author: Kun, J.,

text:
    Solomon Schwartz B. & L. Association v. Pedley et al.

      Harry Shapiro, for rule; Morton Within, contra.
    July 31, 1929.
   Kun, J.,

This is a rule for judgment for want of a sufficient affidavit of defense. The defendants gave their collateral bond to the plaintiff in the sum of $10,000, reciting that, whereas the plaintiff has agreed to take a building and loan association mortgage on certain property in the sum of $30,000, the condition of the obligation was such “that if the Solomon Schwartz Building and Loan Association is paid from time to time the sum totaling $10,000 on this building and loan association second mortgage,” then the obligation to be void; otherwise, it is to be in full force and effect.

The statement of claim sets forth that the mortgage haying been defaulted, it was foreclosed and sold at sheriff’s sale for $1500; that the plaintiff has not received a sum totaling $10,000 on the mortgage, and, therefore, the suit to recover the amount of the bond was brought.

The defense filed by the defendant, Pedley, alleges that the plaintiff “has received on account of said mortgage dues amounting to $5450, which said sum should be credited in reduction of” the bond, and, further, that “all monies paid to the association as dues were to be credited on account of said mortgage in reduction of” the bond.

The defendant, The Metropolitan Casualty Insurance Company of New York, filed a defense to the same effect, with the additional averment that defendants Pedley and Nelson, principals on the bond, “have tendered to the said Solomon Schwartz Building and Loan Association, the plaintiff, the sum of $15,000 on the said building and loan second mortgage, which tender the said Solomon Schwartz Building and Loan Association has refused.”

The monthly instalments paid on shares of stock in an association, commonly called dues, which have been assigned as collateral for a mortgage held by an association, are not, ipso facto, payments on account of the mortgage. Such payments may or may not be applied in reduction of the mortgage at the election of the association. It is quite true that the parties may by their initial agreement provide that the payment of dues shall be in reduction of the mortgage, and such an agreement is effective: York Trust Co., etc., v. Gallatin, 186 Pa. 150.

The court has not been referred to any such agreement between the parties in the instant case. Certainly, there is no such provision in the bond on which this suit is brought. The provision in the bond is that it is to be null and void if there is paid to the plaintiff association “from time to time a sum totaling $10,000 on this building and loan association second mortgage;” otherwise, it is to be in full force and effect.

There is no reference in the bond to the payment of dues on the shares of stock assigned as collateral or to the application thereof. In the absence, therefore, of any allegations of a definite and enforceable agreement between the parties that the dues paid on account of the shares of stock are to be applied in reduction of the mortgage, the mere statement in the affidavit of defense “that all monies to be paid to the association were to be credited on account of said mortgage and in reduction of this bond” is ineffective to prevent judgment.

While the precise question was not involved in the recent ease of New Amsterdam B. & L. Ass’n v. Moyerman, 95 Pa. Superior Ct. 47, what the court said with reference to a somewhat similar contention is in point; particularly as in that case, by the very terms of the collateral bond, it seems, payments on account of dues were to be credited on the mortgage. The obligation of the collateral bond, however, was that the indebtedness to the association on the principal obligation was to be reduced to $3000 by payments thereon. That was not done. There was a default and the mortgage was foreclosed, the proceeds of which, with the small amount of dues paid in, reduced the indebtedness to below $3000, on which the surety based his contention that he was discharged. The court held that the payment by the sheriff of the proceeds of the sale on the mortgage was not in performance of the bond; that the payment being made out of the property itself was merely a substitute pro tanto for it, in prejudice of the mortgagee, and not “in ease” of the mortgage, and was not in accordance with either the spirit or letter of the condition of the collateral bond. The court held the bond in force until discharged strictly according to its terms, and reversed an order of the court below which opened the judgment entered upon it to let the defendant into a defense on the ground stated.

In the case before us the collateral bond isj' as has been stated, “to pay the plaintiff association from time to time a sum totaling $10,000 on this building and loan mortgage.” The affidavits of defense filed show that nothing has been paid on the mortgage.

Likewise, the averment as to the alleged tender of $15,000 made to the plaintiff by the principals on the bond is ineffective to prevent judgment, because it does not appear in the affidavit of defense when, where, how, in what manner or on what terms or conditions the alleged tender was made. Likewise, the averment of the pendency of another suit is ineffective to prevent judgment.

Rule for judgment for want of a sufficient affidavit of defense is made absolute.


source: Caselaw Access Project

author: Kent, P. J.,

license: Public Domain

text:
    Flaugh et al. v. Crawford County Commissioners.

      Donald C. Thompson, for plaintiffs.

      A. Dickson Andrews, County Solicitor, for defendants.
    July 1, 1929.
   Kent, P. J.,

The material facts as agreed upon in the case stated are as follows:

The plaintiffs were the officers who conducted the general election on Nov. 6, 1928, in the 1st Precinct of the 3rd Ward of the City of Meadville, Crawford County, Pennsylvania.

The defendants are, and were at the time mentioned, the duly qualified and acting board of commissioners in and for the said county.

The plaintiffs opened and closed the polls as required by law, and thereafter continued with the counting of the vote cast at said election until 9.15 o’clock A. M. on Nov. 7, 1928, consuming in the performance of their duties twenty-six and one-quarter hours’ time.

That there were 927 votes cast and counted in the precinct at the said election.

That for their services as election officers, plaintiffs presented their bill, amounting in the first instance to $71.50, later increasing the amount thereof to $76.50, the same being stated as follows:

(A) Compensation for one day................................ $5.00
Compensation based on vote.............................. 9.00
$14.00
Five officers, at $14......................................$70.00
Return judge........................................... 1.50
$71.50
(B) Compensation for first day........*...................... $5.00
Compensation based on vote.............................. 9.00
$14.00
Reduced by law to minimum for one day or................$10.00
Compensation for second day............................. 5.00
$15.00
Five officers, at $15......................................$75.00
Return judge........................................... 1.50
$76.50

The defendants refused to allow either of said amounts, offering to allow and draw a warrant in the sum of $51.50 in payment for said services, the same being calculated as follows:

Five officers, at $10 (maximum)...........................$50.00
Return judge........................................... 1.50
$51.50

The matter now comes before us on a case stated for opinion in the nature of a special verdict upon the following submission:

“(A) If the court be of the opinion, under the above facts, that the maximum compensation due each member of the election board (other than the return judge, who shall receive an additional sum of $1.50 for making a return) is $10, judgment shall be entered thereon accordingly against the plaintiffs and in favor of the defendants in this action, and upon the payment of such a sum as [was] heretofore offered by the Commissioners of Crawford County, to wit, $51.50, the petition for writ of alternative mandamus shall be dissolved [dismissed] by the court, at the cost of the plaintiffs herein.
“(B) If the court be of the opinion, under the above facts, that the compensation due each member of the election board (exclusive of the additional compensation of $1.50 due the return judge) is a greater sum than $10, the court shall enter judgment accordingly in favor of the plaintiffs and against the defendants herein, for the amount so found to be due the plaintiffs, with costs.”

Reference to the case stated reveals that the contending parties seem to agree that the return judge is entitled to and should receive the additional compensation of $1.50 for making return, as is provided by law. We agree with such conclusion, hereby eliminating this item from our consideration.

The Act of May 5, 1927, P. L. 819, provides:

“Section 1. That the minimum pay of all judges of election, inspectors of election, and clerks appointed by inspectors, except in cities of the first class and counties of the second class, is hereby fixed at Five Dollars per day. In any such election district where more than one hundred votes are cast at any election, the judge and each inspector and clerk shall be paid One Dolla/f for each one hundred ballots or fractional part thereof cast after the first one hundred ballots in addition to the minimum pay herein provided for: Provided, that Ten Dollars per day shall be the maximum pay allowed under this act.”

This act expressly repeals recent legislation upon the subject of pay for election officers as follows: “Act of July 5, 1917, P. L. 684, and its amendment of May 8, 1919, P. L. 115. And generally all other acts and parts of acts inconsistent therewith.”

