The learned counsel for the appellant contend that three of the witnesses disclosed incompetency by testifying that they were unable to give the items which entered into their calculation of the damages sustained by the plaintiffs. The authorities cited by the learned counsel do not sustain this contention. They simply declare what "matters are to be taken into consideration as affecting the market value." But even when the witness gives these matters (elements of damages) "they are not separately to be estimated item by item, and a result to be reached by adding together the different estimates." Shano v. Bridge Co., 189 Pa. 245, 42 Atl. 128, 69 Am. St. Rep. 808. The sum which the owner is entitled to recover by reason of the construction of a railroad through his land is the difference in the market value of the property immediately before and after the construction of the road, and if a witness has a knowledge of the requisite facts to enable him to give the total amount of the difference his inability to give the elements of damage does not render him incompetent. It simply affects the credit of the witness and the weight of his testimony. It may partly or wholly discredit his testimony with the jury, but, as said by Mr. Justice Agnew in White Deer Creek Improvement Co. v. Sassaman, 67 Pa. 415, his opinion of total or aggregate loss or value is permitted to go to the jury as some evidence of the value of the property and the damages sustained. The question of the competency of a witness in cases of this character is a preliminary question, and the trial court should see that the witness discloses his competency by a proper examination before he is permitted to testify generally.

The learned judge of the court below was well within the rules as to the competency of witnesses in this class of cases as announced in our decisions, and therefore the assignments of error are overruled, and the judgment is affirmed.

(211 Pa. 455)

WHITE v. KEYSTONE TELEPHONE CO. (Supreme Court of Pennsylvania. April 10, 1905.)

NEGLIGENCE-TELEPHONE COMPANY-OBSTRUCTION OF SIDEWALK.

In an action against a telephone company to recover for injuries received by falling in the nighttime over a pile of stones left on the sidewalk, where the evidence shows that defendant had secured a permit to lay conduits on the street, and had piled the paving stones on the sidewalk, a judgment for plaintiff was justified.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Hope A. White against the Keystone Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and ELKIN, JJ.

Charles S. Wesley and Edwin O. Michener, for appellant. Harry A. Mackey and Ellis & Sagebeer, for appellee.

PER CURIAM. The plaintiff was injured by falling, after dark, over a pile of paving stones that had been left on the The sidewalk of a dimly lighted street. sidewalk was three feet wide, the pile of stones a foot high, and no means were taken to give notice of the obstruction. The only question raised by the assignments of error is whether the case should have been withdrawn from the jury because of the failure to connect the defendant with the commission of the negligent act. It appeared from the plaintiff's testimony that a few days before the accident the defendant secured a permit to lay conduits on the street, and had begun the work, and was occupying the street for that purpose; that on the day of the accident the paving stones had been removed from the cartway, and piled on the pavement, the conduits laid, and the trench refilled with earth; that on the morning after the accident the same workmen who had removed the stones from the street and piled them on the pavement placed them back on the street. While there was no direct proof that the stones were piled on the pavement by the defendant's workmen, the circumstances shown reasonably led to that conclusion, and excluded any other conclusion equally reasonable. There was sufficient evidence to make out a prima facie

case.

The judgment is affirmed.

(211 Pa. 456)

KELLY v. UNION TRACTION CO. (Supreme Court of Pennsylvania. April 10, 1905.)

STREET RAILROADS-INJURY TO PEDESTRIAN

NONSUIT.

In an action against a street railway company to recover for the death of plaintiff's intestate, killed on the track, evidence held to justify judgment of nonsuit.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Maria Kelly against the Union Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before DEAN, FELL, BROWN, MESTREZAT, and ELKIN, JJ.

Philip N. Goldsmith and Charles L. Brown, for appellant. Thomas Leaming and Thad. L. Vanderslice, for appellee.

PER CURIAM. No one who witnessed the accident and whose testimony would have explained the circumstances connected with it was called by the plaintiff. All that was shown was that her husband was run

over by the defendant's car at the middle of a block after midnight, and that the gong was not sounded. There was no evidence of undue speed of the car. The highest rate of speed testified to did not exceed 9 or 10 miles an hour, and the car was stopped on a downgrade and a slippery track within 60 feet. Both the street and the car were well lighted. There was nothing in the evidence from which negligence of the motorman could be inferred, and a nonsuit was properly entered.

