In the third paragraph there is a devise in Argued before FELL, C. J., and BROWN, remainder which becomes effective on the MESTREZAT, POTTER, STEWART, and death of the survivor of the life tenants or MOSCHZISKER, JJ. at an earlier period if they fail to comply with the condition as to residence. If this devise had been good, it would probably not be contended that the estate in the first takers was greater than a life estate. It is a well-recognized rule of construction that a limitation over after the death of the first devisee is evidence of an intention that the devisee of the prior estate in order of enjoyment was intended to have not more than a life estate. The estate is not cut down by the gift in remainder, but the latter is evidence of the testator's intention as Preston K. Erdman, E. Spencer Miller, and Edwin O. Michener, for appellant. Eli Kirk Price, for appellee. PER CURIAM. The decree of the Superior Court is affirmed, on the opinion of Judge Henderson. (230 Pa. 516) CAMPBELL v. CITY OF PHILADELPHIA. (Supreme Court of Pennsylvania. Feb. 27, 1911.) CHANGE OF GRADE - INJURIES TO LEASEHOLD-EVIDENCE. expressed in the second paragraph of the 1. MUNICIPAL CORPORATIONS (§ 404*) — will. In determining what interest the testator intended to give his grandnieces, the clause devising in fee simple must be considered in connection with the other parts of the will having reference to the same subject. [2] "It has frequently been held that if a testator in one part of his will devises an estate in fee simple, and it appears from the language of subsequent parts of the will that he intended the devisee to take a smal ler estate, the first devise is limited accordingly. Where the subsequent provisions only affect qualities inseparable from the estate previously given, they have no effect. Where, however, they show the nature of the estate, and that what might be a fee under preceding terms of the will was intended to be an estate for life or for years, they are to be given effect. 1 Jarman on Wills, 416; Sheets' Estate, 52 Pa. 257; Urich v. Merkel, 81 Pa. 332. The testator in giving a fee 'cannot strip it of its nature and properties.' He cannot withhold from such an estate qualities which the law recognizes as inseparable from it, but he can restrict a devise expressed in general terms to a less estate. The authorities cited by the appellant are not contradictory of the conclusions herein expressed. In Rea v. Bell, 147 Pa. 118, 23 Atl. 349, the case turned on what the court held to be a restriction of the right of alienation. It was conceded that the devisee had a right to convey to Henry Rea, Jr., and that the title so conveyed would be a title absolute in fee simple in the grantee. That part of the will which restrained any other alienation was void. That was a condition relative to the use, management, or disposal of property distinctly given, and it is restraints or limitations of such use, management, or disposal which are forbidden. Philadelphia v. Girard, 45 Pa. 9, 84 Am. Dec. 470. In Gramling v. Totheroh, 2 Woodw. Dec. 106, there was a residuary devise which carried the void legacy. In Dobbins' Estate, 221 Pa. 249, 70 Atl. 727, also, the void bequest passed under a codicil. "The decree is affirmed." In an action by a tenant for injuries caused by a change of grade in a street, a nonsuit was properly entered, where difference in value of the leasehold before and after the change was not established. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 989-999; Dec. Dig. § 404.*] 2. EVIDENCE (§ 474*)-OPINION EVIDENCE STREET GRADE-EVIDENCE OF DAMAGE. In an action for injuries to a leasehold by change of grade of a street, witnesses are not competent whose only knowledge was obtained by examination of the reports of road juries and awards made to tenants of other properties in the vicinity. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*] 3. MUNICIPAL CORPORATIONS (§ 404*) CHANGE OF GRADE IN STREET-DAMAGESEVIDENCE. - In an action for damages to a leasehold by change of grade of a street, proof of the cost of plaintiff's fixtures is incompetent. [Ed. Note. For other cases, see Municipal. Corporations, Cent. Dig. §§ 989-999; Dec. Dig. § 404.