text:
    Jacobs v. Heppe, Appellant.

      Contract — Evidence—Conflicting evidence — Question for the jury.

    In. an action on a contract the evidence showed that the defendants were dealers in pianos, and that they agreed with the plaintiff that if she should give them a “prospect,” that is, the name and address of a prospective purchaser of a piano, and the defendants should in pursuance of the “prospect” or information, within a reasonable time succeed in selling a piano to such prospective purchaser, the plaintiff would be entitled to receive ten per cent of the purchase price paid. Plaintiff claimed that through a “prospect” given by her, defendants had sold three pianos six or seven months subsequently. The defendants denied that the sale had been made through plaintiff’s “prospect.” Held, that the case was for the jury and that a judgment and verdict for the plaintiff should be sustained.
    Where there is any evidence which alone justifies an inference of a disputed fact, it must go to the jury, and this is generally true, whether the sufficiency of the evidence is raised upon a motion for a nonsuit, or at the conclusion of the trial in which the defendant has introduced countervailing evidence of a positive character. ' ■

      Argued Oct. 11, 1905.
    Appeal, No. 130, Oct. T., 1905, by defendants, from judgment of C. P. No. 5, Pbila. Co., June Term, 1904, No. 1144, on verdict for plaintiff in case of Jennie Jacobs v. Christopher J. Heppe and Florence J. Heppe, Trading as C. J. Heppe & Son.'-
    Before Rice, P. J., Orlad y, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a contract. Before Davis, J.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were in refusing to give binding instructions for defendant.

      Albert J. Moise, of Sharp, Ademan Moise, for appellants.—
    Where the evidence of a fact sought to be established could not reasonably satisfy the jury of the existence of such fact, or is so weak that it would be the dutjr of the court to set aside a verdict finding such fact, the question of the existence of such fact should not be submitted to the jury: Howard Express Company v. Wile, 64 Pa. 201; Elliott v. Lycoming Mut. Ins. Co., 66 Pa. 22; Cunningham v. Smith, 70 Pa. 450; Hyatt v. Johnston, 91 Pa. 196 ; Sidney School Furniture Co. v. Warsaw School District, 122 Pa. 494; Cauffman v. Long, 82 Pa. 72; Wilson v. Mitchell, 101 Pa. 495; Eddey’s App., 109 Pa. 406; Shaver v. McCarthy, 110 Pa. 339 ; Herster v. Herster, 122 Pa. 239 ; Yorke’s Est., 185 Pa. 61; Roberts v. Clemens, 202 Pa. 198.

      Joseph P. Rogers, with him William II. Wilson, for appellee.
    —The case was for the jury : Howard Express Co. v. Wile, 64 Pa. 201; Kelton v. Fifer, 26 Pa. Superior Ct. 603.
    November 20, 1905 :
   Opinion by

Orlady, J.,

The basis of this action was properly designated by the trial judge as “ a very peculiar contract, but, nevertheless, it is a contract having two sides to it.” The defendants are extensive dealers in pianos and agreed with the plaintiff that if she should give them a prospect,” that is, the name and address of a prospective purchaser of a piano, and the defendants should in pursuance of the “ prospect,” or information, within a reasonable time, succeed in selling a piano to such prospective purchaser, the plaintiff would be entitled to receive ten per cent of the purchase price paid. This is conceded to have been their offer, and the question in dispute was confined to the sale of three pianos which the plaintiff contended were sold through her “ prospect,” and by the defendants, that they were sold on an individual inquiry, directly made to the firm without her intervention or by reason of any other influence or suggestion.

It was clearly shown on the trial that the plaintiff had registered a “prospect ” for a sale to the Josephine Widener School and that three pianos were sold some six or seven months subsequently. Her theory that the sale was made on a “prospect,” and not to an unsolicited customer was supported by the fact that the commission on that sale was credited to three persons identified with the sales department. The plaintiff testified positively that a Mr. Doddridge, a duly accredited representative of the defendants, stated to her in their store, “ I remember of Mrs. Jacobs coming to see us about that ‘ prospect ’ and giving us the prospectthat a Mr. Lamon, in the presence of the manager, stated that they had gone for six months to the school and failed to make a sale, and then had to get Mr. Street on the case; that “ he went out to see Mr. Widener and he sold the pianos to Mr. Widener.” True, this was denied by Mr. Doddridge, and the Mr. Lamon mentioned by the plaintiff was not identified in court by her ; yet, if her statement was to be believed she was clearly entitled to the commission. It was for the jury and the jury alone to pass on this disputed fact. Their finding is amply supported by the testimony and it would have been an invasion of the rights of the jury for the court to have directed, a nonsuit. The rule in such cases has been recently announced by President Judge Pice in Kelton v. Fifer, 26 Pa. Superior Ct. 603, that a reference to it is a vindication of the course followed by the trial judge. “ It is true that the old scintilla doctrine has been long since exploded; the more reasonable is now as stated by Justice Sharswood in Howard Express Co. v. Wile, 64 Pa. 201, that, “ Where there is any evidence which alone justifies an inference of a disputed fact, it must go to the jury; and this is generally. true, whether the sufficiency of the evidence is raised upon a motion for a nonsuit, or at the conclusion of the trial in which the defendant has introduced countervailing evidence of a positive character.” The case being for the jury, it was submitted to them with clear, adequate and impartial instructions, of which the defendants have no just cause to complain. It was the exclusive province of the jury to pass upon the credibility of evidence and ascertain the facts.

The judgment is affirmed.


source: Caselaw Access Project

author: Moeeison, J.,

license: Public Domain

text:
    Commonwealth, Appellant, v. Cover.

      Taxation — Mercantile tax — Manufacturers—Tanners—Exemption.
    Where a tanner concedes that he manufactures leather in Virginia, and sells it in a store in Pennsylvania, the commonwealth has a prima facie right to the mercantile tax upon the whole volume of the business, and the burden of showing that any portion of the sales is exempt, rests upon the tanner. The fact that the leather is cut in the store into various sizes and pieces, but not manufactured into any complete article, does not exempt from taxation the leather thus treated, on the ground that it was manufactured into articles for sale.
    Argued Oct. 11,1905.
    Appeal, No. 143, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March' T., 1905, No. 3703, on verdict for plaintiff in case of Commonwealth v. Thomas Cover, Loring A- Cover and Henry E. Drayton, trading as Cover & Drayton.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Case stated to determine liability for collateral tax.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment, for plaintiff for $161.50 only.

      Ira Jewell Williams, with him Franklin L. Lyle and Hampton L. Carson, attorney general, for appellant.
    Appellees are not, exempt from the mercantile license tax because, they have a warehouse apart from the factory for the purpose of vending goods : Com. v. Campbell, 33 Pa. 380 ; Com. v. Potter, 159 Pa. 583; Com. v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210 ; Com. v. Beener, 3 Kulp, 351; Com. v. Melley, 2 Kulp, 86; Com. v. Bickings, 3 Kulp, 346; Del. & Hudson Canal Co.’s Case, 8 Pa. C. C. Rep. 496 ; Com. v. Robb, 14 Pa. Superior Ct. 597.
    The business done at Third and Callohill streets is not manufacturing: Com. v. Percival, 11 Pa. Superior Ct. 608; Com. v. Robb, 14 Pa. Superior Ct. 597 ; Com. v. Arrott Mills Co., 145 Pa. 69 ; Com. v. Keystone Laundry Co., 203 Pa. 289 ; Com. v. Light & Power Co., 145 Pa. 105.

      William Drayton, for appellee
    Manufacturing was done at Third and Callowhill streets. The raw material leather was there reduced to “ bends,” “ backs,” “ crops,” “ men’s heelings,” “ women’s heelings,” and similar articles or wares which are sold to the trade under these names and realize a higher price than the raw material and upon which several trained workmen are employed: Lawrence v. Allen, 48 U. S. 785; Seeberger v. Castro, 153 U. S. 32 (14 Sup. Ct. Repr. 766); Holden v. Clancy, 58 Barb. 590; Bailey v. Schell, 5 Blatchford, 195; Stockwell v. U. S. 3 Cliff. 284; Carlin v. Assurance Co., 57 Md. 515; New Orleans v. LeBlanc, 34 La. Ann. 596; U. S. v. Hathaway, 71 U. S. 404 ; U. S. v. Quimby, 71 U. S. 408 ; Foppes v. Magone, 40 Fed. Repr. 570; Engle v. Sohn, 41 Ohio, 691; Tecopa Mining & Smelting Co., 110 Fed. Repr. 120; Landgraf v. Kuh, 188 Ill. 484 (59 N. E. Repr. 501); New Orleans v. Ernst, 35 La. Ann. 746 ; Attorney-General v. Lorman, 59 Mich. 157 (26 N. W. Repr. 311).
    All manufacturers who bestow care, skill or labor upon the articles manufactured and sold by them are exempt from the payment of a mercantile tax if the goods are sold at the manufacturing establishment. Of course, if any of the persons buy and sell goods manufactured by other persons, and upon which they do not bestow their own skill and labor, they would then become dealers in goods, wares and merchandise to the extent of the sales outside of their manufactured product: New Mercantile Tax Law, 9 Pa. Dist. Rep. 117; Com. v. Campbell, 33 Pa. 380; Norris v. Com., 27 Pa. 494; Com. v. Stilz, 5 Pa. Dist. Rep. 673; Com. v. Gormly, 173 Pa. 586; Com. v. Teller, 144 Pa. 545 ; Com. v. Ice Co., 23 Pa. Superior Ct. 267; Com. v. Canfield Co., 7 Dauph. Co. Rep. 195; Mercantile Tax Law, 23 Pa. C. C. Rep. 369 ; Com. v. Coke Co., 157 Pa. 507 ; Com. v. Potter, 159 Pa. 583.; Com. v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210; Com. v. Davis, 11 Pa. Dist Rep. 427; Com. v. Crum Lynne Iron & Steel Co., 27 Pa. Superior Ct. 508; Commonwealth v. Savage Fire Brick Co., 157 Pa. 512; Commonwealth v. Nat. Oil. Co., 157 Pa. 516 ; Commonwealth v. Pottsville Iron & Steel Co., 157 Pa. 500.
    November, 20,1905:
   Opinion by

Moeeison, J.,

This was a case stated in the court below wherein the commonwealth claimed judgment for mercantile license tax for $452.26. The court below entered judgment for $161.50 and thereupon the commonwealth appealed.