The judgment is affirmed.

PER CURIAM. The plaintiff was injured at a station where the tracks of the defendant's road were elevated to avoid crossing a city street at grade. The station platform was 13 feet wide and 340 feet long, and extended to the side of the street. Across the end of the platform above the street there was a fence 32 feet high for the protection of passengers. A train reached the station when the plaintiff was on the street below, and when he was at the top of the stairs which led from the street to the platform it was standing, or, if started, was moving so slowly that he did not observe its motion. He walked slowly across the platform and got on the first step of the car, which was then in motion. Before he mounted the second step, his back was struck by the end of the fence, which was 7 inches from the side of the car and about 22 feet from the place where he got on the step. No conclusion could have been reached from the plaintiff's testimony that would have relieved him from the imputation of negligence. There was nothing in the circumstances to make the case an exception to the rule that it is negligence per se to step on a moving train. Nor can it be said that the plaintiff escaped the risk which he assumed, and was afterwards injured by some

(211 Pa. 388) CITY OF PHILADELPHIA, to Use of WATSON, v. PIERSON et al. (Supreme Court of Pennsylvania. April 10, 1905.)

MUNICIPAL CORPORATIONS -ACTION ON CONTRACTOR'S BOND-AFFIDAVIT OF DEFENSESET-OFFDAMAGES.

1. A statement of claim in an action on a city contractor's bond averred that the bond given by plaintiff to the city against costs had been approved by the city solicitor, as required by ordinance. Held, that an averment in the affidavit of defense that defendant is informed that the bond had not been so approved is insufficient to prevent judgment.

2. In an action on a city contractor's bond, an averment in the affidavit of defense that plaintiff had agreed to give a bond to indemnify the contractor against any defects in the work, and that it had not been given, is insufficient to prevent judgment, there being no evidence of any prejudice to defendant by failure to give bond.

3. In an action on a city contractor's bond, evidence of damages to contractor's property by negligence of the driver of the use plaintiff cannot be set off against the claim of plaintiff for materials furnished.

4. In an action on a city contractor's bond, plaintiff is entitled to recover only such sum as may be due him at the time the action is brought, and the fact that a larger sum is due when he asks for judgment is no ground for awarding it.

Appeal from Court of Common Pleas, Philadelphia County.

Action by the city of Philadelphia, to the use of James V. Watson, against George W. Pierson and the Lincoln Savings & Trust Company. Judgment for plaintiff, and defendants appeal. Modified.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

William W. Porter, for appellants. George R. Van Dusen, for appellee.

BROWN, J. By the ordinance of the city of Philadelphia approved March 30, 1896, providing for a bond from a contractor for municipal work, to secure the prompt payment to all persons supplying him with labor or materials, whether as a subcontractor or otherwise, there is a direction that before any person shall have a right to institute suit on the bond as the use plaintiff he shall furnish such indemnity to the city against costs as shall be approved

by the city solicitor. The averment in appellee's statement of claim is that he, as use plaintiff, had, in compliance with the provisions of the ordinance, filed with the city of Philadelphia his bond indemnifying it against the costs of any action to be brought by him upon the bond given by Pierson, the contractor, and that the bond of indemnity had been duly approved by the city solicitor. The appellant, insisting that the execution of such a bond and its approval by the law officer of the city are conditions precedent to the plaintiff's right tỏ sue, avers in its affidavit of defense that it is informed that at the time the writ issued against it the city solicitor had not approved the bond of indemnity tendered to the city by the use plaintiff, and it "therefore denies the allegations to that effect contained in the statement of claim." Of the distinct averment of what the appellant alleges is a material fact there is no distinct denial. There is a vague averment of information given the appellant that the bond had not been approved. An affidavit of defense is good only when it contains averments which, if proved at the trial, would be a defense to the plaintiff's claim. | An offer to prove that this appellant had been informed that the bond of indemnity had not been approved would hardly be made by counsel on a trial of the cause, and, if made, would be promptly overruled by any court to which it might be made, for it would be no proof that the bond had not been approved.

