text:
    Pattonville and Woodbury Turnpike Road Company.
    November 19, 1906 :

      Turnpike roads — Condemnation—Local interest — Évidence.
    In proceedings to condemn a turnpike road it is proper for the jury to consider local interests in connection with general interests, but they are not controlling. The purpose of such proceedings is to condemn the turnpike road so that it shall become a public road free from tolls and toll gates, and in determining this question it is proper for the jury to consider the local advantages and disadvantages in connection with the benefit to the public at large.
    Argued Oct. 22, 1906.
    Appeal, No. 218, Oct. T., 1906, by the Pattonville & Woodbury Turnpike Road Company, from order of Q. S. Bedford Co., confirming proceedings in the matter of the Condemnation of Pattonville and Woodbury Turnpike Road.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition to condemn a turnpike road. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order confirming the proceedings.

      John H. Jordon and Frank E. Colvin, for appellants.

      John M. Reynolds, with him Simon H. Sell, for appellees. ■
   Opinion bv

Orlady, J.,

The only assignments of error in this case refer to the action of the court in confirming the report of the master and jury of view in the proceedings which resulted in the condemnation of the Pattonville and Woodbury Turnpike Road, and assessing damages sustained by the corporation at $2,550. The hearing before the master and the jury of view was earnestly contested by counsel; seventy-four witnesses were called, sixteen points were submitted by the petitioners and twenty by the turnpike company for charge, by the master to the jury, and the three assignments of error to which our attention is directed had their inception in the action of the master, in refusing to direct the jury to disregard the testimony of three witnesses called before him. The request was refused in each instance, and the jury were instructed that in considering it they must take it along with all the other testimony adduced, and give it only such weight as it deserves in- connection with the other testimony. The subject-matter of the testimony elicited from these three witnesses referred to their opinion as to whether it was to their personal benefit or advantage, and of the locality in which they resided, to have the turnpike condemned to public use. The reasons given for the several witnesses favoring the condemnation were the inconvenience of getting toll from their clothes, and the slight delay incident thereto at the toll gates, and the personal advantages they would derive from expending the money thus saved in purchases for their individual comfort, making special references to cigars, oranges, taxes, and in one instance the savings thus accumulated would furnish sufficient to buy a cow.

The assignments cannot be sustained for a reason quite apparent on this record. We do not have with this record the testimony taken before the master and jury, and that covered by the assignments represent brief excerpts from but a small part of the testimony of even the witnesses whose names are mentioned. What relation that testimony may have to the other adduced on the hearing, we cannot tell, but even if it would be considered a proper subject for judicial revision in determining its • relevancy, it is quite apparent that it could not do the appellant any harm; moreover, the effect to be given to it was fully covered by the answer of the master to the point requesting him to disregard this testimony, and taken in connection with the sixth point submitted by the turnpike company, to wit: “local best interests.alone will not warrant a condemnation, and if the jury believe that this proceeding is instituted by certain people of the localities along the line of the turnpike or contiguous thereto, in order to relieve themselves of tolls at the expense of the county as a whole, and that the condemnation of this turnpike would be a matter of local interest only, and not a matter of advantage to the people of the country as a whole, they should refuse to condemn such road,” which was answered as follows: “ This point is affirmed. The jury, however, must consider the testimony of the witnesses in determining the question of condemnation, and if from all the evidence they are satisfied that it is for the best interests of the people of the county that the turnpike should be condemned, then it is their duty to condemn it,” presented the whole question to the jury in its proper light.

' It was proper for the jury to consider local interests in connection with general interests, but they were not controlling. The purpose of such proceedings is to condemn the turnpike road so that it should become a public road free from tolls and toll gates, and in determining this question it was proper for the jury to consider the local advantages and disadvantages in connection with the benefit to the public at large. It is to be borne in mind that the tribunal created by the act of June 2, 1887, P. L. 306 under which these proceedings were instituted, while called a jury of view is an entirely different one from a trial jury in the courts below under the act of 1887, and on such a hearing the investigation would necessarily take a wider range than would be tolerated on a trial in court. The proceeding in such a case has been so recently decided in Chambersburg and Bedford Turnpike Road Company, 20 Pa. Superior Ct. 173, that it is not necessary to again go over that subject. The assignments of error are without merit, and are overruled. We prefer to decide this case on its merits rather than to sustain the motion to quash.

The decree of the court below is affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Groninger v. Acker, Appellant.

      Judgment — Opening judgment — Evidence—Discretion of court.

      ■ The unsupported testimony of a defendant in a confessed judgment admitting the execution of the instrument upon which the judgment was entered, but alleging fraud in the procurement or use of it, which is directly opposed by the testimony of the plaintiff, is insufficient to warrant the opening of the judgment, or to be submitted to the jury on the trial of an issue awarded.
    The court to which an application is made to open a judgment may judge the weight of the evidence and the credibility of the witnesses, and is not bound, even where there is a conflict of testimony, to send the case to the jury. The whole proceeding resolves itself into the exercise of a sound judicial discretion.
    November 19, 1906:
    Argued Oct. 23,1906.
    Appeal, No. 59, Oct. T., 1906, by defendant, from order of C. P. Huntingdon Co., Dec. T., 1905, No. 83, discharging rule to open judgment in case of H. B. Groninger to use of W. H. Cliilcote v. Isaac M. Acker and George W. Acker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court • discharging rule to open judgment.

      L. H. Beers and W. M. Henderson, for appellants.

      Richard W. Williamson, for appellees.
   Opinion by

Beaver, J.,

The court below refused to open a judgment entered upon a judgment note, admittedly executed by the defendants, the allegation of the petition, upon which the rule to show cause was granted, being fraudulent representations made at the time of the execution of the note.

The fact of the alleged misrepresentations rests practically upon the testimony of the principal in the note alone. An effort is made to corroborate his testimony by declarations which he made, at or about the time of the execution of the note by his father, who is the surety thereon, but these are simply the declarations of the principal and are certainly no stronger than his testimony. The fact is explicitly denied by the plaintiff, and his version of the transaction would seem to be corroborated to some extent by a written agreement, executed at the time the note was given.

“ The unsupported testimony of a defendant in a confessed judgment admitting the execution of the instrument upon which the judgment was entered, but alleging fraud in the procurement or use of it, which is directly opposed by the testimony of the plaintiff, is insufficient to warrant the opening of the judgment or to be submitted to the jury on the trial of an issue awarded. In such a case the conflict of testimony is over the equity which the defendant sets up as the ground for relief from a legal liability he has assumed. The instrument itself is evidence against him, and, therefore, both upon reason and authority, he must overcome the prima facie presumption arising from his own act, and establish his allegation by the quantum and character of proof required to move a chancellor to make a decree in his favor, or be left where he has placed himself under the law: ” Shannon v. Castner, 21 Pa. Superior Ct. 294.

The testimony in support of and against the rule to show cause is quite voluminous. It seems to have been carefully considered by the court below. The conclusions of the court below are contained in an opinion and decree which, in its findings of fact and conclusions of law, shows careful consideration and the exercise of a sound judicial discretion. When this appears, there is no call for the interference of an appellate court.

“ The court to which an application is made to open a judgment may judge the weight of the evidence and the credibility of the witnesses, and is not bound, even where there is a conflict of testimony, to send the case to a jury. The whole proceeding resolves itself into the exercise of a sound judicial discretion: ” Augustine v. Wolf, 215 Pa. 558.

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


author: Rice, P. J.,

text:
    Huntington and Broad Top Mountain Railroad, Appellant, v. Fluke.

      Appeals — Justice of the peace — Jurisdiction—Defective service— Quashing appeal.

    No appeal lies from the judgment of the court of common pleas in certiorari proceedings dismissing exceptions to the judgment of a justice of the peace, where such excentions are based on an alleged defect in the service of summons . ■ ,

      November 19, 1906 :
    Argued Oct. 24, 1906.
    Appeal, No. 63, Oct. T., 1906, by plaintiff, from judgment of O. P. Bedford Co., April T., 1905, No. 6, affirming judgment of a justice of tbe peace in casé óf Huntingdon and Broad Top Mountain Railroad Company v. David Fluke.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Certiorari to the judgment of a justice of the peace. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the court.

      Charles G. Brown, for appellant.

