The daily receipts have been from $20 to $35. There is testimony estimating the value of this good will and license of the place at from $3.000 to $4,000, assuming the transferee should retain possession as a licensed vendor of liquors."

The court surcharged the accountant with $5,384.85.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, MOSCHZISKER, and

STEWART, JJ.

E. W. Arthur, J. M. Magee, and W. S. Thomas, for appellant. Charles Mitchell, for appellee.

MOSCHZISKER, J. The appellant states the question involved to be: "Should the value of a retail liquor business and fixtures be accounted for by an administratrix, who, after ineffectual efforts to sell it, continued the business of her deceased husband as her own?" The appellant charged herself with a value of $1,115.15. The orphans' court adjudged the value inadequate, and surcharged the accountant with a difference of $5,384.85. In making this surcharge the court properly said: "That the value of good will, taken in connection with a continuance of a well-established licensed business, when ascertained, is an asset of a decedent's estate, even though the original license itself was a mere personal privilege and does not pass to his representatives, is well settled in a line of cases." These cases are all reviewed in Aschenbach V. Carey, 224 Pa. 303, 73 Atl. 435.

The decedent's estate was insolvent, and the appellant took over the business, good will, and fixtures. The license was transferred to her, and subsequently to her new husband, who now holds it. Under these circumstances, when the issue was raised, it was for the orphans' court to decide whether or not the accountant had charged herself with the full value of the good will, business, and fixtures. Upon the evidence before him, the learned auditing judge found that she had not, and determined that their real value was $6,500. This is a finding of fact, which under our rulings will not be disturbed, unless manifest error is apparent. A careful review of the evidence fails to convince us of any such error.

*

*

*

Counsel for the appellant explains in his printed argument: "It will be noted that, throughout the proceedings in this estate, the term 'license' is used as synonymous with 'business' or 'good will.' It is not contended by either side that the license as such had any value, but only, as was said in Buck's Estate, 185 Pa. 57, 39 Atl. 821, 64 Am. Sc. Rep. 816, that 'the opportunity to secure a transfer of the license and a renewal at the end of the year may

In an action for labor and materials, where the statement of plaintiff contains the common counts in assumpsit and on a quantum meruit, and a statement of the work done, plaintiff can recover, though he proves an express oral contract.

[Ed. Note. For other cases, see Work and Labor, Cent. Dig. § 46; Dec. Dig. § 24.*] 2. WORK AND LABOR (§ 24*) - PLEADING VARIANCE.

The common-law rule that there is no variance, where an express promise, not under seal and fully performed, is proved under a declaration in assumpsit, has not been changed.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. § 46; Dec. Dig. § 24.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by the A. & S. Wilson Company against D. P. Reighard. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff's statement of claim was as follows:

"The A. & S. Wilson Company, the plaintiff above named, claims of D. P. Reighard, the defendant above named, the sum of $1,324.95, with interest from June 1, 1903, and for a statement of its cause of action says: A. & S. Wilson Company, the plaintiff above named, is a corporation organized and existing under and by virtue of the laws of the commonwealth of Pennsylvania, and has its principal office and place of business in the city of Pittsburg, Pennsylvania. That, at the instance and request of the defendant, the plaintiff, on or about June 1, 1903, furnished the materials and performed the labor specified in Exhibit A hereto attached and made a part hereof. That the aforesaid exhibit is a true and correct copy of the account of the plaintiff with the defendant, as taken from the plaintiff's books of original entry. That the prices charged for the said materials and labor as shown upon said Exhibit A are fair and reasonable, and were the usual, ordinary, and going prices for similar labor and materials at the time said labor was done and materials furnished by the plaintiff to the defendant, and that the defendant has promised to the plaintiff to pay the same. That at the instance and request of the defendant the plaintiff did, on or about June 1, 1903, perform other work and furnish other materials for the defendant, all of which are shown on Exhibit B hereto attached and made a part hereof.

it, without any default in him, and hath no remedy over, then the law will excuse; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it.' Hand v. Baynes, 4 Whart. 204, 33 Am. Dec. 54. The first clause in the lease includes the property described in the second clause. The two clauses, therefore, should be construed together, and the defendant released from any loss arising from the exception in the first clause, viz., 'acts of God alone.' The fire occurred on April 17, 1907, destroying the plant -that is, the building and machinery on the premises-while in the possession and use of the defendant, and this action is brought to recover the loss occasioned by said fire.

"The defendant, as a matter of defense to the action, says: 'The fire mentioned in the statement of claim, which caused the destruction of the building, machinery, etc., on said land, was neither caused nor contributed to by any negligence or default of the defendant, nor was the defendant in default in any way in connection with the said fire or the consequence thereof.' Deponent further says that said fire was wholly unforeseen, and that the origin thereof is unknown to the defendant, and deponent is advised by counsel, and therefore alleges, that under the terms of said lease defendant is not obliged to rebuild, restore or replace the said building, machinery, etc., or any part thereof, destroyed by fire as averred in the statement of claim, and deponent says said fire was an 'act of God' within the meaning of the terms of said lease. At the time of this fire, the building and machinery was in the possession and control of defendant, and the burden is on it to show such facts and circumstances in its affidavit of defense as would bring it within the exception 'acts of God,' or at least to show such facts and circumstances as would rebut any inference of negligence or default on its part, and from which a jury might draw the inference that the fire was caused by an 'act of God' or some 'inevitable casualty or accident,' and the bare allegation that the fire was not caused by its negligence or default, or was caused by an act of God, or that the fire was of an origin unknown, are not sufficient to prevent judgment, and for this reason alone this rule ought to be made absolute.

