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indirectly to John L. Boyd, Jr., the father of said children; third, whatever portions of the income and profits are not paid for aiding in educating the children shall be added to the principal; and, fourth, at the death of John L. Boyd, and after they have reached the age of 25 years, the trust fund shall be equally divided between the children.

It is clear that an absolute estate does not vest in these children until these two last conditions are complied with, and if there is a failure to meet these conditions by reason of the death of one or both of them leaving children, or not leaving children, the estate vests in others, either the children of the testator's niece and nephew, children of his sister, Olga, or in default thereof in his other nieces and nephews and to their children in the event that any of them are deceased.

distribution of the unexpended income, shown by the account to the trustees, to hold and use for the purposes of the trust and judicious management of the trust estate until the youngest of the two children arrives at the age of 21 years; and it will be so ordered.

Exceptions were filed to the decree awarding the fund to the trustees and refusing to award one-half thereof to the exceptant.

In dismissing the exceptions Trimble, J., filed the following opinion:

The facts are stated in the opinion filed. From an examination of the will it appears that under no circumstances could either of the children receive his or her share of the estate until 25 years of age. But the children are entitled to get as good an education as they desire, "each until it receives its share under this my will." Does this provision make the income divisible so that one who is now 21 years old may demand one-half of it and leaving the other onehalf in trust for the minor? It is clear that the will does not express this intention, and if it is to be so interpreted it must be by way of inference. But it is probable that the testamentary intent is found in considering that the extent of the education is left wholly with the child, and if it should so happen that the proper demands of the minor for this should exceed the one-half of the income at any time, before the time for distribution arrives, or until he may be lawfully entitled to elect to have distribution of the income, how can the testamentary discretion vested in him be effected by a denial, which may be the result if one-half of the income is now distributed to his sister, who is of age. A distribution of this kind at the present time may destroy the discretion given to the minor and substitute an arbitrary course for his education. This would make the intent to educate subordinate to an arbitrary discretion, and the accomplishment of the ward's desire may be dependent upon a whim of the trustees. The testamentary intent to give an unlimited education may not be realized if the right hereto depends upon an arbitrary discretion in the trustees. The aid directed could be refused without any reason, and the court would be powerless to interfere.

There is no doubt that there may be an unlawful accumulation of income after both of these children have arrived at the age of 21 years, but not before that time, because all of the income may be paid for the education of either one of said children if necessary. "Whether he intended accumulation or not does not affect the case. Accumulation is forbidden under the act of 1853 (P. L. 503) § 9,.no less where it results by indirection than where it is expressly ordered. Neel's Estate, 252 Pa. 394 [97 Atl. 502]. Under the said act the accumulation shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed." Schillo's Estate, 64 Pa. Super. Ct. 85. It will be unlawful only as to that part of the income which accrues after the majority of the cestui que trustent; during its minority it is valid. This trust with respect to the payment of the income is not terminated at the present time. It is true that one of the cestui que trustent is now of full age and the other is a minor; but when we refer to the will we find that the income is payable by the trustees in their discretion for "as good an education as said children may desire to get, each until it receives its share under this my will," so that it is apparent that the trustees may continue to pay so much of the income as may be necessary for this education until their estates are relieved from the testamentary conditions imposed. There was no attempt made by the testator to limit the education of the children; everything is left to the discretion of the trustees. The testator did not say that the education of his niece should end with her graduation at Wellesley College. The discretion in them is legal and not arbitrary. If these children desire to be educated in any manner whatever until such time as they are entitled to the corpus of this estate they are entitled to receive from the income the cost of said education. Any person of experience knows that a college course is but a step in education, and it would be a very narrow construction of this will to hold that the payment of the income be confined to scholastic work. It is not necessary to decide at this time to whom the unlaw-income to one is stopped as in the event of ful accumulated income may belong, for there may be none when the boy, who is now a minor, attains the age of 21 years, the time for distribution. The testator's anxiety was that this income should not go to the father of the children directly or indirectly, and his intent will be carried out by an order which will provide for