      E. M. Pennell, for appellee.
   Opinion by

Rice, P. J.,

This is an appeal from a judgment of the common pleas affirming upon certiorari the judgment of a justice of the peace, in an action of trespass. It is not disputed that the cause of action was within the jurisdiction of the justice, nor that the judgment of a justice of the peace in an action of trespass is within that provision of the 22d section of the act of 1810, 5 Sm¡ 'L. 161, which reads, “ And the judgment of the common pleas shall be final on all proceedings removed as aforesaid (by certiorari) by the said court, and no writ of error shall issue théreon.” It is claimed, however, that the service of summons was defective, and, therefore, that the justice had no jurisdiction of the defendant. But clearly the common pleas had jurisdiction to decide that question, and it would be doing violence to the language of the statute to hold that its judgment is less conclusive in a case involving the question of the regularity of service of process, than a case involving other questions of law. The right of the appellate court to issue the writ, which otherwise would exist, is taken away absolutely by the statute in certain classes of cases, and is not merely made dependent upon the nature of the exceptions to the justice’s record; and the precedents, with perhaps one exception, show that it has been construed, and applied in accordance with its plain terms. This was certainly the view taken in the early cases : Cozens v. Dewees, 2 S. & R. 112; Johnson v. Hibbard, 3 Whart. 12; Silvergood v. Storrick, 1 Watts, 532. See also Palmer v. Lacock, 107 Pa. 346. For example, in Cozens v. Dewees, the court quashed the writ “ because it issued improvidently; this being a case in which a writ of error is taken away by the act of March 20, 1810.” In Borland v. Ealy, 43 Pa. 111, the writ was quashed notwithstanding the objection that the common pleas had affirmed the judgment of a justice of the peace for an amount beyond the jurisdiction of justices of the peace, except in special cases where the defendant voluntarily appears without being served with process. As to the question whether the Supreme Court could review the decision of the common pleas, Chief Justice Lowrie said, “We at first thought yes, because of the want of jurisdiction appearing on the record. But we find, section 22, that one of the very purposes of the certiorari is to inquire whether the cause of action was ‘ cognizable before a justice of the peace,’ and the next words make the judgment of the common pleas final, and exclude a writ of error. This is too peremptory to be overlooked.” In Diehm v. Parkes, 1 Mona. 174, the writ was quashed although the question raised was as to the jurisdiction of a justice of the peace to entertain suit, and give judgment against a married woman without joinder of her husband. In Jacobs v. Ellis, 156 Pa. 253, where the matter alleged as error was that the court set aside the proceedings of the justice on the ground that the record disclosed no proper service upon the defendant, the appeal was quashed at bar. This case is pertinent because it shows that the conclusiveness of the judgment of the common pleas is not affected by the mere fact that the jurisdiction of the justice is the question involved. In Penna. Pulp & Paper Co. v. Stoughton, 106 Pa. 458, Justice Gordon, speaking of the 22d section of the act of. 1810, said, “ Then, further, in order to shut out the possibility of a review in this court on such a writ of proceedings before a justice of the peace, the 24th section provides as follows: ‘No writ of certiorari issued by or out of the Supreme Court, to any justice of the peace in any civil suit, or action, shall be available to remove the proceedings had before such justice of the peace.’ It is thus obvious that if these statutory provisions are of force, the writ of error in this case is eoram non judice, and of no effect. To no purpose, therefore, are we asked to correct a judgment, and to review proceedings that are not before us.” This is entirely inconsistent with the idea that a writ may issue upon the judgment of the common pleas if the jurisdiction of the justice of the peace is in any way involved in the case. The statute contains no such qualification of the inhibition, “ no writ of error shall issue thereon.” Nor has such a qualification been introduced by later legislation: Penna. Pulp & Paper Co. v. Stoughton, 106 Pa. 458; Stewart v. Lindsay, 3 Penny. 85 ; Phœnix Iron Works Co. v. Mullen, 25 Pa. Superior Ct. 547, and cases therein cited; Minogue v. Ashland Borough, 27 Pa. Superior Ct. 506; Adams v. Berge, 30 Pa. Superior Ct. 422. It is true that in Murdy v. McCutcheon, 95 Pa. 435, the judgment of the common pleas affirming upon certiorari the judgment of a justice of the peace was reviewed and reversed upon the ground of the defectiveness of the summons, but in that case the jurisdiction of the Supreme Court seems not to have been raised by counsel, nor considered by the court; at least it is not alluded to in the opinion. We think it cannot be regarded as overruling the earlier cases where the question was considered, and other cases to the same effect. It is argued in the present case that it appears by the opinion filed by the learned judge below that he based his judgment upon an erroneous construction of the constable’s return. We do not deem it necessary to discuss the question whether his construction was correct or not, for it is apparent from what has heretofore been said that that question cannot be brought before us for decision. The finality of his judgment is not dependent upon the correctness of the reasons given by him in support of it.

The appellee’s motion is allowed, and the appeal is quashed.


text:
    Kirley v. Thom, Appellant.
    November 19, 1906:

      Master and servant — Discharge of servant — Evidence—Question for jury.

    In an action by a school, teacher against her employer to recover salary after an alleged wrongful discharge, the case is for the jury where the evidence is conflicting as to the alleged misconduct and insubordination of the plaintiff upon which the discharge was based and particularly when the conflict of testimony relates to whether the alleged acts of misconduct occurred before or after the discharge.
    Argued Oct. 24, 1906.
    Appeal, No. 84, Oct. T., 1906, by-defendant, from judgment of O. P. Clearfield Co., Feb. T., 1905, No. 225, on verdict for plaintiff in case of Margaret Kirley v. G. W. Thom.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover salary. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were answers to defendant’s point quoted in the opinion of the Superior Court.

      A. L. dole, for appellant.

      W. d. Pentz, for appellee.
   Opinion by

Beaver, J.,

Plaintiff brought her action against the defendant to recover for five months’ wages, alleged to be due her under a parol agreement of hiring for a year, as a teacher of shorthand in the business college conducted by the defendant, after her discharge from said employment.

All of the questions in the case are those of fact.

1. Was the employment of the plaintiff for a year, or was it by the month, or during satisfactory service? This was fairly left to the jury, and, having been found against him, the defendant, as we understand it, raises no question here in that regard.

2. Whs the conduct of the defendant toward the plaintiff such as justified her in her retorts and conduct, characterized by the defendant as insubordination, which justified her discharge ?

3. Did these so-called acts of insubordination occur after or before the discharge of the plaintiff by the defendant?

4. Was she entitled, under her own evidence, to recover for five months of idleness or for three months, during which she had no employment and was not engaged in any other occupation?

The law of the case was clearly laid down by the court below and with it the appellant has no controversy. Taking the instruction of the court as a whole, we can find nothing in it which would justify our interference. This is summed up in the charge of the court as applicable to the facts, whichever way the jury should find them, as follows:

“We will give you the law applicable to the situation as we look at the law. And first we say, that if you find that Miss Kirley, plaintiff, did interfere with the discipline of the school that afternoon by interfering with the orders of Mr. Thom to some of the scholars to go to another room, or did, generally speaking, raise such a disturbance there as to be destructive of school discipline, she was insubordinate, and he (Thom) had a right to discharge her and could not be compelled to pay for the balance of the time. In this connection, you should keep in mind also that Mr. Thom has a perfect right to order pupils from her room to another shorthand teacher, if his purpose was simply the regulation of his school.

“ Second. If, on the other hand, you find that Thom first threatened her with other branches, when her contract was for shorthand only, if you so find that was the contract, then swore at and abused her, and then, in pursuance of such plan, ordered pupils from her room, and otherwise so acted as to aggravate her beyond self ’ control, then we say to you that he could not use her subsequent admitted acts or act of insubordination as an excuse for dismissal. Miss Kirley’s act, which she admits, of staying in the room teaching, after another had been ordered to take her place and she was discharged, according to her testimony, was insubordinate and not within her rights or duties, neither was such conduct necessary to maintain her rights, even if her prior conduct had been wholly correct. As we look at this ease, however, we cannot say to you, as a matter of law, that this admitted willful act of hers was not excusable under the circumstances. Her conduct, as well as that of Mr. Thom’s, must be judged of by the jury, in the light of all the facts and the law as we give it to you. If, in the light of all these facts, she was insubordinate, she was properly discharged and cannot recover here.”

This instruction to the jury was given, after a portion of the testimony of the plaintiff, as written out by the court reporter, had been read, in which it appeared : “ By Mr. Pentz (plaintiff’s attorney) : Q. Answer his question, if you told them not to obey Thom, that is what he was asking you. A. Mr. Pentz, when I did nothing of the kind. Q. Say so, then. A. Before he discharged me ? Q. If you did afterwards, tell what you did; that is all. A. Well, of course, after he dismissed me and he told some of the scholars to go up to the table and recite to the other teacher,.I said I wouldn’t go, but I was discharged. Mr. Cole : The school was then in session, was it ? A. I was discharged. Q. Well, was the school then in session ? A. I guess it was. Q. And he told them to go and recite to another teacher and you told them not to go ? A. I said I wouldn’t go. Q. You said you wouldn’t go ? A. Yes, but I was discharged then, gentlemen of the jury, please remember that.”

Under all the testimony it was clearly impossible for the court to have said to the jury, as a matter of law, that the plaintiff had been insubordinate. If what she did was after her discharge, her acts could not haAre been used as a justification for her discharge. Under the circumstances the court was entirely justified in refusing the first point of the defendant, “ That, under all the evidence, the court should direct a verdict for the defendant,” and also in his answer to the defendant’s fourth point, which was : “ The plaintiff in this case having admitted that she refused to withdraw from the classroom when directed by the defendant, and also having admitted that, in defiance and disobedience of his orders, insisted on teaching a class that was being taught by another teacher, under the direction of the defendant, and also that, when the pupils were directed by the defendant to recite to another teacher, that she advised them not to do so, she was guilty of such misconduct as justified her discharge, and she is not entitled to recover in this case. The plaintiff having further testified that her conduct on the day she was discharged was calculated and intended to annoy-the defendant, the proprietor of the school, she was guilty of such misconduct in that as to preclude her right to recover.” The answer was : “ This point, gentlemen of the jury, we refuse as a whole. The facts stated there are all for the jury and are for j-our consideration, as to whether or not that was such insubordinate, such misconduct as justified her dismissal under the circumstances which have been related here, taking into consideration the circumstances of the two parties and their relation at that time.” To this answer might fairly have been added, “ particularly in view of the fact that the plaintiff testified that her so-called misconduct occurred after her actual discharge.”

The jury found a verdict for three months’ services, evidently deducting wages for two months, which the court said might be done, if they recalled the fact that she had testified that she had attended school for two months.

The facts seem to have been impartially weighed by the jury and their verdict should stand, unless there was some error in the charge of the court which we have failed to find and which the court, on a reconsideration, on a motion for judgment on a reserved point non obstante veredicto, reconsidered and confirmed.