From the case stated we learn that the defendants operate tanneries in Virginia and West Virginia, where they tan raw hides and manufacture them into leather, and each hide when thus tanned is cut from front to back in two equal pieces of leather known as sides. This leather is shipped to the defendants’ place of business at Third and Callowhill streets, Philadelphia,'where they store and sell a large quantity each year, the amount realized therefrom during the year in' question being $897,526.86. Of this a portion amounting in value to $253,984.31 was sold without making any change in its character. The balance of the leather amounting to $643,542.55, is treated, as may be ordered by customers from time to time, as follows: a portion of the sides of leather are cut into- two pieces and the other portions cut into such pieces as the customers may require. The various pieces of leather known as shanks, shins, men’s whole heeling, men’s and women’s half heeling, bends, backs, crops, shoulders, bellies, heads and butts are sold under these designations to customers at Third and Callowhill streets.

The defendants have’ not appealed from the judgment of the court and do not here deny that they are engaged in the sale of leather in their store in Philadelphia, which is away from the placés where the leather is manufactured, and they concede their liability to pay a mercantile tax upon all of the leather sold as sides. Their contention is that the balance of the leather is manufactured into the various articles named as above set forth, and' as to it, they claim exemption.

Having conceded that they are engaged in the sale of their manufactured goods in a store away from the place where the leather was manufactured gives the commonwealth a prima facie right to the mercantile tax upon the whole volume of business, and the burden of showing that any portion of the sales is exempt, rests upon the defendants.

On the conceded facts in this case we need, not take time to refer to and discuss the various acts of assembly under which the commonwealth claims the mercantile tax of $452.26. Unless some portion of the leather sold during the year in question is exempt, the judgment in the court below should have been for $452.26 instead of $161.50. See Commonwealth v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210, and Commonwealth v. Thomas Potter, Sons & Co., 159 Pa. 583.

A careful examination of the case stated does not disclose to us the manufacture of a single article, at the defendants’ store in Philadelphia, where, the sales were made. We are not convinced that the defendants sold anything but leather, and it being sold in a store separate and apart from the place where it was manufactured, the defendants are clearly liable to pay the mercantile tax provided by the Act of May 2,1899, P. L. 184. It seems to us idle to argue that cutting a hide, into two sides and selling it is materially different, in principle, from cutting it into four, six or more pieces, so long as no manufactured or completed article is made out of any of these pieces. The men’s and women’s heeling are simply strips of leather and it is not pretended that a single heel is manufactured or finished. The bends, backs, etc., above enumerated, are simply pieces of leather cut for the convenience of purchasers, but not one of them is manufactured into a finished article. The defendants bring into their store from the Virginias leather and they sell leather and nothing else.

The learned counsel for the defendants states his position thus: 1. What is a manufacture ? 2. What if¡ the law applicable to the condition of affairs set forth in the case stated? ” He then cites from the Century Dictionary as follows :

“ 1. Manufacture, N. (Latin, manus fació.) The operation of making goods or wares of any kind, the production of articles for use from raw or prepared material by giving to these materials new forms, qualities, properties or combinations, whether by hand labor or machinery: used more especially of production in a large way by machinery or by many hands working cooperatively. 2. Anything made for use from raw or prepared materials.”

Webster defines it as follows : “ Manufacture, n. c. (Latin, manus, the hand; fació, to make.) 1. Operation of making wares of any kind, the process of reducing raw material to a form suitable for use by the hands, by art or machinery. 2. Anything made from raw material by the hand, by machinery, or by art, as clothes, iron utensils, shoes, cabinet work, saddlery, or the like.” '

It is then argued that what was done in the defendants’ store comes within thése definitions but we are utterly unable to agree with this contention. It seems to us that the definitions cited by the counsel put him out of court. If cutting the sides of leather into pieces and selling it is manufacturing, then it would seem that the clerks in dry goods stores are manufacturers when they cut the silk or other dry goods into such pieces as the customer may desire.

We have examined with some care the authorities cited by the counsel for the defendants and they do not convince us that any of the leather sold at the store in Philadelphia can be exempted on the ground that it was manufactured into articles for sale. The defendants are manufacturers of leather but this is done in the Virginias. A dealer keeps large panes of glass and cuts therefrom such sized pieces as the purchaser thereof desires. Who is the manufacturer ? Is it he who makes the glass or he who cuts it into two or more pieces ? In Commonwealth v. Percival, 11 Pa. Superior Ct. 608, it was held as stated in the syllabus: “ A jeweler who assembles the parts of watches and puts them together and peddles them-from place to place offends against the Act of April 2,1830, P. L. 147, sec. 2, and is liable to indictment thereunder. He is not a manufacturer within the contemplation of the act.” In that case it is stated in the opinion: “ A manufacturer, as defined by Bouvier, is * one engaged in the business of working raw materials into wares suitable for use.’ This definition is practically recognized in ■ Commonwealth v. Gormly, 173 Pa. 586.” See also Commonwealth v. Robb, 14 Pa. Superior Ct. 597. That the mere application of labor to materials is not always manufacturing is shown by Commonwealth v. Arrott Mills Co., 145 Pa. 69, where supplying power was held not to be manufacturing, and Commonwealth v. Keystone Laundry Co., 203 Pa. 289, where washing, starching, bleaching and ironing were held not to constitute manufacturing!

It is well settled that when a tax is' clearly imposed by a general act, anyone claiming exemptions must show clearly that such exemption exists. The principle as stated in Cooley on Taxation, 146, is this : “ The intention to exempt must in any case be expressed in clear and unambiguous terms; taxation is the rule, exemption is the exception. All exemptions are to be strictly construed. They embrace only what is within their terms.” To the same effect is Academy of Fine Arts v. Philadelphia County, 22 Pa. 496, where it is'said: “No interests falling within the general description of taxable property, can claim exemption from bearing their just proportion of public charges, unless the exemption be so clearly expressed in the statute as to admit of no other construction.” See Commonwealth v. Light & Power Co., 145 Pa. 105.

The defendants have not met this burden. They are manufacturers of leather in the Virginias and they are sellers of leather in their store or warehouse in Philadelphia. They might manufacture finished articles of this leather in Philadelphia, but what we decide is that the case stated fails to show any such manufacture there.

The assignments of error are sustained, the judgment is reversed, and judgment is now entered in favor of the commonwealth for $452.26, with interest from June 5,1905.

Rice, P. J., and Orlady, J., dissent.


author: Morrison, J.,

text:
    O’Neill’s Estate.

      Statute of limitations — Summons—Alias writ — Continuance.
    Where an original writ of summons is issued, but not served, and an alias writ is not issued until more than seven years after the issuance of the original writ, the claim is barred by the statute of limitations. In such a case the plaintiff would be barred by laches, even if in strictness the statute of limitations was not a bar.
    Argued Oct. 12, 1905.
    Appeal, No. 78, Oct. T., 1905, by Peter H. Corr, from decree of O. C. Phila. Co., Jan. T., 1904, No. 544, sustaining exceptions to adjudication in estate of Hugh A. O’Neill, deceased.
    Before Rice, P. J., Beavee, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree sustaining the exceptions.

      Thomas 0. Pierce and Sidney E. Smith, for appellant.
    To “ commence ” a suit must certainly be to take the initial step, and if a plaintiff do this it is contended that he effectually tolls the statute of limitations whether service. be obtained or not: Dexter v. Billings, 110 Pa. 135 ; Bell’s Appeal, 115 Pa. 88 ; Everett v. Insurance Company, 142 Pa. 322; Miskey v. Miskey, 11 Atl. Repr. 881; Flanegan v. Negley, 3 S. & R. 498.
    It is submitted that if the statute of limitations is once tolled with regard to a claim by the proper bringing of suit to recover, nothing can operate to revive it and cause it to run anew; therefore,- the issuing of the summons being the commencement of the suit, if such suit be properly brought in time to toll the statute, and the first writ of plaintiff is insufficient to bring defendant into court, any other writs issued for the purpose are related to and a continuation of the original summons ; and the statute does not commence to run again with regard to the subject-matter of such suit, and cannot be pleaded as a bar to the further maintenance of the suit: MeClurg v. Fryer, 15 Pa. 293; Hillborn’s Est., 18 Pa. C. C. Rep. 219; Schlosser v. Lesher, 1 Dall. 411; Caldwell v. Heitshu, 9 W. & S. 51; Magaw v. Clark, 6 Watts, 528; Bickel’s Appeal, 86 Pa. 204; Keyser’s Appeal, 124 Pa. 80; York’s Appeal, 110 Pa. 69; Bank v. Rainey, 1 Watts, 26; Wallace’s Estate, 18 Phila. 93; Wann v. Pattengale, 14 Pa. 313; Bell’s App., 115 Pa. 88 ; Schmidt v. Heimberger, 21 Pa. C. C. Rep. 564; Malone v. Hainan, 5 W. N. C. 447; Fitzpatrick v. Riley, 163 Pa. 65; Biddle v. Bank, 109 Pa. 349; Ward v. Patterson, 46 Pa. 372; Huffman v. Stiger, 1 Pitts. 185 ; Ontario Bank v. Rathbun, 19 Wend. 291; Chicago, etc., Ry. Co. v. Jenkins, 103 Ill. 588; Exchange Bank v. Hall, 6 W. Va. 447.