[1-2] The right is absolute, and cannot be defeated by the trustees. The discretion to pay is legal, and consequently under the control of the court. Hence, if it should appear to the court during the minority of the cestui que trust that all of the income should be applied for his education, after the other has no longer any desire to pursue the privilege, or is deceased, the fund should not be impaired. Each, while both are living, may demand one-half of the income and receive it during the time to which the enjoyment of the corpus is postponed, if there is honesty of effort and purpose to acquire a proper education, whatever it may be, and the amount of the income demanded is necessary therefor. But if for any reason the payment of the share of the

death or election to discontinue educational pursuits, the whole of the income must be preserved to satisfy the desire for education in the other, until the time for distribution arrives. The trustees have not attempted to exercise their judgment as to the necessity or advisability of limiting the education of either of the children.

The accumulation of income is not void until the | 5. APPEAL AND ERROR 1040(4)-HARMLESS minor becomes 21 years of age. If it is sugERROR-FORMAL DEFECT-DEMURRER. gested that the amount of the income now is more than necessary for the educational purposes of one, we reply that no person can know what the income or the desire for education may be in the future.

Error in sustaining separate demurrers to three paragraphs which, taken together, attempted to state a defense, is mere error of form, and does not require reversal, where a demurrer to the three paragraphs together would be sustained.

Argued before BROWN, C. J., and FRA-6. APPEAL AND ERROR 253 - PRESENTING ZER, WALLING, SIMPSON, and FOX, JJ.

QUESTIONS BELOW-CONSIDERATION FOR AC-
CEPTANCE.

S. Harvey Thompson, of Pittsburgh, for apWhere defendant, in an action on the acpellant. ceptance of a bill of exchange, did not demur, John M. Goehring, of Pittsburgh, for ap- nor raise the questions of consideration by anpellee.

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4. PLEADING EXPUNGE.

364(2)—ANSWER-MOTION TO

Paragraphs of an answer alleging that defendant first refused to accept the bill of exchange sued on, whereupon it was agreed that he should pay it if the drawer completed a certain contract, and that the drawer failed to complete the contract, were not so unconnected with the defense of conditional acceptance as to be subject to motion to expunge.

swer, and went to trial, admitting the sufficiency of the complaint, he cannot question on appeal the sufficiency of the complaint for failure to allege consideration.

7. BILLS AND NOTES 465-ACTION-COM· CONSIDERATION ACCEPTANCE

PLAINT

BILL.

OF

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This is an action on the acceptance by the defendant of a nonnegotiable bill of exchange drawn by one Pettine, payable to the plaintiff when certain plastering was done. The defendant pleaded a general denial and, as finally amended, a special defense, the material paragraphs of which are these:

"(2) On September 12, 1912, the plaintiff requested the defendant to accept said order which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the defendant refused to do, stating as his reason therefor that he owed the drawer thereof, Pettine, nothing.

"(3) It was thereupon agreed at the plaintiff's solicitation that the defendant would pay the plaintiff the amount of said order if and when Pettine finished the plastering, holding out of the sum then to be due said Pettine enough to pay said order.

"(4) In furtherance of said agreement, the defendant thereupon accepted said order conditionally, adding to the order, ‘Accepted, payable when plastering is done.'

"(5) The said Pettine failed to carry out said contract, and by reason of said default the defendant was obliged to hire other masons to complete Pettine's contract, and to do the plastering, and there is not and never has been since said September 12, 1912, any money due said Pettine on the Wilson job."

the plaintiff to Pettine, the defendant accepted the order of Pettine on him, which order and acceptance are set out in the opinion.

