Kaufmann & Baer et al. vs. O'Brien. doers, if they would take the trouble to observe that the word 'irreparable' is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by an accurate standard." After citing certain authorities, he says: "As this argument is generally presented it seems to be supposed that injunctions can apply only to very great injuries; and it would follow that he who has not much property to be injured, can not have this protection for the little he has." In Philadelphia Ball Club vs. Lajoie, 202 Pa., 210, Mr. Justice Potter quotes with approval the first excerpt above quoted from Mr. Justice Lowrie, and says (216); that a Court of Equity will act where nothing can assume the justice of the case but the performance of the contract in specie; and this even where the subject of the contract is what under ordinary circumstances would be only an article of merchandise. In such a case, when owing to special features, the contract involves peculiar convenience or advantage, or where the loss would be a matter of uncertainty, then the breach may be deemed to cause irreparable injury. Attention has been called to the case of O'Brien vs. Grendiski, No. 1824 April Term, 1913. The findings of fact, conclusions of law and opinion by Judge Ford, present a case materially different from the case at bar. The preliminary injunction will be made permanent. Marlow vs. Clover Leaf Farms Company, Inc. Specific Performance -Oral Reservation of Coal -Evidence -Weight of. Specific performance of an agreement for the sale of real estate will be decreed where the only defense was that the coal had been reserved and this fact had been orally told the plaintiff, but there was nothing in the written acceptance of the offer. Where the oral testimony is evenly balanced, the written memorandum will carry the weight of the evidence. In Equity. No. 2109 April Term, 1915. C. P. Allegheny County. Alfred M. Lee, for plaintiff. John S. Weller, for defendant. FINDINGS OF FACT. EVANS, J., June 19, 1915.-Plaintiff filed her Bill praying for specific performance of a contract for the sale of real estate. (1) The defendant company was the owner of a piece of land situate in this County, which it divided into tracts of from three to five and six acres each, and after some verbal negotiations the defendant company gave to the plaintiff an agreement for the sale of tract No. 19 in the form of a letter, which is as follows: Dear Madam: "Pittsburgh, Pa., March 13, 1913. We accept your offer of Five Thousand Five Hundred Dollars for the property known as tract No. 19, on which is now erected a nine-room dwelling. We will erect a barn and stable similar to that of Alex. Black's, erect a chicken house not to exceed One Hundred Dollars, complete bath room and connect with cess pool, raise lot in front of house and make good any defects in house and fence in front of house. Payment in cash Three Thousand Five Hundred Dollars. Two lots in Trafford City valued at One Thousand Dollars, free of all debt, and mortgage Marlow vs. Clover Leaf Farms Company, Inc. for One Thousand Dollars, making a total of Five Thousand Five Hundred Dollars. Fifty Dollars paid March 13, 1913, and balance of cash payment by July 1st, 1913. Deed to be delivered when Three Thousand Five Hundred Dollars is paid. (Signed) CLOVER LEAF FARMS CO., President." (2) The plaintiff has paid to the defendant the Three Thousand Five Hundred Dollars cash payment as provided in the foregoing writing. (3) The plaintiff in court tenders a Deed for the two lots in Trafford City and the mortgage for One Thousand Dollars as provided in the foregoing writing. CONCLUSIONS OF LAW The plaintiff on the execution of the mortgage or payment of cash of One Thousand Dollars and the conveyance of the two Trafford City lots is entitled to a Deed for the property known as tract No. 19 in the writing of the date of March 13, 1913. DISCUSSION The defendant resisted the prayer of the plaintiff on the ground as alleged. that the paper set forth in the first Finding of Fact was not the agreement between the parties as to the sale of this lot, but that a reservation was made by the defendant company of the Freeport vein of coal underlying the land agreed to be conveyed to the plaintiff by the paper of March 13, 1913. We have been unable to find the facts sustaining the contention of the defendThe president of the Clover Leaf Farms Company testified that the coal was reserved, and he was corroborated in this by his son. On the other hand, the plaintiff and another woman, who was present at the time of the negotiations which led up to this agreement, testified that no such reservation was made. I take it that this with the paper given to the plaintiff on the 13th of March, 1913, carries the weight of the evidence. ant. Grammes & Sons vs. Pfeiffer. Judgment- -Rule to Open-Note