It would, therefore, clearly appear beyond any peradventure of a doubt that the pay for election officers in Crawford County at the time mentioned in this proceeding, to wit, Nov. 6, 1928, was controlled, fixed and established by said Act of May 5, 1927, at $5 per day, with an addition thereto of $1 for each 100 ballots, or fractional part thereof, cast after the first 100 ballots,- with a maximum pay of $10 per day. Hence, we are clearly of the opinion that the pay could not, under any circumstances, exceed the maximum limitation of $10 per day as fixed by said act.

The plaintiffs having presented their bill to the defendants for services rendered, claiming for two days’ pay, and the defendants having refused to allow it, we conclude that the real question to be decided is, whether they are legally entitled to pay for two days?

The requisite duties of election officers seem to be well defined by law. They must open the polls at 7 o’clock A. M. and close them at 7 o’clock P. M., receive the ballots cast during this interim. When the election or polls are closed, the officers of election shall proceed to count all the .votes cast for each candidate voted for, and make a full return of the same, etc. The vote, as soon as counted, shall also be publicly and fully declared to the citizens present and posted, etc. All judges shall deliver returns, together with return-sheet, as required by law.

Election officers are both elective and appointive, and it is our opinion that the prescribed duties are familiar to all citizens and voters; at least they should be; and when an officer, either elected or appointed, qualifies and undertakes the performance thereof, it is fair to presume that he does so in response to the public service he owes the community, the State and the Nation, and this assumption of duty [is] without regard to the terms and conditions of payment. He is not concerned in whether the same is on a time basis or for a particular service rendered. His interest is in conducting the election, and to conduct an election means to execute all the duties connected with it required by law. His duties are continuous until discharged by full performance. They are not measured by any division of time, natural or artificial. They begin with the opening of the polls and end when the last vote is counted and a full return made out.

Did the legislature contemplate and intend, by the passage of the Act of 1927, to establish a system of payment for election officers on a time (per diem) basis, or was it intended to compensate such officers for a particular service rendered, without reference to the time consumed and occupied?

Counsel agree that no precedent construing the Act of May 5, 1927, in respect to the amount of compensation, can be found. We partially agree with this statement, as we are unable to find any decision of our appellate courts bearing upon the question. When such a state exists, then we look to other methods and deductions for guidance and solution. This we have done in the instant case, with the result that some precedent is found, not only in the laws themselves, both general and special, but as well in the common custom established thereunder, and in practice, so far as we are able to learn, generally throughout the Commonwealth, together with a few opinions of our lower courts.

A careful review and study of the laws enacted from the year 1839 down to the present time clearly reveals that the legislative intent was to compensate for the particular service rendered, without reference to the time occupied. In this connection, we desire to call attention to both general and special legislation upon the subject, which, in our opinion, casts considerable light upon the legislative intent in the passage of the Act of 1927.

General, as follows: The Act of July 2, 1839, § 92, P. L. 519, provides: That “every judge, inspector and clerk as aforesaid shall receive the sum of $1.50 for every day employed in the duties required of him by law in conducting the general, special and township elections.”

This act was interpreted by Barnett, P. J., Nov. 6, 1888, in the ease of Bratton et al. v. Perry County, 6 Pa. C. C. Reps. 62, as follows: “By the Act of July 2, 1839, section 92, providing that every judge, inspector and clerk shall receive a certain sum each for every day employed in the duties required of him by law in conducting the general, special or township elections, the legislature intended to compensate for the particular service rendered, without reference to the time occupied, and no additional compensation can be allowed where the officers are engaged more than one day. This intention is fixed by the legislature providing compensation to the judge of election for delivering the return on the day following the election and by provisions of local acts compensating election officers for extra time.”

Also, in the case of Salter v. The County, 1 Phila. 255, King, P. J. says: “To conduct an election means to execute all the duties connected with it required by law. These duties form a whole; and when a present sum is allowed for an entire public service, such public service cannot be sub-divided into parts and separate compensations be allowed for each. It is for the service that the compensation is allowed, not for the quantities of time employed in its execution. The law is express, its intentions are clear, and this intention is best consummated by permitting it to speak for itself.”

The Act of June 24, 1895, P. L. 237, provides that “The pay of judges and inspectors at all elections . . . shall be $3.50 each at each election so held, without regard to time, and the pay of the several clerks to each election board shall be $3.00 each, without regard to time. . . .”

The Act of April 16, 1903, P. L. 220, provides that “The pay of the judges and inspectors and several clerks to each election board . . . shall be $3.50 at each election so held, without regard to time. . . .”

The Act of June 27, 1913, P. L. 632, provides that “The pay of judges, inspectors and clerks at all elections to be held within this Commonwealth shall be $5.00 each for all services rendered in the conducting of each election. . . .”

The Act of July 5, 1917, P. L. 684, provides that “The minimum pay of all election officers is hereby fixed at $5.00 per day. In any such election district in which more than 250 ballots are cast at any election, each election officer shall be paid for each 100 ballots or fractional part thereof cast over the first 250 ballots, in addition to the minimum pay herein provided for.”

The Act of May 8, 1919, P. L. 115, amending the Act of July 5, 1917, provides that “The minimum pay of all judges of election, inspectors and clerks appointed by inspectors is hereby fixed at $5.00 per day. In any such election district in which more than 250 ballots are cast at any election, each judge, inspector and clerk shall be paid $1.00 for each 100 ballots or fractional part thereof cast after the first 250 ballots, in addition to the minimum pay herein provided for.”

Special legislation, applying to certain counties, as follows: The Act of of Jan. 25, 1853, P. L. 8, provides that election officers in Carbon County, each “shall receive the sum of $1.50 for each general, special or township election, . . . and no extra time or service other than the mileage to return judges shall be paid, etc.”

The Act of March 25, 1868, P. L. 480, provides that the pay of election officers in Clearfield County, “in the district polling less than 200 votes, shall be $2.00, and any districts polling more than 200 votes $2.50.”

The Act of April 9, 1869, P. L. 792, provides that “the pay of officers and clerks of the Board of Election in and for the County of Susquehanna shall be $2.00 per day, and every board that receives more than 200 votes shall be allowed for a day and a-half services.”

The Act of April 15, 1869, P. L. 982, makes the pay of election officers in Northampton County “$3.00 per day in all cases where the number of votes polled shall be under 500, and in all cases where the votes polled shall be 500 and upwards, the said officers shall be entitled to $4.00 per day.”

The Act of March 13, 1873, P. L. 285, fixes the pay of election officers in Lycoming' County “at the rate of $2.50 per day, to be computed from the opening to the closing of the polls, and 25 cents per hour for each additional hour they may be necessarily engaged in counting the votes and making out the returns after the polls are closed.”

Considering the Act of May, 5, 1927, P. L. 819, the legislative intent seems to be clearly expressed by the very wording of the act. Had the legislature intended that election officers should receive a per diem compensation, why require the j'udge to deliver the return on the next day after the election, when that next day was employed in counting the vote? Why compensate the j'udge for delivering the return when that day has already been included in the compensation for duties required of him by law? Why were the hours constituting an election day not clearly set forth, either as twenty-four, twelve or possibly eight hours, or some other definite time fixed as constituting an election day? On the other hand, the act having fixed the minimum compensation at $5 per day, it seems equally clear from the wording of the act, and reasonable to presume, that the legislature contemplated that in some districts more time would be consumed in the performance of the duties required than in others. Hence, the provision in the act for additional pay was provided for upon a basis of the number of votes cast in excess of the first 100 votes, limiting such additional compensation to the sum of $10 per day.

Considering this act in connection with former legislation, both general and special, upon the subj'ect, the custom established thereunder and the opinions above referred to, we are of the opinion that the intent of the legislature was not to change the prevailing custom of compensating for services rendered to a per diem basis; that such a change would be contrary to and against public policy, in that it would tend to invite the use of unnecessary time in the performance of the required duties., and thereby so greatly increase the cost of holding elections that same might become prohibitive.

Considering the statements as filed by the plaintiffs in the instant case, we are clearly of the opinion that the one marked (A) cannot be considered, as there is no legal authority sustaining the same; that the one marked (B) cannot be sustained for the reason herein expressed, that the law provides for compensation for services rendered, rather than upon a per diem basis.