If it had not been approved, the failure to approve it would have to be proved, as any other material fact in the case, by proper testimony. The averment is not that the bond had not been approved, and that the appellant expects to be able to so show on the trial; and the allegation, in reply to the plaintiff's clear averment of its approval, that the appellant had been informed otherwise, is to be regarded as nothing more than an attempt to defend on hearsay evidence. The denial of the approval which follows is of no more effect than the allegation of information, for the denial is admittedly based on the alleged information. Another averment is that the bond was null and void because it had not been "prepared in the office of the city solicitor," in accordance with the act of June 1, 1885 (P. L. 37), which provides that all contracts, bonds, and other instruments of writing in which the city is concerned shall be prepared in the office of the city solicitor, for which he shall receive for the city a reasonable fee from the persons for whom such instruments may be drawn. This last objection is not seriously pressed in the printed argument, probably for the reason that it was not expected we could give it serious consideration. It is therefore dismissed without comment.

In his contract with Pierson the appellee

agreed to give him a bond to indemnify him against defects in workmanship and materials for one year after the city's acceptance of the building, and there is an averment in the affidavit of defense that such bond had not been given. There is no averment that Pierson ever exacted it, or that any loss had been occasioned by the failure to give it. Though he is sued with the appellant, he makes no defense to this action, which is brought for the recovery of materials furnished. The affidavit of defense is made by the Lincoln Savings & Trust Company alone. It is sued on a bond which was not given to the appellee to secure the faithful performance of Pierson's contract with him, but to the city of Philadelphia, to secure the payment of materials and labor furnished in the erection of the school building, and, so far as can be gathered from the affidavit of defense, the failure of the appellee to give the bond of indemnity to Pierson is not involved in this issue between the use plaintiff and the defendant on its bond given to the city for the purpose stated.

A credit of $14 is claimed under the averment that the defendant is entitled "to a further credit of fourteen dollars for moneys expended by the said George W. Pierson in repairing a pave-wash broken by teams belonging to the use plaintiff and driven by a servant of the use plaintiff." This is insufficient to establish a set-off in this action of assumpsit. From all that appears from the averment, if there is any liability from Watson to Pierson on this item it is on a technical tort, and cannot be used as a set-off to appellee's claims. Ahl v. Rhoads, 84 Pa. 319; Jenkins v. Rush Brook Coal Co., 205 Pa. 166, 54 Atl. 715.

There is nothing in the affidavit of defense which would have justified the court below in withholding judgment for the reason that time had been given by Pierson to the plaintiff in discharge of the surety, and the assignment as to this is dismissed.

One of Pierson's subcontractors was Lucas Peters. The appellee furnished him stone, which was used in the construction of the school building. On January 23, 1902, Peters agreed, in writing, to purchase it, and Pierson, by a writing, became surety to Watson for the payment of it. In the contract between these two there was a provision that no extra bills for work and materials should be charged to Pierson, unless the same were ordered by him in writing. The stone furnished to Pierson was for the building erected by him, and he agreed to pay for the same.

Peters was the conduit through which he received it. From his agreement that he would pay for it, it is to be assumed that unless he had so agreed it would not have been furnished. After it was furnished on his undertaking to pay for it, and used as material in the construction of the building, the claim of the plaintiff for this item of

$1,104.90 is clearly within the protection of the bond, which is that the contractor shall and will promptly pay all persons supplying him with labor and materials.

By the terms of the contract Pierson was to retain 5 per cent. of the bill for stone until one year after the city had made final payment for the building. There is an averment in the affidavit of defense that final payment was made April 23, 1903. This suit was brought October 21, 1903. At that time the 5 per cent. which Pierson had a right to retain was not yet due, and the plaintiff could not have included it in his claim. On June 4, 1904-the date of the entry of judgment by the court belowmore than a year had expired from the time final payment was made, and for this reason the court was of opinion that the affidavit of defense as to the 5 per cent. Item was not good. This is the only error in the record. The right of a plaintiff to judgment on a rule for it for want of a sufficient affidavit of defense must be determined from it and the plaintiff's statement. The court can consider nothing else in disposing of the rule. The appellee was entitled to payment of only such an amount as he had a right to sue for when he brought his action. At that time, and even when the affidavit of defense was filed, on April 2, 1904, he was not, according to its averment, entitled to $305, or 5 per cent. of the $6.100, the contract price for the stone; and the fact that the whole sum may have become due when he asked for judgment is no reason for awarding it to him, if, in the first instance, he had no right to sue for it. Columbia National Bank v. Dunn, 207 Pa. 548, 56 Atl. 1087.

