text:
    Behney v. R. Stoever Foundry Company, Appellant.

      Contract — Employment of minor — Wages—Loss of time — Apprenticeship.
    An owner of a foundry entered into a contract with the father of a minor by which the minor was to be employed in the foundry for the term of three years at stated wages. It was a rule of the foundry that minors accepted to learn the trade were not to be considered as indentured, but were to be under the control of their parents or guardians before and after working hours, their monthly wages to be in lieu of board and clothing. It was provided in the contract that apprentices at the expiration of the three years must “work out in addition the time they have lost during their apprenticeship.” As security for the faithful performance of his duties by the apprentice, ‘it was provided that the preceding six months of his pay should be withheld, to be forfeited if he left the establishment before his time had expired. The minor was absent during a considerable portion of his term, a part of the absence being occasioned by sickness. Held, that the minor was bound to make up the time during which he was sick, and that if he failed to do so a deduction could be made from the wages retained.
    Argued Oct. 26, 1905.
    Appeal, No. 186, Oct. T., 1905, by defendant, from judgment of C. P. Lebanon Co., Sept. T., 1903, No. 111, on verdict for plaintiff in case of Jerome Behney v. R. Stoever Foundry Co.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for minor’s wages. Before Ehrgood, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $44.76. Defendant appealed.

      March 12, 1906:

      Error assigned was in refusing binding instructions for defendant.

      Grant Weidman, for appellant.

      Robert L. Adams, with him J. G. Adams, for appellee.
   Opinion by

Henderson, J.,

The appellant accepted the plaintiff’s minor son to work in its shops according to certain rules and regulations which were signed by the parties as the agreement between them. The contract does not create an apprenticeship at common law or under our statute. There was no binding by indenture to service as an apprentice and this is necessary to create that relation : Reeves’ Domestic Relations, 484; Phelps v. Railway Co., 99 Pa. 108. It is provided, moreover, in the rules and regulations referred to that minors accepted to learn the trade are not to be considered as indentured 'but are to be under the control of their parents or guardians before and after working hours, their monthly wages to be in lieu of board and clothing. The term “ apprentice ” in the agreement is, therefore, to be understood in its popular sense as descriptive of one who is learning a mechanical art. The action is for wages of a minor son alleged to be due to the plaintiff. It is provided in the contract that working hours for apprentices shall be ten per day and the full term of apprenticeship three years. There is the further provision that all apprentices must, at the expiration of the three years, “ work out in addition the time they have lost during their apprenticeship.” As security for the faithful performance of his duty by the apprentice it is provided that the preceding six months of his pay shall be withheld, to be forfeited if he leave .the establishment before his time has expired. The plaintiff’s son was absent from his employment a considerable portion of the term for which he was engaged, a part of which absence was occasioned by sickness. The learned trial judge instructed the jury that the contract did not require that the son make up the time during which he was sick and of this instruction the appéllant complains. The case turns, therefore, on the interpretation to be given the requirement of the contract that the full term of three years shall be spent in the service, at the expiration of which the apprentice shall work ont in addition the time he lost. The consideration rendered by the defendant was not simply the amount to be paid the father for the service of his son, but also the opportunity afforded to learn a useful trade under competent instruction. The plaintiff undertook that his son should apply himself diligently in acquiring the art and the defendant, that it would afford him the necessary opportunity. It was in mutual contemplation that three full years were necessary to the acquisition of the required skill, and the steadily increasing ability of the apprentice would have a larger value to the employer from year to year. It was the interest as well as the prerogative of the employer to insist that the working days of three years should constitute the time of the son’s service and this accounts for the provision for lost time. The presence of inexperienced boys in the works would cause more or less loss to the employer and call for greater care and attention on the part of the foremen and skilled employees and it cannot be said to be an unreasonable condition of the contract that the apprentice should make up at the end of the three years the time during which he was nob at work before the expiration of the period contracted for. That the time during which the son was sick was “ lost ” to the defendant, is quite evident. It was unused, unenjoyed, unemployed, missed time. It was time as completely lost, so far as the interests of the defendant or the increased skill of the apprentice were concerned as if the absence had been intentional and voluntary. The defendant had a right to the consideration which the plaintiff was to give, to wit: the service of the son for the working days of three years, and to insist that three years should be spent in acquiring the instruction which it undertook to give. This we think is expressly provided for in the contract. The plaintiff was sui juris, the subject of the contract is not forbidden by public policy, its consideration was valuable and no sufficient reason has been presented to us why it should not be- enforced according to its terms. The case which seems to have influenced the' action of the trial judge, Caden" v. Farwell, 98 Mass. 187, is distinguishable from the one we are now considering. That was a case on an indenture of apprenticeship made directly with the minor. It was provided in the deed that the apprentice should faithfully serve his masters and give them his whole time and labor for three years, at the expiration of which he would become of age. There was no provision for making up lost time, nor for abatement of the wages which he was to receive during his apprenticeship. The apprentice died during his term of service after having been sick a few weeks. The action was by the father to recover wages including the period of his son’s illness. It could properly be held on such a state of facts that the parties took notice of the contingency of sickness or death and that the employer assumed any loss which might result from inability to work, resulting from a visitation of Providence. In Penna. R. R. Co. v. Bost, 104 Pa. 26, the contract which was with a minor expressly relieved him from making up lost time occasioned by sickness. Here, however, the parties contracted that the full period should be made up. The plaintiff was entitled to the wages of his minor son; he agreed to the conditions under which they should be payable and it is not a hardship to him to require him to comply with his contract. The amount sued for would become due if the term of service were completed. The defendant has not bound itself to perform except according to the contract and it is not in default as to the time not made up.

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


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Wentzel’s Assigned Estate.

      Assignment for creditors — Counsel fees — Compensation—Confirmation of account — Opening decree — Laches.
    The appellate court will not reverse an order opening the confirmation of an account of an assignee for creditors, where the order is based upon a finding that the petitioner who was one of the assignors was ignorant of the fact that the account had been filed until after its confirmation, and that the amount charged for compensation was excessive; but it will not open the confirmation of the account as to counsel fees where it appears that such fees were actually paid, and that the petitioner had delayed for nearly ten months after he had knowledge of the confirmation of the account before instituting proceedings; and it is immaterial that the counsel paid, in the absence of any evidence of collusion, was the brother of the accountant.

      March 12, 1906:
    Argued Nov. 15, 1905.
    Appeal, No. 154, Oct. T., 1905, by J. Hain Mengel, Assignee, from decree of O. P. Berks Co., June T., 1905, Assignee Docket, Vol. 4, setting aside confirmation of account in Assigned Estate of Jeremiah H. Wentzel.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed in part.
    Petition to set aside confirmation of account. Before Endeich, J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      Cyrus G. Derr, with him Ralph H. Mengel, for appellant.

      C. H. Ruhl, with him Joseph R. Dickinson, for appellee.
   Opinion by

Henderson, J.,

The appellant’s account which was filed July 13, 1903, was confirmed absolutely August 10, 1903. On June 18, 1904, Jeremiah IT. Wentzel, one of the assignors, presented a petition to set aside the confirmation of the account and for leave to file exceptions. Among the items to which objection was made were the credits for attorney’s fees and compensation to the accountant. The petition was refused except that part relating to these items as to which the order was entered from which the assignee appealed. It is not alleged that any fraud or concealment was practiced by the accountant, tire allegation of the petitioner being that he did not see the account and was not aware that it had been filed until after its final confirmation. He had been absent in the west for a few weeks and returned on August 31, after the account was confirmed. The learned judge of the court below concluded from the petition and the evidence taken that the averment of the petition that the petitioner was ignorant of the fact that the account had been filed until after its confirmation was true; that the amounts charged for counsel fees and compensation were excessive and that the prayer of the petition should be granted. We are not pers uaded that the finding of the court as to the lack of knowledge of the assignor that the account had been filed is manifestly erroneous. While the evidence brought up with the record makes a different impression upon us the oral testimony might have produced another effect. There was evidence on this point upon which the decree might be based and the conclusion should not be disturbed even though theré is a preponderance of evidence against the-finding: Commonwealth v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371. If we concede, however, that the petitioner was not guilty of laches in waiting nearly ten months after he had knowledge of the confirmation of the account before instituting this proceeding something more was necessary than a want of knowledge to justify the court in granting the relief prayed for as to the charge for attorney’s fees. The petition is in the nature of a bill of review and should set forth such facts as would move a chancellor to grant relief, one of which is that distribution has not been made in conformity to the decree of the court; and in this respect the petition is defective. It is not only not alleged in the petition that the fund has not been distributed, but it is positively affirmed in the answer that it was paid out according to the schedule approved by the court. It is not alleged that the accountant was not acting in the strict discharge of his duty in filing his account, and the decree of confirmation is presumably correct. It would be neither equitable nor just to impose a penalty on the accountant for complying with its mandate. It is not an answer to this requirement of the law that payment was made to a brother of the accountant. There is not any evidence of collusion between them and there is no rule of law or equity which places a brother of the accountant on a different footing from other creditors in the absence of evidence of fraud. As the case stands on the pleadings it is admitted that the item of the credit for attorney’s fees was paid before the petition was filed and as to that item of the account the petitioner has failed to present a case entitling him to relief. So much of the decree of January 26, 1905, and the supplemental decree of June 12, 1905, as relates to the claim of credit for counsel fees is reversed and the decree as thus amended is affirmed, the costs of this appeal to be equally divided between the appellant and the appellee.