"The defense set up, 'want of negligence or default,' is not available to the defendant in this case. The exception in the lease which relieves it from liability is the 'acts of God.' The position assumed by defendant is that 'acts of God' and 'inevitable casualty or accident' are synonymous terms, and that the case at bar is ruled by Kelly, Administrator, v. Duffy, 11 Atl. 244. In this case the lease

were at any time during the term, ordinary decay and inevitable casualty only excepted,' and in which case the following point was affirmed: '(1) If the jury are satisfied from the evidence that the building was destroyed by fire, without any negligence or default on the part of Hackett or Duffy, and that the usual ordinary efforts were made to save the building, this is all that is required by law of the defendant or Hackett, and the verdict should be for the defendant.' And on an appeal to the Supreme Court this point was held to be good law.

"It is very evident that the case of Kelly, Administrator v. Duffy does not rule the case at bar, as contended by the defendant. The terms inevitable casualty or accident' and 'acts of God' are not synonymous. Inevitable casualty' is a broader and more comprehensive term than 'act of God.' In Ferguson v. Brent, 12 Md. 9, 33, 71 Am. Dec. 582, it was stated: 'It is true that every act of God is an inevitable accident, because no human agency can resist it; but, because it is so, it does not therefore follow, in the sense of the books, that every inevitable accident is an act of God. Damage done by lightning is an inevitable accident, and also an act of God; but the collision of two vessels in the dark is an inevitable accident, but not an act of God, as the stroke of lightning, nor is it so considered by the authorities.' According to Lord Mansfield (1 Am. & Eng. Ency. of Law [2d Ed.] 584), by 'act of God' is meant 'a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone, such as the violence of the winds or seas, by lightning, or other natural accidents.' Or, as said in Coggs v. Bernard, 1 Smith's Leading Cases, *199: 'As to loss by act of God, this means such irresistible disaster as results from natural causes and is in no sense attributable to human agency. The civil law employs a corresponding term, "vis major," and inevitable accident is not a fair synonym, and the loss by fire is not an act of God, for fire originates in human agency.'

"'Inevitable accidents' are such accidents as no human foresight or prudence can guard against, and a 'person ought not to be answerable for consequences which it was impossible to foresee or prevent.' Bell v. McClintock, 9 Watts, 119, 34 Am. Dec. 507. The defendant in this case, however, did not use in its lease the words 'inevitable accident casualty' to exempt it from liability, but used the words 'acts of God,' and it will appear, by the distinction clearly defined between the two phrases, that, while a fire might be an 'inevitable casualty,' it is not an 'act of God,' and the defendant is therefore not relieved from liability in this case from a loss by fire by the exception in its lease.

"And now, to wit, December 31, 1909, it is

Where a bank holds as collateral for a loan the stock of a corporation and the guaranty of the president of the corporation, the loan being made to a third party, and the guarantor submits a statement of the financial condition of the corporation, in which he does not include a debt to himself, which is afterwards paid, and the guarantor dies, and the bank has made no extension on the strength of the statement, it cannot claim that any portion of the money paid to the administrator of the president on account of his debt is held in trust for the bank. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 144; Dec. Dig. § 942.*]

Appeal from Orphans' Court, Allegheny

PER CURIAM. In 1902 and 1903 the

Pennsylvania Development Company became largely indebted to the Merchants' & Manufacturers' National Bank, now the Bank of Pittsburg, National Association. This indebtedness was guaranteed by T. Lee Clark, the decedent, and two others, and secured by certain collaterals, among which were 500 shares of the capital stock of the Moundsville Waterworks Company. At the request of the president of the bank, made September 28, 1904, the Pennsylvania Development Company submitted a written statement of the financial condition of the waterworks company, signed by Clark as its president. This statement was not correct, for it omitted a liability of the company to Clark for $18,603.08, which sum his administrator subsequently collected; and the contention of the appellant is that, as it held one-half of the capital stock of the waterworks company as collateral security for the said indebted

debtedness subsequently collected is impressed with a trust ex maleficio for the benefit of the appellant.

The court below properly refused to sustain this, and its decree is affirmed, upon the following portion of the opinion of the learned auditing judge: "No loan, no new thing of value passed from the bank when this alleged misrepresentation took place. No extension of time was asked for. None was agreed to. What the parties could then have done cannot now be alleged as having been done. The fund for distribution was not obtained from the Bank of Pittsburg in any manner. The bank neither parted with its money nor extended credit to the Moundsville Waterworks Company, whereby said company incurred the liability to pay Clark for this debt. No relationship is shown between the debt due Clark from the Moundsville Waterworks Company, and the moneys which the Bank of Pittsburg, National Association, loaned to the Pennsylvania Development Company. This alleged trust property does not appear to have belonged to the claiming trust creditor when the alleged misrepresentation took place. Cavin v. Gleason, 105 Ν. Υ. 256, 11 Ν. Ε. 504. The alleged fraud has not been shown to have adhered from the beginning of the transaction. Grove v. Kase, 195 Pa. 325, 45 Atl. 1054. Nothing subsequently said will create such a trust. McCloskey v. McCloskey, 205 Pa. 491, 55 Atl. 180; Beringer v. Lutz, 179 Pa. 1, 37 Atl. 640. The debt owing Clark from the waterworks company was in no way enlarged or enriched by the alleged fraud of Clark upon the Bank of Pittsburg, National Association, and, in the absence thereof, no approach for a finding of a trust ex maleficio exists."

Decree affirmed, at appellant's costs.