Gulick's Estate. or that of nothing was realized he would make no charge. It cannot be presumed that when Mr. Ferguson stated that he would look to the results of the litigation that he thereby bound himself to carry on these extensive labors involving large accounts and counter-accounts, expert testimony, and -killed counsel, for nothing if a legal adjustment of the counter-claims should find nothing due his client. That such was his intention is negatived by his declarations; such certainly was not his contract with Gulick because he paid him on account. The weight of the evidence, and this without involving a mistake of statements by any of the parties who testified, is that the proof of a clear new contract on the part of Mr. Ferguson with the executrix to perform these labors on a contingent fee, getting nothing if nothing was obtained, has not been made out, and that he would have, if living, and his estate now has, the right to claim compensation for what his services were actually worth, taking into account the time and labor he expended upon them and his recognized ability in connection therewith. The weight of the evidence is that the services for this litigation were reasonably worth $5,000; this amount is allowed; the weight of the evidence further is that about one-half of these services were rendered subsequently to Mr. Gulick's death and to the acountant for the benefit of the estate; to that extent they are expenses of administration and are entitled to preference. (c) 1. The claim of Mrs. Housewright for nursing and services during the last year of decedent's illness in addition to what she was allowed in her account seems to be sustained by the evidence, and the amount now demanded, $541, is allowed. 2. The claim of Bijou Company for $574, is sustained by the evidence and is allowed as a general claim. 3. The claim of Z. G. Call is refused; the evidence shows that his services up to the time of Mr. Gulick's death were paid; that afterwards the services rendered to the administrator to the extent ordered were also paid. It seems manifest that he performed additional services, as he says, at the request of the counsel in the Gulick-McNulty litigation; as these were not authorized apparently, by the accountant their right to participate cannot be sustained. (d) The balance in accountant's hands arising out of personalty is insufficient to pay the preference allowed as expense of litigation to the referee and to the Ferguson estate. The litigation out of which these claims for preference as costs of administration arose was in no way connected with the decedent's real estate either in Allegheny or Beaver County; the judgments obtained against the decedent in his life time which were liens cannot suffer or be diminished, by reason of expenses of administration connected with a part of decedent's estate not affecting the real estate upon which their liens are seated and which are entitled to participation in the order of priority. Therefore, the two preferences allowed must share pro-rata in the personal estate only; whatever is left unpaid must be taken out of the proceeds of the sale of the real estate in Beaver County, not out of the proceeds of the sale of the real estate in Allegheny County. (e) The liens shown on the lists have priority as entered with respect to the proceeds of the Allegheny County real estate. The only judgment entered as a lien-against the Beaver County real estate is a partnership debt; it has no standing as against Gulick's personal creditors; therefore, this fund is not affected by any lien having force of priority and it must be treated as a general fund out of which the residue of the claims for preference including that of Mrs. Housewright, must be paid, any remainder over of this fund must be divided pro-rata among Gulick's personal creditors; this includes a pro-rata distribution not only to the claims allowed in this adjudication but also a pro-rata distribution to the whole of the Ferguson fce fixed at $5,000.00, to the claim of the McNulty estate under decree of Gulick's Estate. this Court, and to any other lien creditors pro-rata irrespective of the date of judgments, since, as stated before, no personal judgments in Beaver County are shown by the list to have any right of priority. Contract North American Distilling Company vs. Kubancsek. -Sales-Varying written contract-False representations. In action to recover the purchase price of five barrels of whiskey sold by certificate while in bond, the defendant set up that when buying the whiskey the plaintiff made certain representations as to the age, quality and proof of the whiskey which were false. These representations were not in the certificate evidencing the contract. Held, that the affidavit set up a good defence. Rule for judgment for want of sufficient affidavit of defense. No. 1251 July Term, 1914. C. P. Allegheny County. Marron & McGirr, for plaintiff. Scott & Purdy, for defendant. REID, J., October 29, 1914.-This case comes before us upon a rule for judgment for want of a sufficient affidavit of defense. Plaintiff sues to recover $130, the balance claimed to be due on a contract entered into by defendant to purchase five barrels of whiskey in bond. The total price was $154.89, upon which the defendant paid in cash $24.89, and gave the plaintiff four promissory notes of $32.50 each for the balance. Plaintiff attaches to its statement a copy of the writing signed by the purchaser at the time of the transaction, which specifies that he has bought from plaintiff five barrels of whiskey in bond, and has received Certificate No. 3054 for 238.30 gallons at sixty-five (65c) cents per gallon. This document contains a provision that in case default be made by defendant in the payment of, any one of the notes, the amount still unpaid upon the purchase should become due immediately. It concludes with the following language: "This agreement contains all the conditions of above purchase and nothing except what is therein mentioned shall be binding on the seller." The Affidavit of Defense is attacked upon the ground that it is vague, evasive and insufficient; that it seeks to contradict the written instrument sued on without alleging that the representations and promises upon which defendant claims to have relied were omitted from the contract by