      J. Washington Logue, with him J. Gordon Bromley and Geo. Douglas Hays, for appellee.
    Appellant by failing to issue an alias summons within six years from the date of the issuance of the original caused the bar of the statute of limitations to operate against his claim, and the statute was not tolled by serving the decedent within the six years with a copy of the statement of claim : York’s App., 110 Pa. 69 ; Keyser’s App., 124 Pa. 80; Curcier’s Est., 28 Pa. 261; Logan v. Green, 1 Pitts. 43 ; Cooper v. Reynolds, 77 U. S. 308.
    November 20, 1905:
   Opinion by

Morrison, J.,

May 28, 1896, Peter H. Corr, appellant, caused a writ of summons to 'issue out of court of common pleas No. 1, of Philadelphia county, as of No. 231, June Term, 1896, against Hugh A. O’Neill and one John J. McCloskey, trading as H. A. O’Neill & Company, to recover money due on promissory notes and for money lent in 1895. This summons was served on McCloskey, but returned as to O’Neill, nihil habet. On June 12, 1896, a copy of the plaintiff’s statement of-claim was served on O’Neill, and an affidavit of service is filed of record. Nothing further was done until March 27, 1903, when an alias summons was issued and served upon O’Neill. On April 25, 1903, O’Neill filed an affidavit of defense, setting up the statute of limitations. O’Neill died August 3, 1903, and his estate was called for audit November 11, 1904. Shortly before the audit counsel for the appellant and for the executrix agreed by writing filed that the claim should be presented to the orphans’ court at the audit, under the same conditions, as to payment of it, as if the appellant had taken a rule for judgment for want-of a sufficient affidavit of defense in court of common pleas,No. 1. Upon audit of the estate, Hanna, P. J., holding that-the statute did not bar the claim, allowed it. Exceptions were filed by creditors and were dismissed in an opinion by Pen-' bose, J., filed December 31,1904. A petition for reargument' was allowed January 21, 1905, and on March 4, 1905, in an-opinion by Ashman, J., the decree of December 31, 1904, was reversed and appellant’s claim dismissed.

The right to plead the statute, which has been declared to be a privilege personal to the debtor, passes to his executor, and in Kittera’s Estate, 17 Pa. 416, it was held to extend to his creditors in proceedings in the orphans’ court. The sole question for decision is, therefore, whether the alias writ in this case was a continuance of the original action and thereby tolled the statute. The cases which hold that an alias writ, duly issued in time, has this effect are numerous, and the principle is conceded, so that it hardly seems necessary to cite cases. The contention here is that the alias writ was not issued for nearly seven years after the issuing of the original writ, and for this reason it is urged that the statute of limitations was not tolled. Some of the cases which hold that an alias writ continues the original action are the following: Schlosser v. Lesher, 1 Dallas, 411; that case is, at most, only authority to the effect that an.alias continues the original suit, if issued within six years. In Lynn v. M’Millen, 3 P. & W. 170, an- alias was held a continuation of the original suit, but it was issued promptly within the same year. In Jones v. Orum, 5 Rawle, 248, the suit was begun by a capias, and ten years thereafter plaintiff entered a rule of reference and no step taken by him during that period to continue the action, and obtained an award against all of the defendants. In reversing the judgment on this award the Supreme Court (p. 253), said: “ If this were so, it would certainly present an extraordinary state of things in the management of suits. A writ might be taken out and never served, and the plaintiff lie by nearly double the period imposed by the statute of limitations, and then the plaintiff treat the action as pending and date its existence from -the first writ. This would introduce all the mischiefs the statute of limitations was intended to guard against .and expose a party to the necessity of contesting the validity of a claim after more than six years had elapsed, and when his vouchers were lost and witnesses dead. Even where the replication of a writ taken out and continuances since is allowed to avoid the plea of the statute of limitations, no case has gone to the extent of time which had passed in .this case.”

In McClurg v. Fryer & Anderson, 15 Pa. 293, it was held as stated in the syllabus : “ A summons in case on a guaranty in writing, issued above four years after the right of action on the guaranty arose, was returned nihil, and an alias summons was issued above five years from the issuing of the first: Held, that the original and alias were so connected as to prevent the running of the statute of limitations, from the time of the issuing of the original summons.” Coulter, J., in delivering the opinion of the court (p. 295), said: “We will not say that the demand might not be barred if the plaintiff delayed six years before issuing his alias. That will be a question not presented here.”

In Crucier’s Estate, Appeal by the Bank of Pennsylvania, 28 Pa. 261, it is stated in the syllabus of the case as follows : “ Commencing an action in which the process is not served will not have the effect of arresting the running of the statute of limitations, unless an alias summons be issued and served within six years thereafter. The orphans’ court, or an auditor appointed by such court, in the distribution of the assets of a decedent’s estate have the power to determine what is the amount of the debts and to whom they are due. On such distribution one creditor may resist and defeat the claim of another creditor on the ground that it is barred by the statute of limitations.” Black, C. J. (p. 262), in delivering the opinion of the court said : “ But though an alias may be connected with an original writ not served so as to make both a part of the same process, it is not true that the alias can be safely delayed for more than six years after the original was taken out. Such was the opinion of this court as expressed by Judge Sergeant in Jones v. Orum, 5 Rawle 248, and it was reiterated by Judge Coulter in McClurg v. Fryer, 15 Pa. 293. There is no case in our books that has allowed a suit commenced in this way to be kept alive by continuances without an alias in less than six years, and there is no modern instance of its being done in England. It is plain, therefore, that the bank has shown nothing which forms a good replication to the plea of the statute. Her claim is clearly barred.”

It is true that the alias in that case was not issued for about fifteen years after the original writ, but the Supreme Court held that the plaintiff’s claim was barred, and we cannot see any substantial difference under this case whether the alias was sued out in seven years or fifteen years. The learned court says the claim was barred because the alias was not sued out within six years, at least that is the plain meaning of the decision, and this ruling not being questioned or overruled by our Supreme Court, we do not feel at liberty to disregard it.

Trickett on the Law of Limitations, sec. 178, says : “ When returned nihil habet, or non est inventus, the action may be continued by the issue of an alias, or after an alias by a pluries writ, or after the quashing of the alias for some irregularity by a second alias. But the alias writ must issue within six years of the issue' of the original writ, else it will be considered, so far as the statute of limitations is concerned, as the commencement of the action.” In Wood on Limitations (3d ed.), 1901, 687, it is said: “ In Pennsylvania the issue of the summons suspends the statute until an alias is taken out and served within six years.” See also 2 Troubat and Haly’s Practice (ed. 1880), sec. 1630. See also Logan et al. v. Green et al., 1 Pittsburg Reports, 43.

In the present case the alias writ was not sued out until six years and about eight months after the issuing of the original writ. The first writ was never served on O’Neill, and he did not appear to it. In our opinion, the serving of a copy of the plaintiff’s statement upon O’Neill, prior to the issuing of the alias writ, cuts no figure in this case whatever. O’Neill was not in court and there was no jurisdiction of his person, and he was under no legal obligation' to give the notice of the plaintiff’s claim any attention whatever. When he was served with the alias summons he promptly replied by setting up the statute of limitations. Thereafter he died. Now, if we hold that the statute was tolled and that this stale claim can be sustained against his estate, we are encouraging the evil which our Supreme Court has so often' pointed out, of enabling a plaintiff to keep alive a doubtful claim until the defendant’s books and vouchers are lost and his witnesses dead, and then issue an alias writ and come into court and sustain his claim.

The contention of the appellant logically amounts to this : A plaintiff may issue a summons on the day before his claim would be barred by the statute, and this writ may not be served and the defendant may never know that it was issued, and yet the plaintiff may in seven, eight, ten or a dozen years thereafter issue his alias writ and continue the original suit and bar the statute of limitations. We cannot adopt this theory of the law without going contrary to the plain intimations and warnings of the Supreme Court in several cases.

In the present ease the original writ was not served on O’Neill, and he did not appear , to it, and there is not the slightest excuse made for not issuing the alias within six years from the date of the original. We are of the opinion that the decree of the learned court below was right and that it ought to be sustained on the ground of laches, even if in strictness the statute of limitations is not a bar.

The decree is affirmed and the appeal is dismissed at the costs of the appellant.


text:
    Philadelphia Lying-In Charity, Appellant, v. Maternity Hospital.

      Corporations — Name—Conflicting names — Maternity hospital.

    The discretion of the court of common pleas in refusing to amend a charter by changing a name of a corporation from the Philadelphia Lying-In Charity to the Central Maternity and Hospital for Women, when such change is opposed by an older corporation of the name of The Maternity Hospital, will not be reviewed by the Superior Court, where the record discloses no abuse of discretion, and that the decree of the lower court was based upon a due consideration of local conditions and of all the pertinent facts and circumstances bearing upon the situation.
    Argued Oct. 12,1905.
    Appeal, No. 156, Oct. T., 1905, by plaintiff, from order of O. P. No. 1 Phila. Co., March T., 1888, No. 876, refusing to amend a charter in case of The Philadelphia Lying-In Charity v. The Maternity Hospital.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Petition of the Philadelphia Lying-In Charity to change its name to The Central Maternity and Hospital for Women.
    The Maternity Hospital, located at 784 So. Tenth in the city of Philadelphia, filed the following exceptions to the petition:
    1. Because the said proposed corporate name is misleading and confusing.
    2. Because the name “ Central ” would indicate that the said hospital had other branches in the city of Philadelphia, which are not central.
    3. Because the said institution, located at the southwest corner of Eleventh and Cherry streets, in the city of Philadelphia, is not any more central, so far as its location is concerned, than other maternity hospitals, such as the maternity hospital of Jefferson Medical College, “ The Maternity Hospital,” at the southwest corner of Tenth and Fitzwater streets, and other like institutions.
    4. Because the “ Maternity Hospital,” located at the southwest corner of Tenth and Fitzwater streets, in the city of Philadelphia, incorporated on June 2, 1873, has become known to the community as “ The Maternity Hospital,” and the use of the name “ Maternity ” will confuse the public mind, as well as lead to confusion in the minds of benevolent testators who may desire to leave devises or bequests to either “ The Maternity Hospital ” or “ The Central Maternity and Hospital for Women.”
    For the reasons hereinbefore stated the board of governors of “ The Maternity Hospital ” most respectfully excepts to the granting or approval of the proposed application, and asks your honorable court to refuse the same.
    The court entered a decree refusing the amendment.