The other assignments of error require no special discussion. None of them is sustained.

Judgment affirmed.


text:
    Light v. Sholl, Appellant.

      Judgment — Opening judgment — Forgery—Evidence—Discretion of court.

    Although the defendant in a confessed judgment testifies that his signature is a forgery, and there is opposing testimony, there is no inflexible rule which compels the court to open the judgment. Even in such a case the judge should exercise a sound discretion, after a careful consideration of the character and effect of the testimony.

      November 19, 1906 :
    On a rule to open a judgment, the defendant alleged that the note upon which the judgment was entered was a forgery. The testimony upon this subject was that of the defendant herself and a comparison of the signature to the note in question with others which she admitted to be genuine. On the other hand, her sister, who was the subscribing witness to the note, and the plaintiff himself both testified unequivocally to the fact that she signed the note. A brother also testified that she admitted to him that she had signed a note for a settlement of $300, which was the amount of the note in controversy. The defendant was an illiterate woman, and testified that she wrote her “name poorly.” Held, that the court committed no error in discharging the rule to open the judgment.
    Argued Oct. 25, 1906.
    Appeal, No. 179, Oct. T., 1906, by defendant, from order of C. P. Lebanon Co., June T., 1902, No. 266, discharging rule to open judgment in case of Ezra H. Light v. Priscilla Sholl.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Superior Court.

      jError assigned was order discharging rule to open judgment.

      Robert L. Adams, with him Paul Gr. Adams and J. Gr. Adams, for appellant.
    — The rule that a court may not open a judgment unless there is more than oath against oath has no application to a case of this kind when the note itself does not go into the scales against the defendant, the allegation being that it was forged: Lewis v. Ahlum, 32 Pa. C. C. Rep. 40; Schomaker v. Dean, 201 Pa. 439; Augustine v. Wolf, 29 Pa. Superior Ct. 336; Steiner v. Scholl, 163 Pa. 465.

      II. Ranh Bichel, for appellee.
    — The rule was properly discharged: Earley’s App., 90 Pa. 321; Augustine v. Wolf, 29 Pa. Superior Ct. 336; Shannon v. Castner, 21 Pa. Superior Ct. 294; Essick’s App., 1 Mon. 588 ; Wernet’s App., 91 Pa. 319 ; La Roche Electric Works v. Emery, 173 Pa. 331; Cloud v. Markle, 186 Pa. 614; Jenkintown Nat. Bank’s App., 124 Pa. 337.
   Opinion by

Beaver, J.,

A rule to show cause why a judgment, entered by the plaintiff against the defendant upon a judgment note, should not be opened and the defendant let in to a defense was, after a careful and painstaking hearing by the judge who heard the testimony in the court below, discharged.

The only error assigned here is the discharge of the rule.

The defendant alleged that the note upon which the judgment was entered was a forgery. The testimony upon this subject was that of herself and a comparison of the signature to the note in question with others which she admitted to be genuine. On the other hand, her sister, who was the subscribing witness to the note, and the plaintiff himself both testify unequivocally to the fact that she signed the note. A brother also testifies that she admitted to him that she had signed a note for a settlement for $800, which is the amount of .the note in controversy.

The defendant is an illiterate woman who cannot read writing, but who says, in her examination: I can’t write and can’t read writing. I can write my name poorly, but this I didn’t write. There was no such paper like this. It was shaped like that marked B. I know as well how it looked as to-day.” She admits having signed a paper, but is unable to state what its contents were.

It may be said, in reference to the comparison of signatures, that a person who is barely able to write her name, and does so on rare occasions, does not, in the nature of the case, acquire such a fixed and uniform signature as will furnish a standard by which comparisons can be fairly made. So far as we can judge from a comparison of the signatures, the points of resemblance are as many as the points of difference.

But, be that as it may, the court below, after hearing and reading the testimony, reached the conclusion that “ The weight of the evidence in favor of the plaintiff’s contention is so strong that we believe, it becomes our duty to discharge this rule.” This conclusion is clearly based, as is shown by the opinion of the court, upon the careful consideration of the testimony and the exercise of a sound judicial discretion in reaching a conclusion. ■

It is true, as pointed out by the appellant, that the court says in its opinion: “ Annie Light testifies that the paper she witnessed for the defendant was the note in question. In order that the defendant may have the relief sought, it is necessary for the court to say, in effect, that the note in suit is a forgery, to which her sister must have been a party, and that her two brothers, the plaintiff and Andrew, and her sister Annie committed willful perjury. This we are not willing to do, but rather believe that the defendant is mistaken in the kind of paper she signed, which was witnessed by Annie.”

If the conclusion of the court below had been based solely upon the fear of consequences, rather than upon the weight of the testimony, it would have been open to serious question, but the opinion, taken as a whole, clearly shows that the conclusion was based upon the weight of the evidence and this, irrespective of the consequences to winch reference is made. A careful reading of the testimony convinces us that the court exercised due discrimination and a sound legal discretion in reaching the conclusion arrived at in the discharge of the rule.

In Shannon v. Castner, 21 Pa. Superior Ct. 294, President Judge Rice said: “ And though the defendant testifies that his signature is a forgery, and there is opposing testimony, there is no inflexible rule which compels the court to open the judgment. Even in such a case the judge should exercise a sound discretion, after a careful consideration of the character and effect of the testimony: Roenigk’s Appeal, 2 Cent. Repr. 68; Essick’s Appeal, 1 Mona. 588.”

A number of late cases, involving similar questions, are: Augustine v. Wolf, 215 Pa. 558 ; McCullough v. Kinnan, 31 Pa. Superior Ct. 557, and Tobacco Co. v. Poslusky, 31 Pa. Superior Ct. 602, in all of which the action of the court below, in reaching a conclusion as to the genuineness of defendant’s signature in cases similar to the one under consideration, has been sustained.

Leaving the note itself entirely out of consideration, as a makeweight for the plaintiff, we cannot but reach the conclusion that the court below properly disposed of the rule to show cause.

Judgment affirmed, and appeal dismissed at the costs of the appellant.


author: Pee Ctjeiam,

text:
    Loeb v. Allen, Appellant.

      Practice, C. P. — Service of statement prior to writ — Waiver—Judgment — Opening judgment.

    Where a statement of claim is served two days prior to the service of the writ, and the statement as served does not designate any court, term or number, the defendant cannot, after the service of the writ, safely ignore the copy of statement and the rule to file an affidavit of defense, and treat the premature service thereof as equivalent to no service. If, in such a case, the defendant takes a rule to open the judgment, so as to have the case heard upon the merits, he may be considered to have waived the mere irregularity of procedure; or at any rate, the most that he could claim was that the case then became one which called for the exercise of a sound discretion of the court in either discharging or making absolute the rule to open the judgment.
    Argued Oct. 4, 1906.
    Appeal, No. 237, Oct. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1905, No. 1,825, discharging rule to open judgment in case of Joseph H. Loeb and Harry Lipper, trading as Loeb, Lipper & Company, v. William H. Allen.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    From the record it appeared that a summons issued June 21, 1905, returnable Monday, June 26, 1905.
    The sheriff’s return to the writ is as follows :
    “ Served William H. Allen, the within-named defendant, by handing June 23, 1905, a true and attested copy of the within writ to an adult member of said defendant’s family, at No. 4045 Powelton ave., the dwelling house of defendant.”
    The statement and rule to file an affidavit of defense within fifteen days were filed on June 21, 1905, and copy served the same day.
    On July 10, 1906, judgment was entered by the prothonotary for want of an affidavit of defense and execution issued. The defendant then presented his petition, showing that sérvice of the statement had been made upon him prior to the service of the summons, and that the copy of statement contained no reference to the court or number of the case.

      November 19, 1906:
    No answer was filed to the petition, and at the argument the court expressed a preference to hear the merits of the defense. A supplemental petition was then filed and an answer filed by the plaintiff and depositions were taken in support of the petition. Upon hearing further argument the court discharged the rule.

      Error assigned was order discharging rule to open judgment.

      Charles L. Smyth, for appellant,
    cited: Com. v. Bangs, 22 Pa. Superior Ct. 403; Brushvalley Twp. Poor Directors v. Allegheny County Poor Directors, 25 Pa. Superior Ct. 595 ; Fowler v. Eddy, 110 Pa. 117 ; Com. v. Barnett, 199 Pa. 161; Wolf v. Binder, 10 Pa. C. C. Rep. 108; Eliot v. McCormick, 144 Mass. 10 (10 N. E. Repr. 705).