Endorsement--Depositions-DeathRule of Court. Plaintiffs manufactured parts of toys used by defendant, a manufacturer of completed toys. Defendant gave plaintiffs a judgment note upon which was endorsed "security on order for metal parts for camera and carpet sweeper." Judgment was entered on the note and on a petition to open this judgment, it appeared that plaintiffs refused and neglected to ship goods ordered by defendant. Plaintiffs denied this by stating that defendant failed to give shipping directions and averred its willingness at all times to deliver the goods according to agreement and claimed damages. The defendant was dead. The answer was responsive and specific. No depositions were filed. Held: That under a Rule of Court the rule must be discharged. Rule to Open Judgment. No. 694 April Term, 1915. D. S. B. C. P. Allegheny County. Morris, Walker & Allen, for plaintiff. Miller, Vogan & Nesbitt, for defendant. EVANS, J., October 20, 1915.-This case comes before the Court on a rule to open judgment. The plaintiffs were the manufacturers of parts of certain toys, and the defendant was the manufacturer of the completed toy, and his dealings with the plaintiffs was in the purchase from the plaintiffs the parts which he needed and which the plaintiffs manufactured. On October 5, 1914, the defendant delivered to the plaintiffs a judgment note upon which judgment in this case was entered due one day after date and endorsed on the note to be "security on order for metal parts for camera and carpet sweeper." The question has arisen whether that notation means that it was to be security for the payment of damages for the defendant's failure to accept part which he ordered and which were manufactured for him. This is resolved in a letter from the defendant to the plaintiff as follows: "You ask for a definite understanding, and in reply to this question would state that we already told you exactly what we wanted, and we ask for nothing more than what was understood by our first agreement. That is, that you hold the note as security in case I do not take all the goods ordered and remit for same within five days of receipt of invoice." This letter is attached to the petition of defendant to open the judgment. The petition alleges a great many facts which I do not see are relevant to the question in issue. The one question which is relevant and which the petition alleges is that the plaintiffs entirely refused and neglected to ship the goods ordered by the defendant and that therefore there is no liability on the part of the defendant on account of this judgment note. The defendant in answer to the petition to open the judgment, and in answer specifically to this allegation, denies that the plaintiff neglected and refused to make shipment of goods ordered, but alleges that after the manufacture of the goods covering the order of defendant the plaintiffs requested many times that they be given directions as to shipping and could get no directions from the plaintiff as to the shipment of the goods. Plaintiff alleges that he was ready at all times to deliver the goods in accordance with the agreement, and damages to the plaintiff by reason of his failure to take the goods was something over $1,400. The defendant is dead. This application was made by his executor. We have a rule of Court that where in a proceedings such as this the answer is responsive and specifically denies the allegations of the petition that we will not open the judgment unless the petitioner supports his allegation by depositions. There were no depositions taken in this case. The rule is, therefore, discharged. Grammes & Sons vs. Pfeiffer. ORDER And now, October 20, 1915, rule ex parte defendant to open judgment in the above entitled case and permit the defendant to put in a defense is discharged. Bell's Estate. Guardian-Minor-Living Expenses of Father's Liability. A guardian paid $140 for living expenses expended on behalf of his ward. On filing his account and asking to be discharged, the guardian ad litem filed exceptions to this item alleging that these expenses should have been paid by the minor's father. Held: That as the father was legitimately out of the state during the period covered by these expenses in the interest of his own and the minor's estate, and had no sufficient income to provide for the minor, the claim was allowed, and exceptions dismissed. Sur Proceedings for Discharge of Guardian and Exceptions to his Account. No. 328 March Term, 1914. O. C. Allegheny County. C. Elmer Bown, for petitioner. MILLER, J., October 30, 1915.