The plaintiff would not have furnished the materials and supplies necessary for the completion of the plastering, unless the defendant had accepted the order in question. This order was accepted, so as to be payable after the plastering was done, for the reason that the defendant, according to the terms of its contract with Wilson, would re

ceive a payment from Wilson on his contract upon the completion of the plastering. The plastering would not have been completed unless the plaintiff had furnished the materials and supplies in question at the defendant's request. On November 1, 1912, the plastering was completed according to the

The plaintiff demurred to these para- terms of the order, and the plaintiff's magraphs, as follows:

"The plaintiff demurs to paragraph 2 of the defendant's first special defense because:

"It is immaterial, irrelevant, and not a defense that the defendant originally refused to accept said order, nor is the reason therefor material, relevant, or a defense, as it appears by the order itself that the defendant did accept the order which is now sued upon.

"The plaintiff demurs to paragraph 3 of the first special defense because:

"The allegations thereof are immaterial, impertinent, and irrelevant, since they attempt to extend and vary the written agreement of the parties, as evidenced by the order in question. "The plaintiff demurs to paragraph 5 of the first special defence because:

"The allegations thereof are immaterial, irrelevant, and impertinent, and not a defense to the plaintiff's cause of action."

This demurrer was sustained, the case was tried to the court, and the following facts were found, viz.:

Prior to September 12, 1912, one Pettine, a plasterer and mason, was indebted to the plaintiff in an amount in excess of $250, and at that time the defendant knew that Pettine was so indebted to the plaintiff. At that time Pettine had a contract with the defendant by the terms of which he had agreed to do the plastering and other work on the Wilson job, so called. Prior to September 12, 1912, the plaintiff had been furnishing materials and supplies to Pettine which were necessary for him in order that he might do the plastering on the Wilson job. It was necessary for Pettine to obtain materials from the plaintiff in order to perform and complete his contract with the defendant. On September 12, 1912, the plaintiff refused to furnish further materials or supplies to Pettine, unless he (the plaintiff) was given security for the payment of materials and supplies furnished and to be furnished to him. As an inducement for and a considera

terials and supplies furnished according to the terms of the order were used thereon.

Upon the completion of the plastering the plaintiff duly demanded the payment of the sum of $250 due under said order from the defendant, which the defendant neglected and refused to pay. The sum of $250 has been due to the plaintiff from the defendant since November 1, 1912, which, with interest to the date of judgment, amounted to $327.50.

William E. Thoms and Arthur F. Ells, both of Waterbury, for appellant.

Frank P. McEvoy, of Waterbury, for appellee.

GAGER, J. (after stating the facts as above). This is an action by the payee of a nonnegotiable bill of exchange against the acceptor. It is claimed that the court erred in sustaining the demurrer to paragraphs 2, 3, and 5 of the first special defense. The bill drawn by Pettine, as the basis of the complaint, and the acceptance of the defendant, were in the form following, to wit:

"Please pay J. E. Smith & Co., Inc., $250.00 on the Wilson job, and charge the same to my account."

The acceptance was conditional, and was as follows:

"Accepted. The W. M. Hurlburt Company, C. W. Hurlburt. Payable when plastering is done."

[1] The first special defense really atOne of tempts to set up two defenses. these, paragraph 6, is a denial that the condition of the completion of the plastering was ever complied with. This was not demurred to. The paragraphs demurred to contain, in substance, the allegation of a different condition from that stated in the

agreement was that the plastering was to be completed by Pettine, and that he failed to complete the job, and it was completed by other masons, and therefore the condition of payment was not complied with. In other words, there is an attempt to prove, by parol, a contemporaneous oral agreement materially different from the agreement contained in the writing. The trial court properly sustained the demurrer, upon the authority of Burns & Smith Lumber Co. v. Doyle, 71 Conn. 742, 43 Atl. 483, 71 Am. St. Rep. 235. In that case the court, speaking by Torrance, J., said:

"The acceptance sued upon is in writing, and is an absolute and unqualified one, as distinguished from a conditional one. It is well settled that in an action at law such an acceptance cannot be cut down to a conditional one, even by the clearest proof of a contemporaneous oral agreement to that effect. Such an agreement, however conclusively proved, would not avail the defendant for such a purpose, and therefore all evidence of it is excluded."