      Error assigned was in refusing the amendment.

      Hood Gilpin, for appellant.
    The following cases are cited in support of the view of appellant: In re Dime Savings Bank, 26 W. N. C. 77; Canal Company v. Clark, 80 U. S. 311; In re Charter of Columbus Security Order, 27 W. N. C. 36 ; In re Citizens’ Trust, Tax Indemnity and Surety Co., 27 W. N. C. 437 ; Glendon Iron Co. v. Uhler, 75 Pa. 467 ; Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598 (9 Sup. Ct. Repr. 166) ; Laughman’s App., 128 Pa. 1.

      Henry B. Patton, with him William H. Staake, for appellee.
    —When a court of first instance makes a decree in a matter which rests within its sound discretion, if such discretion has not manifestly been abused, this court will not review the action of the court below.
    Thus the higher court refused to consider the appeals in the following widely variant instances, in all of which action was discretionary with the court below:
    The making and interpretation of rules : Collins v. Leafey, 124 Pa. 203. The recall of witnesses: Dosch v. Diem, 176 Pa. 603. Amendment of the pleadings : Melvin v. Melvin, 130 Pa. 6. Refusal to grant a non-suit: Davis v. Insurance Co., 5 Pa. Superior Ct. 506. Granting new trials: Shanahan v. Ins. Co., 6 Pa. Superior Ct. 65. Opening judgments: Wernet’s Appeal, 91 Pa. 319; Renwick v. Richardson, 5 Pa. Superior Ct. 202. Construing decrees: Fullerton v. Peabody, 2 Pa. Superior Ct. 146. Approval of bonds : Market Co. v. R. R. Co., 142 Pa. 580.
    It is not such manifest abuse of discretion to refuse to allow a corporation to change its name on the ground of the similarity between the proposed name and the name of another corporation already in existence: In re Citizens’ Trust, etc., Co., 27 W. N. C. 437.

      Hood Gilpin, for appellant, in reply.
    The court will review even what is a matter of discretion in the court below, if the discretion has been abused: Vaux’s Appeal, 109 Pa. 497; Griffith v. Edwards, 10 W. N. C. 271; Gamble v. Woods, 53 Pa. 158; Neeld’s Appeal, 70 Pa. 113; In re Grand Lodge of the Ancient Order of United Workmen, 110 Pa. 613.
    November 20,1905 :
   Peb Ctjbiam,

This is an appeal from a decree refusing the appfellant’s petition to amend its charter by changing its name from the Philadelphia Lying-In Charity to the Central Maternity and Hospital for Women. The appellant’s petition sets forth valid reasons for changing the name of the corporation to one that will be more fully descriptive of the two classes of charitable work which fall within the scope of the charter as amended in 1888. But it does not clearly and satisfactorily appear that the name chosen is the only one that will accomplish the end desired, or that it is better adapted for that purpose than any other that could be selected. This being so, the similarity' of the name to that of another corporation having its hospital in the vicinity was a matter eminently proper for consideration by the court to whose sound legal discretion the application was addressed. This is not because any absolute vested right of the appellees would be infringed by the appellant’s adoption of the proposed name, but because of the tendency to confusion that. might result. The weight to which this matter was entitled depended to some extent upon local conditions, concerning which evidence was admissible in that court, but which is not, and could not, be brought up for our consideration. The proceedings in the court below are free from irregularity, and, as the refusal of the application, especially in view of the exceptions filed by the appellee and the questions of fact raised thereby, is an order which the court had discretionary power to make upon due consideration of the pertinent facts and circumstances, it is not reversible on appeal except for abuse of discretion : In re First Presbyterian Church of Bloomfield, 107 Pa. 543. See also Vaux’s Appeal, 109 Pa. 497 ; In re Grand Lodge, A. O. U. W., 110 Pa. 613. Nothing of that kind is inferable from anything that appears in, or is omitted from, this record.

The decree is affirmed.


author: Henderson, J.,

text:
    Knowlan v. Clopp, Appellant.

      Practice, C. P. — Rule of court — Evidence—Copy of booh account.

    A rule of court which relieves a plaintiff from producing books of account where a copy of the account is attached to the sworn statement of claim, does not give th.e plaintiff the right to offer his statement of claim in evidence in addition to a copy of the book account. The offer must be limited to the book account.

      Practice, C. P. — Trial—Charge—Inadequate charge.

    In an action for work done and performed, the defendant alleged that the work was done under an express contract containing a guaranty, that the work was defectively performed, and that plaintiff had failed to make good his guaranty. Defendant further claimed a set-off by reason of damage resulting from the defective character of the work: The plaintiff denied that the work was done under the contract alleged by the defendant, or that any guaranty of the repair work was given, or that there had been a breach of the guaranty with reference to new work. The court in its charge made no reference to the evidence of an express contract, nor to that bearing upon the allegation of warranty, nor was any instruction given with reference to the claim of set-off. Held, that the charge was inadequate and' that the judgment should be reversed. .
    Argued Oct. 3, 1905.
    Appeal, No. 233, Oct. T., 1904, by defendant, from judgment of O. P. No. 3, Phila. Co., June T., 1902, No. 409, on verdict for plaintiff in case of James Knowlan v. George B. Clopp.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for work done and performed. Before Finletter, P. J.
    The opinion of the Superior Court states the case.

      JErrors assigned were (1) admission of plaintiff’s statement of claim; (2-10) various instructions.

      Paul Reilly, with him Jas. Aylward Pevelin, for appellant.—
    The charge was inadequate: Reber v. Herring, 115 Pa. 599; Pierson v. Duncan, 162 Pa. 187; Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Galbraith v. Phila. Co., 2 Pa. Superior Ct. 359; Larzelere v. Tiel, 3 Pa. Superior Ct. 109; Shaeffer v. Landis, 1 S. & R. 449; Smith v. Thompson, 2 S. & R. 49; Sommer v. Gilmore, 160 Pa. 129.

      Senry A. Hoefler, for appellee.
    cited : Oehmler v. Ry. Co., 25 Pa. Superior Ct. 617; Field v. Schuster, 26 Pa. Superior Ct. 82.
    November 20,1905:
   Opinion by

Henderson, J.,

The plaintiff’s action was based upon a book account. The debt was contracted as claimed by the plaintiff for roofing a part of the defendant’s shop and repairing the roof on another part. Plaintiff claimed the work was done on the defendant’s oral order. At the trial the plaintiff was permitted to offer his statement of claim in support of his action. This was apparently done under the rule of court relieving plaintiffs from the necessity of producing their books of account at the trial where a copy of the account supported by an affidavit of the truth thereof shall have been filed in the case, unless the defendant shall deny in the affidavit of defense or other affidavit filed that the account is correct and demand the production of the books. This rule is limited to a copy of book accounts, and does not include the plaintiff’s declaration or statement of claim which consists of his assertion of his cause of action. The rule referred to is convenient, and should be applied when occasion arises, but it was not intended to give the plaintiff the advantage which might exist in presenting his declaration or statement for the consideration of the jury. At the most, the copy of the book account attached to the statement was admissible. The statement should not have been received.

The first assignment is sustained.

The defendant alleged that the work, for the price of which the plaintiff sued, was performed under an express contract; that the plaintiff guaranteed the new work for ten years; and the repair work for six years ; that the work was defectively performed, and that the plaintiff had failed to make good his guaranty. He further claimed a set-off by reason of damage resulting from the defective character of the work. The plaintiff denied that the work was done under the contract alleged by the defendant, or that any guaranty of the repair work was given, or that there had been a breach of his guaranty with reference to the new work. In the light of the evidence introduced and of the issues of fact thereby developed, the learned trial judge neglected to adequately instruct the jury in regard to the questions at issue and the law applicable thereto. No reference was made to the evidence of an express contract, nor to that bearing upon the allegation of warranty, nor was any instruction given with reference to the claim of set-off. The case was apparently submitted to the jury by the court upon the theory that the defendant’s objection to the plaintiff’s claim was that the work charged for was done to remedy prior defective work. A part of the plaintiff’s claim was in fact for repairs, but a large portion of it was for original work. If the attention of the jury had been called to the actual questions at issue, they might perhaps have reached a different conclusion. The defendant was entitled to more specific instructions, especially in view of the fact that the attention of the court was called to some of the questions' in the defendant’s points which were refused.

The judgment is reversed and a venire facias de novo awarded.


author: Pee, Curiam,

text:
    Commonwealth, Appellant, v. Ralston.

      Appeals — Summary conviction — Discretion—Petition.
    Where a petition for an appeal from a summaiy conviction is sufficient on its face to give the court jurisdiction, it will be presumed on appeal to the Superior Court, in the absence of anything to show the contrary, that the action of the court of quarter sessions, in allowing the appeal, was not arbitrary, but was the exercise of a sound legal- discretion in view of all the facts and circumstances properly within its cognizance.
    Argued Oct. 23, 1905.
    Appeal, No. 36, Oct. T., 1905, by plaintiff, from order of Q. S. Huntingdon Co., Dec. T., 1904, allowing appeal from summary conviction in case of Commonwealth v. Joel Ralston.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Petition for an allowance of an appeal from summary conviction.'
    The petition was as follows :
    “ Your petitioner would respectfully represent: That on November 19, 1904, he, Joel Ralston, was convicted for obstructing the Raystown Branch, a navigable stream in Penn township, this county, and also for operating an illegal fish basket in said stream, and that he verily believes that injustice has been done him, in that there was not one particle of evidence to show that he ever obstructed the said stream or operated any fish basket in said stream.
    “Your petitioner would further represent that he was fined the sum of $75.00 and the cost, amounting in all to $86.61,. which fine and cost he paid under protest to the justice of the peace, James Kelly.
    “Your petitioner would therefore pray your honor for leave to take an appeal, so that the matter might be brought before your honor in the court of quarter sessions of this county, where he will receive justice at your honor’s hand, and he will ever pray.”
    Other facts appear by the opinion of the Superior Court.