      Stanley Eolz, for appellees.
   Pee Ctjeiam,

In Commonwealth v. Bangs, 22 Pa. Superior Ct. 403, copy of the statement was served on defendant on May 7, the date the writ issued, the writ was served on May 19, and judgment for want of an affidavit of defense was entered on May 28. It was held that this was irregular, because the defendant was not bound to take notice of the action until the writ was served. In Gorman v. Hibernian B. & L. Assn., 154 Pa. 133, where the statement was filed with the praecipe for the writ, and copy thereof served on October 1, but the summons was not served until'the, following day, it was held that judgment was regularly entered for want of an affidavit of defense on November 29, notwithstanding the fact that the copy of the statement was served a day before service of the writ. These two cases are not in conflict, for, it will be observed, in the latter case, the statutory fifteen days period intervened after jurisdiction of the defendant had attached by service of the writ, while in the former case it had not. The case at bar is not distinguishable from Gorman v. Hibernian B. & L. Assn, except in this, that the paper purporting to be a copy of the statement, we quote from the defendant’s petition, “ did not contain thereon the number of any court, or the number of any case whatsoever on any part of said paper.” Surely the defendant was not bound by a service of such a paper to take notice of the action prior to the service of the writ, but when the writ was served, two days afterwards, he received notice of the court wherein the action was pending, and all the information necessary to enable him to make his defense. In view of the decision in the case last cited we are unable to hold that he could safely ignore the copy of statement and the rule to file an affidavit of defense, and treat the premature service thereof as equivalent to no service. Moreover, in his supplemental petition to open the judgment he set up a defense upon the merits, depositions were taken on both sides relative thereto, and these were submitted for the consideration of the court. It is stated that this was done upon the suggestion of the court, but it does not appear that he was under any compulsion to comply with the suggestion. He was at liberty to stand on the technical objection he had made, and that alone, and take the chances of its sufficiency in the court below, or in this court upon appeal, or he could appeal to the conscience of the court below, acting as a chancellor, to inquire into the merits. He chose the latter course, and there are not wanting authorities which tend to sustain the appellees’ contention that he thereby waived the mere irregularity of procedure: Treasurer of Div. No. 168 v. Keller, 23 Pa. Superior Ct. 135. At any rate, the most that he can claim is, that the case then became one which called for the exercise of a sound discretion, and that it was incumbent upon the court to examine the entire evidence, and discharge, or make absolute, the rule to open in accordance with the principles applicable to such equitable proceeding. An examination of the evidence bearing upon the merits of the case has convinced us that the discretion of the court was properly exercised.

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


text:
    Scientific American Compiling Department v. Creighton, Appellant.
    November 19, 1906 :

      Evidence — Written instrument — Parol agreement — Principal and agent.

    A contract in writing.expressly declared upon its face to be “unconditional, except as'noted hereon,” cannot be contradicted by an alleged parol contemporaneous agreement, upon the faith of which the written agreement was alleged to have been made with an agent of the plaintiff, who had admittedly no authority to make the same.
    Submitted Oct. 4, 1906.
    Appeal, No. 34, Oct. T., 1906, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 1,068, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Scientific American Compiling Company to use of Cetlon B. Taylor v. Edward B. Creighton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a written contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Charles S. Wesley and Ernest L. Eustin, for appellant.

      Paul Reilly, for appellee.
   Opinion by

Beaver, J.,

The effort is here made to contradict and practically annul a contract in writing, expressly declared upon its face to be “ unconditional, except as noted hereon,” by an alleged parol, contemporaneous agreement, upon' the faith of which the said written agreement was alleged to have been made with an agent of the plaintiff, who had admittedly no authority to make the same. That this cannot be done is decided by a great volume of unvarying authority, covering more than a century, from Plankinson v. Cave, 2 Yeates, 370, to Rinker v. Ins. Co., 214 Pa. 608.

The defendant admits, in his affidavit of defense, that he relied upon the declarations of the plaintiff’s agent as to his authority to make the parol agreement, in spite of the notice contained in the printed agreement that the latter was “ unconditional, except as noted hereon,” and that “ he has been informed that the said A. A. Perry never was authorized to enter into any modification or oral change of the printed contract set forth in the plaintiff’s statement.”

The printed contract was of itself notice that the agent had no such authority and that, if any change was made, it must be noted upon the contract itself. The reason for this is perfectly obvious.' The plaintiff was engaged in the publication of an encyclopedia in sixteen volumes. The size of the edition to be printed would doubtless depend upon the orders received ; hence the importance of an unconditional contract. The agent’s compensation, if he were paid by a commission, might be payable upon the return of the orders received by him. Under such circumstances, it would have been a fraud upon the plaintiff for the defendant to sign and place in the hands of the agent an unconditional contract, while entering into a contemporaneous parol agreement, under the terms of which the written contract was not to be binding.

If a case such as is here presented were on trial and an offer to prove the facts contained in the affidavit of defense were made, it would undoubtedly be ruled out. ;

The facts set forth in the affidavit, taken at the best, and for the most, constitute no defense to the action.

Judgment affirmed.


author: Pee Gueiam,

text:
    Yearsley, Appellant, v. Glaser.

      Practice, C. P. — Affidavit of defense — Personal knowledge of defendant —Information and belief.

    Where the facts set forth in an affidavit of defense, if they exist, are such as must be within the personal knowledge of the defendant, it is reasonable to require that they be averred positively; and if they are so averred, the omission of the usual formula as'to information and belief does not render the affidavit defective; nor, on the other hand, will the concluding of such an affidavit with the averment that “all of these facts he believes to be true, and expects to be able to prove at the trial of the case" have that effect.
    An affidavit of defense should set forth fully and fairly, facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to close technical examination as if it were a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a defense, with certainty to a common intent, is sufficient.
    In an action for work and labor furnished, the defense was not simply that some of the items were excessive, but that when the plaintiff presented his bill the defendant objected to it for that reason, and also claimed a deduction of a certain sum for damages done by the plaintiff’s workmen, and that thereupon a dispute arose between the parties which resulted in the plaintiff’s admitting the incorrectness of the charges, and in an agreement between them as to the amount due, pursuant to which the sum thus agreed upon was paid by the defendant, and accepted by the-plaintiff in full accord and satisfaction of the claim. Held, that in such a case a specification in the affidavit of defense of the items in dispute was unnecessary.
    Argued Oct. 4, 1906.
    Appeal, No. 19, Oct. T., 1906, by plaintiff, from order of G. P. No. 5, Pbila. Co., June T., 1905, No. 2,323, discharging rule for judgment for want of a sufficient affidavit of defense in case of Thomas Yearsley v. Sigmund Glaser.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for work and labor done and material furnished.
    The defendant filed an affidavit of defense which was as follows:
    That on June 00, 1903, he employed the plaintiff to do certain electrical work installing fans and equipment at 5721 Germantown avenue, Germantown, the said plaintiff agreeing to do the same for the sum of $100.
    That the said plaintiff performed his contract, but in the course thereof it became necessary to do certain extra work and furnish materials not in the original contract.
    That upon completion of said contract he presented his bill to deponent who objected to the excessive charge for the extra labor and materials, whereupon the plaintiff admitted to excessiveness of the said charges and agreed to accept the sum of $117.98 from deponent, less $2.20 which represented certain damages done by plaintiff’s workmen in the course of the work. That the deponent thereupon on July 28,1903, paid to the plaintiff the sum of $115.78 in full payment of his claim in this action.
    November 19, 1906 :
    All of these facts he believes to be true and expects to be able to prove on the trial of the case.
    The supplemental affidavit of defense was as follows :
    That upon the completion of the work set out in plaintiff’s statement filed, a dispute arose as to the charges for the extra work. That the plaintiff admitted the incorrectness of the charges made and agreed to accept from defendant $117.98 in full payment and satisfaction of his claim, less a deduction of $2.20. That the defendant on said day, to wit: July 28, Í903, paid the plaintiff the said sum of $115.78 by check, a copy of which is hereto annexed, and which said check was duly drawn by plaintiff and accepted by him in full accord and satisfaction of the claim in suit.
    That the plaintiff never thereafter made claim upon defendant for two years, when the present suit was commenced.
    All of which facts he believes to be true and expects to prove on the trial of the cause.

      Error assigned was order discharging rule for judgment.

      James Yearsley, for appellant.

      Edmund Randall, with him M. J. MoEnery, for appellee.
   Pee Gueiam,

Where the facts set forth in an affidavit of defense, if they exist, are such as must be within the personal knowledge of the defendant, it is reasonable to require that they be averred positively. And if they are so averred, the omission of the usual formula as to information and belief does not render the affidavit defective: Eyre v. Yohe, 67 Pa. 477; Moeck v. Littell, 82 Pa. 354; Newbold v. Pennock, 154 Pa. 591; Wolf v. Jacobs, 187 Pa. 260; Andrews v. Packing Co., 206 Pa. 370; nor, on the other hand, will the concluding of such an affidavit with the averment that “ all of these facts he believes to be true, and expects to be able to prove on the trial of the case” have that effect. Viewing this affidavit as a whole it plainly and unequivocally shows that it is not based upon information but upon personal knowledge of dealings between him and the plaintiff, and while the averment of belief might have been omitted the inclusion of it certainly did not impair the effect of the preceding averments.

If the defense were simply that some of the charges in the book account which plaintiff declared upon were excessive, the objection that the affidavit ought to specify the items wordd be well founded. But the defense is not simply that they were excessive, but that when the plaintiff presented his bill the defendant objected to it for that reason, and also claimed a deduction of a certain sum for damages done by the plaintiff’s workmen, and that thereupon a dispute arose between the parties which resulted in the plaintiff’s admitting the incorrectness of the charges, and in an agreement between them as to the amount due, pursuant to .which the sum thus agreed upon was paid by the defendant, and accepted by the plaintiff in full accord and satisfaction of the claim. In such a case a specification of the items in dispute was unnecessary. “ An affidavit of defense should set forth fully and fairly, facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will he insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a defense, with certainty to a common intent is sufficient: ” Andrews v. Blue Ridge Packing Co., 206 Pa. 370. Tested by this rule, the affidavit of defense as supplemented by the second affidavit was sufficient.

The appeal is dismissed at the cost of the appellant without prejudice.


text:
    Kessler v. Connor, Appellant.
    November 19, 1906 :

      Practice, C. P. — Affidavit of defense — Contract—Failure of consideration — Promissory notes.