While that case was one in which the attempt was made to show by parol that a written unconditional acceptance was in fact a conditional acceptance, and the present case is an attempt by parol to substitute an additional condition to that stated in the writing—that is, by specifying the name of the person who was to complete this plastering the rule must be the same. Of this rule the court there said:

a contract to work certain streets, and parol evidence was admitted to show the special meaning of the terms as understood by the parties at the time the contract was made. The doubt must arise as to the true sense and meaning of the words themselves. This rule was followed in Parker v. Selden et al., 69 Conn. 544, 38 Atl. 212, where the question was as to the meaning of the expression, "spring shipment," in a mercantile contract. But there it was held that evidence was not admissible to show that the time extended beyond July 1st, for that would be to make a different contract from the one alleged.

In the present case no ambiguity is claimed as to the meaning of the words of the acceptance, but the attempt is to add a new and additional condition, by requiring the completion of the work to be done by Pettine, the drawer of the order. This precise point has been before the Supreme Court of Massachusetts in several cases. In Robbins v. Blodgett, 124 Mass. 279, the order was, "To be paid when the house is finished." Neither the contractor nor the owner finished the house. It was sold unfinished, and finished by the purchaser. The court held that the order became payable when the house was in fact finished, no matter who finished it. The condition there was contained in the order, and the court said:

"It is general in its terms, and is payable absolutely when the house is finished; and it is immaterial who completed it. If the defendant

"It is founded on the principle that the writ-wished to limit his liability, he should have done ing expresses the final views of the parties to the exclusion of all extrinsic, prior, or contemporaneous agreements or understandings. It is a salutary rule and should be strictly adhered to."

[2] In the same case the distinction between the attempt to modify a written contract by parol and the attempt to show by parol that the writing purporting to be the contract never came into existence as a contract, or has ceased to be a contract, is clearly shown. Parol evidence is admissible for the latter purpose, but not for the former. Under his second special defense the defendant had the full benefit of the latter rule, and the court found against him on that specific defense.

[3] In the argument the defendant contends that the written condition, "payable when plastering is done," is ambiguous, and that by the paragraphs demurred to the ambiguity claimed to arise from the failure to state who was to complete the plastering would be cleared up by showing that Pettine was to do this, and invoke the rule stated By Chief Justice Andrews. In re Curtiss-Castle Arbitration, 64 Conn. 514, 30 Atl. 769, 42 Am. St. Rep. 200. The question there was as to the meaning of "work" in 106 A.-21

so when he accepted the order." Russell v. Barry, 115 Mass. 300; Cook v. Wolfendale, 105 Mass. 401; 8 C. J. 328, note 53; Beard v. Boylan, 59 Conn. 187, 22 Atl. 152.

[4, 5] Some question is made because the demurrer is directed to specific paragraphs of the answer. The three paragraphs demurred to were not so unconnected with the subject of defense that they should have been expunged, and the court properly denied the motion to expunge. The three paragraphs, taken together, do attempt to state a defense, to wit, that the acceptance was other than manifested by the writings, and the pleader would have better conformed to the rule to have considered them in the demurrer as a unit and stating a single defense. The demurrer to each of the paragraphs was based upon substantially the same reasons, and these reasons would have been equally good, had the three para graphs been treated as collectively stating a defense. The trial court could have strictly applied the rule requiring the pleader to recast his demurrer. It did not do so, but, as appears from the memorandum of decision, regarded and ruled upon the paragraphs as a whole. The result reached was correct, and we cannot base error on pure

matter of form, where it is perfectly certain that, if the error of form were corrected, the result would be the same.

Such an acceptance of a bill of exchange appears to be regarded as analogous to the certification of a check by a bank. Garrettson v. North Atchison Bank, 39 Fed. 163, 47 Fed. 867; Corbett v. Clark, 45 Wis. 403, 30 Am. Rep. 763; Jarvis v. Wilson has been cited frequently in the text-books and without question so far as we have observed. The law as there stated is decisive of the present case.