fraud, accident or mistake. Some of these averments are insufficient to prevent judgment. We have, however, determined that the matter of the age of the whiskey and the place in which it is alleged to have been manufactured and stored, and the fact of its existence, are material matters. If misrepresentations were made with regard to these facts and defendant was thereby misled, such matters may be properly presented and would prevent judgment. The contract attached to plaintiff's statement refers to the delivery of Certificate No. 3054. This certificate, a copy of which is attached to the Affidavit of Defense, specifically gives the serial numbers of each of the five barrels of whiskey, and also the serial numbers of the warehouse stamps. The certificate provides: "That the below described five barrels of Carroll County Club whiskey, or others of the same age and quality, which were distilled in the above named distillery, and are now stored in cur United States bonded warehouses at that distillery, will be delivered to Anton Kubancsek, or order ness North American Distilling Company vs. Kubancsek. The Affidavit of Defense contains the following averments: "Plaintiff acting through its duly authorized agent, came to defendant's place of busiand induced defendant to purchase five barrels of Carroll County Club whiskey distilled by the North American Distilling Company, representing that said whiskey was then in United States bonded warehouse. distillery No. 4, sixth district of Kentucky, and that said whiskey was then five years old, and that the same was 105 proof." This is followed by an averment that no such barrels of whiskey were stored in said warehouse by said distillery at that time, nor stored there since then, and "that the representations made by plaintiff respecting the age of said whiskey as being five years old, and respecting same as being 105 proof, and that said specified barrels of whiskey were stored in said bonded warehouse, were false and fraudulent, and were made for the purpose of deceiving defendant and inducing him to sign said contract." While it is true that the certificate gives to the grantor the right to deliver other whiskey than that particularly specified, it must be of the same age and quality, and this is stated in the certificate as being also stored in plaintiff's bonded warehouses, and that it was distilled at its distilleries. The consequence is that representations as to age, place or manufacture and storage, if made, would be just as material as to the substitute whiskey as it is with regard to that originally specified. It will be seen that the age of the whiskey is not mentioned in the contract or the certificate, and, therefore, the allegation that it was specified verbally as being five years does not contradict those papers. The fact that the statement was made that it was false and fraudulent and intended to procure defendant's signature is positively stated. We believe it to be sufficient to prevent judgment. If one of a number of statements alleged to be fraudulent is material, although the others may be insufficient, the affidavit must be sustained: Max Meadows Land, etc., Co. vs. Mendinhall, 4 Sup. Ct., 398. It is also competent to aver and prove false and fraudulent representations, the making of which induced the execution of a contract: El Dorado Jewelry Co. vs. Hopkins, 34 Sup. Ct., 446; Smith, etc., Co. vs. Smith, 166 Pa., 563; Edelman vs. Latshaw, 180 Pa., 419. The admission of proof of such misrepresentations, inducing the execution of a contract, is not permitting the introduction of parol testimony to contradict a written instrument, and does not contravene the rule laid down in Krueger vs. Nicola, 205 Pa., 38. The rule for judgment must be discharged. And now, October 29, 1914, on hearing of the above entitled case to show cause why judgment should not be entered in favor of the plaintiff and against the defendant for want of a sufficient affidavit of defense, rule is discharged. Elmer vs. Pittsburgh Railways Company. Street railways- Passenger-Riding on platform-Injury to-Contributory negligence-Passenger or employee. Generally it is the duty of a person to move inside a car, but where it appears that a passenger, who was injured while riding on the rear platform, had boarded the car, which was crowded with passengers both inside and out, and the testimony was conflicting as to whether there was standing room and it was reasonably practicable for him to go into the car, the question of his contributory negligence in riding on the rear of the car is for the jury. Plaintiff was foreman of a gang which was divided in two parts and was working at two different places on the defendant's tracks. On the day upon which he was hurt, he boarded a car with a pick in his hand. He testified that his work was done for the day and he intended either leaving the pick at a point where the other men were working or at the place where he was to get off to go to his home to take it with him upon his return in the morning. It appeared that it was quitting time when he got on the car and his work for the day was done. He travelled upon an employee's ticket. Held that the question of whether he was travelling on the business of the company or whether he was a passenger was properly submitted to the jury. Motion for judgment n. o. v. gheny County. No. 1126 October Term, 1912. C. P. Alle T. M. & R. P. Marshall and O. K. Eaton, for plaintiff. MACFARLANE, J., December 31, 1914.