author: Orlady, J.,

text:
    Commonwealth, v. Densten, Appellant.
    March 12, 1906:

      Physicians — Registration—License—Constitutional law — Police power— Act of May 18, 1893, P. L. 94.
    Registration as 'a physician after March 1, 1894, is outside of the limitations of the Act of May 18, 1893, P. L. 94, and is useless as a defense to an indictment for practicing medicine without a license.
    The Act of May 18, 1893, P. L. 94, providing for the licensing of physicians and surgeons is a proper exercise of the police power of the state, and does not violate either the federal or state constitution.
    Submitted Oct. 23, 1905.
    Appeal, No. 37, Jan. T., 1906, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1904, No. 947, on verdict of guilty in case of Commonwealth v. Joseph C. Densten.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for practicing medicine without a license. Before Kelly, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict" of guilty upon which judgment of sentence was passed.

      Errors assigned were in refusing to quash the indictment or arrest the judgment, and in directing a verdict of guilty.

      James Mahon, for appellant.

      Wm. R. Lewis, district attorney, and W. S. Diehl, for appellee.
   Opinion by

Orlady, J.,

‘ The defendant was tried and convicted of “ entering upon the practice of medicine and surgery and practice of the same without having obtained from the medical council of Pennsylvania a license to practice medicine and surgery,” in violation of the requirements of the Act of May 18, 1893, P. L. 94.

The facts were undisputed and the court assumed the duty of instructing the jury, that the defendant should be found guilty on the second count in the indictment, and not guilty on the first and third ones. The whole question was reviewed on a motion in arrest of judgment, which was refused, and on a rule for a new trial which was discharged. The defendant admitted that he had engaged in the practice of medicine as charged, and did not pretend to have ever obtained any certificate or license to do so from the state authorities; his sole defense being that he was within the exceptions, enumerated in the act of 1893, in that he had registered under the provisions of the act of June 8, 1881, at Montrose, Susquehanna county, Pa., on September 24, 1897, and, that he had been continuously practicing medicine since 1869, under a certificate of sufficiency given to him by his preceptor, which qualified him under the law as it was then declared, to engage in the practice of that profession. It was contended, that being thus qualified the subsequent legislation on the subject by Acts of March 24, 1877, P. L. 42; the registration Act of June 8,1881, P. L. 72, and the registration and license or certificate provisions of the act of 1893 did not apply to him.

The registration in Susquehanna county in 1897 was of no avail, inasmuch as the act of 1893, specially provides in the 15th section, that such registration under the act of 1881 to be a sufficient warrant to practice medicine and surgery shall be made prior to March 1,1894. Registration after that date was outside the limitation of the act and was fruitless as a defense. The propriety as well as the necessity for such restrictive legislation has been fully considered by our courts. In regard to this particular act in In re Registration of Campbell, 197 Pa. 581, it is said “the Act of May 18, 1893, P. L. 94 is a valid and constitutional exercise of the police power of the state upon a subject plainly within that power, and urgently in need of control by it. So far as any federal question is supposed to be involved it is set at rest by Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. Repr. 231), in which the supreme court of the United States pronounced an almost identical statute of West Virginia to be free from repugnancy to the constitution of the United States or the fourteenth amendment. In regard to the questions raised under the constitution of Pennsylvania, it would be sufficient to refer to Com. v. Finn, 11 Pa. Superior Ct. 620.” The present chief justice reviews the previous legislation on the subject and conclusively settles the necessity for a proper registration by all who ask the protection of our laws in the practice of medicine and surgery in this state; see also Com. v. Campbell, 22 Pa. Superior Ct. 98; State v. Currans, 111 Wis. 431, s. c., 56 L. R. A. 252 (87 N. W. Repr. 561). Not having complied with the requirements of any of our laws regulating the practice of medicine and surgery, there can he no question of his being guilty on the second count in manner and form as he was indicted.

The judgment is affirmed.


author: Oblady, J.,

text:
    Bowman, Appellant, v. Hoke.

      Judgment — Revival—Posthumous child, — Intestate laws — Devise.
    Where the owner of land devises it to his wife subject to the lien of a judgment, and the testator leaves to survive him his wife and two daughters and after his death a posthumous daughter is born, and the judgment is revived by amicable scire facias against his wife as executrix, terre-tenant and sole devisee, and the posthumous daughter claims and receives one-third of the proceeds of the land raised by a sale under the- revived judgment, such daughter cannot three years thereafter, and after valuable improvements have been made on the property, tender back the money , paid her and maintain an ejectment for one third-interest in the land.
    Argued Oct. 24, 1905.
    Appeal, No. 25, Oct. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., Dec. T., 1902, No. 214, for defendant on case stated in suit of Ethel Bowman, by her Guardian, A. S. Light, v. Michael G. Hoke and George Samuel Trafford.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ,
    Affirmed.
    Case stated in ejectment for land in Cornwall Township. Before Ehrgood, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant on case stated.

      Warren G. Light, for appellant.
    — The plaintiff in this case claims that as the will of Joseph Bowman was executed before the appellant, Ethel Bowman, was born, he must be deemed to have died intestate, as far as her interest in the real estate of which he was seized is concerned: Walker v. Hall, 34 Pa. 483; Barker v. Pearce, 30 Pa. 173; Edwards’s Appeal, 47 Pa. 144; Coggins’s Appeal, 124 Pa. 10; Robeno v. Marlatt, 136 Pa. 35; Hague v. Hague, 161 Pa. 643.
    The authorities of Middleton v. Middleton, 106 Pa. 252, and Diese v. Fackler, 58 Pa. 109, which were relied upon by the lower court as deciding the question at issue, were not cases in which the rights of a posthumous child had arisen to revoke protanto the will of the testator.
    The manner in which the different agreements and writs of revival and fi. fas. were signed and issued, in which “ Annie Miller, late Bowman, terre-tenant, executrix and sole devisee of Joseph Bowman, deceased, the original defendant, and Levi Miller, her husband,” was the only party in signing and the only defendant in adverse proceedings, clearly indicate that there was never any intention on the part of the defendant or plaintiff in the judgment to bind the interest of any other person thereunder, but such, as Annie Miller, late Bowman, herself received, under the will of Joseph Bowman, deceased.

      George B. Woomer, for appellee.
    — The revival of a judgment by scire facias against an executor or administrator without joinder of widow and heirs has been held proper in a long line of cases : Hall’s Appeal, 1 Pennypacker, 223; Grover v. Boon, 124 Pa. 399; Specht v. Sipe, 15 Pa. Superior Ct. 207; Middleton v. Middleton, 106 Pa. 252; Diese v. Fackler, 58 Pa. 109.
    A will by subsequent birth of the issue is revoked pro tanto as to them and testator dies intestate as to them, but the appointment of the executor is good and such exemitor is then the representative of the estate of the decedent: Beard v. Beard, 3 Atkyn, 72; Meyer’s Est., 20 Phila. 43; Newlin’s Est., 209 Pa. 456.
    One who encourages another to purchase land or who knowingly accepts the whole or a part of the proceeds of an irregular or voidable sale is estopped from attacking the validity of the title thereby acquired: Spencer v. Jennings, 139 Pa. 198; Smith v. Warden, 19 Pa. 424.
    A judgment will be conclusive not only as to matters actually litigated and decided, but as to every ground of recovery and defense that might have been presented and decided: Long v. Lebanon National Bank, 211 Pa. 165.
    March 12, 1906:
   Opinion by

Oblady, J.,

After an action of ejectment was regularly at issue, the parties agreed upon the facts, and submitted them in the form of a case stated for the opinion of the court, as to whether the plaintiff was entitled to recover the one-third of the premises in dispute and certain mesne profits.