After careful consideration of all questions and matters submitted in the instant case, we are of the opinion that the plaintiffs are by law entitled to but one day’s pay at the maximum amount of $10 for each election officer, together with the additional amount of $1.50 to the judge for making and filing returns, and we hereby state same as follows:

Five officers, at $10 (maximum)..........................$50.00
Return judge............................................ 1.50
Total..............................................$51.50

Order. — Now, July 1, 1929, judgment is hereby entered in favor of the defendants, and the petition for writ of alternative mandamus is hereby dismissed, at the costs of said plaintiffs.

From J. Perry Eckels, Meadville, Pa.


author: Fleming, P. J.,

text:
    Gray v. Gardner et al., Administrators.

      Ellis L. Orvis, W. D. Zerby and A. C. Dale, for plaintiff.

      N. B. Spangler and Ivan Walker, for defendant.
    Jan. 4, 1929.
   Fleming, P. J.,

We have for disposition the motion of the defendants for a new trial, a verdict having been rendered in favor of the plaintiff. Six reasons are advanced in support of such motion, all of which are predicated upon an alleged error in the charge of the court, wherein we spoke as follows:

“We say to you, as a matter of law, that a negotiable instrument is prima fade evidence that it is for a valuable consideration and that the person whose signature appears thereon has become a party thereto for value.
“We say to you, further, that this presumption may be rebutted, and it is for you to determine in this case, at the time the note purports to have been signed, a consideration existing to support it or not.”

The note upon which this suit is based is as follows:

“$1175 “Howard, Pa., Oct. 25,1915.
“Four years after date, I, we or either of us, promise to pay to the order of Irvin G. Gray at the First National Bank eleven hundred and seventy-five dollars without defalcation or stay of execution, for value received; and confess judgment for the above sum, with five per cent added for collection fees; hereby waiving the right of inquisition and appeal, and the benefit of all laws exempting real or personal property from levy and sale, and also waiving protest and notice of dishonor. This note shall be negotiable.
“P. O. Address. Note to draw six per cent int. from date.
“(Signed) Joseph D. Diehl.”

Upon the back of the said note is found the following notation: “Received of Joseph D. Diehl. Payment of twenty-five dollars on this note. $25.00 Apr. 23 (24) 1926.”

Concisely spoken, the defendants complain that the note in suit is not a negotiable instrument, and that our statement above referred to was misleading to the jury and was sufficient to eliminate from their minds the evidence offered by the defendants.

Let us keep in mind the admitted facts. The plaintiff is the original payee named in the note. The defendants are the personal representatives of the maker of the note, who is now deceased. There is no denial of the genuineness of the signature of the maker. There are no allegations or proof of fraud, duress, accident or mistake. No judgment was entered upon the note, by virtue of the confession therein contained, either before or after maturity of the note. The words “and confess judgment for the above sum . . .” and the words “This note shall be negotiable” are printed in the body of the note.

Section 5 of the Negotiable Instruments Act of May 16,1901, P. L. 194, 195, provides, in part, as follows: “An instrument which contains an order or promise to do any act in addition to the payment of money is not negotiable. But the negotiable character of an instrument, otherwise negotiable, is not affected by a provision which ... (2) authorizes a confession of judgment if the instrument be not paid at maturity.”

The note is in writing and is signed by the maker; it contains an unconditional promise to pay a sum certain in money; it provides for a definite future time for payment, and is payable to the order of the payee. Thus far it unquestionably contains all the requisites of a negotiable instrument. It goes further to authorize a confession of judgment. It does not say specifically and in so many words that such confession shall become operative only “if not paid at maturity.” Nor does it specifically, and in so many words, authorize such confession “as of any term” or “before maturity” or anything of that sort. If there were no specific words providing that “this note shall be negotiable,” there would be no question that the negotiable character of the instrument had been destroyed by the addition of the confession of judgment, as there would then be no restriction upon the exercise of the confession of judgment, and it would be possible for such to be confessed before maturity, contrary to the provisions of the act. But the parties to the note specifically provided by the insertion of apt and unambiguous words that the note should be negotiable.

A bill or note, the same as any other written instrument, must be construed as a whole so as to give effect to every part of it, if possible. The contract must be collected from the “four corners” of the document, and no part of what appears there is to be excluded: 8 Corpus Juris, § 136, page 85. A negotiable note, according to a frequently repeated saying, is a “courier without luggage, whose countenance is its passport,” and this is true in respect of the determination of the parties thereto. To ascertain this intention, resort is first had to the language of the instrument. If that appears to be perfectly plain and capable of a legal construction, then the force and effect to be given to the contract must be determined by its terms. It is a well-known rule of law that the intention of the parties who made the contract is to be determined from the whole instrument. The contract primarily must be collected from the four corners of the document, and no part of what appears there is to be excluded. But in expounding any agreement, the court must consider the subject-matter; the object of making it; the sense in which the parties mutually understood it at the time it was made, and the place where it was entered into. But while the writing may be read by the light of surrounding circumstances, in order to more perfectly understand the intent and meaning of the parties, yet, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it or substituted in its stead. The duty of the court in such case is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words which they have used: 3 Ruling Case Law, § 49, page 866. If a contract contains ambiguous words or words of doubtful construction, such are to be considered most strongly against the party who executed the contract. If the contracting party uses, over his own signature, language of a doubtful meaning, he cannot complain when the construction is favorable to the other contracting party, who is not presumed to have chosen the expression of doubtful meaning: 3 Ruling Case Law, § 55, page 872. . •

We have shown beyond contradiction that the note in suit contains all the characteristics of a negotiable instrument, and were the words relating to th® confession of judgment absent therefrom, there would be no doubt that th© same is negotiable. By the specific words of the Negotiable Instruments Act,. supra, this negotiable character could not be destroyed by an authority to confess judgment if not paid at maturity. We are asked to say that because the specific words “if not paid at maturity” are not inserted after the words “and” and before the words “confess judgment . . .” that the note in suit is not a negotiable instrument. In other words, the defendant would have us disregard the patent intent of the maker, who said in apt words “this note shall be negotiable,” and read into the interpretation thereof an intent wholly negativing these express words. We cannot read into the determination of this question, after the words “confess judgment,” the words “as of any term” or “before maturity,” for such would be in conflict with the express direction of the maker found within the four corners of the instrument. We must give effect, if possible, to every part of the instrument and must not exclude any part of it. The legislature has said, in effect, that a negotiable instrument may contain an authority to confess judgment, but in such an instrument such power of confession cannot be exercised until after maturity and default in the payment of the note. In the instant case, the maker of the note in suit explicitly intended to give the instrument a negotiable character by declaring it to be such. By so constituting it, he made it impossible for the holder to enter judgment thereon before maturity, and this is substantiated, at least to some degree, by the fact that no judgment was entered thereon. We can properly give consideration to the entire instrument and not exclude anything therefrom by saying that the words “this note shall be negotiable” adds by direct inference, in the light of the provisions of the Negotiable Instruments Act, the restriction that no judgment shall be confessed unless “if not paid at maturity” or, expressed in other words, it restricts the right of the holder to enter judgment by virtue of the power to confess therein contained until after the maturity of the note and a default in payment. Such a conclusion is drawn from the entire instrument and not from any specific part thereof. It involves a consideration of the entire subject-matter and injects reason into the object of making it, all of which is substantiated by the manner in which the parties to this suit dealt with it from the time of its utterance until the death of the maker.

We fail to find that this question has ever arisen in any reported authority. For enlightenment, we have referred to Paton’s Digest, that excellent compilation of legal opinions of Judge Thomas B. Patón, general counsel of The American Bankers Association. In volume 1, § 3504, page 580, we find this query: “Does a note otherwise negotiable become non-negotiable by the writing of the word ‘Non-negotiable’ across its face before delivery? Is payment thereof to be had only between the payor and payee?” To which query, Judge Pat on replies as follows: “Negotiability is destroyed. The words ‘order’ or ‘bearer’ confer negotiability, but in this case their effect is negatived by expressly writing across the face of the instrument a statement to the effect that it is non-negotiable. The note would still be assignable by the payee, but it would be a mere non-negotiable contract, subject in the hands of the assignee to equities between the original parties.”