    In an action upon several promissory notes the affidavit of defense averred that “The notes sued upon here were given in payment for certain whisky which was ordered from the plaintiff in this suit. Under the terms of the contract, of which these notes were a part, plaintiffs agreed to deliver certain whisky to this defendant, the agreement being that the whisky was to be delivered at once and the term of these notes was in reality a period of credit. The defendant avers, however, that the plaintiff company totally ignored this phase of the contract and did not deliver any whisky to him at the time, nor have they ever delivered to him any whisky since.” Held, that the affidavit contained a clear and explicit denial that defendant had ever received any consideration for the notes in suit, and that it was sufficient to prevent judgment.
    Argued Oct. 5, 1906.
    Appeal, No. 83, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1906, No. 426, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Julius Kessler & Company v. Patrick J. Connor.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    ‘Assumpsit on promissory notes. Before Martin, P. J.
    The material portion of the affidavit of defense is quoted in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Francis M. McAdams, with him Joseph P. Rogers, and William jR. Wilson, for appellant.
    — The affidavit of defense was sufficient: Adams v. Ashman, 203 Pa. 536 ; Bronson v. Silverman, 77 Pa. 94.

      J. O. Levi, of Bamberger, Levi Mandel, for appellee.
   Opinion by

Beaver, J.,

We are of opinion that the affidavit of defense filed in this case was sufficient to prevent the entry of a judgment under the rule to show cause.

The action was based upon three several promissory notes, as to which the defendant says in his affidavit:

“ The notes sued upon here were given in payment for certain-whiskey which was ordered from the plaintiff in this suit. Under the terms of the contract, of which these notes were a part, plaintiffs agreed to deliver certain whiskey to this defendant, the agreement being that the whiskey was to be delivered at once and that the term of these notes was in reality a period of credit. The defendant avers, however, that the plaintiff company totally ignored this phase of the contract and did not deliver any whiskey to him at the time, nor have they ever delivered to him any whiskey since.”

This we regard as a clear and explicit denial that defendant had ever received any consideration for the notes upon which the action was based. The allegation is that notes were given under a contract “that the whiskey was to be delivered at once.” An express averment, therefore, that the plaintiffs did not deliver any whiskey to him at the time, nor have they ever delivered to him any whiskey since, is neither vague nor uncertain. It was not necessary to allege that no whiskey had been delivered to him previously, for that was not the contract, nor could the contract, as set forth, be so construed. The suggestion that there is no denial that the whiskey was delivered to some other person is not worthy of serious consideration. If it was so delivered and was for the defendant, it was a delivery to him and of this there is an express denial.

Irrespective, therefore, of the delay, in consequence of which defendant was compelled to purchase whiskey elsewhere, and of the alleged fraud as to the character and quality of what he had agreed to purchase from the plaintiffs, we are of opinion that there is a clear denial of consideration for the notes in suit, which raises a question of fact to be determined by a jury, and that, therefore, the rule for judgment for want of a sufficient affidavit of defense should have been discharged.

Judgment reversed and a procedendo awarded.


author: Pee Curiam,

text:
    Haspel v. O’Brien, Appellant.
    November 19, 1906 :

      Municipal liens — Mortgages—Priority of lien — Act of June 4, 1901, P. L. 364.
    Under the Act of June 4, 1901, P. L. 364, municipal liens have no priority over mortgages created prior to the passage of the act.
    Argued Oct. 12, 1906.
    Appeal, No. 104, Oct. T., 1906, by-defendant, from order of C. P. Ño. 1, Phila. Co., Dec. T., 1905, No. 1,214, making absolute rule to pay over money in case of Lewis A. Haspel, Receiver of the United Building and Loan Association of Philadelphia, v. Daniel O’Brien, Mortgagor, Wilson H. Brown, Sheriff, and the City of Philadelphia.
    Before Rice, P. J., Poetes,, Henderson, Morrison, Oready, Head and Beaveb, JJ.
    Affirmed.
    Rule upon the sheriff to pay over money.
    From the record it appeared that on a scire facias sur mortgage the mortgaged premises were sold, and the sheriff retained out of the purchase money a sum sufficient to cover tax claims and water rent due to the city of Philadelphia. The mortgage was created in September 24, 1892. The taxes and water rent were for the years 1905 and 1906. Plaintiff took a rule on the sheriff to show cause why the money retained by him should not be paid to the plaintiff. This rule was made absolute.

      Error assigned was the order of the court.

      John Gr. Johnson, with him Mayne B. Longstreth, James Alcorn and John L. Kinsey, for appellants.

      Wayne P. Rarnbo, with him Albert L. Lewis and Ormond Bambo, for appellee.
   Pee Curiam,

A reconsideration of the substantial question raised on these appeals, with the aid of the argument of the appellant’s counsel, has failed to convince us that our rulings in Martin v. Greenwood, 27 Pa. Superior Ct. 245, and Oil City B. & L. Assn. v. Shanfelter, 29 Pa. Superior Ct. 251, were erroneous, and ought to be overruled. Nor can we see that any useful purpose would be served by .further discussion of the question on our part.

The order appealed from in each of the foregoing cases is affirmed at the appellant’s costs.


author: Per Curiam,

text:
    Lucas, Appellant, v. Ætna Indemnity Company.

      Contract — Subcontractor—Performance of contract.

    In an action upon a contract it appeared that the defendant was engaged in completing a building operation, and that the plaintiffs were manufacturers and dealers in paint. The defendants had an agreement with a contracting painter by which the latter was to do painting on the building operation, payments to be made in installments. The contractor, the plaintiffs and defendant entered into an agreement by which the plaintiffs were to deliver paint on the certificate of the contractor, and were to be paid by defendant twenty-five per cent of the amount due the contractor as each payment matured. It was further agreed that an amount not exceeding a sum stated should be set aside by defendant from the cash reserve of the contract between the contractor and the defendant, and that this should be paid or such proportions thereof that might be due to the plaintiffs, when the said cash or reserve was available. The cash reserve was not payable until thirty days after the final completion of the painting upon the entire operation. It appeared that payments were made to plaintiff, but not in the exact installments, or at the exact periods provided for in the contract between the defendant and the contractor. There was no sufficient evidence to support a finding that substantial performance had been had of the contract between the contractor and the defendant, so as to make the cash reserve available, as required by the contract between plaintiffs and defendant. It did not appear that the plaintiffs were in any way misled or injured by the fact that payments to the contractor were not made by the defendant in the exact installments, or at the exact periods provided by their agreement with him. Held, that plaintiffs were not entitled to recover.
    Argued. Oct. 4,1906.
    Appeal, No. 7, Oct. T., 1906, by plaintiffs, from judgment of C. P. No. 8, Phila. Co., June T., 1906, No. 2,994, for defendant non obstante veredicto in case of John Lucas, trading as John Lucas and Company, to use of William H. Lucas, Trustee for John Lucas, trading as John Lucas & Company, v. ¿Etna Indemnity Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract. Before McMichael, J.
    At the trial the jury returned a verdict for plaintiffs for $1,332.50.
    On a motion for a judgment for defendant non obstante veredicto, von Moschzisker, J., filed the following opinion :
    The defendant in this case has taken a rule for a new trial and has moved for judgment non obstante veredicto under the Act of April 22,1905, P. L. 286. The material facts are briefly as follows: The ¿Etna Indemnity Company made a.contract with one A. W. Corney to paint seven rows of houses, and agreed to pay the said Corney for this painting the sum of $10,000, of which amount $4,400 in cash was to be paid in installments at fixed periods as the work progressed up to full completion, $2,000 cash was to be held as a reserve fund and paid within thirty days after the final completion of the painting upon the entire operation, and $3,600 was to be paid in real estate equities. Corney not having the necessary credit to carry out his contract, made an arrangement by which John Lucas & Company were to furnish him with paints and to receive from the ¿Etna Indemnity Company payment therefor. Whereupon the ¿Etna Indemnity Company wrote the following letter to Lucas & Company:
    “Please deliver to Mr. A. W. Corney, paints, glass and painters’ materials as he may order for his contract with us, in the Sol Greenberg operation at 29th and Huntingdon streets: All bills tobe certified by said A. W. Corney and the payment therefor shall be made on the following basis :
    “ Twenty-five per cent, of the respective amounts due and payable to the said A. W. Corney during the progress of the work to be set aside and paid to John Lucas & Co., as each payment matures, on account of the said material furnished, and we agree to see that these payments are made in accordance, with the said contract between the above company and A. W. Corney.