      Errors assigned were orders allowing the appeal and overruling motion to quash.

      Samuel I. Spyher and Richard W. Williamson, for appellant.
    No appearance nor paper-book for appellee.
    November 20, 1905:
   Pee, Curiam,

This case came into the court below by appeal allowed by the president judge from a summary conviction of the defendant before a justice of the peace for violations of certain provisions of the Act of May 29, 1901, P. L. 302, relative to fishing. After hearing, the court discharged the defendant, from which it is fairly to be inferred that the court deemed the evidence adduced before it insuffieient to sustain the charge. At any rate, no complaint is made of the final judgment; the only matters assigned for error being the allowance of the appeal, and the-order overruling the appellant’s motion to quash the appeal. We need express no opinion as to whether such action is ever assignable for error, where after due hearing the defendant has been acquitted of the charge, for upon looking into the sworn petition upon which the appeal in the present case was allowed, we find that it was distinctly alleged, as a reason why the conviction was unjust and ought not to stand, that there was not one particle of evidence to show that the defendant committed the unlawful acts complained of. We cannot say that the petition was so defective in form or substance that the court ought not to have entertained it. Nor do we say that the court was bound to take its allegation for verity and grant the appeal without further investigation. What we decide is, that it was sufficient to give the court jurisdiction to act in the premises, and this being so, it is to be presumed on appeal, in the absence of anything to show the contrary, that its action in allowing the appeal was not arbitrary, but was the exercise of a sound legal discretion in view of all the facts and circumstances properly within its cognizance. In support of this conclusion we refer to the cases cited in our opinion in Commonwealth v. Yocum, post, 428, filed herewith.

The judgment is affirmed.


author: Per Curiam,

text:
    Commonwealth, Appellant, v. Yocum.

      Appeals — Summary conviction — Discretion of court — Failure to print petition.

    Neither section 14 of article V, of the constitution of Pennsylvania, nor the Act of April 17, 1876, P. L. 29, gives an appeal as a matter of right, in cases of summary conviction. This can only be had upon allowance by the court, which means upon cause shown; nor is the action of the court below whether granting or refusing the appeal reversible upon appeal to the appellate court, unless the record shows an abuse of discretion. This can only be determined by an inspection of the petition, and if the appellant has failed to print the petition in his paper-book, or bring it up and file it with the record, the appeal will be quashed.
    Submitted Oct. 23, 1905.
    Appeal, No. 38, Oct. T., 1905, by plaintiff, from order of Q. S. Huntingdon Co., Dec. T., 1904, No. 2, allowing an appeal from summary conviction in case of Commonwealth v. A. B. Yocum.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Appeal quashed.

      Petition for an allowance of appeal from summary conviction. Before Woods, P. J.
    Among the matters printed in the appendix of the appellant’s paper-hook were the following:
    “ In the court of quarter sessions of Huntingdon county.
    “ In re petition of A. B. Yocum for leave to take an appeal, etc.
    “ Now November 15, 1904 the within petition read and considered and it appearing from the petition that injustice has been done the defendant, it is hereby ordered and decreed that an appeal be allowed in the within stated cause to our Court of Quarter Sessions upon the defendant giving bond in the sum of one hundred dollars for the payment of any costs which may accrue in said appeal. The fine imposed by the Justice to be refunded pending the appeal.
    “ J. M. Woods, P. J.
    “ Certified from the record,
    “ Ndvember 16, 1904,
    “ Geo. G. Steel, Clerk.
    “And now, November 16, 1904, A. B. Yocum asks for an appeal from the above judgment.
    “A. B. Yocum being duly sworn says that this appeal is not for delay, but because he verily believes that injustice has been done.
    “ A. B. Yocum.
    “ Sworn and subscribed before me November 16, 1904,
    “ James Kelly.
    “ I, J. I. Leibensperger, do bind myself as bail absolute to the Commonwealth of Pennsylvania the plaintiff above named, in the sum of one hundred dollars for the payment of penalty, interest and costs accrued or that may be legally recovered against said appellant A. B. Yocum.
    “ Approved November 16, 1904,
    “ James Kelly, J. P.
    “A. B. Yocum, [Seal]
    “ J. I. Leibensperger, [Seal]
    “ I certify that the above is a correct transcript of the proceedings had before me in the above suit. Witness my hand and seal the day of A. d., 190 .”

      “ In tlie Court of Quarter Sessions of Huntingdon county. The Commonwealth v. A. B. Yocum. Summary Conviction, Coram Kelly, J. P.
    “Now, January 5, 1905, it appearing from the record of the above entitled case sent up by the justice that the defendant was convicted before him under section 37 of the Act of. May 29, 1901, P. L. 302 and that act being a penal statute and the said section providing no penalty for the possession of prohibited fishing devices, the conviction of the defendant and the imposition of the fine being illegal, defendant by his counsel Thos. F. Bailey moves for his discharge.
    “ Thos. F. Bailey, ■ j

      “ Attorney for Defendant.'
    “Now, January 5, 1905, within motion considered and it appearing as therein stated the defendant is discharged, the costs to be paid by the county of Huntingdon’ and bill sealed for commonwealth.
    “ By the Court.”

      Urrors assigned were the orders allowing the appeal and overruling motion to quash.

      Samuel I. Spyher and Richard W. Williamson, for appellant.
    Appeals from judgment of summary convictions are not allowed as of course, but for cause shown only: Commonwealth v. Blank, 21 Pa. C. C. Rep. 378.
    Appeal from a magistrate on summary convictions should not be allowed save for cause shown : Commonwealth v. Hendley, 7 Pa. Superior Ct. 356; Thompson v. Preston, 5 Pa. Superior Ct. 154.
    No appearance nor printed brief for appellee.
    November 20, 1905:
   Per Curiam,

Neither the 14th section of article Y. of the Constitution, nor the Act of April 17, 1876, P. L. 29, gives an appeal, as a matter of right, in cases of summary convictions. This can only be had upon allowance by the court, which means upon cause shown: Commonwealth v. Eichenberg, 140 Pa. 158; McGuire v. Shenandoah Boro., 109 Pa. 613. Nor is the action of the court below, whether granting or refusing the appeal, reversible upon appeal to this court, unless the record shows" an abuse of discretion. To ascertain the cause alleged, reference must be had to the petition: Commonwealth v. Menjou, 174 Pa. 25 ; Thompson v. Preston, 5 Pa. Superior Ct. 154. In this case the order, as printed in the appellant’s paper-book, purports to have been made on November 15,1904, upon a petition from which it appeared to the court that injustice had been done, but the only paper printed in the paper-book which can by any latitude of construction be regarded as a petition, purports to have been made and sworn to on November 16,1904. There is nothing in the record as printed in the paper-book to show with any degree of certainty that this is the petition referred to in the order. The dates tend to show the contrary. Possibly the uncertainty in this regard would have been removed by inspection of the record proper; but we find upon examination that it has not been brought up and filed. Therefore the appeal must necessarily be quashed.

Appeal quashed at appellant’s cost.


text:
    McGiffin v. Swanson Grocery Company, Appellant.

      Practice, C. P. — Pleading—Statement of claim — Demurrer—Affidavit of defense — Appeals—Assignments of error.

    Where on an appeal from a verdict and judgment for defendant, the error assigned is in overruling defendant’s informal demurrer contained in the affidavit of defense to the plaintiff’s statement of claim, the question before the appellate court is not whether the statement viewed in the light of the averments of the affidavit of defense was sufficient to entitle the plaintiff to summary judgment, but whether the statement on its face, set forth with sufficient clearness and conciseness the elements of a good cause of action. If the latter was the case,-the appeal will be affirmed.

      New trial — Refusal—Discretion of court — Appeals.
    The refusal of a new trial, where the application is based on the allegation that the absence of the defendant and his counsel at the trial was without fault on their part, is not ground for reversal unless there has been a clear abuse of discretion. If the defendant in his depositions in support of a motion for a new trial simply seeks to show a valid excuse for the default, and makes no attempt to show a meritorious defense, the appellate court will consider that the discretion of the lower court was wisely exercised. ,

      Argued Oct. 24, 1905.
    Appeal, No. 24, Oct. T., 1905, by defendant, from judgment of C. P. McKean Co., June T., 1903, No. 40, on verdict for plaintiff in case of Harvey McGiffin v. Swanson Grocery Company.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Bouton, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $259.13, Defendant appealed.

      Errors assigned among others were (4, 5) in not entering judgment for the defendant on the demurrer; (9) refusing new trial.

      II. E. Shaffer, with him U. K. Shaffer and Geo. A. Berry, for appellant.

      Sheridan Gorton and T. E. Richmond, for appellee.
    November 20,1905 :
   Per Curiam,

The appellant’s paper-book, even as amended after the motion to suppress was made, fails, in one or two particulars, to conform strictly to our rules. Passing these objections, we find that the two questions sought to be raised are: First, whether there was error in overruling the defendant’s informal demurrer, contained in the affidavit of defense, to the plaintiff’s statement of claim; second, whether the court erred in discharging the rule for a new trial.

The first question is to be determined by an inspection of the statement alone; the question is not whether the statement, viewed in the light of the averment of the affidavit of defense, was sufficient to entitle the plaintiff to summary judgment. This distinction has been overlooked, or at least due weight has not been given to it, in the appellant’s printed argument and citation of cases. The statement, on its face, sets forth with sufficient clearness and conciseness the elements of a good cause of action; therefore, the distinction above suggested being observed, it needs no argument to show that the court committed no error in overruling the demurrer. If it had been clearly made to appear by the defendant’s affidavit that the very contract upon which the statement showed the action was founded was in writing, a copy of which was not attached to or set forth in the statement, and the court had entered judgment for want of a sufficient affidavit of defense, and this appeal were from that judgment, an entirely different question would be presented to which our decision in White v. Sperling, 24 Pa. Superior Ct. 120, would be pertinent. It is not pertinent to the question actually presented on the record before us.