The judgment below must therefore be modified, and the record is remitted, with direction to the court to reduce the judgment entered for $2,704.91, by deducting from it $305, with leave to the plaintiff to proceed for the collection of that item, if, under the proofs, he is entitled to recover it.

(211 Pa. 394)

MCMANUS v. CITY OF PHILADELPHIA. (Supreme Court of Pennsylvania. April 10,

1905.)

MUNICIPAL CORPORATIONS-GRADING CONTRACT-CONSTRUCTION-REFORMA

TION-EXECUTION-STAY.

1. Before bids were made for the filling and grading of a street, a survey was had, and the bidders were informed by the city as to the number of cubic yards required. After the acceptance of the bid, but before the work was completed, the city surveyor made another survey, resulting in an estimate about one-third less than the previous survey, the result of which was concealed. The first survey was found to be correct. The contract provided that the total amount to be paid for the work should not exceed a certain amount stated, which was slightly in excess of the estimate based on the erroneous survey. Relying on the estimates of the first survey, the contractor ex

ecuted the contract, which did not state the number of cubic yards, and the work was in excess of the estimates of the first survey. Held that, notwithstanding the limitations in the contract, the contractor was entitled to recover for the full number of cubic yards of work done by him.

2. Contracts of a city, though required to be in writing, may be reformed for fraud, accident, or mistake.

3. The court, on entering judgment on the law side, cannot stay the execution pending the determination of a suit between plaintiff and another party as to the ownership of the fund.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Michael McManus against the city of Philadelphia. From an order sustaining exceptions to the referee's report, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

F. B. Bracken, for appellant. Harry T. Kingston, Asst. City Sol., and John L. Kinsey, City Sol., for appellee. John G. Johnson and George R. Van Dusen, for intervener.

BROWN, J. There is no dispute about the facts in this case. They are distinctly found by the referee, and his findings were not disturbed by the court below.

In March, 1895, Walter B. Jones, who was then surveyor of the Ninth Survey District of the city of Philadelphia, in compliance with the request from the bureau of highways, made estimates, under a survey previously made by him, of the amount of fill and cut that would be required in grading Lincoln avenue to the established grade between Wayne and Green streets. By his survey, and his calculations and estimates based on it, he found that 74,339 cubic yards of fill and 1,190 cubic yards of cut would be required in the grading of the avenue. These estimates were regularly entered in the estimate book in the office of the surveyor, and, with the plans and cross-sections accompanying them, formed the official record of the survey of the avenue between the points named. In July of the same year Jones was succeeded by Joseph C. Wagner as surveyor of the district, who was filling the office when the case was before the referee. In November, 1895, eight months after Jones had made his estimates, the bureau of highways advertised for proposals for the grading of Lincoln avenue between Wayne and Green streets. The plaintiff applied to the bureau for information as to the character and quantity of the work, and was sent by the chief clerk to the office of Wagner, the district surveyor, where he was directed to the bulletin on the wall, which announced the quantity of cut and fill that would be required. The estimates on the bulletin were those which had been made by Jones in the previous spring, and had apparently been verified and accepted or adopted by Wagner, his successor, who testified that "they were the estimates upon which the