Joseph S. Bowman, the father of the plaintiff, died February 9, 1884, seized in fee simple of the land in controversy, subject to the lien of a judgment entered in 1882, for $1,250, in favor of Rudolph Miller. He left to survive him a widow, Annie M. Bowman, and .two children, Eva V. Bowman and Annie Bowman, and on June 22, 1884, there was born to his widow a posthumous child, Ethel Bowman, the plaintiff in the action. By his last will and testament, duly probated, Joseph S. Bowman demised and bequeathed his whole estate, of which the land in dispute is a part, to his wife, Annie M. Bowman, subject to the lien of the mentioned judgment and named her as his executrix. The Miller judgment was revived twice by amicable scire facias, and later by regular writs of scire facias and alias scire facias, so that on January 28, 1898, a judgment was entered for $1,774.90 costs, etc. The amicable writs were signed by, and the adverse writs were issued against, “ Annie M. Bowman, terre-tenant, executrix, and sole devisee of Joseph S. Bowman, deceased, original defendant, and Levi Miller, husband of Annie M. Bowman.”

On May 22,1899, the land was sold by the sheriff of Lebanon county, by virtue of a writ of alias fieri facias; the proceeds of sale, with the consent of all the parties in interest, were paid into court, and an auditor was appointed to “ pass on and report matters raised by the affidavit of controversy filed in matter of said execution by Annie M. Miller, and report distribution of said fund to and among all parties legally entitled thereto.” At the hearing before the auditor, Ethel Bowman appeared by her then guardian, and claimed to be entitled to a one-third interest in the property sold, free from the lien of the said judgment upon which the property was sold, alleging it to be irregular. The auditor held that by virtue of the Act of April 8,183B, P. L. 249, sec. 15, Ethel Bowman, the plaintiff, had a one-third interest in the property, subject, however, to the liens created by the testator in his lifetime; and, further, that the proper formalities of the law were followed in the revivals of the original judgment by the amicable writs and the subsequent writs of sci. fa. and al. sci. fa., which culminated in a valid judgment, on which the sale of the real estate by the sheriff was made.

Based upon these conclusions, the auditor awarded to Ethel Bowman by her guardian, M. H. Bowman, one-third of the fund for distribution to wit: 1428.03. The report was confirmed absolutely on December 28, 1899, and the money paid out in accordance with the distribution to the parties entitled thereto. From this judgment no appeal was taken.

After the action of ejectment, upon which- this case stated is founded was brought, on December 19, 1902, and after George S. Trafford, the defendant who is in possession of the land under the title acquired through the sheriff’s sale had expended 15,000 in improving the property, Ethel Bowman, by her present guardian, made a tender of the sum of money she received through the confirmation of the auditor’s report, which was refused.

The status of Ethel Bowman, is fully and clearly defined by Chief Justice Mitohbul in Newlin’s Estate, 209 Pa. 456. “ The statute (act of 1833) is founded on the same presumption that the unborn child was not in contemplation of the testator when he made his will, and that if he had lived, he would have changed the provisions. It gave the unborn child no greater rights in the parent’s estate than the living children, but it did raise in his favor a legal presumption that required a definite provision to overcome.”

When we recall that his will is dated August 14, 1883, that he died February 9, 1884, leaving two daughters who are not provided for in any way in his will, all suggestion of legal difference in the rights of this child in the distribution, of his estate is answered. The act of 1893 determines her standing, and the auditor in accordance therewith, decided that as to this child and this land Joseph S. Bowman died intestate, “ as if he had actually died without a will.” It is unnecessary to answer in detail the argument of the appellant as to the regularity of the several revivals of the original judgment. Diese v. Fackler, 58 Pa. 109; Middleton v. Middleton, 106 Pa. 252; Grover v. Boon, 124 Pa. 399; Colenburg v. Venter, 173 Pa. 113; Biesecker v. Cobb, 13 Pa. Superior Ct. 56; Specht v. Sipe, 15 Pa. Superior Ct. 207, furnish ample authority for the proposition that an amicable scire facias is equally available with a writ; the sole object of the law is to give the personal representative an opportunity to show cause against it.; “when a judgment has been recovered against a man in his lifetime it may be revived after his death for the purpose of lien and execution, by a scire facias.to revive, et quare executionem non, issued against his personal representatives alone, in such case it is unnecessary to bring in the widow and the heirs by a scire facias against them.”

Under the authorities, the Miller judgment was regularly revived as a lien on the decedent’s estate, and the sale of the premises by virtue of the al. fi. fa. issued thereon discharged the plaintiff’s interest in the land. The plaintiff so regarded her rights when she made her demand for a share of the proceeds before the auditor, and she allowed the judgment of the court in her favor to become final and conclusive on October 16, 1899, “not only as to matters actually litigated and decided, but as to every ground of recovery and defense that might have been presented and decided: Long v. Lebanon Nat. Bank, 211 Pa. 165.” She accepted the fruit of her contest and must be held bound by the judgment she secured in the tribunal of her own selection; her tender of the money so secured, after three years had elapsed, and after valuable improvements had been made on the property, cannot avail her.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Ripple v. Succop, Appellant.

      Judgment — Opening judgment — Terre-tenant—Evidence—Payment.
    Where a terre-tenant who purchased real property from the defendant in a confessed judgment, petitions the court for a rule to open the judgment and let him into a defense, and alleges payment, and that he accepted a deed for .the property relying upon the representations of the defendant, the plaintiff and an assignee of the judgment that it was paid, and the evidence offered by the terre-tenant to support his allegations, strongly preponderates, and the opinion filed shows that the decision was not based on the whole case, and that the application was refused for a reason, which, standing alone, was not a bar to the relief sought, the appellate court will reverse an order of the lower court discharging the rule to open the judgment.
    Argued Oct. 24, 1906.
    Appeal, No. 47, Oct. T., 1905, by defendant, from order of C. P. Huntingdon Co., Sept. T., 1900, No. 140, discharging rule to open judgment in case of Thomas J. C. Ripple for use of G. L. Owens v. Benjamin F. Ripple and Charles E. Succop, terre-tenant.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Rule to open judgment. Before Woods, P. J.
    The opinion of the Superior Court states the facts of the case.

      Error assigned was order discharging the rule to open the judgment.

      T. C. Noble, with him W. H. Trude, S. G. Nolin and Scandrett & Barnett, for appellant,
    cited: Lewis v. Linton, 24 Pa. C. C. Rep. 188; Waddington v. Vredenbergh, 2 Johns. Cases (N. Y.), 227; Cloud v. Maride, 186 Pa. 614; Waters v. Largy, 5 Rawle, 131; Cook v. Berry, 193 Pa. 377.

      W. M. Henderson, for appellee,
    cited: Lockard v. Keyser, 18 Pa. Superior Ct. 172; Whitecar v. Supreme Castle K. G. E., 18 Pa. Superior Ct. 631; Kelber v. Plow Co., 146 Pa. 485; Kaier Co. v. O’Brien, 202 Pa. 153; Cloud v. Markle, 186 Pa. 614; Markle v. Fichter, 7 Kulp, 549; Wills v. Flanigan, 4 Lacka. Jurist, 26; Peele v. Greene, 1 Lacka. L. Rec. 405; Wagner v. Wenrich, 1 Woodward, 35; Mawhinney v. Shallcross, 10 Pa. C. C. Rep. 102; Duffy v. Kaufman, 18 Pa. Superior Ct. 362; Blauvelt v. Kemon, 196 Pa. 128; Zartman v. Spangler, 21 Pa. Superior Ct. 647; Stephan v. Hudock, 4 Pa. Superior Ct. 474; O’Brien v. Sylvester, 12 Pa. Superior Ct. 408; Bedell’s Appeal, 87 Pa. 510; McConnell’s Appeal, 97 Pa. 31; Babcock v. Day, 41 Legal Int. 45.
    April 23, 1906:
   Opinion by

Rice, P. J.,

This is an appeal from the discharge of a rule to show cause why a judgment, entered in 1900 in favor of Thomas J. C. Ripple against Benjamin F. Ripple upon a judgment note signed by the latter, should not be opened. The rule was granted upon the petition of a purchaser from defendant therein of land which yvas bound by its lien. The deed under which he holds was delivered on January 13, 1904. The respondent, by whom the application to open was opposed, claimed under an undated written assignment of the judgment, not filed of record until August, 1904, but alleged in his testimony to have been delivered on or about January 2, 1904.