The refusal of a new trial, where the application is based on the allegation that the absence of the defendant and his counsel at the trial was without fault on their part, is not ground for reversal unless there has been a clear abuse of discretion. The depositions taken in this case in support of the rule did not so clearly 'and satisfactorily show a valid excuse for the default of the defendant and its counsel as to make it the imperative duty of the court to grant the application. When it is observed further, that the defendant took no depositions to show a meritorious defense, we think it plain that the discretion of the, court was wisely exercised.

All the assignments of error are dismissed and the judgment is affirmed.


author: Porter, J.,

text:
    Philadelphia v. Merritt, Appellant.

      Taxation — Tax claims — Notice—Act of March 23, 1866, P. L. 303.
    The Act of March 23, 1866, P. L. 303, does not apply to registered taxes, the general taxes and levies. It applies only to municipal claims.
    Where the city of Philadelphia has .complied with the provisions of .the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, by causing the original writ of scire facias sur municipal claim for taxes to be personally served upon the registered owner in .the manner required in case of a summons, it is not bound to inquire whether such registered owner had good title. Service upon the registered owner is all that the statute required.
    Argued Oct. 13, 1905.
    Appeal, No. 81, Oct. T., 1905, by defendant, from order of O. P. No. 2, Phila. Co., Sept. T., 1894, M. L. D. No. 36, discharging rule to open judgment in case of City of Philadelphia v. William C. Merritt, owner, and T. Elwood Potts, trustee, etc., and registered owner, and William H. Maker.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to open a judgment.
    The facts appear by the opinion of the Superior Court.
    The court discharged the rule to open judgment.

      Error assigned was the order of the court.

      Isaac D. Yocum, for appellant.
    It is absolutely essential that notice must be given to the owner: Phila. v. Hanbest, 15 W. N. C. 349; Phila. v. Dungan, 124 Pa. 52.
    The assignee is not terre-tenant or owner, and as such entitled to notice of a sci. fa. to revive a judgment: Suter v. Findley, 5 Pa. Superior Ct. 163 ; Dohner’s App., 1 Pa. 101; Spackman v. Ott, 65 Pa. 131; Wright v. Wigtom, 84 Pa. 163 ; Jordan v. Sharlock, 84 Pa. 366 ; Potter v. Gilbert, 177 Pa. 159; Mills v. Ritter, 197 Pa. 353.

      Mayne R. Longstreth, with him James Alcorn, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
    The act of March 23, 1866, only applies to municipal claims strictly so called, and does not apply to tax claims : Phila. v. Scott, 72 Pa. 92.
    This is a proceeding in rem, and is governed by the statutes in reference thereto. The judgment was good against the world and was not entered against any one by name: Delaney v. Gault, 30 Pa. 63 ; Northern Liberties v. Coates, 15 Pa. 245 ; Wistar v. Phila., 86 Pa. 215; Emrick v. Dicken, 92 Pa. 78; White v. Ballantine, 96 Pa. 186 ; Mechanics’ Bank v. Gorman, 8 W. & S. 304; Follweiler v. Lutz, 102 Pa. 585.
    Service upon a trustee is a good service as to lands held in trust: Dickerson’s App., 7 Pa. 255 ; Baines v. Alker, 207 Pa. 234.
    An application to open a judgment even on a tax claim must be based on equitable, not technical, reasons : Phila. v. Browning, 13 Pa. Superior Ct. 164; Phila. v. Reeves, 15 Pa. Superior Ct. 535 ; Phila. v. Unknown Owner, 20 Pa. Superior Ct. 203 ; Phila. v. Allen, 20 Superior Ct. 209.
    November 20, 1904:
   Opinion by

Porter, J.,

The claim of the city for the general taxes assessed and levied for the year 1893 against a lot accurately described in the claim was duly filed on the first day of October, 1894. An affidavit of notice to “ T. Ellwood Potts, Trustee,” to pay the claim, in the form prescribed by the Act'of March 23, 1866, P. L. 303, relating to municipal claims, having been filed, a Scire facias was issued upon this tax claim on April 6,1898, and was served personally on T. Ellwood Potts, trustee, the registered owner, and the sheriff further returned “ made known by posting and advertising and nihil habet as to William C. Merritt.” Judgment for want of an appearance was entered on June 22, 1898. A suggestion that William Marker was the then actual registered owner was, on March 31,1903, filed of record. A scire facias to revive and continue the lien issued on April 12, 1903, and after two returns of nihil habet, as to all the defendants including Marker, a judgment was entered in this proceeding on July 7, 1903. William H. Marker, the appellant, presented his petition on January 3, 1905, setting forth that he was the present registered and actual owner of the lot, having purchased the same on July 11,1902, and praying that the judgment be opened and he let into a defense, upon the ground of certain irregularities in the proceedings. The court granted a rule to show cause why the judgment should not be opened, which it subsequently discharged. Marker appeals from the order of the court, discharging his rule to open the judgment.

The parties filed, in the court below, a written agreement as to the facts, which disclosed that Merritt had been the real and registered owner in 1893 when the taxes were assessed. In December of that year he executed a deed of voluntary assignment for the benefit of creditors, conveying the property to T. Ellwood Potts, trustee, which deed was registered on December 13, 1893, and upon the same day duly recorded, and from that day until February 10,1902, “ T. Ellwood Potts, Trustee,” was the registered owner of the property. The appellant derives his title from the purchaser to whom the sheriff executed a deed dated February 10,1902, executed in pursuance of a sale on the third day of the same month under a proceeding upon an old mortgage, executed by Rhinehart, from whom Merritt had derived title. The facts agreed upon make it clear that this claim is for the general rates and levies for the year 1893, which had been lawfully imposed, and that they never have been paid. The appellant complains that William C. Merritt was not served with notice to pay the claim, in accordance with the Act of March 23, 1866, P. L. 303. The answer to this is that that statute does not apply to registered taxes, the general taxes and levies : Philadelphia v. Scott, 72 Pa. 92. His other complaint is that the original scire facias was not personally served upon Merritt. Merritt was not the registered owner, and it was not necessary that there should be a personal service upon him is the answer to this- allegation of a defense : Philadelphia v. Peyton, 25 Pa. Superior Ct. 350; Wistar v. Philadelphia, 86 Pa. 215; Soullier v. Kern, 69 Pa. 16 ; Delaney v. Gault, 30 Pa. 63. The application to open this judgment was addressed to the discretion of the court below, and in the absence of any allegation of a defense upon the merits, we are not satisfied that the learned judge of the court below abused that discretion in discharging the rule of the petitioner : Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203. The city having complied with the provisions of the Acts of March 14, 1865, P. L. 320 and March 29, 1867, P. L. 600, by causing the original writ of scire facias to be personally served upon the registered owner, in the manner required in case of a summons, was not bound to inquire whether Such registered owner had a good title : Philadelphia v. Unknown Owner, 20 Pa. Superior Ct. 203 ; Baines v. Alker, 207 Pa. 234. We do not say that it would not be sufficient for the city to serve the actual owner, when he is a person other than the one registered; it is, however, well settled that service upon the registered owner is all that the statutes require.

The order of the court below is affirmed.


text:
    Straus v. Welsh, Appellant.

      Affidavit of defense — Sale—Sample—Warranty.
    In an action to recover on a contract of sale of tobacco defendant filed an affidavit of defense in which he averred that he purchased the tobacco by sample; “that the agent of the plaintiff firm showed defendant a sample which defendant worked and ’examined, and the express understanding was that the tobacco ordered should be exactly like sample. When the tobacco was delivered by plaintiff, defendant discovered that the said tobacco, which he wished to use for wrappers’, was not like sample in that a large part of the said leaf tobacco was broken and full of holes, which rendered it impossible to use it as wrappers, and some of it was so rotten that it fell off the stem. That the portion of the said tobacco so unfit for wrappers as aforesaid amounted to about 127 pounds, which, at the purchase price of 47J cents per pound, amounted to $60.00. That, although the plaintiff agreed with defendant to furnish him with good wrapper tobacco, the 127 pounds defendant has not used, and cannot use, and it is a dead loss to him if he has to pay plaintiff the said $60.00.” Held,, that the affidavit of defense was sufficient to prevent judgment as to the $60.00 to which defense was made.
    Argued Oct. 17, 1905.
    Appeal, No. 42, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 1389, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Karl Straus and Adolph Loeb, trading as K. Straus & Company v. Frederick W. Welsh.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

    Reversed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material portions of the affidavit of defense were as follow :
    Defendant avers that he purchased the said tobacco by sample. That the agent of the plaintiff firm showed defendant a sample which defendant worked and examined, and the express understanding was that the tobacco ordered should be exactly like sample. When the tobacco was delivered by plaintiff, defendant discovered that the said tobacco, which he wished to use for wrappers, was not like sample in that a large part of the said leaf tobacco was broken and full of holes, which rendered it impossible to use it as wrappers, and some of it was so rotten it fell off the stems. That the portion of the said tobacco so unfit for wrappers as aforesaid, amounted to about 127 pounds, which, at the purchase price of forty-seven and one-half cents per pound, amounted to $60.00. That, although the plaintiff agreed with defendant to furnish him with good wrapper tobacco, the said 127 pounds defendant has not used, and cannot use, and it is a dead loss to him if he has to pay plaintiff the said $60.00.
    That immediately after the delivery of the tobacco and the discovery of its condition defendant went to plaintiff’s place of business, Nos. 301 and 303 North Third street, Philadelphia, and protested to Karl Straus, one of the plaintiffs, in regard to the quality of the said tobacco, and notified him that defendant would return the tobacco. Straus refused absolutely to take it back. Negotiations from time to time continued in reference to a settlement of the dispute, until, on October 3, 1904, defendant’s wife went to the office of the plaintiff firm and had an interview with Adolph Loeb, one of the plaintiffs, and then and there the said Loeb told defendant’s wife that he desired defendant to use all of the said tobacco that was suitable for use as wrappers, and that the firm would make the loss good to defendant. That, thereupon, acting on the faith of the said representations of the said Loeb, the defendant’s wife paid $25.00 on account, and defendant proceeded to use what he could of the tobacco. That subsequently, on or about October 25, 1904, the said Loeb came to defendant’s place of business, No. 1955 Germantown avenue, and asked defendant to allow him to see the said tobacco. That defendant thereupon took the said Loeb down into the cellar of said premises, and the said Loeb took some of the said tobacco out of the case and personally examined it and said: “ It is not as sound as it ought to be; it is old tobacco.”
    That the amount actually due plaintiff is $88.90, which defendant is ready and willing and has offered, and is still offering, plaintiff in full settlement of the said account.
    That the said Loeb agreed on the said October 3, 1904, that the plaintiff firm would make the loss occasioned defendant by the bad tobacco good, and that the amount of the said loss is $60.00, as aforesaid. That the name of the agent of the plaintiff firm who displayed the said sample and took defendant’s order for the tobacco was George Kaufman.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      ¡Error assigned was the order of the court.