      “ It is further agreed to set aside an amount not exceeding $1,000 from the cash reserve of the aforesaid contract and pay the same or such proportions of same that may be due to the said John Lucas & Co., when the said cash or reserve is available.”
    After doing the work upon six of the rows of houses, and simply priming the frames in the seventh row, Corney refused to finish painting the seventh row of houses unless he obtained more money. At that time Corney had been paid'in cash $4,335, of which amount the plaintiffs, Lucas & Company, had received their full percentage. These payments, however, were not made in the exact installments or at the exact periods provided for in the contract between the iEtna company and Corney. This suit was brought to recover the $1,000 of the reserve fund, referred to- in the above contract between Lucas & Company and the iEtna company, and a verdict was rendered for the plaintiffs in that,amount with interest, in all $1,332.50. At the trial, the defendant did not offer any evidence, but presented a point, under the act of 1905, asking for binding instructions and moved that the evidence be certified as part of the record, as provided for in that act. The principal questions are : Can the evidence produced at trial be held to sustain the verdict? If not, should a new trial be granted, or should judgment be entered on the evidence in favor of the defendant ?
    A review of the record in this case shows that there is not any sufficient evidence to support a finding that substantial performance had been had of the contract between Corney and the iEtna company, so as to make the cash reserve under said contract available, as required by the contract between Lucas & Company and the iEtna company. As the plaintiffs’ case is stated in their declaration and under the charge of the court, which very properly followed the declaration, it is essential that such a finding of substantial performance should be made by the jury, and that the finding should be supported by sufficient evidence, before a verdict for the plaintiffs could properly be had or can now be sustained. The evidence shows absolutely and uncontradictedly that there was not any such substantial performance, and it fails utterly to show any sufficient excuse in proper detail that would justify the court in instructing the jury, or that would justify the jury in finding that, for the purposes of this case the necessity for such substantial performance had been dispensed with, nor could the court have said, nor could the jury have found, that the defendant was estopped from standing upon its contract rights and insisting that substantial performance should be shown as a prerequisite to recovery.
    The right of Lucas & Company to recover for all goods sold and delivered to Corney personally, may be an absolute uncon-, ditional right as against said Corney, but their right to recover against the ¿Etna company, under the contract here relied upon, was not absolute and unconditional, but was only a right to receive a certain percentage of the payments to Corney, which they did receive, and to receive $1,000 from the reserve fund upon the condition that that fund be made available by substantial performance. Hence, in this suit on the contract the case was properly presented to the jury with instructions that they must find that such substantial performance had been had before they could find for the plaintiffs. They so found by their verdict, but the evidence fails to -support such a finding. As to estoppel, the verdict cannot be sustained on the ground that by continuing to pay Corney sums of money in advance of the stipulated times and manner for payment, as stated in the contract between Corney and the ¿Etna company, that the ¿Etna company so far varied that contract as to estop them, the ¿Etna company, from insisting upon substantial performance thereof as a prerequisite to recovery against the ¿Etna company by John. Lucas & Company, for it is to be remembered ..that Corney still had $2,000 in cash and $8,600 in properties coming to him as a fund with which to pay for the finishing of his contract when he had completed same, and that he had been paid, not only in full, but more than the amount that he had a right to expect at the time he quit, so far as the testimony as presented in this case goes to show, and, further, that Lucas & Company received their full percentage of all the payments made to Corney up to the time he quit. Under these facts the court could not apply the equitable doctrine of estoppel, as contended for by the plaintiffs, and thereby entirely dispense with that part of the contract between Lucas & Company and the ¿Etna company which requires the reserve fund in the Corney contract to be made available by substantial performance of the whole and entire Corney contract before the $1,000 should become due and legally demandable by Lucas & Company.
    The testimony presented at the trial fails to show any material variations in the performance of the contract between Corney and the iEtna company which would have made the reserve fund available to Corney, and hence to Lucas & Company, before substantial performance of the entire contract had been ■had. The only variation which was substantially shown was the advances made in the payments before referred to, and as the contract was an entire one, that variation alone cannot be taken to dispense with entire substantial performance in order to make the reserve fund available.
    Further, the verdict found in this case cannot properly be sustained on the theory that the iEtna company, by advancing payments ahead of - the time fixed in their contract with Corney, misled Lucas & Company to their damage, to the extent of $1,000, with interest, the sum found by the jury in this case ; that by such advances the iEtna company thereby caused Lucas & Company to give credits and deliver goods to Corney which .they would not otherwise have done; for this was not the case presented by the plaintiff’s statement of claim or by the charge of the court for the consideration of the jury.
    The plaintiffs, in their statement of claim, rely upon the' fact that all payments were made in accordance with the contract between Corney and the iEtna company, to the extent of $4,260, and that there remained due to said Corney, upon the completion of the work upon the buildings and operation referred to in said contract, only the sum of $140, and that the said Corney having failed to complete the work entitling him to receive the additional $140, the iEtna companjr had employed another contracter to complete said work; in other words, that as only $140 worth of work remained to be done in order to give substantial performance of Corney’s contract, and as that work had been done or could have been done by another contractor, and as the iEtna company had the full $2,000 reserve fund and $3,600 in equities with which to pay this $140 worth of work, it would be inequitable to hold up the reserve fund against Lucas & Company under such circumstances, but, unfortunately for the plaintiffs, when they came to prove their case, it appeared that the painting of at least one entire row of houses had not been completed by Corney, and hence there was an utter failure of proof as to the case set forth in the declaration. An attempt seems to have then been made to swing the case from an action under the contract, as set forth in the declaration, to an action for damages for a breach of the contract between John Lucas & Company and the iEtna company on the theory that there had been a breach of that contract by the failure of the latter company to see that the payments to Corney were made in accordance with the contract between Corney and the iEtna company; but, as before said, this was not the case presented to the jury for their consideration, hence, a verdict cannot be sustained on that theory. Even had the case been so stated, the verdict would have to be set aside, for no reasonable construction of the clause in the contract between Lucas & Company and the iEtna company, wherein it is stipulated that the iEtna company will see that the payments to Corney will be made in accordance with the contract between that company and the said Corney, makes the time or method of such payments in any sense the essence of the contract contained in that stipulation. The words “in accordance,” as there used simply have reference to the amounts to be paid to Corney, and thus to the sum total to be paid to him, and it is to be observed that such is the only reference which is anywhere in that contract made to the total amount which the iEtna company is to pay to either Corney or John Lucas & Company; in addition to this, the proofs as here presented would, not sustain a finding that any damages recoverable in law were suffered by the plaintiffs through such advance payments to Corney by the .¿Etna company. No jury could be allowed to find that the plaintiffs were so far deceived and misled by these advance payments that they could be considered as the proximate and moving cause for the delivery of goods to Corney which would not otherwise have been delivered, and that the plaintiffs were thereby damaged to some fixed and certain amount. It must be presumed that the plaintiffs could have inspected the building operation at any time to see whether Corney was fulfilling his contract, so as to protect themselves against his default and the consequent effect upon the reserve fund. They had no legal right to accept the percentage of the payments to Corney and rest at ease, relying upon the ¿Etna company to protect them under the contract as stated between said company and the plaintiffs. The contract will not bear any such construction. However, the claim as set forth in the plaintiffs’ ,}statement is under the contract and not for damages for a breach of the contract, and the evidence fails to sustain the verdict.
    November 19, 1906 :
    The rule for a new trial is discharged. Judgment is entered for the defendant non obstante veredicto, under and by authority of tire act of 1905, supra, and an exception Is granted to the plaintiffs as therein required.
    Plaintiffs appealed.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      Julius Q. Levi, with him David Mandel, Jr., for appellants.—
    Where a party acting honestly, and intending to fulfill his contract, performs it substantially, but fails in comparatively slight particulars, he may recover, subject to a reduction for the imperfections and.damages sustained by not strictly complying with the contract: Preston v. Finney, 2 W. & S. 53; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Monocacy Bridge Co. v. American Iron Bridge Mfg. Co., 83 Pa. 517.
    The question of substantial completion of a contract is for the jury : Shires v. O’Connor, 4 Pa. Superior Ct. 465.

      A. D. Wiler, of Wiler Elliott, with him J. Quincy Hunr sicker, for appellees.
   Per Curiam,

The judgment is affirmed upon the opinion of the learned judge of the court below.


author: Head, J.,

text:
    United Oil Cloth Company v. Dash, Appellant.

      Practice, C. P. — Affidavit of defense — Judgment for amount admitted— Interest — Act of May 31, 1893, P. L. 185.
    Whilst the Act of May 31, 1893, P. L. 185, furnishes ample warrant for a plaintiff to take judgment for an amount admitted to be due and to proceed to recover the balance, such judgment must be strictly confined to the amount clearly and fairly admitted to be due. Interest cannot be allowed, where the statement furnishes no facts from which it can be determined how much interest, if any, is due.
    In an action for goods sold and delivered, an affidavit of defense is sufficient to prevent judgment, which admits that the goods charged for at the prices named were shipped to and received by defendants, but avers that the same goods, by arrangement with the plaintiff, were not only reshipped to, but actually received by the plaintiff, by reason whereof the defendants are entitled to credit at the invoice prices.
    Argued Oct. 4, 1906.
    Appeal, No. 21, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1905, No. 1,815, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The United Oil Company v. Louis Dash and Bernard S. Siegel, trading as New York Commission Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for amount admitted to be due.
    Rule for judgment for want of a sufficient affidavit of defense.
    From the record it appeared that after the original affidavit of defense was filed, judgment was entered for $56.77 for the amount admitted to be due. After the supplemental affidavit of defense was filed, the court made absolute a rule for judgment for want of a sufficient affidavit of defense, and damages were assessed in the sum of $198.05.

      Errors assigned were (1) in entering judgment for $56.77 as the amount admitted to be due; and (2) in making absolute a rule for judgment for want of a sufficient affidavit of defense.

      John O. Grady, for appellant,
    cited: Coburn v. Reynolds, 3 Pa. Dist. Rep. 475; Taylor v. Nyce, 3 W. N. C. 433; Bank v. Flanigan, 15 Phila. 102; Bingham v. Lamping, 26 Pa. 340; Com. v. Fleming, 130 Pa. 138; Bacharach v. Chester Freight Line, 133 Pa. 414; Dannemiller v. Kirkpatrick, 201 Pa. 218.
    November 19, 1906:

      Alfred Aarons, with him Henry N. Vessel, for appellee,
    cited: Hollohan v. M’Lean, 1 W. N. C. 262; Cauley v. Ry. Co., 95 Pa. 398; McCosh v. Myers, 25 Pa. Superior Ct. 61; Com. v. Pilnik, 29 Pa. Superior Ct. 285; Emerson v. Schoonmaker, 135 Pa. 437; Lyons v. Means, 1 Pa. Superior Ct. 608; New Castle City v. Electric Co., 2 Pa. Superior Ct. 228.
   Opinion by

Head, J.,

The plaintiff brings this action to recover a balance of $242.60 alleged to be due on an account wherein there is charged to the defendants the sum of $1,069.55, the price of certain goods shipped and delivered to them at various dates between November 4, 1904, and February 6, 1905. As against the account so charged the plaintiff allows credits of $826.95, leaving the balance sued for as above stated, $242.60. The defendants filed their affidavit of defense in which they specifically set forth that as against the items of charge shown in the statement they were entitled to credit for a remittance of $144.50, an allowance made by the plaintiff of $25.00, a discount of $2.95 and a credit for goods returned in January of $78.35. They further averred that a dispute had arisen between the parties as to some of the goods and, after a visit from the representative of the plaintiff, it was agreed that goods should be returned and that they actually were returned as follows: March 1, $257.80; March 7, $159.20; March 13, $97.50, and March 30, $259.70, making a total credit as against the account claimed of $1,025, but leaving a balance due of $44.55 as to which no defense was made. The prices mentioned above are averred to be the invoice prices at which same goods are charged in the account.