The note in the instant case, as we have shown, meets all the requirements of negotiability. The only shadow of doubt existing is as to the limits of the authority to confess judgment; that is to say, as to whether such judgment could be confessed before maturity, and the maker of the note has eliminated the remaining portion of such shadow of doubt by expressly stating that “this note shall be negotiable.” Applying in a converse sense the reasoning applied by Judge Patón in his answer to the query of a member bank, we must conclude that the note in the instant case is negotiable.

The instant case is clearly distinguishable from Milton National Bank v. Beaver, 25 Pa. Superior Ct. 494, and Volk v. Shoemaker, 229 Pa. 407, in that in those cases the power to confess judgment was clearly extended to “as of any term” or to before maturity without any such express limitation by the maker as is existent here.

We conclude, therefore, that we did not err in referring to the note in suit as a negotiable instrument.

However, for the purpose of further considering the reasons advanced by the defendants, let us assume that such a note as is in suit here is not a negotiable instrument. Further, let us bear in mind that the defendants did not allege payment or cancellation, but contended, solely by attempting to raise an inference, that the note in suit had been given for some undisclosed purpose. In this course, the defendants were given an almost unrestricted opportunity to prove such a contention; in fact, so broad that we feel that, if there was error committed in the trial of this cause, it was in our admitting defendants’ Exhibit No. 7, being a note for $2000, dated Jan. 1, 1910, due one day after date, to the order of Joseph D. Diehl and signed Irvin G. Gray, offered by the defendants “for the purpose of showing the impossibility of the note in suit being given for an indebtedness due from the defendant, Joseph D. Diehl, to the plaintiff and as having some bearing on the relationship between the parties.”

The instant case is quite analogous to that of McCarty v. Scanlon, 187 Pa. 495. There, the signature to the promissory note upon which the suit was brought was not denied, but the defendant set up the contention that it •Was executed and delivered to the plaintiff for more or less misty reasons. The defendant therein produced to the jury (and we do not have such proof here) evidence of alleged declarations by the plaintiff substantially that there was no money consideration passed for the paper, but that it was held for some undisclosed reason other than as an evidence of direct indebtedness. Chief Justice Sterrett said therein: “The defense did not allege payment or cancellation, but contended that the note had been given for some undisclosed purpose, and that the purpose, whatever it was, had been fulfilled. The trial judge was, therefore, right in embodying in his answer the remark that the plaintiff could recover unless the defendant showed one of the defenses to the note presented in the point, or that the purpose for which it had been given, had been fulfilled.” This case was the second appeal between the same parties and over the same note. The first appeal appears in 176 Pa. 262, and therein the trial judge said: “The note itself, upon its face, purports to have been given for a valuable consideration; it recited, ‘for value,’ and, therefore, prima, facie, it makes out the plaintiff’s case.” The Supreme Court in both appeals sustains the trial judge in the respect that a non-negotiable judgment note, as between the original parties, is prima facie of sufficient consideration. We said no more than this in our' charge in the instant ease.

In the instant case, the note bore evidence of a payment on the same as of April 23, 1926, or April 24, 1926. The exact day was in question, due to an overmarking, which was attempted to be explained by plaintiff’s witnesses. Our charge was based upon this payment as a matter of preliminary consideration, and the jury were told that if they found as a fact that such payment had not been made as indicated on the note, or if made at or about the time indicated on the note, but for some other purpose than the note in question, that the claim of the plaintiff would be defeated by the statute of limitations and that the verdict should be for the defendants. The verdict rendered indicates clearly that the jury found as a matter of fact that the defendants’ decedent had made a payment on the note as recently as the year 1926. This was necessary to be found, under our charge, before any consideration of the sufficiency of consideration of the note could be had, and furnished in itself rebuttal, to some degree at least, if not entirely, of the defendants’ contention that the note in suit had been given for some undisclosed reason and was not enforceable.

Plaintiff in this case did not rest alone upon the presumption of consideration contained in the note itself, but carefully and in detail adduced evidence showing, to the exact cent, how the amount of the note was arrived at, the circumstances of the settlement between the plaintiff and the defendants’ decedent, the inability of the parties to procure a form of note with Which to evidence their agreed settlement on the day on which the same was reached, the subsequent procurement of such a form by the plaintiff and his entering therein the material parts, minus the date, and the mailing of the same to the defendants’ decedent, a number of miles away, for his signature, and the subsequent return of the same by mail and without protest of any sort and duly executed. Further evidence of subsequent conversations between the plaintiff and defendants’ decedent concerning the desire of the plaintiff to have the note paid and the statements by the defendants’ decedent of his inability to pay, but of his intention to pay the same as soon as a new bank which he contemplated forming [had been organized], were adduced at the trial by responsible witnesses, none of whom were shaken on cross-examination or contradicted by any evidence adduced by the defendants. Defendants’ ' case was based upon the testimony of M. I. Gardner, one of the administrators, who quite frankly admitted that he had no knowledge of any transactions between his decedent and the plaintiff prior to his becoming one of the administrators of the estate. (See Notes of Testimony, page 41.) A careful reading of his entire testimony shows it to refer entirely to matters wholly irrelevant to the issue herein. John Diehl, produced as a witness for the defendant, sought to testify as the decedent’s bookkeeper. His testimony referred to matters so remote to the issue that defendants’ counsel finally withdrew the only material offer sought to be made and did not press the same. (See Notes of Testimony, pages 47, 48 and 49.)

Reviewing the entire record, we find, in the language of the brief of the learned counsel for the plaintiff, that “the utmost that the defendants could have hoped for at the close of the case was a verdict for the defendants through prejudice or conjecture.” There was, indeed, no actual matter of fact to be submitted to the jury. The note was in evidence; there was consideration presumed; there was consideration actually proven and uncontradicted; there was an affirmance of the note by a payment on account made by the defendants’ decedent without protest; there was a preponderance of the evidence that defendants’ decedent had acknowledged his indebtedness on the note and had promised to pay it when the bank, of which he was a promoter, had been formed. None of these material points were contradicted in any degree by the defendants. -They failed to reveal any purpose for the existence of the note other than the purpose expressed by the note itself, to wit, payment of a sum certain at a time certain. No evidence was offered to show that the note had been paid or canceled in any manner. Even presuming that the note in question was a non-negotiable note and that no presumption of consideration existed, the record is so devoid of a proper defense as to make our reference to the note in the manner in which the same was made, as a negotiable instrument, harmless error.

And now, Jan. 4, 1929, motion for a new trial is refused and judgment is directed to be entered upon the verdict upon payment of the jury fee.

From S. D. Gettig, Bell&fonte, Pa.


author: Groff, J.,

text:
    Martin v. Adams.

      Robert Ruppin, for plaintiff and rule.

      George T. Hambright and John E. Malone, contra.
    Jan. 19, 1929.
   Groff, J.,

This is a motion for a new trial, for which the plaintiff assign six different reasons. We have examined them all and find no virtue in any of them, unless it be the first one. All the reasons, therefore, except the first one, will be dismissed without discussion.

The first reason assigned is: “The court erred in refusing to admit in evidence in rebuttal the testimony of Esther Rottmund that she had heard the defendant say, immediately after the accident, that he had not seen the plaintiff approaching.”

The record shows that the defendant’s attention was not called to this fact when he was on the stand, and that no reference was made to it until after plaintiff’s and defendant’s testimony in chief had closed. Plaintiff’s counsel then called Esther Rottmund and said: “We offer to show by this witness that she heard Adams say after the accident that he did not see Martin’s car.” This was objected to by defendant’s counsel, and the reason for the same not being stated, except as in the above offer, the question was disallowed by the court. Was that error? We think it was.

The object of all trials where facts are involved is for the court to so control the introduction of evidence that all evidence and material facts may be brought before the jury so that it can reach a correct conclusion.