-The guardian ad litem properly filed exceptions to certain items in the account of the present guardian, who asks to be discharged, being for living expenses paid to the minor amounting to about $140, alleging that these expenses should have been provided for by the minor's father. The evidence taken is sufficient to show that the father was legitimately in the State of Washington during the period covered by these expenses and for a longer period, in the interest of his own and the minor's estate there; in this period he had no sufficient income to provide for the minor; nor has he had an income sufficient since that time to repay these amounts. The guardian now appointed will not, however, rely upon this adjudication as an authority to turn over any of the funds of the minor's estate for his present maintenance without special application to court. Primarily, the duty of maintenance is upon the father. The changed conditions indicated in the testimony may make this not only possible but mandatory. The exceptions are dismissed. DECREE. And now, October 30, 1915, upon consideration of the account, exceptions thereto, and testimony; it is ordered, adjudged and decreed that the petitioning guardian shall be discharged upon paying and transferring all moneys and property belonging to the minor to the Commonwealth Trust Company now appointed guardian of the said estate. Jones vs. Commonwealth Casualty Company. Affidavit of Defense-Insurance—Accident—Death—Peritonitis. Plaintiff sued to recover on an accident insurance policy. An affidavit of defense alleged that death resulted from peritonitis several months after an alleged injury and that death was not the direct result of the injury. On a rule for judgment for want of a sufficient affidavit. Held: Peritonitis is not an injury, it is a disease. It may come possibly as a result of an injury or it may come from many other causes, and affidavit held sufficient. Rule for Judgment. No. 357 July Term, 1915. C. P. Allegheny County. Stone & Stone, for plaintiff. Henry G. Wasson, for defendant. EVANS, J., July 9, 1915.—This case comes before the Court on a rule for judgment for want of sufficient affidavit of defense. In substance, the Statement of Claim alleges that the Fraternities Accident Order of Philadelphia issued a certificate or policy of insurance to David Jones, the husband of the plaintiff, constituting him a fifth rate member, and promising to pay the sum of Five Thousand Dollars to Mary, his wife, upon satisfactory evidence that the death of David Jones was caused through external, violent and accidental means. That subsequently a corporation was organized under the laws of Pennsylvania called the Commonwealth Casualty Company, which Company reinsured and assumed the obligations of the Fraternities Accident Order, and among them the claims arising under the policy of David G. Jones. That on the 14th day of December, 1914, in the Hazel Mine, the plaintiff's husband slipped and fell on his left side, injuring the same; and that on the 16th day of December, while inside of the mine, David G. Jones again slipped and fell, striking his left side on a piece of angle iron, resulting in serious internal injury. That the accidents on the 14th and 16th both caused a bruise, injury or abrasion or adhesion of the bowel on the left side, called the descending colon, or in close proximity of same, so injuring said bowel as to cause inflammation or peritonitis, from which he died on January 16, 1915. In its Affidavit of Defense, the defendant alleges as follows: "The defendant denies that the plaintiff's husband, David G. Jones, while in the Hazel Mine of the Pittsburgh-Buffalo Company, either on the 14th day or on the 16th day of December, 1914, fell, striking his left side, resulting in or from which he sustained serious or other internal injuries; that said accidents, or either one of them, caused a bruise, injury, or abrasion or adhesion of the bowel on the left side, commonly known as the descending colon, or in close proximity thereto; that said accidents, or either of them, caused a bruise, injury or abrasion or adhesion of the bowel on the left side, commonly known as the descending colon, or in close proximity thereto, so injuring said bowel as to cause inflammation and peritonitis, from which he died on January 16, 1915; and that the death of David G. Jones was caused through external, violent and accidental means." The defendant further avers in the third paragraph of its affidavit of defense as follows: "The defendant avers that the death of the plaintiff's husband, David G. Jones, did not come solely or otherwise through external, violent and accidental means either as a matter of fact or within the intent, meaning and scope of the certificate of membership, the application for membership and the laws of said Order, which together constitute the contract sued upon, but is informed, believes and expects to be able to prove upon the trial of this cause, if required so to do, that he died at the Mercy Hospital in the City of Pittsburgh more than one month after the first fall alleged, following an exploratory laparotomy and the removal of the ap |