contractors got their information for the purpose of bidding." They were, therefore, at the time the plaintiff applied for information, as found by the referee, "the official figures on which any contract was then to be based." On them as a basis the plaintiff submitted his bid of 49 cents per cubic yard for the work, being the lowest of several bidders. On May 7, 1897, nearly 18 months after his bid had been submitted, the appellant was notified by the city solicitor's department that a contract for grading Lincoln avenue "according to your bid of 1895" was ready for execution, and four days later a notice came to him from the bureau of highways to "proceed at once with the work of grading Lincoln avenue from Wayne avenue to Green street, under the contract awarded you 11/19/95." Between the date of the plaintiff's proposal and that of the notice to him that the contract was ready for execution and that he should proceed with the work, without any information having been given to him, and without his knowledge, according to his uncontradicted testimony, Wagner made a resurvey of Lincoln avenue between the points stated. This resurvey was made in the month of April, 1897, and resulted in an estimate of 52,469 cubic yards of fill and 1,656 yards of cut, a difference in the estimate of fill announced on the bulletin in the surveyor's office at the time of the plaintiff's bid in November, 1895, of nearly 22,000 cubic yards. Utterly unaware of this resurvey and this change of quantity, plaintiff signed the contract upon which this suit is brought. There is no reference in it, or in the specifications, or the plaintiff's proposal attached to it, to the quantity of cut and fill required; but it was undoubtedly drawn on the basis of the resurvey by Wagner, as it contains a limitation or contract price in the following words: "It is further distinctly understood and agreed that the total amount to be paid for the work done under this contract shall in no event exceed the sum of $26,000." This amount is slightly in excess of the cost of 52,469 cubic yards at 49 cents per yard. The plaintiff's attention was not called to this limitation, and, relying on the notices he had received that his bid of November 19, 1895, had been accepted, which was based on the estimates of over 74,000 cubic yards at that time published on the bulletin in the office of the surveyor, he assumed that the contract price was in accordance with the information given him by the city, and signed the contract without noticing the stipulation. The first knowledge he had of the limitation on the sum to be paid for the whole work was after he had started on it, when he called the attention of Surveyor Wagner to the discrepancy in the price according to the stipulation, and asked whether the whole street was to be graded as originally advertised for. He was told that he was to grade it all, and, relying upon this assurance, he went on and completed his contract, using and filling in for that

purpose 77,000 cubic yards of earth by actual cartage measurements.

The resurvey and the calculations by Wagner were clearly erroneous and grossly inac curate. What may account for the great discrepancy between the calculations and estimates of the two surveyors, Jones and Wagner, is not important, though discussed by the referee, for his finding is that the survey, calculations, and estimates of Jones were correct, and those of Wagner were not. Nor need we consider the contention of the plaintiff before the referee, that there was a scheme by certain subordinate municipal officers to compel the appellant to withdraw as the lowest bidder, or to punish him if he did not. The finding is that he furnished and used 77,000 cubic yards of fill in grading the avenue, and the single question is whether the referee was right in his legal conclusion that, under the facts found, the plaintiff should be paid for the same at the rate of 49 cents per yard, which was his bid, or the court below, which filed no opinion, correctly held that, though the contract itself provided he should receive that sum per cubic yard, he is limited in recovering to a little over twothirds of what he ought to receive by the yard, because there was a stipulation that the total amount to be paid should not exceed $26,000.

Though no reason was given by the court for overruling the referee's conclusion that the plaintiff ought to be paid for the work aetually done at the cubic yard price agreed upon, it is to be assumed the city's contention was sustained that the plaintiff had not, by a contract in writing, established his right to recover what he claimed. "All contracts relating to city affairs shall be in writing, signed and executed in the name of the city," are the words of the act of June 1, 1885 (P. L. 37), and there can be no recovery from the city of Philadelphia on a contract that is not in writing. No attempt to make it liable on contractual relations not established, as directed by the mandatory words of the statute, has yet succeeded, and none will succeed while it remains the written law. This is so well known that none of our cases on the subject need be cited.

But there is a contract in writing here, and the claim of the plaintiff is not for anything that he did not do under it. He is not asking to be paid for extra work, or for compensation for anything that he did for which the contract does not provide, and the two cases of McManus v. Philadelphia, 201 Pa. 619, 632, 51 Atl. 322, chiefly relied on by the city, are not in point. On May 7, 1897, the city noti fied the plaintiff that a contract was ready for execution by him according to his bid made in 1895. On the same day he executed it, and in it the city agreed to pay him 49 cents per cubic yard for cut and fill. Here are the clearly expressed intention of both parties that the work should be done by the cubic yard, and the promise of the city to so