'not less than 5,000,000.' The parties contemplated that these brick were to be manufactured and taken from time to time throughout contract year, for they said that these brick were to be taken 'as rapidly as the same can be produced by the first party with reasonable diligence.' The parties undoubtedly understood the circumstances. They undoubtedly considered that the output of plaintiff's plant would be substantially 5,000,000 during the year, not during one month, nor during six months, but during twelve months. They also undoubtedly considered that the plaintiff could make substantially that amount of brick during the year, not during one month, nor during six months, but during the twelve months. The brick were to be manufactured by the plaintiff, throughout the year, and they were to be marketed by the defendant throughout the same period; and the parties therefore agreed that 5,000,000 was about the number. It seems to us that this is the fair meaning of the language last quoted. We cannot agree with the defendant, that this language modified its express agreement to purchase 5,000,000, so that the fair meaning of the contract is that the defendant undertook to purchase 5,000,000 brick if the plaintiff manufactured them. This is not the natural meaning of the words used in the contract. It does not say that the defendant will purchase, if the plaintiff manufacture 5,000,000 brick. No such expressed condition is attached to the defendant's undertaking. And the defendant seems to realize this, because it strongly urges that the proviso following shows that the construction for which it contends is the correct one. And this brings us to a consideration of the proviso.

"The defendant contends that by this proviso the parties agreed that the limit of the plaintiff's duty to keep a stock on hand should be 1,500,000 brick, from which the defendant might order, and that the defendant was under no obligation to order the brick as rapidly as they were manufactured, because if it did so there never could be a stock of 1,500,000, and that therefore the clause of the contract to which reference has been made is meaningless. It is true that every word of the contract must be given effect in its construction, if possible; and if this proviso means what the defendant contends it does mean, then the defendant's construction of the contract would be very greatly strengthened.

"There is certainly no express obligation on the part of the plaintiff in this proviso to keep a stock of brick on hand to any extent. On the contrary, the express provision is that the plaintiff should have the 'option of selling' the excess of 1,500,000, 'so as to keep its plant in continuous operation,' and then only on condition that it should have first

contract year when the market for such brick might be dull. If so, if the plaintiff should have a stock of 1,500,000, then, in order to remove congestion of its storage capacity, it might, if it so chose, and only if it so chose, sell the excess to other parties. But the plaintiff was not given this right absolutely even then. It could only do so after having given notice to the defendant. The plaintiff was not entitled to sell the excess; it assumed no obligation to do so. It only had the option to do so, which it might or might not exercise, as the market or other conditions might prove advantageous to it; but not even then without first giving notice to the defendant. It seems to us that this proviso had no reference whatever to the obligations which the defendant assumed. The contract says the stipulation was made 'so as to keep its (the plaintiff's) plant in continuous operation.' And this is made clear by the final clause of the proviso, which expressly declares that all such sales of excess shall be deducted from the 5,000,000, which the defendant agreed to purchase, no matter what the price. This was to aid the plaintiff in relieving any congestion of its storage that might happen through the failure of the defendant, but in no way relieved the defendant from its obligation. How, therefore, this proviso can be interpreted so as to aid the construction that the defendant did not undertake to purchase 5,000,000 brick during the contract year, but only such amount as the plaintiff might manufacture, we are at a loss to understand.

"If the parties had intended to engage that the defendant should purchase 5,000,000 if, and only if, the plaintiff manufactured them, how easy it would have been to have said so in plain and unmistakable language. In our opinion the construction for which the de fendant contends is not warranted by the language which the parties used, and would nullify the natural meaning of that language.

"It was in evidence that the plaintiff, in order to prepare for filling this said contract, expended some $10,000 in increasing the capacity of its plant. It was in evidence that the plaintiff was ready and willing to manufacture, and could have manufactured, the whole amount of brick called for by the contract, and that plaintiff duly notified the defendant of all this from time to time. It was also in evidence that the plaintiff was continuously calling upon the defendant to order out brick, because the plaintiff's plant was becoming overcrowded by reason of the failure of the defendant to remove the brick in stock. It is true the defendant did not expressly refuse to take the brick, but nevertheless it did not take them. It only took about 1,400,000 during the year, and the effect upon the plaintiff and upon its plant

"What, then, is the measure of damages? Compensation, of course, is the rule. And compensation, in such a case as this, is to be ascertained by deducting the cost of manufacture and delivery from the contract price. This is the rule adopted in the case of a contract for mining and delivery of coal. Scott v. Kittanning Coal Co., 89 Pa. 231, 33 Am. Rep. 753. The same rule was adopted in the case of Puritan Coke Co. v. Clark, 204 Pa. 556, 54 Atl. 350. There is no reason for a different rule in the case of a contract for the manufacture of brick running throughout a year. There is no evidence that the plaintiff could have obtained a market for these brick, especially when it found that, as the year was expiring, the defendant was not likely to take the entire output of its plant. "Judgment n. o. v. refused."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

J. McF. Carpenter and George N. Chalfant, for appellant. R. B. Petty and John O. Petty, for appellee.

PER CURIAM. The judgment is affirmed on the opinion of Judge Swearingen.