The fourth reason of appeal is that the court erred in holding as matter of law that it was not necessary for the plaintiff to prove any consideration for the instrument sued upon; the record does not disclose any such ruling, but does show that the objection to such testimony was overruled, and the fact of consideration was found as hereinafter stated. The remaining reason of appeal is that the court erred in holding that the allegations of the complaint were sufficient to support the judgment. It is sufficient to say that the judgment was strictly responsive to the allegations of the complaint.

[6, 7] The second, third, and sixth reasons of appeal are based upon a claim that the complaint was insufficient, because it contained no allegation of a sufficient consideration for the instrument sued upon. It is enough to say that the pleadings do not disclose any such criticism of the complaint. The defendant did not demur, and the answer nowhere raises the question of consideration, and the defendant went to trial, admitting the sufficiency of the complaint. The point not having been raised, the court was not called upon to make a ruling and did not do so. It is to be observed, however, that the complaint does set forth a consideration for the order. It alleges in paragraph 1 an indebtedness by the drawer to the payee, and in paragraph 2 the order by the drawer upon the drawees, the defendant, to pay the amount of the indebtedness to the payee. The objection of no consideration, if taken, would have been of no avail so far as the order is concerned, for the omission of the words "value received," or their equiva-ing shows ample consideration for the acceptlent, in the order itself, is supplied by the allegation of the indebtedness from the drawer to the payee in the first paragraph of the complaint.

In

[10] Even were there any substance to appellants' claim as to consideration, the find

ance. The finding is that, as an inducement
for and a consideration for further supplies
to be furnished by the plaintiff to said Pet-
tine, the defendant accepted the order in
question that the plaintiff would not have
furnished the supplies and materials with-
out the acceptance, and that plaintiff's
supplies and materials were in fact used
in the plastering.

The appellant appears to rely upon Nation-
al Savings Bank v. Cable, 73 Conn. 568, 48
Atl. 428.
In that case one Burke and his

[8, 9] Under our law an order such as the present is a nonnegotiable bill of exchange, and is quite unaffected by the Negotiable Instruments Act. Laws 1897, c. 74. This was decided after full discussion in Windsor Cement Co. v. Thompson, 86 Conn. 511, 86 Atl. 1, citing the earlier case of Jarvis v. Wilson, 46 Conn. 90, 33 Am. Rep. 18. Jarvis v. Wilson a nonnegotiable bill of ex-wife took a deposit book in the savings bank change was accepted orally. The acceptor upon which by their direction this memoranclaimed that the acceptance should be held dum in writing was made: void for want of consideration. That case, like this, appears to have been tried upon the general issue, so that the point was not raised upon the pleadings. The court there say:

"This objection ignores the fundamental principle that the acceptance admits everything essential to the validity of the bill, and that want or failure of consideration cannot be shown in a suit by the payee against the acceptor. The presumption is that every bill of exchange is drawn on account of some indebtedness from the drawee to the drawer, and that the acceptance is an appropriation of the funds of the latter in the hands of the former. The rule of law is not unjust that prevents the acceptor from showing as a defense against a suit by the payee a want of funds of the drawer in his hands, for it was his duty to ascertain before he accepted the bill whether he owed the drawer that amount. This was exclusively within his knowledge, but the plaintiff had no means of knowing how the fact was, and he had a right to assume that the defendant would not accept the bill unless he had funds of the drawer suf

"A. J. Burke and Wife. John D. Edwards

may withdraw for completion of building Kimberly avenue."

Edwards made an order upon said deposit to Cable, neither expressing that it was for value nor stating what the purpose of it was. Subsequently Burke and wife assigned the deposit to one Brothers. Both parties made claim upon the bank, the bank brought an interpleader between them, and the contest was not between the acceptor and the payee, but between the two rival claimants. under the order and the assignment. A demurrer was taken to Cable's claim, on the ground that Edwards' order was invalid, in that it did not appear that the order was drawn for the purpose for which, under the terms of the deposit, he was authorized to draw it, and the court held that the demurrer was properly taken. The demurrer related to the validity of the order, no reference is anywhere made in the pleadings to

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