*] Appeal from Court of Common Pleas, Philadelphia County. Action by John Campbell against the City of Philadelphia. From a judgment of nonsuit, plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Joseph W. Shannon, for appellant. William Gray Knowles, Asst. City Sol., Henry Johns Gibbons, Asst. City Sol., and James Alcorn, City Sol., for appellee. PER CURIAM. [1] This appeal is from a judgment of nonsuit entered in an action brought by a tenant to recover damages forthe injury to his leasehold by the change of grade of a city street. A nonsuit was entered because of the failure to prove any damages, and the assignments of error relate to the rejection of offers of testimony. The plaintiff had not been deprived of possession, but the access to his property had been interfered with, and he moved before the [2, 3] Proof of the cost of his fixtures was clearly inadmissible, and on the proper test of the measure of damages, the difference in value of his leasehold estate before and after the change of grade, his witnesses were not qualified to testify. They had no special knowledge of the subject, and what knowledge they had was obtained by an examination of the reports of road juries, and the awards made to tenants of other properties in the vicinity, and their opinions were based wholly or in part on their knowledge of these awards. This would have been the use of the opinion of other persons in relation to other property. termination of his lease and during the if no such presumption did arise, were the course of the improvement. The judgment is affirmed. (230 Pa. 523) SUTTON v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Feb. 27, 1911.) 1. CARRIERS (§ 316*)-INJURIES TO PASSEN GERS-PRESUMPTION OF NEGLIGENCE. In an action by a passenger for injuries proofs offered at the trial sufficient to submit to the jury on the question of negligence? It is contended that the learned trial judge erred in affirming the fourth point submitted by the plaintiff. This point asked the court to instruct the jury that: "It is the duty of the defendant to provide safe cars and appliances for the accommodation of its passengers, and, if the plaintiff was injured by reason of the unsafe condition of the platform of the car, a presumption of negligence arises, which places the burden upon the de fendant to explain the occurrence in a way not consistent with its negligence." This point would have correctly stated the law, if the injuries complained of had resulted from failure to provide safe cars and appliances for the accommodation of passengers, but the facts do not warrant the application of the rule. [1] There was no evidence that the steps, or platform, or car, or appliances ordinarily used in transportation, were improperly constructed or maintained, or that they were in a defective condition at the time of the acci sustained while alighting from a train, no pre-dent. The presumption in such cases only sumption of negligence arises from the fact that shifts the burden of proof and does not arise, there is a thin layer of ice on the steps of the unless the evidence shows that the injury car. [Ed. Note.-For other cases, see Carriers, complained of resulted from the breaking of Cent. Dig. §§ 1283-1294; Dec. Dig. § 316.*] 2. CARRIERS (§ 320*)-NEGLIGENCE-QUESTION FOR JURY. In an action for injuries to a passenger alighting from a car, the question of defendant's negligence is for the jury, where there is evidence that ice on the step had accumulated on a prior day, or at such an hour that proper inspection would have discovered it. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1315-1325; Dec. Dig. $ 320.*] Appeal from Court of Common Pleas, Philadelphia County. Action by W. Henry Sutton against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Re versed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. John Hampton Barnes, for appellant. Owen J. Roberts and Isaac O. Sutton, for appellee. ELKIN, J. Appellee, while alighting from the front platform of the first car of the train on which he was a passenger, slipped on a thin layer of ice which covered, or partially covered, one of the steps. In the fall that resulted from this slippery condition, he received the injuries for which damages are sought to be recovered in this action. The assignments of error raise two questions, namely, did the presumption of negligence arise under the facts of the case, and, machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation. Thomas v. Railroad Company, 148 Pa. 180, 23 Atl. 989, 15 L. R. A. 416; Ginn v. Railroad Co., 220 Pa. 552, 69 Atl. 992 There was no such evidence in the case at bar. No attempt was made to show defective construction or negligent maintenance of the equipment of the cars or other appliances of transportation. Under these circumstances, we are constrained to hold that the presumption relied on had no application. It is argued that the thin layer of ice on the step of the platform made its condition defective, within the meaning of the rule. No authority is cited to sustain this contention, and a consideration of our own cases leads to