In Devall v. Burbridge, 6 W. & S. 530, 539, it is said: “There is a discretion in a court as to the order of receiving testimony; but it must be a strong case which will allow a court to reject evidence, because not offered at the right time, which may be decisive of the merits of the case.”

And this same view as to the order in which testimony may be admitted is expressed in Continental Ins. Co. v. Delpeuch, 82 Pa. 225, 234.

The plaintiff’s case here was built upon the following facts: That as plaintiff was driving eastward, in or near the Borough of Akron, on the day in question, the defendant, without any notice or warning, drove his car diagonally across the street on which plaintiff was passing, compelling plaintiff to turn sharply to the right, thereby causing plaintiff’s car to upset, damaging it. Defendant, in his defense, testified that he saw plaintiff approaching before he started his truck, that he was on the right-hand side of the road, plaintiff “turned to get away from me and his hind wheel caught my left wheel, the left front wheel, and scooped him a little toward the gutter. It is slanting off a little. It slid him across the street where you could see the marks.” In answer to “Q. How far away was it when you first saw him? A. Well, about half way. You know where that is. About half way between where I was hit and the square. Q. About 350 feet?” And it seems to have been agreed between counsel that that was about the distance plaintiff was away from the defendant when defendant first saw him.

If defendant saw the plaintiff approach, he would probably act in a very different manner than if he did not, and if he did say immediately after the accident that he didn’t see plaintiff approach, and on the day of the trial that he did see him coming for 350 feet, then it'seems to me those two statements, at least, would bring his veracity into question, and the rebuttal which was disallowed would be material evidence.

In Stetson v. Croskey, 52 Pa. 230, it was held that “As a general rule, a plaintiff cannot give evidence in rebuttal which might be given in chief; but when the defense is new matter, conflicting inferentially, not directly, with plaintiff’s case, he may rebut it, although the evidence might have been admitted in chief.”

It seems to me that the defendant’s evidence was new matter conflicting inferentially with plaintiff’s evidence in chief, and that the rebuttal offered was material evidence in the case and should have been admitted. I think, however, that plaintiff should have called defendant’s attention to this particular fact in his cross-examination, but, having failed to'do that, it seems to me that exact justice requires that a new trial be granted.

The rule is, therefore, made absolute and a new trial granted.

Prom George Ross Bshleman, Lancaster, Pa.


author: Knight, J.,

text:
    Wood’s Naturalization.
    Dec. 21, 1928.
   Knight, J.,

On April 17, 1928, Amelia Draiser Wood filed with the prothonotary of this court her declaration of intention to become a citizen of the United States.

On June 14, 1928, in pursuance of her declared intention, Mrs. Wood filed her petition for naturalization, which was heard by this court on Sept. 14, 1928.

At the hearing it appeared that the applicant is fully qualified to become a citizen, but the Government objected to her admission solely on the ground ■that she was not twenty-one years' of age, and the matter was held under advisement.

The applicant was born on Sept. 25, 1909, and was over eighteen years of age when she filed her declaration of intention.

Oh March 6,1928, she married Charles Wood, a citizen of the United States.

As the alien wife of a citizen of the United States, no declaration of intention was required, although the applicant filed one: Act of Sept. 22, 1922, ch. 411, § 2, 42 Stat. at L. 1022.

Under the provisions of the same act, the five-year period of residence within the United States was reduced in cases like the present to one year.

Can a person under the age of twenty-one be naturalized under the present law?

If so, can such a person present her petition in her own name, or must she proceed by a guardian or next friend?

While there is some authority to the contrary (see In re Chamorra, 298 Fed. Repr. 669), the more recent decisions answer both of these questions in the affirmative.

Judge Morris in the District Court for Delaware, in the matter of the petition of Maria Fortunato, 8 Fed. Repr. (2nd series) 508, held in a well-considered opinion that a minor over the age of eighteen years could petition for admission to citizenship regardless of whether he or she is at that time twenty-one years of age, and that such petition may be prosecuted personally without representation by a guardian or next friend.

Judge Morris quotes with approval the earlier case of Re Rousos, 119 N. Y. Supp. 34, in which the Supreme Court, of New York held: “In terms, the Nationalization Act gives- the minor, after he reaches the age of eighteen years, the right to choose his citizenship, and it thereby invests him with discretion sufficient to adequately understand his right; and if at eighteen, without the intervention of a guardian or next friend, he may determine under what government he will become a citizen, at twenty, why is he not equally entitled to take the final step in becoming a citizen? The rule fails where the reason thereof fails.”

All doubt on the question seems to have been resolved, however, by the Circuit Court of Appeals of the 5th Circuit, which held, in an opinion filed Jan. 30, 1928, in United States v. Stabile, 24 Fed. Repr. (2nd series) 98, that an alien is not debarred from admission to citizenship because not yet twenty-one years of age, and he may petition in his own name.

We are not unmindful that Judge Swartz, whose opinion we hold in high regard, in 1889 held, in the case of the Application of Patrick Lawler, 5 Montg. Co. Law Repr. 77, that a minor could not he naturalized or indeed enter his declaration of intention except through a guardian or next friend. This was the prevailing opinion among the courts at that time.

Since the Act of Congress of 1906 on the subject of naturalization it has become the common practice for minors to file their declarations of intention personally, and in the light of the later cases cited and quoted above, we are of the opinion that a minor may present his or her petition for naturalization in person, and a guardian or next friend is not required.

And now, Dec. 21, 1928, the petition of Amelia Draiser Wood for admission to citizenship is granted and the applicant is directed to appear in Court-room No. 1 on Friday, Jan. 11, 1929, to take the oath of allegiance.

Aaron S. Swartz, Jr., Norristown, Pa.


author: Potter, P. J.,

text:
    Lycoming Trust Company v. Allen.

      Miller A. Johnson and Seth T. McCormick, for plaintiff.

      Curtis C. Lesher, for defendant.
    Aug. 12, 1929.
   Potter, P. J.,

The plaintiff has brought suit against the defendant for the recovery of $2200, with interest from Dec. 10, 1928, and protest fees of $2.43 on a promissory note that was endorsed over to them in the usual course of business.

The defendant delivered the note in question to the Park Amusement Corporation, whose treasurer was N. E. Watson, who, for and in behalf of his corporation, endorsed it over to the James V. Bennett Company, a partnership. Sherman E. Bennett, a partner, for and in behalf of his firm, endorsed it over to the West End Lumber and Supply Company, Inc., which corporation, by its president, C. E. Updegraff, endorsed it over to the plaintiff.

When the first statement of claim was filed, a statutory demurrer was filed, setting out that the statement did not show that the persons who endorsed the note had authority to do so from their respective principals. We upheld the demurrer. A second statement was filed, setting out a general authority on the part of the endorsers to make the endorsements, which we have before us.

We have no hesitation in saying that we consider the second statement sufficient. For many years it was a mooted question in what respect and to what extent the statement should set out the authority of the person who made the endorsement to act for the principal. We have had decisions of the appellate courts looking both ways, but, in our judgment, the question is now well settled by the provisions of the Act of May 12, 1925, P. L. 615, which provides as follows;

“Section 1. The by-laws of any corporation organized or doing business within the Commonwealth shall operate merely as regulations among members and stockholders of the corporation, and shall have no effect upon the contracts or other dealings with other persons, unless such persons shall have actual knowledge of such by-laws.
“Section 2. Any note, mortgage, evidence of indebtedness, contract or other instrument of writing, or any assignment or endorsement thereof, executed or entered into between any corporation organized or doing business within the Commonwealth, and any other person, copartnership, association or corporation, when signed by the president or vice-president and secretary or treasurer of such corporation, shall be held to have been properly executed for and in behalf of such corporation.”

We think this act clears the atmosphere, and under its provisions we think the plaintiff’s second statement quite sufficient. We find it referred to that the defendant did not receive value for the note given. This is a matter of defense to be considered at the trial.

And now, to wit, Aug. 12, 1929, the affidavit of defense raising questions of law is dismissed and the defendant is given the usual fifteen days from this date in which to file an affidavit of defense to the merits of the case. An exception is noted for the defendant and a bill is sealed.

