testimony and charge of the court were properly on the record. If we had determined otherwise, the result would have been substantially the same, because there does not appear to have been any exception taken either to the admission of the testimony or charge of the court, and hence there is nothing properly on the record upon which to base the assignments of error. Judgment affirmed.

BIGGS et al v. BOROUGH OF WEST NEWTON.

(Supreme Court of Pennsylvania. Oct. 15, 1894.)

DEFECTIVE SIDEWALK-CONTRIBUTORY NEGLI
GENCE-QUESTION FOR JURY.

Whether plaintiff, in an action against the city for personal injuries caused by falling into an open ditch in a sidewalk, was guilty of contributory negligence in not going through an adjacent alley, instead of using the street, is a question for the jury.

Appeal from court of common pleas, Westmoreland county.

Action by Lydia Biggs and others against the borough of West Newton to recover damages for personal injuries. There was judgment for plaintiffs, from which defendant appeals. Affirmed.

Edward E. Robbins and John E. Kunkle, for appellant. Frank H. Guffey and Albert H. Bell, for appellees.

PER CURIAM. The testimony on behalf of the plaintiffs presents a case of gross negligence on the part of the defendant borough. The uncontradicted evidence is that, prior to the accident, the part of Vine street where the beneficial plaintiff was injured had been thrown open for public travel by the borough authorities, and all persons who had occasion to do so were thus invited to use the street; that a deep ditch or excavation, dug across the entire width of the sidewalk by defendant's servants, was left open, without barriers, lights, danger signals, or safeguards of any kind. The only possible avenue of escape, from the consequences of this gross negligence, that appeared to beopen to defendant, was an attempt to show that Mrs. Biggs, the beneficial plaintiff, was guilty of contributory negligence, in that she