As to the items of credit claimed for goods returned the averment of the defendants was not only clear and emphatic, but they went so far as to set forth in their affidavit' certain correspondence with the railroad company which would tend to prove the truth of their averment in this respect. After the filing of the affidavit the plaintiff first took a judgment for what was claimed to be admitted to be due, but instead of confining the judgment thus taken to the sum actually admitted, to be due the plaintiff undertook to add a considerable amount by way of interest. Whilst the statement in a general way claims interest on the balance shown by the account to be due it furnishes no facts from which it can be determined how much interest, if any, should be allowed.

Until the passage of the act of 1893, the plaintiff could not have thus taken judgment for a portion of his claim on the ground that the defendant made no defense as against it. Whilst that act furnishes ample warrant for a plaintiff taking judgment for an amount admitted to be due and proceeding to recover the balance, it would seem clear that the judgment must be strictly confined to the amount clearly and fairly admitted to be due. There is no warrant to be found in the language of the act for going beyond this amount. We think, therefore, that the entry of a judgment for $56.77 cannot be justified, but there is no necessity to send the case back for any further proceedings in the court on this feature of the case. It is our right and our duty in such a ease to modify the judgment so as to bring it into harmony with established principles, and we, therefore, direct the judgment heretofore entered to be reduced from $56.77 to $44.55, the amount admitted to be due. Upon the other branch of the case we cannot but feel that the affidavit and supplemental affidavit of defense fairly disclosed a state of facts which ought to have carried the case to a jury for trial. It has often been held that where an affidavit of defense, in good faith and with reasonable certainty to a common intent, sets forth a meritorious defense, nothing more can be required. Such affidavits are not to be subjected to the nice criticisms that were formerly applied to special pleas and demurrers when these were the chosen means of exploiting the fine technical skill of the professional pleader. In this case the defendants do not answer the claim of the plaintiff by setting up that there is money due them arising out of some other contract, and, therefore, the cases cited by the appellee relating to a defense under the defalcation act do not apply. The affidavits here simply deny the consideration on which the action is founded. They admit that the goods charged for at the prices named were shipped to and received by them, but they just as clearly aver that the same goods, by arrangement with the plaintiff, were not only reshipped to but actually received by the plaintiff, by reason whereof they, the defendants, were entitled to credit at the invoice prices. If this allegation be true the plaintiff’s claim to that extent has failed. Whether it is true or not is a question of fact that ought to be and must be tried by a jury. We think, therefore, the learned court below was in error in making absolute the rule for judgment for want of a sufficient affidavit of defense.

And now,-to wit: November 19, 1906, the judgment heretofore entered for the amount admitted to be due is reduced to the sum of $44.55. The order of the court making absolute the rule for judgment as to the balance of the claim, for want of a sufficient affidavit of defense, is reversed and set aside and a procedendo is awarded. The costs of this appeal to be paid by the appellee.


text:
    Miller v. Douglas, Appellant.

      Bailment — Conditional sale — Contract.
    A paper under which an engine was delivered purported on its face to be a lease, and provided for payments running for six months. It contained amongst other matters the following expressions: “That when all these payments are made, in accordance with the terms of lease we will issue a bill of sale.” “You are also to secure a letter from your landlord, exempting the engine from all claims for rent.” “In the event of you failing to make payments according to the lease, you are to forfeit the money paid, and allow us to take engine from your place, without recourse to law.” Held, that the paper constituted a bailment.
    Argued Oct. 5, 1906.
    Appeal, No. 68, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 1,040, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. J. Miller and E. W. Morris, trading as Miller, Morris & Company, v. Gawn Douglas and Fred Crsemer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Replevin for an engine.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      Pereival H. Granger, with him J. Howard Reher, for appellant.
    — There is no better settled principle of law in Pennsylvania than that a contract transferring the possession of personal property to another, the owner reserving the naked title thereof solely for the purpose of securing payment of the price agreed upon, is a conditional sale, and, while perfectly good between the parties, is void as to creditors and bona fide purchasers from the transferee without notice: Forrest v. Nelson, 108 Pa. 481; Martin v. Mathiot, 14 S. & R. 214; Brunswick & Balke Co. v. Hoover, 95 Pa. 508; Farquhar v. McAlevy, 142 Pa. 233; Ott v. Sweatman, 166 Pa. 217 ; Morgan-Gardner Electric Co. v. Brown, 193 Pa. 351.
    It is of course immaterial whether the parties have called the . agreement a lease o.r a conditional sale, since the court will always examine the instrument itself to determine its true construction and to ascertain the intention of the parties: Hervey v. Locomotive Works, 93 U. S. 664.
    The present contract is not even in form a bailment. Although from the wording of the agreement, it might possibly be contended that the payments were reserved as rent, this obviously was not the case, because the payments are to be made, not for the use of the engine, but for the engine itself. In other words, this is an attempt to secure the payment not of rent, but of the purchase money, and, therefore, while good between the parties, is void as to creditors: Harper v. Hogue, 10 Pa. Superior Ct. 624; Stadtfeld v. Huntsman, 92 Pa. 53; Com. v. Harmel, 166 Pa. 89 ; Rieker v. Koechling, 4 Pa. Superior Ct. 286; Farquhar v. McAlevy, 142 Pa. 233.

      Harry E. Holm, for appellees.
    — The case is ruled by Stiles v. Seaton, 200 Pa. 114; see also Machinery Co. v Fromuth, 15 Pa. Superior Ct. 339; Forrest v. Nelson, 108 Pa. 481; Martin v. Mathiot, 14 S. & R. 214; Brunswick & Balke Co. v. Hoover, 95 Pa. 508; Electric Co. v. Brown, 193 Pa. 351; Dearborn v. Raysor, 132 Pa. 231; Haak v. Linderman, 64 Pa. 499; Com. v. Harmel, 166 Pa. 89; Stadtfeld v. Huntsman, 92 Pa. 53; Roller Co. v. Spyker, 215 Pa. 332; Lippincott v. Scott, 198 Pa. 283; Edwards’s Appeal, 105 Pa. 103; Enlow v. Klein, 79 Pa. 488; Ditman v. Cottrell, 125 Pa. 606; Scott v. Massey, 18 Pa. Superior Ct. 372.
    November 19, 1906:
   Opinion by

Beaver, J.,

Plaintiffs brought their action of replevin against Douglas and one Craemer, to whom Douglas had sold a gas engine, alleged by the plaintiffs to have been delivered to Douglas under the terms of a written agreement which constituted a bailment. Craemer filed an affidavit of defense under the terms of the 5th section of the Act of April 19, 1901, P. L. 88, “ denying plaintiffs’ title and showing his own title to said ” engine.

The only question in the case arises out of the construction of the paper writing, under which it is admitted the engine was delivered to Douglas. In order to determine the effect of this paper, it will be well to set it out in full. It is in the form of a letter dated October 30, 1905, as follows :

“We propose to lease to you one 2 H. P. National Horz. Gas Engine, complete with all fixtures and fittings, as per catalogue, and deliver same to your place.

“ Terms of lease: Twenty ($20.00) dollars cash, Ten ($10.00) dollars cash in one month, Fifteen ($15.00) dollars cash in two months, Twenty ($20.00) dollars cash in third, fourth and fifth month, and Fifteen ($15.00) dollars cash in six months.

“When all these payments are made in accordance with terms of lease, we will issue a bill of sale. In the event of you failing to make payments according to lease, you are to forfeit the money paid and allow us to take engine from your place, without recourse to law.

“ You-are also to secure a letter from your landlord, exempting the engine from all claims for rent, etc.

“We guarantee the engine strictly first-class, free from defective parts or faulty workmanship.”

This was signed by the plaintiffs and accepted by Douglas, one of the defendants.

It is apparent from the terms of the paper that the plaintiffs contemplated, a more formal agreement, but none appears to have been prepared and sighed.

Accepting the paper as it is, was it the intention of the parties to constitute a bailment and do the terms used carryout that intention, or do the terms of the paper, in themselves considered, constitute a conditional sale ?

We are of the opinion that the parties contemplated a bailment, and that the terms of the proposition made by the plaintiffs and accepted by one of the defendants, taken together, constitute in law a bailment.

It is true that the mere proposition to lease, as has been held in Roller Co. v. Spyker, 215 Pa. 332, will not of itself be construed to constitute a bailment, when none of the indications of a lease are present. It is claimed by the appellants that there is no definite term fixed in the paper and no stipulation to return. But these, as is said in Roller Co. v. Spyker, 215 Pa. 332, are not essential to a bailment, but important and even controlling evidence of the intention of the parties. See Stiles v. Seaton, 200 Pa. 114.