In support of the allegation that the judgment was paid by the defendant before the assignment, the petitioner adduced the testimony of the defendant to the effect that on or about January 2,1904, the respondent being present and cognizant of all that took place, he, the defendant, assigned to the plaintiff his one-third interest in the coal and lumber business of Puckey & Co., in which they were partners, in full discharge of all indebtedness from the former to the latter including this judgment; that the total indebtedness amounted to about $1,600’; that the plaintiff paid him in addition $600 in cash; and that this partnership interest was worth from $2,200 to $2,500. He further denied any knowledge on his part of the assignment of the judgment to the respondent. The petitioner adduced other testimony to the effect, that on January 7, 1904, in response to an inquiry made by his attorney in the course of his investigation of the title before the consummation of the agreement under which the land was conveyed to the former, the plaintiff admitted that the judgment had been paid; and the plaintiff, while claiming that his recollection of what was said was indistinct, admitted in his testimony that he might have said to the attorney that the defendant owed him nothing at that time. Pie was unable to state whether the assignment of the judgment tp the respondent was delivered before or after this interview with the petitioner’s attorney: but there seems to be no dispute as to the fact that the transfer to the plaintiff of the defendant’s one-third interest in the partnership had been made before the date of this interview.

In his answer to the petition, the respondent averred “ that a short time before the assignment of said judgment to him, he, the respondent, paid out the sum of over seven hundred dollars ($700) to the said Thomas J. C. Ripple’s use for which he assigned to your respondent the judgment mentioned.” But his testimony taken on the rule to open was to the effect, that in December, 1903, the defendant had transferred to him his interest in the partnership in consideration of a prior indebtedness of $200, and his indorsement of the defendant’s note for $500 which he subsequently paid; that as part of the negotiations between him the plaintiff and the defendant on January 2, 1904, he, the respondent, assigned to the plaintiff this one-third partnership interest in consideration of the plaintiff’s assignment of the judgment to him, and that, according to his best recollection, the latter assignment was then and there drawn and delivered.

The plaintiff, who was called as a witness by the respondent, gives a somewhat different version of the transaction. Briefly it amounts to this : that he held a deed of certain property of the defendant as security for the latter’s indebtedness ; that in the negotiations which resulted in the defendant’s transfer of his partnership interest to him it was understood and agreed that the plaintiff should deed the property above referred to to the respondent, to be held by him as security for the latter’s claim of $700 against the defendant; that subsequently he received instructions from the respondent to make the deed to the defendant instead of the respondent, which he did; that the assignment was sent to him by mail about the same time and that he signed and returned it to the respondent, in lieu, as he understood, of the deed he was to make to the latter. We quote from his testimony in chief: “I transferred it”— the judgment — “ with that understanding, that it was given as collateral security for a $700 loan that Mr. Owens had. advanced to Mr. Ripple,” the defendant. It is true, in one part of his testimony he said that his understanding was that the interest in the coal yard was transferred to him in consideration of his assignment of the judgment to the respondent, but upon re-cross-examination he adhered to his original statement as shown by the following extracts from his testimony : “ Q. Do you know at the time you made that assignment that the consideration for that assignment by you to Mr. Owens was the relinquishing of Mr. Owens’ claim to that property in Orbisonia ? A. I did not know it, but 1 suppose so. Q. When you assigned that judgment, did you know anything about it other than that the paper was sent to you for assignment ? A. I knew that the property in Orbisonia was to be deeded to Mr. Owens as security on his loan, and when he refused in the first place to give up his deed and then relinquish it, I suppose this assignment was in lieu thereof; he told me so and I supposed it. Q. Who told you? A. Mr. Owens.” Again he says: “Allí know is, Mr. Owens was to have the deed for the property in Orbisonia for his $700, and I understood that this judgment, when I assigned it, when I was instructed to deed the property back to Mr. B. F. Ripple, I understood this judgment I assigned was in lieu of that deed I was to make to Mr. Owens.” It will be seen from the foregoing recital that the testimony as to the material facts is seriously in conflict, and that the conflict involves the credibility of the witnesses. It is apparent, however, that the testimony in support of the petitioner’s contention that the judgment was paid by the defendant by the transfer of his partnership interest to the plaintiff was sufficient in quantity and quality to warrant the opening of the judgment under the well-settled rule governing such applications, and to warrant the submission of that question of fact to the jury. The testimony of the plaintiff himself is entirely reconcilable with such a finding. And if the fact be that the judgment was paid in that way, the burden of proving that by a subsequent agreement, to which the defendant assented, it was assigned to the respondent in lieu of the deed, rested upon the latter. It may well be that the plaintiff assigned the judgment in good faith, assuming from what the a’espondent told him that the assignment was to take the place of the deed, but if the assignment was an afterthought, it was ineffectual to give life to the judgment unless the defendant assented to it: Waters v. Largy, 5 Rawle, 131. Hence, if the case rested here, we should be unable to agree with the conclusion that the fact that the “ judgment was assigned to G. L. Owens in good faith and for a much larger amount than the judgment calls for ” — this being the sole reason specifically assigned by the learned judge below — would be a sufficient reason, standing by itself, for discharging the rule.

But the case does not rest here. We have alluded to the testimony of the petitioner’s attorney and the testimony of the plaintiff as to what occurred at their interview at the time, January 7, 1904, the former was investigating the title to the land in question and the incumbrances against it. Six days later the defendant, the resjjondent and the petitioner’s attorney met in the office of the latter. It appears that the defendant was indebted to the petitioner, and that the purpose of the meeting was to settle and discharge the latter’s claims. Mr. Nolin, who had the interview with the plaintiff above referred to, testifies that at the meeting on January 13 he said to the defendant and the respondent, who was acting as the defendant’s attorney, that he found this judgment unsatisfied of record, and that the plaintiff had told him the defendant had paid it, but he, the plaintiff, had neglected to satisfy it of record ; that in response to this statement the defendant and the respondent said that his report of the condition of the property was correct, and that it was not incumbered except by the Mc-Murtrie mortgage, and that upon this understanding the transfer was closed by the acceptance of the deeds delivered by the defendant in satisfaction of the indebtedness from him to the petitioner. The testimony of this witness is corroborated in every material part by that of his associate attorney and that of the defendant, but, so far as it relates to the judgment in question, and his acting as the defendant’s attorney, he is contradicted by that of the respondent. If the facts as to what occurred at this meeting he as testified to by the three witnesses above mentioned, not only is the defendant’s allegation that he paid the judgment by the transfer of his partnership interest very strongly corroborated, but it would be grossly inequitable to permit the respondent to hold ahd enforce the judgment against the land acquired by the petitioner, who accepted the conveyance in satisfaction of his claim against the defendant, and has expended money in discharge of interest accruing upon the McMurtrie mortgage. But it is argued that an application to open a confessed judgment is addressed to the equitable power of the court, that the court is not bound in every case where there is a conflict of evidence to open the judgment and send the case to a jury, even though the evidence adduced by the applicant fulfills the requirements of the two witness rule, and that where the court below has refused to open the judgment the appellate court will, as a rule, only determine whether the discretion of the court below has been abused or improperly exercised. We fully recognize the rules upon that subject established by numerous decisions, and have no disposition to depart from them in this case. They do not go so far as to prevent reversal where the evidence in support of the application strongly preponderates, and the opinion filed tends to show that the decision was not based on the whole case, but that the application was refused for a reason which, standing by itself, is not a bar to the relief sought: Heist v. Tobias, 182 Pa. 442; Italo French Produce Co. v. Thomas, 28 Pa. Superior Ct. 293. See also Kelber v. Pittsburg Nat. Plow Co., 146 Pa. 485; Cloud v. Markle, 186 Pa. 614; Kaier Co. v. O’Brien, 202 Pa. 153.

The order is reversed at the costs of the appellee, the rule to show cause why the judgment should not be opened, and Charles E. Succop, the terre-tenant and petitioner, be permitted to defend, is reinstated, without prejudice, however,- to any right the legal or use plaintiff may have to proceed upon the judgment against the defendant therein, and as thus modified is made absolute. It is further ordered that an issue, to be tried before a jury, between the use plaintiff and the petitioner for the rule be framed by or under the direction of the court below; and the record is remitted with directions to carry the foregoing order into effect.


text:
    Pike Township Road.

      Road law — Review—Opening road — Vacation of road.