1. JUDGMENT (§ 793*) - LIEN - PRIORITIES"BONA FIDE PURCHASER."

A widow taking from her children a deed for their interest in land of which their father had died seised, for the recited consideration of one dollar and other good and valuable considerations, subject to the lien of judgments, mortgages, and municipal liens, which aggregated more than the value of the land, was not a bona fide purchaser as against a judgment creditor who could revive his judgment, though more than five years had elapsed since its entry; a "bona fide purchaser" being one purchasing property without notice that another person is interested therein, and paying a full price therefor.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1383-1387; Dec. Dig. § 793.* For other definitions, see Words and Phrases, vol. 1, pp. 825-830; vol. 8, p. 7591.]

2. JUDGMENT (§ 798*) - LIEN - DEATH OF DEBTOR:

A judgment against a decedent in his lifetime continues indefinitely after his death as

On motion for judgment non obstante veredicto, Frazer, P. J., filed the following opinion:

"The scire facias in this case was issued November 27, 1905, to revive the lien of a judgment entered February 4, 1895, at No. 154, April term, 1895, d. s. b., against Henry Meyer, who subsequently died September 24, 1897, leaving to survive him his widow, Wilhelmina Meyer, and several sons and daughters. Letters of administration upon the estate of Henry Meyer were issued to his widow, Wilhelmina Meyer, May 24, 1908. On December 21, 1897, the sons and daughters of Henry Meyer conveyed to their mother the real estate owned by their father at the time of his death. Wilhelmina Meyer died February 14, 1903, leaving a last will and testament, by which she devised the property formerly belonging to her husband to her sons and daughters, who had previously conveyed the same to her. These sons and daughters subsequently made partition of the property. At the trial it was claimed by defendants that Wilhelmina Meyer was a bona fide purchaser for value, and that the judgment at No. 154, April term, 1895, d. s. b., not having been revived within five years had lost its lien upon the property formerly owned by Henry Meyer, and could not now be revived as a lien against the same.

"It was agreed by counsel that the question involved was one of law to be determined by the court. We thereupon directed a verdict in favor of plaintiff. Subsequently these motions for judgment non obstante veredicto and for a new trial were made by defendants. The original judgment in this case was obtained during the lifetime of Henry Meyer and continued a lien against his property indefinitely as against his heirs and devisees. Ziegler v. Schall, 209 Pa. 526, 58 Atl. 912. Consequently, unless Wilhelmina Meyer was a bona fide purchaser of the property of her husband from her children, plaintiff is entitled to recover, and judgment must be entered in his favor on the verdict. A bona fide purchaser is one who buys property without notice that another party is interested therein and pays a full and fair in three months after her husband's death; by a clause inserted therein she took the property, "subject, nevertheless, to the lien of all judgments and mortgages given by Henry Meyer in his lifetime, and any municipal liens for taxes assessed"; the consideration expressed being "one dollar and other good and lawful consideration." At the trial it was admitted that the value of the property was between $7,500 and $8,000, and that the mortgages and judgments against it aggregated $12,854.83. In addition thereto there was due and unpaid city and county taxes assessed against the property amounting to $277.69; the funeral expenses of Henry Meyer, amounting to $228, also remained unpaid. Mrs. Meyer had notice of all these debts when she received the deed for the property, and subsequently paid some portion of the indebtedness of her husband. Under these circumstances was Mrs. Meyer a bona fide purchaser for value? We think not. It seems to us the deed from her children to her was more in the nature of a gift than a purchase by her of the property. Lynch's Est., 220 Pa. 14, 69 Atl. 290.

"The consideration stated was merely nominal, and imposed upon Mrs. Meyer no obligation to assume and pay the debts of her husband or any portion of them. There was no such covenant upon her part. If we are correct in this view of the law, Wilhelmina Meyer was not a bona fide purchaser for value, and the lien of the judgment at No. 154, April term, 1895, d. s. b., continues, and judgment should be entered on the verdict in favor of plaintiff.

"And now, to wit, February 11, 1910, judgment for defendant non obstante veredicto and motion for a new trial refused, and it is ordered that judgment be entered on the verdict in favor of plaintiff on payment of verdict fee. To which order defendants except, and at their instance bill sealed."

corporation before insolvency, yet when an act has been done in fraud of the rights of the corporation's creditors, the receiver may sue for their benefit, though the defense set up might be valid as against the corporation itself.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2253-2260; Dec. Dig. § 560.*] 2. ESTOPPEL (§ 75*) -EQUITABLE ESTOPPEL.