Was it the intention of the plaintiffs to part with their title, when the possession of the engine was delivered to Douglas? That they did not is, we think, apparent from their proposition. They provide: “ Terms of lease ” running through six months, which may well be regarded as the term of the lease. They provide : “ That when all these payments are made, in accordance with terms of lease, we will issue a bill of sale,” evidently implying that no sale is to be made, until the terms of the lease are complied with. They provide further: “You are also to secure a letter from your landlord, exempting the engine from all claims for rent, etc.”. If a sale were intended, why make such a provision ? Although a return by the bailee is not in terms stipulated, it is, nevertheless, provided: “ In the event of you failing to make payments according to lease, you are to forfeit the money paid and allow us to take engine from your place, without recourse to law.” This was practically the stipulation in Stiles v. Seaton, 200 Pa. 114.

Considering the scope and effect of all the stipulations of the paper above quoted, we are of opinion that the parties intended to constitute thereby a bailment and that' such is the legal effect of its terms. It follows, of course, that the sale by Douglas to Craemer did. not divest’ tbe plaintiffs’ title. Judgment was properly entered, therefore, in our opinion for want of a sufficient affidavit of defense.

The damages under the judgment, as entered, will, of course, be ascertained in accordance with the provisions of section 5 of the Act of April 19, 1901, P. L. 88. See Painter v. Snyder, 22 Pa. Superior Ct. 603.

Judgment affirmed.


author: Pek Curiam,

text:
    Rovno v. Lorentz, Appellant.

      Landlord and tenant — Waiver of appeal — Striking off appeal — Eviction — Discretion.
    A waiver of a right of appeal in a lease may be claimed by the lessor, although the lessee sets up the defense of eviction. In such a case the justice has jurisdiction to determine the question whether there was in fact an eviction, and the agreement is in effect that the lessee will be bound by his decision.
    If there are any special facts which will preclude the lessor from claiming the waiver, the lessee may show them in response to a rule to show cause why the appeal shall not be struck off. If he fails to do so the rule will be made absolute.
    A subsequent application to reinstate the rule to strike off upon the ground of after-discovered evidence, is addressed to the sound discretion of the court below.
    Argued Oct. 9, 1906.
    Appeal, No. 32, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 506, making absolute rule to strike off appeal in case of Philip Rovno v. Morris A. Lorentz.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordadv, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off appeal from judgment of magistrate.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      November 19, 1906 :

      James M. Dohan, with him Milton M. Cohen, for appellant,
    cited: Vaughan v. Blanchard, 4 Dall. 124; Reaney v. Fannessy, 14 W. N. C. 91; Eldridge v. Francis, 2 Lane. L. R. 212; Minich v. Basom, 2 Pa. Dist. Rep. 709.

      Joseph Cross, for appellee,
    cited: Pritchard v. Denton, 8 Watts, 371; Strojny v. Merofchinski, 9 Kulp, 444; Cawley v. Bohan, 120 Pa. 295 ; Lippincott v. Cooper, 19 W. N. C. 130 ; Kauffman v. Lauer, 11 Pa. Dist. Rep. 664; Balhoun v. Logan, 22 Pa. 46; Brown v. School Directors, 18 Pa. 78.
   Pek Curiam,

This case came into the common pleas by appeal on the part of the defendant from the judgment of a magistrate. But it appeared in the transcript of the magistrate that the action was brought for rent alleged to be due under a lease which contained this clause, “ The lessee waives all right of appeal from, or writ of error, or certiorari to any judgment, order or decree that may be entered against by any court or magistrate, for rent, damages, possession or otherwise.” The validity of such agreements cannot be questioned : Pritchard v. Denton, 8 Watts, 371; Foss v. Bogan, 92 Pa. 296; Cawley v. Bohan, 120 Pa. 295. See also Seagrave v. Lacy, 28 Pa. Superior Ct. 586. But it is contended that as the transcript shows that the defendant set up the defense of eviction the right to claim the waiver was barred. We cannot give assent to this proposition. The justice had jurisdiction to determine the question whether there was in fact an eviction, and the agreement was, in effect, that the lessee would be bound by his decision. If there were any special facts which would preclude the plaintiff from claiming the waiver, the defendant had opportunity to show them in response to the rule to show cause why the appeal should not be struck off. See Pritchard v. Denton, 8 Watts, 371. But he neglected to avail himself of this opportunity; therefore, as it appeared by the trans-script that the right of appeal was waived, the court was right in making absolute the rule. The subsequent application to vacate this order, and reinstate the rule upon the ground of after-discovered evidence was addressed to the sound discretion of the court below. No depositions were filed in support of it, and nothing appears in the record brought up to us to show that the court improperly exercised its discretion in refusing it.

The assignments of error are overruled,- and the order making absolute the rule to strike off the appeal is affirmed, the costs to be paid by the appellant.


text:
    Hentzler v. Weniger, Appellant.
    ■ Appeals — Assignments of error — Granting new trial — Quashing assignments.

    Assignments of error to the effect that the court erred in entering judgment for plaintiff on the verdict, and in not granting a new trial, will be dismissed, where it appears that all defendant’s points for charge were withdrawn, excepting one, which was affirmed, that the charge was not excepted to, that the verdict was regular in form, that there was no motion in arrest of judgment, or for judgment for the defendant non obstante veredicto, that no exception was taken to the order overruling the motion for a new trial, and that the reasons assigned in support of that motion were not printed in the appellate’s paper-book.

      Contract — Decedents’ estates — Evidence.
    In an action against an executor based upon an alleged contract made between decedent and plaintiff, unsworn declarations of the testatrix, in the absence of plaintiff, at the time she made her will, are irrelevant to the question at issue, namely, whether she made the alleged contract, or was justified in refusing to perform it.
    Even if such declarations were admissible, an offer relating to them will be overruled, where it does not set forth the substance or purport of the declarations, so as to enable the court to determine whether they were favorable or otherwise to the defendant.
    Argued Oct. 9, 1906.
    Appeal, No. 97, Oct.T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 951, on verdict for plaintiff incase of Charles Hentzler v. Hans Weniger, Executor of Mary Barbara Schunzel, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract. Before Atjdenried, J.
    At the trial it appeared that plaintiff, a brother-in-law of the decedent, claimed to recover for board and care of the decedent from May, 1901, until May, 1902. Decedent-died on August 6, 1908. There was evidence that decedent left the plaintiff’s house in May, 1902, and resided elsewhere until she died.
    November 19, 1906:
    When Hans Weniger, the executor, who also made the will, was on the stand the following question was addressed to him: “ Q. I see by the last will which was offered in evidence here, the one which was probated, has a clause in it which the decedent says, ‘ I give, devise and bequeath five dollars to my stepbrother, Karl Frederick Hentzler, barber, living at No. 1215 North Twenty-seventh street, Philadelphia. I have been living at his house for a year and was not treated well. I have paid my rent and board and given him many presents, and don’t owe him anything.’ What, if anything, did Mrs. Schunzel tell you at the time you drew this will for her, with reference to leaving only $5.00 to this man ? ”
    Objected to. Objections sustained. Exception noted for the defendant by direction of the court. [1]
    “ Q. What, if anything, did she say to you at the time she drew this will, with reference to the treatment which she received at the hands of Mr. and Mrs. Hentzler ? ”
    Objected to. Objection sustained. Exception noted for the defendant by direction of the court. [2]
    "Verdict and judgment for plaintiff for $1,170. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence; (3) in entering judgment for plaintiff on tbe verdict; and (4) in not setting aside the verdict and granting a new trial.

      Samuel H. Kirkpatrick, with him M. B. Elwert, for appellant.

      Henry W. Scarborough, for appellee.
   Pee Curiam,

All the defendant’s points for charge were withdrawn excepting the ninth, which was affirmed, the charge was not excepted to, the verdict was regular in form, there was no motion in arrest of judgment, or for judgment for the defendant non obstante veredicto, no exception was taken to the order overruling the motion for new trial, and the reasons assigned in support of that motion are not printed in the appellant’s paper-book. It is plain, therefore, that the plaintiff’s motion to quash or dismiss the third and fourth assignments of error is well founded. The case of Stephens v. Gunzenhauser, 27 Pa. Superior Ct. 417, cited by the appellant’s counsel in support of the third assignment, is not in point. The decision in that case was put upon the ground that the verdict was unintelligible in form, and was not amendable by this court.

In the first and second assignments, the defendant complains of the action of the court in sustaining the objection to his offer to testify to what the testatrix said to him at the time he drew her will, with reference to the bequest to the plaintiff, and with reference to the treatment which she received at the hands of the plaintiff and his wife. The offer, it is to be noticed, does not set forth the substance or purport of these declarations, so as to enable us to determine whether they were favorable or otherwise to the defendant. According to the ruling in Harris v. Tyson, 24 Pa. 347, this, of itself, would' be a valid reason for overruling the assignment. But apart from the objection that the record does not show that the rejection of the offer, even though technically erroneous, harmed the defendant, there is the further obvious objection that, prima facie, the unsworn declarations of the testatrix, in the absence of the plaintiff, at the time she made her will, were irrelevant to the questions at issue, namely, whether she made the alleged contract, or was justified in refusing to perform it. Nor was there anything in the other testimony to show their relevancy. If there were any facts which would make them admissible as part of the res gestae, as is now claimed, or for any other purpose, they ought to have been set forth in the offer. Upon the record as presented to us we are unable to say that any error was committed in the rejection of the offer of which the defendant has just reason to complain.

All the assignments are overruled, and the judgment is affirmed.