    Where proceedings are begun to vacate a portion of an old road and to lay out a new road in its place, an order confirming a report of reviewers in as far as it concerned the laying out of the new road, but setting it aside in as far as it vacated a portion of the old road, is erroneous and will not be sustained on appeal.
    Where three road commissioners are authorized to locate a public road, all three must meet and deliberate although a majority may decide.
    Under the Act of March 30, 1846, P. L. 199, reviewing road commissioners are not required to be sworn specially, their general oath of office is sufficient.
    A review may be had in Bradford county where the local commissioners have refused to vacate an old road and relay a new one.
    Argued Nov. 22, 1905.
    Appeal, No. 124, Oct. T., 1905, by Pike Township, from order of C. P. Bradford County, Deo. T., 1903, No. 474, overruling exceptions to report of reviewers In re Vacation of Public Highway in Pike Township.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Exceptions to report of viewers.
    Fanning, P. J., filed the following opinion:
    The road commissioners of Pike township reported adversely upon the petition presented. An appeal was taken and reviewers duly chosen, who, on November 7, 1903, went upon the ground and all agreeing reported in favor of the new road prayed for. For the purpose of laying out and establishing the same by metes and bounds, they then adjourned to meet ■ November 14, 1903. On said last mentioned date, two of the reviewers, namely, William Morrow and O. English, met and, after making a survey, filed a supplemental report fully describing said proposed new roa'd. Said report also provided as follows : “ so much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road to take effect when the proposed new road is opened for public travel, a plot or draft whereof, is hereto annexed and is made a part of this report.” Exceptions to the proceedings were filed by A. B. Burrows as follows, namely: First, tbe record does not show that the viewers or reviewers were sworn according to law; second, because the. record does not show that the viewers or reviewers after being duly sworn found whether the road was necessary; third, because a supplemental report of reviewers laying out the said road was participated in only by two of the viewers; fourth, because the reports of viewers and reviewers were wholly irregular, unlawful and insufficient. The exceptions relating to the omission of the report to state that the viewers were sworn were not pressed, doubtless owing to a decision recently rendered by tbe president judge of the 44th judicial district when specially presiding in this county to the effect that under the special laws applicable to Bradford county road commissioners are given the general charge and supervision of all roads therein with power to lay out and alter or vacate the same, and as such have severally taken an oath to perform their duties according to law, thereby dispensing with tbe necessity of again being sworn when called out as viewers or reviewers. With the explanation noted we proceed to a consideration of the matters alleged to be fatal to the proceedings. The Act of April 18, 1848, section 20, P. L. 218, conferring upon road commissioners in Bradford county jurisdiction in the matter of roads provides, inter alia, as follows : “ That it shall be the duty of the said commissioners to take the general charge and supervision of all the roads and bridges in each of the said townships in said county (county bridges excepted) and to lay out and alter the same at the request in writing of the citizens of said township, if they shall deem the same necessary,” etc. The report of the reviewers chosen as before stated to review the action of the road commissioners of said township, is not perhaps as explicit as could be desired in averring the necessity for a public road between the points named. It must be remembered, however, that viewers and reviewers, are not as a rule men learned in the law and their action should not be defeated by mere technicalities, if it clearly appears that there has been a substantial compliance with all legal requirements. In Road from App’s Tavern to Susquehanna through Charleston, 17 S. & R. 388, Huston, J., says: “ The report must state distinctly whether they decide on a public or private road. If this appears plainly in their report, it is sufficient.” In the report now the subject of objection, the reviewers first state that, “after making diligent inquiry and examination of the need and benefit of the said new road to the public did report,” etc., and again that “ having viewed the ground for the proposed road, both of us concurring, did lay out and now return the same for a public road,” and still again the vacation of old road is “ to take effect when the proposed new (road) is opened for public travel.” It is clear as language can make it that the new road was laid out as a public road. It is evident from a careful reading of the report and the action taken that the reviewers deemed the road necessary. The finding that they “ did lay out and now return the same for a public road ” under the authorities meets the requirements: Road in Norriton and Whitpain Twps., 4 Pa. 337; Road in Reserve Township, 2 Grant, 204; Road in Versailles Township, 4 Brewster, 57. The second exception for the reasons stated is dismissed.
    The third exception is also dismissed. The return shows who of the reviewers were present at the view. The fact that but two of the reviewers were present at the time when the survey was made is not fatal. The reviewers, all concurring, had previously made a report in favor of the road, and this adjourned meeting was to designate the metes and bounds and complete the work.
    The fourth exception raises a question as to the validity of the vacation of the old road. It would doubtless be a sufficient compliance with the law, if the report substantially found that the road to be vacated had' become “ useless, inconvenient and burdensome,” but it does not. We may infer that was the conclusion reached by the reviewers, for they say “so much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road.” This, however, does not meet the requirements of the act of assembly, and cannot be held to be a finding that the road vacated is “ useless, inconvenient and burdensome.” Apart from this, however, the report does not adequately describe the road to be vacated, nor does it appear on the plot or draft. This is essential to give ■ validity to the vacation : Road in Ross Twp., 36 Pa. 87. The fourth exception is sustained so far as relates to the vacation of the old road and dismissed so far as it relates to the laying out of the new road. This may be done under the act of July 2, 1901, giving to the courts authority to inquire into the regularity of the proceedings had and if unlawful, to set the same aside “ either in whole or in part.”
    April 23, 1906:
    And now, to wit: November 19,1904, the proceedings in above case are confirmed so far as relates to the laying out of the proposed new road, and set aside so far as relates to the vacation of the old road.

      Errors assigned were in overruling exceptions to report of viewers.

      W. P. Wilson, of Lilley & Wilson, and J. McPherson, for appellant.

      S. W. Little, with him Wm. Little, for appellees.
   Opinion by

Rice, P. J.,

The proceedings brought up for review on this appeal were begun by a petition of the citizens .of the township of Pike to the commissioners of the township, representing’ that a portion of a certain public road, commonly called the Jones road, had become “ inconvenient,” and praying the commissioners “ to alter and change ” it, by vacating “ the inconvenient portion,” described as extending from “ a maple tree by said highway on the premises of Gilbert Sumner ” to its intersection with the old state road, and' laying a public road between the first mentioned point in the Jones road and another designated point in the old state road. The road commissioners, after viewing the proposed road, reported “ in favor of no road.”

In due time a citizen filed with the town clerk written notice of his dissatisfaction with the decision of the road commissioners and applied for a review, whereupon three road commissioners of other townships were selected as reviewers in the mode provided in sec. 6 of the Act of March 30, 1846, P. L. 199. The substance of the report filed by them was that, after having viewed the proposed road, describing it substantially as in the petition, they “ do report in favor of a road. We also report that after completion of the building and acceptance of tire above road, the road from said maple tree to the said road is vacated.” No plot or draft of the proposed road, or of the portion of the road intended to be vacated, was returned with their report. Nor was the location of the proposed road described in any way, except by the termini.

A few days later two of the reviewing road commissioners filed what is denominated a supplemental report, in which, after reciting the proceedings leading up to their appointment, they set forth that the three reviewing commissioners met upon the day appointed, “ and went over the ground between the points aforesaid mentioned ” — evidently referring to the termini of the proposed new road described in the petition— “ and after making diligent inquiry and examination of the need and benefit of the said new road to the public, did report to the town clerk .... in favor of the new road, and that we Would lay the same, all three of us concurring and signing said report, and adjourning to November-14, 1903, to lay and establish same by metes and bounds.” They then state that on thedast mentioned date, the third reviewing commissioner being absent, they report as follows : “ Having viewed the ground for the proposed road, both of us concurring, do lay out and now return the same for a public road,” etc. Here follows a description of the road by courses and distances and reference to monuments, after which the report proceeds: “ So much of the old road as will be supplied by the proposed new road when built and opened is vacated to the state road, to take effect when the new road is opened for public travel, a plot or draft whereof ” (the new road, not the portion of the road vacated), “ is hereto annexed and is made part of this report.”

The proceedings upon review were brought before the common pleas by certiorari issued under the Act of July 2, 1901, P. L. 607, and were “ confirmed so far as relates to the laying out of the proposed new road, and set aside so far as relates to the vacation of the old road.” The reasons given by the learned judge below for the latter branch of the order were, that there was no distinct finding that the road vacated had become useless, inconvenient or burdensome, and that it was neither adequately described in the report, nor was a draft or plot of .it attached thereto. His conclusion in this regard is in accordance with the ruling in Road in Ross Township, 36 Pa. 87, and the doctrine of other cases. The case comes before us on the appeal of the road commissioners of the township from that part of the order confirming the report of the reviewers as to laying out the proposed new road.