Where one voluntarily executed his note to a bank for the purpose of taking up another obligation and of being exhibited as an asset of the bank to a government bank inspector, he is estopped to urge want of consideration upon the bank's insolvency in an action against him on the note by the bank's receiver for the benefit of the creditors.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 192-195; Dec. Dig. § 75.*]

3. BANKS AND BANKING (§ 77*)-ACTION BY

RECEIVER-DEFENSES AGAINST RECEIVER.

In an action on a note by the receiver of an insolvent bank, an affidavit of defense alleging that defendant made and delivered the note to the bank as part of a scheme to deceive

the bank examiner, upon the bank's promise that defendant would not be held liable thereon, is insufficient.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 165-176; Dec. Dig. 77.*]

Appeal from Court of Common Pleas, Allegheny County.

Action of assumpsit by Robert Lyons, receiver of the Cosmopolitan National Bank of Pittsburg, against G. A. Benney. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed.

Argued before FELL, C. J., and BROWN. MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

F. C. McGirr and John Marron, for appellant. Wm. S. Moorhead and John S. Wendt, for appellee.

lee.

(230 Pa. 117)

LYONS v. ΒΕΝΝΕΥ. (Supreme Court of Pennsylvania. Jan. 3, 1911.)

1. CORPORATIONS (§ 560*) - RECEIVERS - Ac

TIONS.

While the receiver of an insolvent corporation ordinarily has no greater rights than the corporation itself had, so that a defendant in al

the bank; that the bank had been carrying this note for some time, and, upon objection by the bank examiner to its being longer carried, the note in suit, under an arrangement between McKinnie and the bank, was executed to take its place; that it was understood and agreed between the bank, McKinnie, and the defendant, at the time he signed the note, that he did so only to accommodate and oblige the bank and McKinnie, and that the defendant was not to be alone being bound for its payment. The substance of this affidavit of defense is that the appellant made and delivered his note to the bank in furtherance of a scheme to deceive the bank examiner, under a promise made to him by the bank that he would not be held liable upon the obligation. He agreed that it should appear as one of the assets of the institution, for the purpose of deceiving those whose duty it was to examine them, and he now sets up the defense that, as it was to serve no other purpose, it is to be regarded as a worthless piece of paper under this agreement with the bank. Whether the bank, if it were now carrying on business as a solvent institution, could enforce payment of the note, assuming the averments in the affidavit of defense to be true, was not the question before the court below on the rule for judgment, for the note had passed into the hands of the receiver of the insolvent bank, and as a representative, not only of it, but of its creditors, he brought the suit. Cushing v. Perot, 175 Pa. 66, 34 Atl. 447, 34 L. R. A. 737, 52 Am. St. Rep. 825

While the general rule undoubtedly is that the receiver of an insolvent corporation has no greater rights than those possessed by the corporation itself, and a defendant in a suit brought by him may take advantage of any defense that might have been made if the suit had been brought by the corporation before its insolvency, it is equally true that when an act has been done in fraud of the rights of the creditors of the insolvent corporation the receiver may sue for their benefit, even though the defense set up might be valid as against the corporation itself. In such a case he may maintain an action which the corporation itself could not. Franklin National Bank v. Whitehead and Others, 149 Ind. 560, 49 N. E. 592, 39 L. R. A. 725, 63 Am. St. Rep. 302; 5 Thompson on Corporations, § 4945. What was it that this appellant did? The only inference to be drawn from his affidavit of defense is that, in executing, and delivering his note to the bank, he helped along a trick to make it appear to the bank examiner and, for that matter, to the creditors of the bank that it had a valuable note, when, in fact, it had not. In Pauly v. O'Brien (C. C.) 69 Fed. 460, the defendant, in substituting his own note, at the instance of the bank, for one which it held against a maker named Naylor, did substantially what was done by this appellant, and, in holding that the defense of want of consideration was unavailing, it was properly said: "When parties employ legal instruments of an obligatory character for fraudulent and deceitful purposes, it is sound reason, as well as pure justice, to leave him bound who has bound himself. It will never do for the courts to hold that the officers of

**

can give to it the semblance of solidity and security, and, when its insolvency is disclosed, that the third party can escape the consequences of his fraudulent act. Undoubtedly, the transaction in question originated with the officers of the bank, but to it the defendant became a willing party. So far as appears Naylor was a total stranger to him. Why should he execute his note to take up the note of Naylor? What moved him to do it, except to enable the officers of the bank to supplant the overdue note of Naylor with a live note, which he now insists was without consideration and purely voluntary, but which enabled the bank officers to make a deceptive, and therefore fraudulent, showing of assets? Obviously, nothing." So this appellant was a party to a scheme of the officers of the bank to enable them to make a deceptive and fraudulent showing of assets, and as the fraud was perpetrated upon the creditors, now represented by the bank's receiver, he can maintain an action on the note for their benefit.