From A. Francis Gilbert, Middleburg, Pa.


author: Patterson, P. J.,

text:
    Tyrone Gas and Water Company v. Tyrone Borough.

      O.H. Hewit, for plaintiff; R. H. Gilbert and C. K. Robinson, for defendant.
    Jan. 7, 1929.
   Patterson, P. J.,

1. The Tyrone Gas and Water Company is a corporation existing under a Special Act of Assembly of March 10, 1865, P. L. (Appendix, 1866) 1147. By the provisions of said act, said company became vested with “the exclusive right to provide, erect and maintain all works and machinery necessary or proper for making and introducing into the Borough of Tyrone a sufficient supply of gas, and raising and introducing a sufficient supply of good and wholesome water from the Sinking Run or some other convenient source.”

2. On Sept. 1, 1893, the said Tyrone Gas and Water Company, by proper resolution duly adopted, formally accepted the provisions of the Constitution of the State of Pennsylvania of 1874 and of the General Incorporation Act of April 29, 1874, P. L. 73, applicable thereto. A true and correct copy of said acceptance, together with letters-patent issued by the Governor of Pennsylvania and the record pertaining thereto in the office of the Secretary of the Commonwealth, was put in evidence and is marked Exhibit —.

3. The defendant borough was incorporated July 27, 1857, under General Borough Act of April 3, 1851, P. L. 320. About Jan. 1, 1870, the plaintiff water company commenced the supply of water to the inhabitants of the Borough of Tyrone. And on or about October, 1874, commenced the supply of manufactured gas in said borough, and has continued to furnish both water and gas to the inhabitants of Tyrone Borough to the present time.

4. The plant and physical properties of the said plaintiff company are entirely separate and distinct, so far as the water-works is concerned and so far as the gas-works is concerned. The two plants are not in any way physically identified with each other, and there would be no physical dismemberment growing out of the separation of the gas and water-works. Some of the water-lines and gas-lines are laid in the same trench and a common storage facility for supplies has been provided for both gas and water supplies, and both the gas and water companies have been engaged and operated by the same organization and the same individuals. In all other respects, the properties of the two companies are separate and distinct.

5. The Council of the Borough of Tyrone, on June 7, 1926, enacted an ordinance, numbered 346, approved by the Burgess of Tyrone June 9', 1926, entitled “Ordinance No. 346, signifying and expressing the purpose and desire of the council of the Borough of Tyrone, Penna., to acquire all of the properties of the Tyrone Gas and Water Works Company owned and used by the said company for water-works purposes, and authorizing the Water Committee of the Borough of Tyrone to do everything necessary and needful to accomplish the said purposes.”

6. On July 12, 1926, the defendant Borough of Tyrone filed a petition with the Public Service Commission of the Commonwealth of Pennsylvania to No. 5326, 1926, application docket, praying for a certificate under article III, section 3 d, and article V, sections 18 and 19, of the Public Service Company Law, evidencing its approval of the acquisition and its right to operate the water-plant of plaintiff company.

7. On Sept. 8, 1926, the Tyrone Gas and Water Company, plaintiff, filed this bill in equity for an injunction restraining the said Borough of Tyrone, defendant, “from taking or maintaining any further action or proceedings to take over, condemn and appropriate the water-works and property of the plaintiff Tyrone Gas and Water Company; and particularly from taking any further action or proceedings before the Public Service Commission of the Commonwealth of Pennsylvania respecting the same,” and for further relief.

Discussion.

The prayer of the injunction is based primarily on the averment contained in said bill to the effect that the gas-works and the water-works are indivisible and not severable and that the defendant borough has not, under the law, the right to dispossess or divest plaintiff’s ownership of said water-works without including in the divestiture the gas-works. And the taking of the waterworks, under and by virtue of the Act of Assembly of April 29, 1874, P. L. 73, will leave the plaintiff the ownership of the gas-works and property which cannot be operated at a profit, and that such taking would be an act ultra vires on the part of the defendant borough. With this conclusion we cannot agree. True it is that at the time of the enactment of the special act of assembly incorporating the said Tyrone Gas and Water Company it was permissible, under the Constitution of Pennsylvania, for such corporation to be incorporated for more than one purpose, but after the adoption of the Constitution of 1874 and the Act to Provide for the Incorporation and Regulation of Certain Corporations, approved April 29, 1874, P. L. 73, such corporation existing for two or more purposes could not be created. However, whether such a corporation as the Tyrone Gas and Water Company would be chartered under the present law need not concern us at this time. And the effect of the enactment of the subsequent law, relating to corporations under previous enactment, such as the special act creating the plaintiff company, can have no bearing on the question involved here, for the reason that the plaintiff corporation, by its voluntary act on Sept. 1, 1893, formally accepted the Constitution and the Incorporation Act of 1874. This acceptance was the voluntary action of the stockholders of said company, and the Governor thereafter issued a new charter for said corporation under the Constitution and the Act of 1874, thereby making it, by its own act and the subsequent action of the Governor,, subject to all of the provisions of the Act of 1874, the same as if it had been incorporated after the passage of the same. Pamphlet Laws, 1874, § 40, page 103, provides, in part, as follows: “The certificate for a recharter shall state the fact that it is a renewal of the former charter, naming the corporation and the date of its first charter. ... It shall expressly accept the provisions of the Constitution of this State and of this act and expressly surrender all privileges conferred upon such corporation by its original charter that are not enjoyed by corporations of its class under this act or general laws of this Commonwealth. . . . The said rechartered corporation shall be and exist as a new corporation under the provisions of this act and of its said renewed charter.” Clause 7, section 34, of said Act of April 29, 1874, P. L. 73, reads as follows: “It shall be lawful at any time after twenty years from the introduction of water or gas, as the case may be, into any place as aforesaid, for the town, borough, city or district into which the said company shall be located to become the owners of said works and the property of said company by paying therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends theretofore declared.” Under the language of the foregoing clause, a municipality is given the right to acquire either the gasworks or the water-works or both. And it is not necessary, in taking one property, to include the other.

It was incumbent upon the plaintiff company, immediately after its acceptance of the Incorporation Act of 1874, to keep its accounts, both as to property, income, dividends and other matters, so that the provisions of clause 7 could be easily and quickly applied, both for the water-works properties and for the gas properties. And the failure of said corporation to perform all things necessary on its part to be done in connection with its renewed existence under the Incorporation Act of 1874 cannot now be used to defeat the rights of the municipality under said act as contained in clause 7.

All of these matters have been considered in an opinion of this court by the late Judge Bell in the case of the Tyrone Gas and Water Company, as reported in 195 Pa. 566, which opinion was adopted as the opinion of the Supreme Court, and it is so applicable to the question under consideration that we quote it at length:

“The argument of counsel for plaintiffs that said act, just recited, required no surrender of privileges, therefore no privileges were lost, does not strike me as being of sufficient force to sustain their contention. Inferentially, at least, there was to be a surrender of old privileges as a consideration for the obtaining of the new. The reasoning of Judge Reeder in Wallace v. Lehigh Water Co., 1 Northamp. Co. Repr. 117, on this point seems to be satisfactory. One object of said act doubtless was to obtain uniformity as respects corporations of the same class; all old corporations were to be as if chartered immediately after the passage of said Act of April 29', 1874; this would put all corporations in existence at that time on an equal footing.
“But I prefer to put my ruling on the (to my mind) safer, saner and more conservative ground that the legislative intent, in the passage of said acceptance section of the Act of April 29, 1874, was to put all old corporations accepting the Constitution on a par with corporations chartered immediately after its passage, say, on April 30, 1874. This construction tends to carry out the legislative purpose — namely, uniformity as to the rights, privileges and obligations of corporations of the same class — as of the same date of charter, and protects the rights of the corporation, while it renders it amenable to the Corporation Act of April 29, 1874.”