It will be seen from the foregoing that a proceeding, which was based on an allegation that a certain portion of a road had become inconvenient and needed alteration, has terminated in the laying out of a new road without the vacation of the portion of the old road which the reviewers clearly intended to be supplied by the former. Assuming, for a moment, that there was authority for the appointment of the reviewers, it is apparent that their first duty was to determine whether the road asked to be altered and changed had become inconvenient; they were not empowered to lay out a new road irrespective of that fact. And, judging from their report, it is highly improbable, to say the least it is purely conjectural, that, even if they had the power, they would have reported in favor of a new road without coupling with it, as they did, the vacation of the road it was intended to supply. There is no ground for inferring that they would have done so, or for inferring that two roads leading from the maple tree in the Jones road to the old state road are needed. It is true the act of 1901 confers on the common pleas authority to set the proceedings aside, “ either in whole or in part,” but in the exercise of this power regard must be had to the nature of the proceeding and to the authority of the reviewers thereunder. We think it quite clear that it was not the intention to confer jurisdiction on the court to accomplish a result which could not have been accomplished in that proceeding by the report of reviewers, much less where such result is radically different from what the reviewers manifestly intended.

' It is well settled by decisions under the general road law that the location of the courses of the road between the termini mentioned in the petition and order is within the discretion of the reviewers, and the same rule is applicable under the local laws governing the action of road commissioners in Bradford county. This part of their duties is not more plainly ministerial than the determination of the question whether a road shall be laid out between the termini. In the present case the report first filed fails to show the course of the road, or that it had been agreed upon. The supplemental report shows affirmatively that the question of laying out the road by metes and bounds, which must be presumed to be the location of the course of the road, was deferred to a future meeting, at which one of the commissioners was not present. Even taking this report of the two commissioners as conclusive of the fact that there was an adjournment for that purpose, it shows affirmatively noncompliance with the general rule, that where several persons are authorized to do an act of a public nature all must deliberate though a majority may decide.

Sec. 6 of the Act of March 30, 1846, P. L. 199, which regulates the proceedings of reviewing commissioners, says nothing as to their duty to be sworn specially when called upon to perform this function. It simply provides that “ their report shall be entered of record, as in other cases, and shall be final and conclusive in regard to said road, for two years thereafter.” We are inclined to agree with the learned court below in the conclusion that the omission of the legislature to prescribe.the taking of an oath was intentional. They act as public officers in this matter, and, in the absence of anything further than we have referred to to show that it was their duty to be sworn specially, it is to be presumed that the legislature had the fact in view that they were required by law to take a general oath to perform the duties of their office with fidelity.

It is contended that no review is provided for in any case except, first, by the act of 1846 where the local commissioners lay out a new road; second, by the act of 1852 where they change or vacate the whole or any portion of a public road already laid out; and, third, by the act of 1868 where they refuse to lay out a new road. It is beyond controversy that no review is provided for where the petition is to change or vacate the whole or any portion of a public road and the local commissioner’s report against the application, unless the right to such review was granted by the Act of April 13, 1868, P. L. 1004. This provides that any person or persons dissatisfied with the action of the road commissioners of any township within the county of Bradford, “ upon a petition of a lawful number of citizens praying for a new road to be laid out' and opened,” may proceed in the same manner and under the same restrictions as is provided' for in the case of the location of any new road by sec. 6 of the act of 1846. But upon deliberate consideration it seems too narrow a construction of this language to hold that it applies only where the proceeding was begun under the act of 1848 as extended to Bradford county by the act of 1844. The proceeding in question of course primarily contemplates a more convenient way from the point at the maple tree in the Jones road to the old state road, and the vacation of the portion of the former road that has become inconvenient. It is not exclusively a proceeding to lay out a new road, and yet that is involved in it. Moreover, the reasons for permitting a review in a case where the local commissioners have refused to lay out a new road, or have laid out a new road, or have vacated a portion of an old road and supplied its place, apply with equal force to the latter proceeding in which they have refused to vacate and relay, and the words of the act are broad enough to cover such a case. We therefore do not sustain this contention of the appellants’ counsel. The third a.nd fifth assignments of error are sustained. The order is reversed and the proceedings subsequent to the report of the local road commissioners are set aside.


author: Morrison, J.,

text:
    Snyder, Appellant, v. Lingo.

      Practice, C. P. — Affidavit of defense — Contract—Sale.
    In an action, to recover the price of a machine, affidavits of defense are insufficient to prevent judgment which admit that the machine was used for three years, but aver certain defects, and that there was a suit against defendant for infringement of patents as to which plaintiff was bound to protect defendant, but fails to show what amount defendant is entitled to deduct from the contract price by reason of such defects or such suit.
    In an action for the price of a machine the defendant cannot set off damages alleged to have occurred from the construction by plaintiff of another machine for a third party by the use of a device patented by the defendant. Such damages sound in tort and cannot be set off in an action of assumpsit.
    Argued Oct. 18, 1905.
    Appeal, No. 191, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1905, No. 3519, discharging rule for judgment,for want of a sufficient affidavit of defense in case of Walter Snyder v. John Lingo.
    March 12, 1906:
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, and Henderson, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      John W. Best, for appellant,
    cited: Frankenfield v. Freyman, 13 Pa. 56; Dailey v. Green, 15 Pa. 118; Buffington v. Quantin, 17 Pa. 310; Port Kennedy Slag Works v. Krause, 5 Pa. Superior Ct. 622; Lord v. Ocean Bank, 20 Pa. 384; 3 Robinson on Patents, sec. 931; Schillinger v. United States, 155 U. S. 163 (15 Sup. Ct. Repr. 85); Preston v. Finney, 2 W. & S. 53; Gould v. Gage, 118 Pa. 559.

      Francis G. Gallagher, for appellee,
    cited: Hartman v. Meighan, 171 Pa. 46.
   Opinion by

Morrison, J.,

This was an action of assumpsit brought to collect the balance due on a written contract for machinery, furnished and set up by the plaintiff in the defendant’s place of business. The errors assigned are to the action of the court in refusing judgment for want of a sufficient affidavit of defense.

The plaintiff’s statement avers an agreement of October 30, 1901, to erect for the defendant a certain laundry dryer and an automatic shirt, collar and cuff dryer for the price of $825, and admits a payment on account of $340, leaving a balance of $485, with interest, still due upon the contract. The statement further avers that on November 29, 1901, the machines were delivered to the defendant and in all respects completed in accordance with the contract. The written specifications contained the following: “ I also guarantee to save the said John Lingo harmless from any suit for infringement, also any damages that he may sustain by the use of this machine.”

The affidavit of defense does not deny that the defendant received the machines and retained and used them for about three years prior to the commencement of this suit. The affidavit does allege some defects and deficiencies in the machines, and that they were never completed in accordance with the contract, but it fails to sufficiently state the damages caused by the alleged defects. In other words, it does not liquidate the damages with sufficient accuracy to make them available as a defense. The affidavit further avers an infringement of the patent of Barnes and Erb, and that the defendant had been sued for said infringement, and the said suit is still pending and undetermined, and the defendant is unable to state what further damages he may suffer by reason of said suit for the infringement of the patent by the plaintiff in furnishing the same to the defendant in the machines heretofore mentioned. It is plain that this affidavit is evasive and defective, and confessedly it is insufficient to prevent judgment.

The defendant then filed a supplemental affidavit of defense, and in some respects it is contradictory of the first affidavit. In the supplemental affidavit the defendant sets forth some deficiencies in the machines, but he fails again to liquidate the actual damages sustained with any degree of accuracy. It is true that he does aver “ that he has been put to great expense, and has suffered damages to the extent of more than $500, and that the said machine is still uncompleted and unsatisfactory in spite of the efforts of defendant, at great expense, to complete the same for his own use.” This averment is bad because it does not state with reasonable accuracy the amount of expense which he has paid, nor does it show how he arrives at the damages of more than $500.

He next avers that he has never accepted the said machine from the plaintiff, but this is flatly contradictory of the first affidavit, because it shows that the defendant had furnished another device and had been using the machine for years. The affidavits of defense further aver that the plaintiff used in the construction of another machine for a third party a" device patented by the defendant, whereby the defendant is damaged to the extent of $300. But this item sounds in tort and it cannot be used as a set-off in an action of assumpsit: “ An action against the United States for damages for the wrongful use of a patent is an action for a tort and is not within the jurisdiction of the court of claims : ” Schillinger et al. v. United States, 155 U. S. 163 (15 Supr. Ct. Repr. 85), 3 Robinson on Patents, sec. 931.