      Warren P. Cogswell, with him Daniel J. Shorn, for appellant.

      Sidney L. ¡Krauss, William A. Carr and W. Horace Hepburn, for appellee.
    November 20, 1905 :
   .Opinion by

Morrison, J.,

This was a judgment for want of a sufficient affidavit of defense. The affidavits are not well drawn but they exhibit a substantial defense to $60.00 of plaintiff’s claim.

To distinguish this case, in principle, from Simpson v. Karr, 22 Pa. Superior Ct. 8, and cases there cited, requires a refinement of criticism that we are not disposed to exercise in an endeavor to sustain a judgment for want of a sufficient affidavit of defense. If the affidavit and supplemental. affidavit of defense state facts, and we must now assume that they do, the case should have gone to a jury as to all of the plaintiff’s claim, except $88.00 and interest thereon.

The assignment of error is sustained and the judgment reversed, without prejudice, and a procedendo awarded, with leave to plaintiffs to move for judgment for $88.00, with interest thereon and costs, if they so desire, and they may go to trial for the balance of their claim.


author: Pouter, J.,

text:
    Wolf Company, Appellant, v. Pennsylvania Railroad.

      Mechanic’s lien — Statutory requirements — Necessity of compliance with.

    A mechanic’s lien is purely statutory and compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file.

      Mechanic’s lien — Act of June 4, 1901, P. L. 431 — Subcontractors—Notice to owner — Sworn statement — Date of last work.

    The provision of the Act of June 4, 1901, P. L. 431, that the owner shall not only have notice of a subcontractor’s intention to file a mechanic’s lien, but also that a sworn statement shall be served upon the owner setting forth “the date when the last work was done or materials furnished,” is an essential requirement, and failure to comply with it is fatal to the validity of the claim.
    A notice and sworn statement served by a subcontractor upon the owner set forth that “the last materials therefor were delivered on or about July 30, 1903.” The notice and sworn statement were served on October 21, 1903, and there was no attempt to explain why the date of the last item delivered was left indefinite. Held, that the mechanic’s lien was properly stricken off.
    Argued Oct. 19, 1905.
    Appeal, No. 28, Oct. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1908, Mechanic’s Lien Docket, No. 4057, making absolute rule to strike off mechanic’s lien.
    Before Rice, P. J., Beaver, Or-lad y, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to strike off mechanic’s lien.
    From the record it appeared that the notice attached to the lien was as follows :
    “ City of Philadelphia, state of Pennsylvania, ss.
    “ J ames J. Pallard, being duly sworn according to law, doth depose and say that he is manager for the Wolf Co., and that he has personal knowledge of the matters hereinafter referred to, and that the said the Wolf Co. have a just and legal claim against Seeley, Son & Co., contractors, and the Pennsylvania Railroad Co., owners or reputed owners, for the sum of $275.98, of the following nature and character, to wit:
    “ On or about May 18, 1903, the said Seeley, Son & Co. ordered from the said the Wolf Co. one double roller mill as follows :
    “ The Wolf Co.,
    “ 804 Penna. Bldg.,
    “ Philadelphia, Pa.
    “ Gentlemen:
    “ In confirmation of our verbal order, please ship to us at Germantown Junction, Phila., via Pennsylvania Railroad, 1 double roller mill (4 rolls) 9 in. x 30 in.; 6 corrugations with single bell-drive-pulley on mill 14 in. x in. An early shipment will oblige.
    “ Yours very truly,
    (Signed) “Seeley, Son & Co.
    “ Pursuant to this order the said the Wolf Co. delivered said mill to said Seeley, Son & Co., and the same was erected upon the premises of the Pennsylvania Railroad Co., in the city of Philadelphia. The charge therefor was $275.98, as per agreement, and the last materials therefor were delivered on or about July 30, 1903. It is the purpose of the said the Wolf Co. to file a mechanic’s lien against the said Seeley, Son & Co. and the Pennsylvania Railroad Co. for the price of said mill.
    “ Sworn to and subscribed, etc.
    (Signed) ' James J. Pallabd.”
    The bill of particulars attached to the lien is as follows:
    “ Seeley, Son & Co.,
    To The Wolf Co., Dr.
    1903. July 1. Frame portion of machine.
    • 1903. 21. Rolls for roller machine.
    30. One roll lever for 9 x 30 roll
    in. extra length in hub, . $275.98.”
    The court struck off the lien because of the insufficiency of the notice and sworn statement.

      Error assigned was the order of the court.

      O. Wilfred Qonard, with him Allen O. Middleton, for appellant.
    In construing sec. 8 of the act of 1901 we are at liberty to follow the rules laid down under the former acts where questions similar to this have more than once arisen. Under former acts it has properly been decided, as found by the learned judge of the court below, that a mechanic’s lien is purely a statutory proceeding, and that the requirements of the statutes must be strictly followed. At the same time, it has been decided that “ certainty to a common intent ” is all that is needed, and that “ hypercritical ” criticism is not to be adopted : Knabb’s App., 10 Pa. 186 ; Sholl v. Gerhab, 93 Pa. 346 ; Rush v. Able, 90 Pa. 153 ; Calhoun v. Mahon, 14 Pa. 56; Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521.

      J. Quincy HunsicJcer, with John Hampton Barnes, for appellee.
    The owner cannot ascertain from the notice and sworn statement whether the last material was furnished within the three months or not. In view of the character of the statement of the date and the lapse of time, the presumption must be taken strongly against the appellant, and what he has not stated may be fairly presumed not to exist.
    The purpose of using the phrase or words, “ on or about ” in a deed or other writing of any kind is to escape the necessity of being bound by the statement of the exact date. It means to state not the actual date, or any date, certainly not the real date. “ On or about ” may cover a variation of more than nine days, which would be fatal to the claim. The phrase is thus defined:
    “ On or about.” “ Unless otherwise provided by the statute may not recite a date or an occurrence with sufficient certainty.”
    “ The actual day may be before or after the date stated.” In support of the latter part of the definition the note cites Conroy v. Oregon Construction Co., 23 Fed. Repr. 71 : Anderson’s Law Dictionary.
    “ On or about.” “ A phrase used in reciting the date of an occurrence or conveyance to escape the necessity of being bound by the statement of an exact date: ” Black’s Law Dictionary.
    The supreme court of Illinois, under a similar statute, held as follows: “ The provisions of see. 4 of the mechanic’s lien act of 1887, that the claim for lien filed with the circuit court clerk should truly set forth the times when such material was furnished or labor performed, is material and imperative: ” May Purington & Bonner Brick Co. v. General Engineering Co., 180 Ill. 535 (54 N. E. Repr. 638).
    Substantial compliance is essential, and substantial compliance is, in fact, all to a common intent, a statement of the truth according to the fact: Knelly v. Horwarth, 208 Pa. 487 ; Singerly v. Cawley, 26 Pa. 248 ; Goodfellow v. Manning, 148 Pa. 96 ; Barclay’s App., 13 Pa. 495 ; Noll v. Swineford, 6 Pa. 187; Best v. Baumgardner, 122 Pa. 17 ; Langenheim v. Anschutz-Bradberry Co., 2 Pa. Superior. Ct. 285 ; Groezinger v. Ostheim, 135 Pa. 604.
    November 20,1905:
   Opinion by

Pouter, J.,

This is an appeal by the plaintiffs from an order of the court below making absolute a rule to show cause why a mechanic’s lien should not be stricken from the record. The plaintiffs were subcontractors, the lien set forth that the contract was made with Seeley, Son & Company, persons other than the owner, and, as required by paragraph 11, section 11, of the Act of June 4,1901, P. L. 431, stated “ when and how notice was given to the owner of an intention to file the claim.” The court below held the notice to the owner thus set forth in the claim to be insufficient, under the provisions of the 8th section of the act of June 4, 1901, and struck off the lien.

The allegation of notice to the owner was, in this case, essential to the validity of the claim, and if it appeared upon the face of the record that the notice given failed to meet the requirements of the section of the statute referred to, the lien was properly stricken off. “ A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file. This has been the uniform course of decisions under former acts : ” Knelly v. Horwath, 208 Pa. 487.