-It is contended that the plaintiff was guilty of contributory negligence. He was riding on the platform of a trolley car when a sudden jerk threw him to the ground and he assumed the burden of showing that he had a right to be on the platform. The seats were all filled, there being twelve or thirteen passengers on each side. The car was a small one and there were seven or eight passengers on the rear platform. McDade vs. Phila. T. Co., 215 Pa. 105, shows that there is no distinction between cases where there are vacant seats and where there is standing room and if a passenger can conveniently stand inside he is bound to do so and to stand on the platform where there is available room inside is negligence per se. In Simpkins vs. Phila. T. Co., 244 Pa. 182, it is said, "In the case at bar there was evidence from which the inference could be reasonably drawn that it was not reasonably practicable for the injured husband to go inside the car." It is true that in Harding vs. Phila. T. Co., 217 Pa. 69, the court said, "It is settled law that it is contributory negligence which will bar recovery to stand on the platform or the running board of a car when a place can be reached inside," and other opinions use the expression when there is room inside but the test is not whether it is physically possible for a passenger to fight his way to a place where he can stand but whether it is reasonably practicable. Otherwise a woman would be guilty of contributory negligence when she declined to worm herself through a jam of men inside of the door of a car even though a conductor or an athletic young man might be able to do so. The varying circumstances require the submission of most of these cases to the jury. ** * "Generally it is the duty of a passenger to go inside the car, * * * it is his duty to go inside if there is room. * * Where there is room to be seated inside the car and no special and sufficient reason is shown why a passenger should not avail himself of it, it is negligence per se to remain on the platform of a moving trolley car. *The proper and assigned place for passengers is inside the car. Unless he shows some valid reason to excuse him, a passenger is bound to put himself in the appointed place, and if he does not he takes the risk of his location elsewhere. * * * A passenger who rides on a side step when it is reasonably practicable for him to go inside the car, assumes all the risks of his position ** but when by invitation of the conductor or with his knowledge and assent, and from necessity, because of the want of sitting or standing room inside of the car (he) rides on the side step he is entitled to the same degree of Elmer vs. Pittsburgh Railways Company. diligence to protect him * * * as are other passengers," Bumbear vs. Traction Co., 198 Pa. 198; Woodroffe vs. Railway Co., 201 Pa. 521. The plaintiff testified that the platform was crowded and he "tried to get in the car," saw it was full, that at the next stop some passengers got off, the car was full and he couldn't see through it, the conductor went into the car and he couldn't see him the crowd was so full. "There were so many people right inside of the door,' he didn't try to open it because he saw the car was full and had a pick in his hand. Kent testified that the conductor worked himself through the people sideways, that a passenger could have forced his way in possibly, it seemed to him the whole car was crowded, all the seats were filled and there were people standing in the aisle, he couldn't see in very well and didn't see up towards the front of the car, "the people were packed just inside of the rear door." Benn said there was a congestion at the rear door and "I believe you could have (crowded in) if you had been so inclined, if you had felt like it you might have pushed your way in." He could have gotten up in the body of the car if it had been necessary, if he had wanted to get in there. The testimony of defendant's witnesses was that there was standing room in the front of the car, but that the car was crowded at the rear, one witness saying that there were twelve or thirteen passengers standing and all the seats filled. The conductor said, "Away up in the front there was lots of room up there" and he guessed he had to go sideways to work his way through the crowd. There was sufficient controversy as to whether there was room in the car and whether it was reasonably practicable for the plaintiff to go inside to require the submission of the question of contributory negligence to the jury. There is no merit in the suggestion of plaintiff's counsel that the plaintiff would have more difficulty in getting inside than the conductor because he carried a pick. The car was provided for passengers, not for picks. The next question is whether the plaintiff at the time of the injury was traveling on the business of the company or whether he was a passenger. He was foreman of a gang of men working on the track. On this day part of them were working at the point where the plaintiff boarded the car and the others at a point along the line nearer plaintiff's home. The plaintiff testified that his work for the day had been finished, that he had directed the men to put up their tools and he then took a pick which would be used the next day intending to leave it at the point where the other men were working if he had the opportunity to do so but if not to take it with him and leave it at the car barn where he got off to go to his home and take it with him in the morning. He said that it was quitting time when he got on the car and that the job at that point was finished. He might be a passenger although he was carrying the pick and we do not think that he was discharging a part of his day's duties merely because he had taken the pick with him. There was testimony on the other side that he had stated when he was hurt that he was on his way to the point where the men were working to give an order to his sub-foreman but he denied this and the question whether he was engaged in the service of the company was for the jury. In O'Donnell vs. R. R. Co., 59 Pa. 239, the plaintiff, a carpenter, was carried in consideration of a reduction in the price of his wages and was not pursuing his business on the train. In Wilkes vs. Railway Co., 216 Pa. 355, plaintiff was traveling on an employee's pass after he had passed an examination for the position of locomotive engineer and for the purpose of informing himself about his duties, and it was held that he was not in the actual service of the company and was therefore a passenger. In Goehring vs. Beaver Valley Co., 222 Pa. 604, plaintiff, a policeman, had a right to free transportation and one of the services which he rendered was keeping a waiting room of the traction company clear of loafers and disorderly persons and he was expected to respond to calls from conductors to aid in preserving order on the cars of the company. On the night of the accident he was requested by a conductor to board his car and he rode to the terminus and back and while on the front platform on the return trip the car left the track and the plaintiff was injured. His contention that at the time of the accident he was |