a different conclusion. To hold that ice, formed on the step of a platform as the result of a storm, is part of a car, or of the machinery and appliances of transportation, would do violence to the meaning of words. While the precise question has not been determined by this court, there are a number of cases in which it has been practically ruled. In Fearn v. Ferry Company, 143 Pa. 122, 22 Atl. 708, 13 L. R. A. 366, this court, in passing upon the question raised under the facts of that case, said: "In such cases the presumption of negligence arising from the mere fact that one is injured while a passenger in the care of a carrier company has no application." To the same general effect are Hayman v. Railroad Company, 118 Pa. 508, 11 Atl. 815; Farley v. Traction | the inference might be drawn that a snowCompany, 132 Pa. 58, 18 Atl. 1090; and storm had been in progress in the region traBernhardt v. Railroad Company, 159 Pa. 360, 28 Atl. 140. We therefore hold that it was error to affirm plaintiff's fourth point, and. that the first assignment of error must be sustained. We, however, do not agree with the contention of appellant that a verdict should have been directed for the defendant, or that judgment non obstante veredicto should have been entered upon the whole record. It is a close case, but as we read the testimony the inference of negligence might be reasonably drawn by the jury from the facts. versed by the train on the morning in question. At most this presented a conflict of testimony as to an important fact, which, as a general rule, is for the jury. Again, we are not convinced the evidence established the fact that no ice was on the step when the train left Paoli. It is not denied that the ice was on the step.when the train reached Broad Street Station, and, if the jury should find as a fact that it had not passed through a snowstorm that morning, it would be a fair inference that the ice had accumulated at some prior time. If so, the inference of negligence in permitting the ice to remain on the step for an undue length of time could be reasonably drawn by the jury. [2] At least it was for the jury to say whether, taking into consideration all the facts, appellant knew, or should have known by proper inspection, of the accumulation of ice on the steps and had been negligent in not sooner removing it, or in taking some measures to protect passengers from slipping while alighting from the car. All of this depends very largely upon how long the slippery condition had existed. This is a question of fact, and not of presumption. There is no dispute as to the ice being on the step, and the question for determination is whether it had formed during a snowstorm through which the train was passing, in which event no liability would attach to the transportation company, or had accumulated on a prior day or at an earlier hour, and had been negligently permitted to remain on the step when proper inspection would have discovered it. The evidence is contradictory as to the condition of the weather on the day of the accident. There is some testimony that the day was cloudy, but that "it had not been raining or snowing" on the morning of the accident. It is true there was the testimony of the weather forecaster from which | novo awarded. The facts developed at the trial are meager and unsatisfactory. They are not so clear as to warrant a court in saying, as a matter of law, that no inference of negligence could be drawn, and we are of opinion they are sufficient to be submitted to a jury for the purpose of having the question of negligence determined. The burden of proof is on the plaintiff to establish the negligence relied on to sustain a recovery, and he must make out his case without the aid of the presumption, the benefit of which was given him at the trial in the court below. When the case is again tried, all the facts relating to the weather conditions on the morning of the accident and bearing upon the length of time the ice was permitted to remain on the step, as well as all other facts tending to prove or disprove negligence, should be more clearly established, in order that the court and jury may have more accurate information as to the real merits of the case. Judgment reversed, and a venire facias de mitted by the defendant company in its unW. R. LYNN SHOE CO. v. LUNN & SWEET fair competition with the plaintiff," etc. The SHOE CO. (108 Me. 198) (Supreme Judicial Court of Maine. May 8, 1911.) EQUITY (§§ 46, 295*)-RIGHT TO RELIEF-ADEQUATE LEGAL REMEDY. When a bill seeking an injunction, profits, and damages has gone to final decree, a bill subsequently filed, praying only for profits and damages alleged to have occurred after the accounting under the first bill, is not a supplemental, but an original, bill, and, as the complainant's remedy at law is plain, adequate, and complete, must be dismissed.. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 151-163, 581-599; Dec. Dig. §§ 46, 295.*] Report from Supreme Judicial Court, Androscoggin County. Bill by the W. R. Lynn Shoe Company against the Lunn & Sweet Shoe Company. On report. Bill dismissed. July 15, 1903, the plaintiff filed its original bill in equity for an injunction, accounting. etc., against the defendant, then known as the Auburn-Lynn Shoe Company, its corporate name since that time having been changed to that of Lunn & Sweet Shoe Company, and the cause eventually came before the law court, and a decision thereon was rendered, which is reported in 100 Me. 461, 62 Atl. 499, 4 L. R. A. (N. S.) 960, under the title "W. R. Lynn Shoe Company v. Auburn-Lynn Shoe Company et al.," and reference to that report is made for a statement of the original contentions between the parties. Also see W. R. Lynn Shoe Company v. Auburn-Lynn Shoe Company, 103 Me. 334, 69 Atl. 569, which is the same cause reported to the law court on questions arising after the aforesaid decision. After the decision reported in 103 Me. 334, 69 Atl. 569, the master's report was recommitted, solely however, "for further hearing and report upon the question of what damages, if any, should be awarded to the plaintiff for the losses in its own business, in the production and sale of its own goods, caused by the wrongful acts of the defendant," and after such hearing the master filed a second report, which was accepted. A final decree was then entered, "ordering the defendant company to pay to the plaintiff the sum of $7,424.53 and taxable costs, and on August 4, 1909, the sum of $7,974.13 was received by said plaintiff corporation, in accordance with the terms of said decree." The master's report covered the period between July 9, 1903, and January 15, 1906, the date when the decree on the original bill was filed enjoining the defendant and appointing a master. April 1, 1910, the plaintiff filed the bill under consideration in the present cause, praying that "an account may be taken of all the profits of said business from said 15th day of January, 1906, resulting from the wrongful acts com defendant filed an answer, with a demurrer therein inserted. The case was then reported to the law court for decision. The pith of the case is stated in the opinion. Argued before EMERY, C. J., and SPEAR, WHITEHOUSE, KING, BIRD, and SAVAGE, JJ. Harry Manser, for plaintiff. John A. Morrill, for defendant. BIRD, J. The bill of complaint is indorsed "Supplemental Bill," but contains no allegation that it is filed by way of supplement to the original bill referred to therein. After careful consideration, we conclude we must treat it as an original bill, and that as such it is demurrable. It seeks an account of damages and profits independently of any other ground of equity jurisdiction, such as discovery or injunction. It alleges no fraud. no fiduciary relations, no mistake, and asks no declaration or establishment of rights or liabilities. The rights of the plaintiff have already been defined by the decree upon the original bill. For profits and damages the remedy of plaintiff at law is plain, adequate, and complete. Titcomb v. McAllister, 77 Me. 353, 357-358; Piscataqua, etc., Ins. Co. v. Hill, 60 Me. 178, 184; Caleb v. Hearn, 72 Me. 231, 232; Crooker v. Rogers, 58 Me. 339; Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975; Haywood v. Andrews, 106 U. S. 672, 678, 1 Sup. Ct. 544, 27 L. Ed. 271. If it is desirable for plaintiff to obtain redress for the violation of the injunction granted upon the original bill, such may be obtained upon proper proceedings therefor. See Spell. on Inj., etc., § 1098. Demurrer sustained. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes neous with the contract, if made pursuant to it; sat his barn, and he said he would let me nor need they be simultaneous. 1 [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 529-541; Dec. Dig. § 201.*] 4. FRAUDS, STATUTE OF (§ 90*) - SALE OF CHATTELS-DELIVERY-ESSENTIALS. No act of a seller of chattels can constitute delivery, taking the contract out of the statute of frauds (Rev. St. c. 113, § 4), without receipt and acceptance by the buyer. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 174-179; Dec. Dig. § 90.*] 5. FRAUDS, STATUTE OF (§ 89*) - SALE OF CHATTELS-ACCEPTANCE BY BUYER. Acts by an oral contract buyer of chattels, such as offer to resell all or part of the goods, shows receipt and acceptance by him, taking the contract out of the statute of frauds (Rev. St. c. 113, § 4). [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 165-173; Dec. Dig. § 89.