Assuming the truth of the allegation that the plaintiff wrongfully used the defendant’s patent device and thereby damaged the latter to the amount of $300, we are of the opinion that it cannot be used as a defense or set-off to the plaintiff’s action of assumpsit. The plaintiff has no money or securities in his possession received for goods or property belonging to the defendant, which plaintiff tortiously took and disposed of. And, therefore, defendant cannot waive the tort and sue in assumpsit: Boyer v. Bullard et al., 102 Pa. 555. If the defendant is injured by the plaintiff using his device or idea, his remedy is an action in tort.

In so far as the affidavit claims damages on account of the infringement of the patent of Barnes and Erb, there is no amount of damages liquidated, and the written contract between the parties seems to have contemplated that the defendant would purchase and pay for the machines and rely on the guaranty hereinbefore quoted. Counsel for plaintiff contends that the defendant could not retain the machinery and make defense against the payment of the full contract price. His contention is that the defendant must either rescind the contract and return the machinery or pay the full contract price. In support of this position he cites Frankenfield v. Freyman, 13 Pa. 56, and Buffington v. Quantin, 17 Pa. 310. But these authorities do not sustain this position. They clearly recognize the right of the defendant to rescind the contract and return the goods, or he may retain the same and claim a deduction on account of the defects or deficiencies. The authorities cited by the counsel for the plaintiff are in harmony with the established law in Pennsylvania that where a party purchases goods or material on an executory contract, which contains or implies a warranty, and the vendor fails to comply with the contract in a substantial degree, the vendee may refuse to receive the goods and rescind the contract; or he may, if he chooses, act as upon a substantial compliance with the contract by the vendor, and set up in defense against the purchase price the damages sustained. In other words, in the latter case the vendor can only recover the contract price, less the damages sustained by the vendee on account of’ the vendor’s failure to entirely complete the contract. In the present case, under the contract, there is an implied warranty that the machinery would be furnished and set up in the defendant’s place of business in accordance with the written specifications contained in the contract: Dailey v. Green, 15 Pa. 118.

The contract is executory, and in such case the seller warrants that the article shall be of the kind ordered and merchantable in quality: Wilson v. Belles, 22 Pa. Superior Ct. 477.

There is no difficulty about the law in questions of the present character. The defendant’s trouble is that after refusing for three years to pay for the machinery, he is unable to state or liquidate the damages, which he seeks to interpose as a defense, with such reasonable certainty as the law requires. To say the least, the affidavit of defense and the supplementary one are not consistent. In the first affidavit there was no denial that the defendant received both of the machines and used them for years, but the second affidavit undertakes to deny receiving one of the machines, although it is apparent that the defendant had used it about three years. We think the defendant has subjected himself to the criticism in Port Kennedy Slag Works v. Krause & Sons, 5 Pa. Superior Ct. 622.

It seems that the defendant received both machines and kept and used them, one machine just as received, and changed and used the other one, therefore there was substantial performance of the plaintiff’s contract: Preston v. Finney, 2 W. & S. 53. As was said in Gould v. Gage, 118 Pa. 559: “ As the defendants kept the goods, and did not return them, it was immaterial whether they were fit for his particular trade or not, or what they were worth to him ; he should state their value in the market, with reasonable accuracy, and liquidate his damages accordingly.”

What we decide in the present case is, not that the defendant could not retain the machines and defend against the purchase money to the extent of the defects, but that he has failed in his affidavit of defense to show that he is entitled to a deduction of any definite amount from the contract price. See Carnahan Stamping, etc., Co. v. Foley, 23 Pa. Superior Ct. 643; Gausler v. Bridges, 13 Pa. Superior Ct. 646, and Sweigard v. Ice Co., 15 Pa. Superior Ct. 285.

The assignments of error are sustained and the order of the court is reversed, and it is further oi’dered that unless other legal or equitable ground be shown to the contrary, judgment must be granted in favor of the plaintiff for the amount of his claim.


author:
HOFFMAN, Judge:
      VAN der VOORT, Judge,

text:
    445 A.2d 1269
    AMERICAN HARDWARE MUTUAL INSURANCE CO., Appellant, v. Louis P. SILVESTRI and Helen Silvestri, h/w and American Arbitration Association.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Granted Sept. 13, 1982.

      Charles J. Bogdanoff, Philadelphia, for appellant.
    Garland D. Cherry, Jr., Media, for appellees.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends the lower court erred in not enjoining arbitration of appellees’ claims under the “uninsured motorist” provisions of an automobile insurance policy. We agree and, accordingly, reverse the order of the court below and enjoin arbitration.

Appellees Louis P. and Helen Silvestri brought an action against a driver whose automobile had struck and injured Mr. Silvestri. The driver’s insurer paid the Silvestris the policy limits of $15,000. Because this amount was insufficient to compensate the Silvestris fully, they filed a claim for benefits under the “uninsured motorist” provision of their insurance policy, arguing that the driver’s automobile was “uninsured” to the extent they had not been fully compensated. After appellant refused their claim, the Silvestris demanded arbitration. Appellant then instituted this equity action seeking to enjoin the arbitration. After a hearing, the lower court denied appellant’s request for an injunction, prompting this appeal.

Appellant contends that no arbitrable issue exists because the term “uninsured automobile” as defined in the insurance policy cannot be construed to include an automobile covered by the statutory minimum amount of insurance. We agree. “Whenever one party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to two questions: (1) Was an agreement to arbitrate entered into; and (2) Does the dispute involved fall within the arbitration clause.” Independence Development, Inc. v. American Arbitration Association, 460 Pa. 390, 392, 333 A.2d 781, 782-83 (1975). Recently, this Court has held that, as a matter of law, an “underinsured” motorist who is nonetheless covered by the statutory minimum amount of insurance is not an “uninsured” motorist under an essentially identical insurance policy. White v. Concord Mutual Insurance Co., 296 Pa. Superior Ct. 171, 442 A.2d 713 (1982). Accord, Davis v. Government Employees Insurance Co., 296 Pa. Superior Ct. 198, 442 A.2d 727 (1982) (arbitration panel properly declined jurisdiction on question of whether “underinsured” motorist is an “uninsured” motorist). Because this claim did not fall within the ambit of the arbitration clause, the lower court erred in not enjoining the arbitration. Accordingly, we reverse the order of the lower court and enjoin the arbitration.

So ordered.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

A claim made under the uninsured motorist provisions of an automobile insurance policy, which policy provides for arbitration of uninsured motorist claims, should be settled by arbitration, not by the courts. This policy has been stated and restated by the Pennsylvania Supreme Court.

In National Grange Mutual Insurance Company v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968), the court ruled that the issue of whether a driver was an “uninsured motorist” should be decided by arbitration, stating that “court proceedings should not be read into the agreement to arbitrate.” 428 Pa. at 185, 236 A.2d 758. In Allstate Insurance Company v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969), Great American Insurance Co. v. American Arbitration Association, 436 Pa. 370, 260 A.2d 769 (1970), Preferred Risk Mutual Insurance Company v. Martin, 436 Pa. 374, 260 A.2d 804 (1970), and Grange Mutual Casualty Company v. Pa. Mfgr’s. Assn. & Co., 438 Pa. 95, 263 A.2d 732 (1970), the court similarly held that arbitrators should decide whether uninsured motorist coverage applied. In Harleysville Mut. Ins. Co. v. Medycki, 431 Pa. 67, 244 A.2d 655 (1968), the insured claimant under uninsured motorist provisions of a policy purportedly failed to comply with various policy provisions, and the Supreme Court held: “The arbitrator, in short, can determine not only whether the insured has forfeited his coverage, but also whether he has complied with the conditions precedent to any right against the carrier.” 431 Pa. at 73, 244 A.2d 655. In Allstate Insurance Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972), the court ruled that the issue of whether a policy under which an uninsured motorist claim was made had expired was a question for the arbitrators. The court stated: “We will adhere to our long-standing policy that all questions arising under uninsured motorist coverage must be determined by arbitration and we reiterate our resolve first stated in Nat. Grange . . . not to read court proceedings into agreements to arbitrate.” 449 Pa. at 366, 296 A.2d 655. In these and other cases, the Supreme Court has made clear its policy of favoring arbitration of all claims involving uninsured motorist coverage.