Supporting the same conclusion are the following authorities: Meadville Theological School v. Hempstead, 290 Pa. 222; Eastman on Private Corporations in Pennsylvania, § 91; Wallace v. Lehigh Water Co., 1 Northamp. Co. Repr. 117; Savage on Corporations in Pennsylvania, 297; Com. v. Flannery, 203 Pa. 28.

It is contended on the part of the plaintiff company that the defendant borough has the right, under clause 7 of said Incorporation Act, which said company has already accepted, to take the water-works provided it also takes the gas-plant. And that it would be unjust and inequitable to permit the said borough to take over the water-plant without taking the gas-plant, for the reason that the water-plant is profitable to the said plaintiff company and that the gas-works has never been operated at a profit. This contention fails, for the reason that under the clearly expressed language of the act the borough had the right and option, after a period of twenty years, to take over either the gas or the water, without the other, whether either or both had been operated at a loss or with profit. In fact, whether the gas or water-plant is profitable has no bearing on the rights of the municipality under said act. Prior to the Constitution of 1874, corporations were authorized by special acts of assembly with omnibus purposes and powers. Corporations existed for the furnishing of gas, street railway service, electric light and power and other public utility service, and it could not be successfully contended that a municipality could not take over the gas-plant or water-plant of such a corporation under said clause 7 without also taking over all and every other interest of said corporation and after said corporation had accepted the provisions of the Act of 1874. This section of the act specifically enables a municipality to take over either “water or gas” at any time after twenty years from the introduction of the same. And, in our opinion, it matters not in what manner said gas or water company is being operated. Whether or not the management of the two plants is in one person or in one group of persons, or in the same office, or the accounts kept in the same books, or that the laborers be the same in both operations. Both plants might be run in connection with many other service plants, but certainly the manner of their operation cannot be used to defeat the purposes of. the act of assembly under which said plants exist. It is apparent that the existence of these two plants under one management and in the manner evidenced by an examination of the testimony will entail much difficulty of. computation. Nevertheless, the Supreme Court, in the case of Greensburg Borough v. Westmoreland Co., 240 Pa. 481, says: “The most serious complications that might arise would be in separating and ascertaining the earnings of the Greensburg Borough water plants and in crediting these plants with the dividends that should be awarded to the same, and possibly the apportionment of the cost of erecting and maintaining a common source of water supply for the consolidated companies; and these are remote if the plaintiff will promptly assert its right to purchase. In any event, they are complications susceptible of an approximately accurate solution.”

The right conferred upon boroughs in clause 7 is clearly set forth and defined in the opinion of Mr. Justice Stewart in Reynoldsville Borough v. Reynoldsville Water Co., 247 Pa. 26: “It was thus made a condition of the charter of such companies — evidently in view of the fact that the exclusive privilege given them under the terms of the act might become oppressive to the municipality — that after twenty years’ enjoyment of the franchises given, they would, upon demand of the municipality and payment of the prescribed eonsideration, transfer their entire property to the latter. The act was compulsory.”

Legal conclusions.

We conclude, in the language of the late Judge Bell in the case of Tyrone Gas and Water Co. v. Tyrone Borough, supra:

“When the Tyrone Water Company, plaintiff, on Sept. 1, 1893, accepted the provisions of the Constitution and of the Act of April 29, 1874, and its supplement, it put itself on a par with like water companies chartered immediately subsequent to the passage of said act. It lost its exclusive franchise granted it by its charter, but it gained, in lieu thereof, the exclusive privilege given to water companies by clause 3, section 34, of said Act of April 29, 1874, P. L. (1874) 94. But at the same time it rendered itself amenable to clause 7 of the same section of the same act, which provides a method whereby municipalities can purchase the plants of water companies. . . .
“The water company then ought not to be heard to complain of the legislation of 1874 (hereinbefore referred to), allowing the borough to purchase, since, from its very inception, it was subject to such legislation. . . .
“The Borough of Tyrone, therefore, has no right to construct a municipal water plant; if said borough desires to own its own water-works, it must buy out the water company in accordance with the provisions of said hereinbefore recited clause 7, section 34, Act of April 29,1874, P. L. (1874) 95.”

After a careful consideration of all the testimony, the able arguments of the respective counsel and the law, we are of opinion that the defendant borough has the right and option to become the owner of the water-plant of said plaintiff company in accordance with its declared intention, as evidenced by an ordinance duly enacted by the council of said borough and as provided by clause 7, section 34, of the Incorporation Act of April 29, 1874.

Decree nisi.

And now, Jan. 7, 1929, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The injunction heretofore granted is hereby dissolved and the bill in equity dismissed, at the cost of the plaintiff.

The prothonotary is directed to notify counsel for all parties of the filing of this decree, which shall become absolute unless exceptions are filed thereto and to the findings of fact and conclusions of law within the time provided by the rules of equity practice.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Gest, J.,

text:
    Lewis’s Estate.

      Pierce Archer, Jr., for exceptants; Charles Sinkler, contra.

      April 26, 1929.
   Gest, J.,

A careful study of this case leads us to the conclusion that the Auditing Judge correctly disposed of it. The phraseology of that, paragraph of his will which is in dispute is certainly peculiar. The testator apparently assumed that the fund of $100,000, bequeathed in trust for his sister for her life, would remain without increase or diminution as long as she lived, and, so, at her death he gave $25,000 to each of the four remainder-men. We are of opinion that in doing this he regarded each gift in remainder as an aliquot part of the whole, $100,000, rather than a gift of exactly $25,000 to each. If, instead of this bequest of four times $25,000, the testator had bequeathed $25,000 in trust for Mary P. Mayer for life, and on her death to pay over “the principal” to Randolph Justice, it would not seem possible to raise any question concerning the right of the remaindermen to receive the whole of the “principal,” as the will calls it, and this testator has simply included the four shares in one paragraph. It frequently happens that a trust fund decreases in value before the expiration of the life estate, and in such case the four gifts of $25,000 would have to abate. The present is the converse ease, and if the remaindermen are compelled to take the risk of a deficit, it would seem that they are justly entitled to the chance of a surplus. An analysis of the account shows that by conversion of the assets originally awarded a net profit was realized of $2967.52, less costs and fees of $416, or $2551.52, and the difference between that and the $7416.52, which is the subject of this litigation, amounting to $4865, represents merely the apparent or paper profits arising from the revaluation of the securities on hand. To allow the claim of the residuary legatees would be, in our opinion, contrary to the real intention of the testator, who could not be reasonably supposed to desire to benefit them to the detriment of the remaindermen of this fund, which he had segregated and carved out of his general estate. But the adjudication of the Auditing Judge is so thorough that it is needless to extend this opinion.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Martin, P. J.,

text:
    C. P. Struse & Sons, Inc., v. Reading Company.

      Rambo, Rombo & Mair, for plaintiff.

      Glenn C. Mead and William J. Graham, for defendant.
    July 10, 1929.
   Martin, P. J.,

Plaintiff filed a bill in equity to restrain defendant from condemning land belonging to plaintiff for a branch railroad or siding to connect with the plant of Sears, Roebuck and Company.

The bill described the land, which is situated in the 35th Ward of the City of Philadelphia, and avers that the defendant filed a petition alleging that it is authorized to acquire land by eminent domain for railroad purposes; that, pursuant to a resolution duly adopted, the defendant desires to enter upon, take and appropriate a strip of ground particularly described in the petition, to construct a lateral or branch railroad; that defendant endeavored to agree, but cannot agree, with the owner upon the consideration to be paid for the damage done in the course of taking and appropriating the land; and that the holder of the legal title to the land, who holds in trust for plaintiff, has refused to accept the bond of defendant conditioned for the payment of damages to be awarded for taking the land.

It is averred that plaintiff is operating a brick manufacturing plant on adjoining land, and that the ground proposed to be taken comprises all the ground owned by plaintiff on its northwesterly line and fronting on the Pennsylvania Railroad; that if the taking is permitted, it will destroy plaintiff’s entire Pennsylvania Railroad frontage; that defendant, under guise of exercising its power of eminent domain to construct a branch railroad, is attempting to employ the right in constructing a private siding for the sole benefit of Sears, Roebuck and Company, and not for public use.