*] Report from Supreme Judicial Court, Franklin County. Action by Willard T. Beedy and another against Brayman Wooden Ware Company. On report. Judgment for plaintiffs. Assumpsit on an account annexed, to recover for 5 tons and 75 pounds of hay at $17 per ton, alleged to have been sold and delivered by the plaintiffs to the defendant. Plea the general issue, with brief statement as follows: "That if any such contract was made as alleged by the plaintiffs it was void under a certain statute of the state of Maine known as the statute of frauds, contained in section 4 of chapter 113, which provides, 'that no contract for the sale of goods, wares or merchandise for thirty dollars or more shall be valid unless the purchaser accepts and receives part of the goods or gives something in earnest to bind the bargain, or in part payment thereof, or some note or memorandum thereof is made and signed by the party to be charged thereby, or his agent,' and the defendant says that if any contract was made between the plaintiffs and themselves, such as is mentioned in said plaintiffs' writ, that such contract was for the sale of goods, wares, or merchandise for $30 or more, and that the purchaser under such did not accept or receive any part of the goods, or give anything in earnest to bind the bargain, or any part of the payment thereof, and that no note or memorandum thereof was made and signed by any party to be charged thereby, or by their agent." At the conclusion of the plaintiffs' evidence, the case was reported to the law court to render such judgment as the law and the legally admissible evidence required. The hay for which this suit was brought was a part of a lot of pressed hay in the barn of the plaintiffs. In relation to the trade for the hay, the purchasing agent of the defendant testified as follows: "The final trade was somewheres just about before the 25th of December. I made Mr. Beedy an offer of $17 a ton for five tons, to be taken know the next day, or in a day or two; and the 25th of December, Saturday, Willard Beedy came to my place and said that they would sell me this five tons of hay, and I arranged with him to go up to the barn and put out five tons of hay on the outside, so that the teams could get it there; and he went up Monday and put out this hay. I think it was the 27th." Shortly after the trade for the hay, the defendant discontinued its lumber operation and never removed the hay, and it remained outside the barn, where it had been placed by the plaintiffs, and there spoiled. In relation to the hay, after the lumber operation had been discontinued, the defendant's purchasing agent testified as follows: "Q. When you saw Mr. Brayman up in the woods, did you have any conversation with him about this hay? A. Yes. Mr. Brayman decided that day that he would not operate any longer, and I reminded him again-I had previously reminded him of this haythat there was some hay down there at Mr. Beedy's that I had purchased that would need to be taken care of. Q. Did Mr. Brayman make any reply? A. Why, we had some conversation in regard to moving it down; I think on the train to Phillips. Q. Did you ever have any more conversation, either in the woods or in the village at Phillips, concerning this hay? A. I met Mr. S. M. Brayman on the street, I think in front of the post office, and had some conversation. I think perhaps I might have mentioned it to him that that hay ought to be taken care of. That was a little later. He asked me if I could not find some one to buy the hay; he said they did not want to lose more than they could help, and I suggested Mr. Beal, and he requested me to see him. I did see Mr. Beal, and tried to sell him that hay; but he didn't care to buy at that time." Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ. J. Blaine Morrison, for plaintiffs. D. R. Ross and Frank W. Butler, for defendant. BIRD, J. This action is brought to recover the price of a quantity of hay alleged to have been sold by plaintiffs to defendant. The defense is the statute of frauds. The case is before this court upon report; such judgment to be rendered upon such of the evidence as is legally admissible, as the law and evidence require. [1] There may be a complete delivery at common law without either receipt or acceptance under the statute. [2] The former is the act of the vendor; while receipt, which affects the possession, and acceptance, which affects the title, are the acts of the purchaser, and both receipt and acceptance |