The 8th section of the act of 1901 imposes upon a subcontractor who intends to charge the property of an owner the duty of not only giving that owner notice of such intention but, also, requires that he furnish that owner “ with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or materials furnished.” “ Such notice and statement must be served at least one month before the claim is filed, and within three months after the last of his work was done or materials furnished, if he has six months within which to file his claim, and within forty-five days thereafter, if he has but three months-within which to file it.” These provisions are mandatory, compliance with them is a condition precedent to the right to file a lien. The time when the work was done is an important matter in dealing with mechanics’ liens; the lien must be filed within a fixed period after the last work was done or materials furnished, and the notice and statement must be served on the owner at least one mbnth before the claim is filed and within a definite time after the completion of the work. The provision of the statute that the owner shall not only have notice but that a sworn statement shall be served upon him setting forth “ the date when the last work was done or materials furnished,” is an essential requirement, and failure to comply with it is fatal to the validity of the claim. The subcontractor has three months, or forty-five days as the case may be, within which to obtain the information which he must include in his sworn statement to the owner; he ought to be able within that time, if ever, to ascertain definitely when he did complete the work or furnish the last materials for which he seeks to hold the owner liable. The statute assumes that one who seeks to charge the property of another, with whom he has no contract relation, knows, or will within the period fixed be able to ascertain, the dates when he furnished the materials or did the work, upon which his claim is founded, and it expressly requires that he shall inform the owner as to the date of the last item. The notice and sworn statement served upon the owner in this case did not pretend to definitely state the date when the last materials were furnished, but left that whole question open by setting forth that, “ the last materials therefor were delivered on or about July 30, 1903.” The notice and sworn statement were served on October 21, 1903, almost three months after July 30, and there was no attempt to explain why the date of the last item was thus left indefinite. If the claimants furnished the materials on the credit of the building they ought to have been able to inform the owner when the delivery was made. It is important in determining the rights of the parties under mechanics’ liens that the date of the last item of a claim shall be definitely fixed. The statute expressly requires that the claimant shall, under the sanctity of an oath, inform the owner as to that date. A notice which, without satisfactory explanation, leaves that date uncertain fails to meet the statutory requirement.

The order of the court below is affirmed.


author: Beaver, J.,

text:
    Commonwealth v. Joy, Appellant.

      Appeals — Paper-books—Failure to print evidence.

    On an appeal where the assignments of error relate to the rejection of evidence and it appears that the evidence is not printed in the paper-books, and there is nothing to identify as evidence certain exhibits printed in the affidavit of the appellant’s paper-book and relied upon by him, the judgment will be affirmed.
    Argued Oct. 2, 1905.
    Appeal, No. 63, April T., 1906, by defendant, from judgment of Q. S. Allegheny Co., June T., 1905, No. 166, on verdict of guilty in case of Commonwealth v. Frank Joy.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for conspiracy. Before Kennedy, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were to the rejection of several offers of evidence.

      W T. Tredway, with him W. J. Brennan, for appellant.
    No appearance nor paper-book for appellee.
    November 21, 1905 :
   Opinion by

Beaver, J.,

The defendant and John P. Graham were jointly indicted for that they “ did falsely and maliciously conspire and agree together to cheat and defraud one John H. Fisher of his moneys, goods, chattels and other property, and other dishonest, malicious and unlawful acts then and there to do, to the prejudice of him, the said John H. Fisher,” etc. They were tried June 20, 1905, and severally convicted.

After a motion for a new trial, which was duly argued and overruled, the appellant took his appeal to this court, assigning for error the sustaining by the court below of the objections of the prosecution to certain offers of evidence made by the defendant.

The testimony is not printed. Even what is printed in the appendix as exhibits has no marks of identification and are not shown in any way to have been offered in evidence. There is no certificate either of the clerk of the court nor of the trial judge that they were so offered. The bill of exceptions, granted four months after the trial, is “ Certified only because counsel for the commonwealth have assented thereto, my own recollection after this lapse of time being defective. John M. Kennedy, P. J.”

It is impossible for us, with a record in this condition, to determine whether certain questions which the counsel of the appellant now allege were asked at the trial were in fact properly asked as cross-examination. There is nothing before us of record by which to try either their competency or relevancy. It is true that, if the facts stated in the history of the case and in the argument of appellant’s counsel were part of the record, we might have something upon which to base an opinion in regard to the subject, but they are not part of the record and, therefore, cannot be considered by us in determining the questions presented.

Inasmuch as all of the assignments of error depend upon practically similar grounds and there is nothing in the record by which we can reach an intelligent conclusion in regard to the competency or relevancy of any of the testimony offered, the assignments must all be overruled.

Judgment affirmed.


author: Beave®, J.,

text:
    Gelbach’s Estate.

      Trusts and trustees — Compensation—Commissions.
    A charge of five per cent by trustees for the collection of rents in addition to five per cent paid to a real estate agent for collecting the same rents, will be sustained, where it appears that the real estate in question consisted of forty different properties all old and out of repair, and rented to fifty different tenants, and that one of the trustees did all of the work, while the cotrustee who was one of the two cestui que trusts, did nothing, and opposed the charge for commissions.
    Trustees are entitled to commissions on money borrowed upon a mortgage and expended in the erection of a property which had been destroyed by fire, where it appears that the transaction was an exercise of good judgment, and that its results were greatly beneficial to the estate.
    Argued Oct. 4,1905.
    Appeal, No. 31, Oct. T., 1905, by Eruma L. Borgner, distributee, from decree of O. C. Phila. Co., Oct. T. 1887, No'. 311, dismissing exceptions to adjudication in estate of George Gelbach, deceased.
    Before Rice, P. J., Beavek, Oelady, Portee, Moreison and Henderson, J J.
    Affirmed.
    Exceptions to adjudication.
    Hanna, P. J., filed the following opinion:
    Upon consideration of the exceptions, we fail to discover any good reason to differ from the conclusions of the auditing judge save in the single instance of the allowance of commissions at the rate of five per cent upon the proceeds of the real estate sold. And this is evidently an oversight. As settled by numerous authorities, the established rule and practice, in the absence of proof of unusual and extraordinary labor and services rendered by the fiduciary, is to allow but three per cent commissions upon the amount realized upon the sale of real estate. And while it might be persuasive evidence that the accountants are not entitled upon the settlement of the present account to a greater rate than they claimed and was allowed to them upon the audit and adjudication of prior accounts, yet they are not estopped thereby from claiming or being allowed an additional rate of compensation for labor and responsibility expended and incurred during the period embraced in a second account. Each account is independent of the other and the executor, administrator or trustee, is entitled to his compensation irrespective of the amount theretofore allowed. If his labor, trouble and responsibility are greater than were previously rendered, sufficient ground is shown for an increase of compensation. It may well be that while eight per cent commissions allowed in prior accounts was considered adequate compensation, yet, during the period covered by the succeeding account, ten per cent commissions, including five per cent paid to the agent, will not be more than is justly earned by the trustee.

      This is the conclusion of the auditing judge and no error appears from the testimony to warrant it being disturbed. The allowance of the commissions upon the rent collected, both by the trustee and the agent employed by him, is in full accord with the doctrine of Wood’s and Martin’s Appeal, 86 Pa. 346, and Casely’s Est., 23 Pa. Superior Ct. 646.
    Nor do we think the allowance of commissions to the accountants, upon the money borrowed by them for the improvement of the real estate belonging to the trust, is not fully sustained by the evidence, and for the same reason, being for the benefit and improvement of the real estate belonging to the trust, the interest paid by the accountants for the money borrowed is not a proper subject of surcharge.
    With the correction made as before indicated, the remaining exceptions are dismissed and the adjudication confirmed, and a proper decree will be prepared by counsel for accountants.

      Error assigned was the decree of the court.

      Jere J. Crowley, with him Charles C. Lister, for appellant.

      Alfred R. Haig, with him Henry C. Thompson, Jr., Dwight M. Lowrey and William E. Harrity, for appellees,
    cited as to the commissions on rent: Casely’s Estate, 23 Pa. Superior Ct. 646; Wood’s & Martin’s App., 86 Pa. 346.
    Cited as to commissions on money borrowed and expended for rebuilding the property destroyed by fire : Montgomery’s App., 86 Pa. 230.
    November 21,1905 :
   Opinion by

Beave®, J.,

The estate of the decedent was carefully administered. There is no allegation of mismanagement of afiy kind. The sole exception is as to the compensation to be allowed the executors and trustees. The original adjudication was made without objection. Subsequently a petition was presented to the court to open the adjudication upon allegations of an overcharge for compensation. This was done and a readjudication had, in which the auditing judge who had heard the first adjudication, after a careful examination and an opinion filed, dismissed the exceptions. Exceptions were then filed to the readjudication which were considered by the court and dismissed in an opinion by President Judge Hanna.

The principal ground of exception is a charge of five per cent.on the part of the executors and trustees for the collection of rents, etc., in addition to five per cent paid to a real estate agent for collecting the said rents, whereas in previous accounts the executors and trustees charged three per cent.

It appears from the testimony that there were some forty different properties rented to fifty different tenants ; that the properties were old and' in need of constant repair. It appears also from the testimony that Mr. Horn, one of the executors and trustees, has alone been active in the management of the estate. He was asked: “ Q. How far has your coexecutor and trustee been motive in the management of the estate ? A. It is something exceedingly rare for her to be present at all. In cases of any moment, I would advise her and give her an opportunity to object. In many cases I would receive no reply even from that. Q. You have been practically the acting executor ? A. I have been the acting executor.”

There are but two heirs entitled to distribution of the estate,. one, the appellant here ; the other, the coexecutor and trustee in the management of the estate. They both united in the application for readjudication, upon the' ground that the charge for administering the estate was excessive: Inasmuch as the coexecutor received an equal division of the charge for management and can, if she chooses to do so, divide with her sister, the charge to the estate for its management would be unusually small under the circumstances.

Another exception is as to the charge for money borrowed upon a mortgage and expended in the erection of a property which had been destroyed by fire. The charge is not for borrowing but for care and labor in providing for and surpervising the erection of the building. There is no question but that, if the executors and trustees had sold a portion of the personal property of the estate and had expended it in rebuilding, they would have been entitled to a commission upon it. Instead of doing so, however, they preserved the personal property intact, which was valuable and has greatly increased in value, borrowed the money and expended it, in addition to the insuranee, in the re-erection of the building destroyed. This was, under the circumstances, an exercise of good judgment, and the results were greatly beneficial to the estate. We can see nothing erroneous in the allowance made by the orphans’ court of the commissions which, it seems to us, were fairly earned.

The opinion of the president judge fully covers all the points involved and we can profitably add nothing to what is said therein.

Decree affirmed and appeal dismissed at the costs of the appellant.