In holding that the appellant's affidavit was insufficient, the court below relied upon State Bank of Pittsburg v. Kirk, 216 Pa. 452, 65 Atl. 932, and People's Bank v. Stroud, 223 Pa. 33, 72 Atl. 341, and under those cases judgment for the plaintiff could not have been withheld. In each of them we held that the appellee, as receiver of an insolvent state bank, represented not only it, but its creditors, and counsel for the appellant have failed to convince us that the same rule does not apply to a receiver of a national bank appointed by the Comptroller of the Currency. Nor have we been persuaded that only directors or trustees of a corporation, who have given notes for the purpose of increasing its assets or restoring its capital, should be allowed to set up want of consideration in an action on the obligations by a receiver. In People's Bank v. Stroud, the obligors on the note were neither directors nor trustees. True they were sureties upon the cashier's bond, but the decision against them rested, after all, upon the underlying principle that one who voluntarily gives his obligation to a bank for the purpose of taking up another obligation, and of being exhibited as one of its assets to a supervising officer of the government having supervision and control of its affairs, is estopped to deny want of consideration upon the insolvency of the bank, when a receiver brings an action upon the note for the benefit of the creditors of the institution. Neither the law nor good conscience can sanction the contention of the defendant that he ought to be permitted to take advantage of the fraudulent agreement between him and the bank, to which its creditors were not parties and for whom the receiver sues.

Judgment affirmed.

(230 Pa. 109) SUBURBAN RAPID TRANSIT ST. RY. CO. et al. v. MONONGAHELA NATURAL

GAS CO.

(Supreme Court of Pennsylvania. Jan. 3, 1911.)

CONTRACTS (§ 216*)-RIGHT OF WAY FOR GAS PIPE RIGHTS OF ASSIGNEE OF GRANTOR.

Where a turnpike company granted to a natural gas company a right of way for gas pipes in consideration of gas to be furnished to the company, its successors or assigns, and the turnpike company afterwards assigned its rights to a street railway company, and the turnpike road was subsequently condemned by the county as a public street, the assignee of the turnpike company was entitled to receive gas from the gas company under the contract as long as the gas company maintained its line along the road undisturbed; the taking over of the turnpike road by the county not ipso facto terminating the right of way regardless of whether the turnpike company owned a fee in the road or had the power to grant a right of way beneath the surface.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 996-1010; Dec. Dig. § 216.*]

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Suburban Rapid Transit Street Railway Company and others against the Monongahela Natural Gas Company. Decree for plaintiffs, and defendant appeals. Af

firmed.

Gas Company, for itself, its successors and assigns,

* *

*

*

* *

in said road, or as long as said Gas Company has a sufficient supply of gas, for the purpose of conducting natural gas through and along the same. * The said Gas Company further agrees that the said Turnpike Company, its successors or assigns, shall have the privilege at any time of utilizing all or any part of said natural gas to be furnished for forty (40) burners for the purpose of fuel for running an electric power plant, and shall have the right to transfer the whole or any part of the amount of gas that would be consumed by said forty (40) lights, to any electric power, or light or power plant, or to transfer or lease the same to any electric railway company, to be used in its power hall, and that the amount of gas furnished by said Gas Company, to said Turnpike Company, shall be determined, if changed from the burners to the use of running an electric power plant or railway, by meter. And the said

*

* * *

* *

*

*

Gas Company, its successors or assigns, agrees that upon failure to supply gas as aforesaid so long as said * Gas Company has a sufficient supply to comply with the above conditions, that the said Gas Company shall forfeit its right to the use of the right of way over the said road for the purpose of conveying natural gas, and a failure to comply with said conditions shall work an immediate forfeiture of the right of way hereby granted; and upon a breach of the within agreement, the said Turnpike Company, its successors, assigns and lessees, shall be fully compensated by said Gas Company."

Under this agreement, the gas company laid a pipe line which it has maintained and operated to the present time. In 1889 the turnpike company assigned its rights under the contract to the Suburban Rapid Transit Company. In 1902 the latter company was taken over by the Consolidated Traction Company, and for some time past that company has been operated by the Pittsburg Railways Company. The gas company has supplied the gas to these corporations consecutively, and it still has a sufficient supply of gas to enable it to fulfill its agreement under the contract. In 1900 the turnpike road was condemned under the act of June 2, 1887 (P. L. 306), and in 1901 it became a public road or street. In 1908 the defendant notified the railways.company that, since the turnpike had been taken over by the county, it did not consider itself obligated to supply further gas under the contract, and that the gas would be shut off forthwith, whereupon the plaintiffs filed a bill against the gas company praying for an injunction to restrain it from discontinuing the supply of gas. After hearing, the court below found the facts as we have stated them, decided the case upon its merits, and issued the in