The law in this area was settled until the decision of our court en banc in White v. Concord Mutual Insurance Co., 296 Pa. Superior Ct. 171, 442 A.2d 713 (1982). In White, the majority of our en banc court somehow construed an insured’s claim for uninsured motorist benefits as “another way of saying that the Commissioner’s regulations are contrary to . . . statute.” The court thus brought the case within United Services Auto Ass’n. Appeal, 227 Pa. Superior Ct. 508, 323 A.2d 737 (1974), a Superior Court case which, after noting the general rule that where the application or construction of an uninsured motorist clause is at issue the dispute is within the exclusive jurisdiction of the arbitrators, stated the exception that “the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to . .. legislative, or administrative mandate . . . . ” 227 Pa. Superior Ct. at 516, 323 A.2d 737. The court in White thus justified reaching the underlying question of whether “uninsured” in the insurance policy should be interpreted to include one who was underinsured.

Turning to the case before us, it seems that we are faced with the alternative of following the Superior Court’s White decision, or the Supreme Court’s line of cases beginning with National Grange. It is difficult to see how White may be pertinently distinguished from the Supreme Court cases. It would seem to be the better decision in this case to follow the Supreme Court cases and affirm the lower court’s refusal to enjoin arbitration. Then it would continue to be the duty of arbitrators to properly apply the law (including the holding of White that “uninsured” does not mean underinsured) to all disputes involving uninsured motorist coverage, and the prospect (discussed in the Dissenting Opinion in White) of increased referral to the courts of matters properly brought in arbitration might thus diminish.

I therefore dissent.

       We postponed decision of this case pending our Court’s en banc resolution of White and Davis.


author: HOFFMAN, Judge:

text:
    445 A.2d 1271
    Patricia MODESTA, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1981.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Granted Aug. 18, 1982.

      Susan K. Eisenberg, Philadelphia, for appellant.
    Norman Hegge, Jr., Philadelphia, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that appellee, a self-insured, was required to provide uninsured motorist protection to its passengers, and thus, the lower court erred in sustaining appellee’s preliminary objections and dismissing appellant’s complaint for failing to state a cause of action. We disagree and, accordingly, affirm the order of the lower court.

It is well-settled that

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deductible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that the plaintiff’s complaint indicate on its face that his claim cannot be sustained, and the law will not permit a recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976) (citations omitted). Appellant’s complaint alleged that on March 2, 1978, she was severely injured when a motorist negligently crashed into the rear of appellee’s bus, on which she was riding. Appellant alleged no negligence on the part of appellee or any of its employees. Appellee is “self-insured” pursuant to the No-fault Motor Vehicle Insurance Act and the motorist was “uninsured” under the Uninsured Motorist Act. Appellant alleged that appellee was required to provide uninsured motorist protection to its passengers and demanded arbitration. Appellee refused to arbitrate and filed preliminary objections asserting, inter alia, that appellant had failed to state a cause of action. The lower court, relying upon Johnson v. Yellow Cab Co., 456 Pa. 256, 317 A.2d 245 (1974) (self-insureds need not provide uninsured motorist protection), sustained appellee’s preliminary objections and dismissed the complaint. This appeal followed.

The Uninsured Motorist Act requires that uninsured motorist protection be provided in every “motor vehicle liability policy of insurance . . . delivered or issued for delivery in this State.” 40 P.S. § 2000(a). It also provides that motor carriers such as appellee “shall have the right to reject such coverage in writing.” 40 P.S. § 2000(a)(2). These provisions were interpreted in Johnson to “appl[y] only when a liability policy of insurance is delivered or issued for delivery. If no liability policy exists, [the Uninsured Motorist] Act, does not apply. One who is a self-insured does not have a liability policy of insurance.” 456 Pa. at 259, 317 A.2d at 247. Thus, the Uninsured Motorist Act does not apply to self-insureds. Id.; Mitchell v. Philadelphia Electric Co., 281 Pa.Superior Ct. 452, 422 A.2d 556 (1980). Further, the Court dismissed the contention that a self-insured is required to “reject such coverage in writing,” because “[o]ne cannot reject coverage unless such coverage has been offered in a liability policy of insurance.” Johnson v. Yellow Cab Co., supra, 456 Pa. at 261, 317 A.2d at 248.

Under the No-fault Act, every owner of a motor vehicle registered or operated in Pennsylvania shall provide security for personal injuries and property damage sustained in an automobile accident. 40 P.S. § 1009.104(a). Such security may be provided “by a contract of insurance with an insurer or by qualifying as a self-insurer or as an obligated government.” Id. In order to qualify as a self-insurer, one must file with the Pennsylvania Department of Transportation in satisfactory form:

(1) a continuing undertaking by the owner or other appropriate person to pay basic restoration benefits and any tort liability required in amounts not less than those required, by subsection (a) of this section, to perform all obligations imposed in accordance with this act, and to elect to pay such added restoration benefits as are specified in the undertaking;
(2) evidence that appropriate provision exists for prompt and efficient administration of all claims, benefits, and obligations provided in accordance with this act; and
(3) evidence that reliable financial arrangements, deposits, resources, or commitments exist providing assurance substantially equivalent to that afforded by a contract of insurance complying with this act for payment of no-fault benefits, any required tort liability, and performance of all other obligations imposed in accordance with this act.

40 P.S. § 1009.104(b).

Appellant concedes that the No-fault Act does not specifically provide that the security required comply with the provisions of the Uninsured Motorist Act. Nevertheless, she argues that “the No-fault Act, by requiring security not only for basic restoration benefits but also for tort liability, impliedly mandates that its provisions be read and interpreted in conjunction with the Uninsured Motorist Act.” Appellant’s Brief at 18-19. Appellant ignores, however, the language limiting the tort liability that must be covered by self insurance—“an undertaking ... to pay basic restoration benefits and any tort liability required in amounts not less than those required, by subsection (a) of this section, to perform all obligations imposed in accordance with this act.” It does not include uninsured motorist protection. Appellant seeks to construe the statute to extend the coverage to tort liability outside of the Act. Such an interpretation renders meaningless the words immediately following “tort liability.” “It is well-settled that ‘[t]he legislature cannot be deemed to intend that its language be superfluous and without import.’ ” Consumers Education and Protection Association v. Nolan, 470 Pa. 372, 387, 368 A.2d 675, 683 (1977), quoting Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963). A fair reading of the subsection, requires a self-insured to provide coverage in amounts not less than those required under the No-fault Act. It does not require self-insureds to comply with the separate and distinct Uninsured Motorist Act. Because we are constrained to follow our Supreme Court’s interpretation in Johnson, and because the No-fault Act, when read together with Uninsured Motorist Act does not provide protection for appellant, the lower court properly sustained the preliminary objections and dismissed the complaint.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 P.S. § 1009.101 et seq. (No-fault Act).

      . Act of August 14, 1963, P.L. 909, § 1, 40 P.S. § 2000, et seq., as amended.

      . Appellant also contends that the Uninsured Motorist Act requires a self-insured who has not filed a written rejection of coverage to provide uninsured motorist protection, a contention specifically addressed and rejected in Johnson. “[W]e are not free, as an intermediate appellate court, to overrule the decisional law enunciated by the Supreme Court of Pennsylvania.” Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Superior Ct. 565, 573, 352 A.2d 148, 152 (1975). Accordingly, we need not address appellant’s contention.

      . Appellant cites Transport of New Jersey v. Watler, 161 N.J.Superior Ct. 453, 391 A.2d 1240 (1978) for the proposition that self-insureds should be required to provide uninsured motorist protection. Watler, however, deals with a different statutory plan. Further, the Watler court specifically considered and rejected our Supreme Court’s decision in Johnson. We are unable to do so. See footnote 3, supra.

      . Our Supreme Court has recently held in Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981), that “[bjecause assigned insurers [under the No-fault Act] are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori.” Id., 496 Pa. at 219-20, 436 A.2d at 623. The Court distinguished its earlier ruling in Johnson by noting that “[u]nder the assigned claims plan, however, an insurance company is obligated as if a valid policy had been issued. Thus, benefits under the plan obviously cannot be conditioned on the existence of a policy.” Id., 496 Pa. at 220 n.11, 436 A.2d at 623 n.11. Accordingly, because a self-insured does not have a policy of liability insurance, and unlike assigned insurers, they are not “obligated as if a valid policy had been issued,” but only to the extent required by the Act, we hold that appellee need not provide uninsured motorist coverage under the No-fault Act.
      Similarly, 31 Pa.Code § 66-11 sets forth the minimum uninsured motorist protection required in a policy of insurance issued in Pennsylvania. Its provision does not require self-insurers to provide insurance not required by the Uninsured Motorist Act or the No-fault Act.