It is also averred that the defendant has a connecting siding from its line to Sears, Roebuck and Company, but that Sears, Roebuck and Company made large improvements and extensions to their property, which cut out the siding they formerly used .

The bill prays that it be taken and considered as an answer to the petition filed by defendant, and that an injunction be granted restraining the defendant from taking the ground described in the petition and in the first paragraph of the bill, and for other and further relief.

An answer was filed by defendant which denies that the taking is to build a private siding, but avers that the purpose is to build a branch railroad in which the public is interested and for public use.

The defendant offered in the answer to provide plaintiff's land with adequate access to the Pennsylvania Railroad, and expressed a willingness to enter into a written stipulation therefor.

The question raised by the pleadings is whether the land proposed to be taken by the defendant is for a branch railroad, for public use, or for a private siding.

Findings of fact.

From the evidence submitted and the admissions of the pleadings, the court finds the following facts:

1. The plaintiff is the owner of a tract of land situated in the 35th Ward of the City of Philadelphia, containing thirty-six acres, upon which it has erected and is operating a brick manufacturing plant.

2. Defendant is a corporation vested with the right of eminent domain.

3. The defendant filed a petition and bond for condemnation of a strip of land belonging to plaintiff, described in the petition and bill as containing ninety-one one-hundredths of an acre, for constructing a track to connect the Philadelphia & Frankford Branch of the Reading Company with the merchandising plant of Sears, Roebuck and Company.

4. A siding or track connected the railroad of defendant with the plant of Sears, Roebuck and Company, but extensions and improvements by Sears, Roebuck and Company resulted in taking up the track and a demand for a new connection on a different location.

5. The main tracks of the defendant are nineteen feet above the level of the Pennsylvania Railroad tracks, which are also connected with the plant of Sears, Roebuck and Company, and it is to be arranged that the tracks of both companies will connect on the same level with the same building of Sears, Roebuck and Company.

6. The condemnation will take the only portion of plaintiff’s land that abuts on the Pennsylvania Railroad.

7. The contemplated improvements embrace the construction of a connecting link between the Pennsylvania and Reading tracks, which will enable plaintiff to reach the Pennsylvania Railroad tracks through this link and the tracks of the defendant. Defendant in its answer offered to provide means whereby plaintiff may have access to the Pennsylvania Railroad, and is willing to enter into a written stipulation therefor.

8. Sears, Roebuck and Company conduct a merchandising business, largely by mail order, with a floor space of forty-three acres, and employ 4500 to 5000 people. Goods are shipped to the plant from all parts of the United States, and shipments from the plant are made to states along the Atlantic seaboard and other states. The plant serves 1,750,000 customers. During the year 1928, 3977 carloads of merchandise0 were received over the Reading tracks, and 2499 cars were shipped over these tracks from the plant, exclusive of articles sent by parcel post. The outbound invoices or waybills for the year numbered 113,270, and the inbound waybills during the same period 226,540.

Discussion.

The bill was filed under the provisions of the Act of June 19', 1871, P. L. 1360, and the relief prayed for should be granted if the defendant in the condemnation proceedings is taking the land for a private instead of a public use; for the building of a private siding instead of a branch railroad.

In Pioneer Coal Co. v. Cherrytree & D. R. R. Co., 272 Pa. 43, it was said by the Chief Justice (at page 51): “If defendant, under the guise of an exercise of its power to construct a branch, is using its right of eminent domain for the purpose of constructing a mere private siding not for public use, the Act of 1871 was properly invoked.”

It was held that matters of procedure and questions of their regularity are to be raised in the condemnation proceeding and not by way of bill in equity under the Act of 1871, and that the remedy contemplated by the act is applied where corporations proceed to condemn without power or in excess of their power; and that “it is not the special use made of a section of a road that classes it as a part of the public road, but its convenient necessity to that part which is undeniably for public use.”

The fact that the proposed tracks only connect defendant's main line with the plant of Sears, Roebuck and Company is not the determining factor in concluding whether it is a branch railroad or a private siding . The question should be determined by a consideration of the service which will be rendered to others than Sears, Roebuck and Company by the proposed track. The business of Sears, Roebuck and Company involves thousands of people, who, during the year 1928, sent merchandise which filled 3977 freight ears to the plant and thousands of people who purchased their goods and received deliveries over the Reading tracks by 3499 cars during the year. This is evidence of a public use in connection with the operation of the business of defendant’s railroad, which involves service to people shipping and receiving goods from the plant over the Reading road.

In Pioneer Coal Co. v. Cherrytree & D. R. R. Co., supra, the branch road or siding extended to only one coal company’s property, but it was held that the interest of the public in the output of this mine was sufficient to give the contemplated extension the character of a branch railroad rather than a private siding and justified the condemnation of the land for a public use.

The question does not depend upon the kind of merchandise to be carried over the contemplated extension, but whether or not there is to be a user by others than those to whose plant the track runs, so that the public, or a part of the public, may be said to be interested.

Conclusions of law.

1. The proposed condemnation of the land of plaintiff by the defendant is for the purpose of a branch railroad for public use.

2. The proposed condemnation of the land of plaintiff by the defendant is not for a private siding or for private use.

3. The bill of complaint should be dismissed.

4. Plaintiff to pay the costs.

Of the twenty-two requests for findings of fact presented on behalf of plaintiff, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, 14th, 15th, 16th, 18th, 21st and 22nd are affirmed. ' The 11th, 17th, 19th and 20th are refused.

Of the three requests for conclusions of law presented on behalf of plaintiff, all are refused.

Of the twenty-five requests for-findings of fact presented on behalf of defendant, all are affirmed.

Of the seven requests for conclusions of law presented on behalf of defendant, all are affirmed.

Decree nisi.

And now, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. The bill of complaint is dismissed, and plaintiff is directed to pay the costs.

2. The prothonotary is directed to give notice to the parties or to their counsel of record of the entry of this decree nisi.


author: Wickbrsham, J.,

text:
    Meloy v. Meloy.

      Oscar G. Wickersham, for libellant.
    Feb. 11, 1929.
   Wickbrsham, J.,

This was an application for divorce in which the libellant, in the libel filed Oct. 29, 1927, alleges that the respondent gave herself up to adulterous practices, and that she was guilty of adultery with a certain William Sprowles and divers other persons to the petitioner unknown.

The learned master, on page 9 of his original report, finds that “Susan Meloy, the respondent in this case, and William Sprowles were in bed together on a dozen occasions at 1438 Vernon Street, Harrisburg, Pa.” The master concluded as follows: “These findings, unexplained in any way, seem to lead fairly and necessarily to the conclusion of adulterous practices between them, as alleged in this libel.” However, the master, for the reason that the allegata and probata relating to the date of the marriage did not agree, recommended that the prayer of the libel in this case should be refused on the ground of the variation of the date of the marriage averred in the libel and the testimony.

The libellant then presented his petition, setting forth that the true date of his marriage was July 17, 1923, instead of July 17, 1917, as stated in his evidence. The petition prayed that the matter be resubmitted to the master for the purpose of talcing additional testimony, whereupon, on Nov. 14, 1928, upon the presentation of the petition of the libellant, we ordered and directed that the master’s report be resubmitted to him in order that he “shall hear additional testimony for the purpose of enabling the libellant to prove the true date of his marriage to the respondent.”

After hearing additional testimony and reviewing the same, the master reached the following conclusions of law: “2. Susan Meloy committed adultery with William Sprowles. 3. Elmer Meloy did not condone the adultery of Susan Meloy. 4. The master cannot recommend a decree in divorce on the record before him.”

To this report exceptions were filed, upon which we heard argument of counsel. We are of the opinion that the master, having found that the respondent committed adultery, which adulterous practice was not condoned by the libellant, his fourth conclusion of law, as contained in his supplemental report, cannot be sustained. The final conclusion of the master is, therefore, reversed and a divorce will be granted and a decree will be signed upon application of counsel upon the payment of the costs.

Prom Homer L. ICreider, Harrisburg, Fa.


author: Keller, J.,

text:
    N. B. Keim & Son v. Haefner.

      John L. DuBois, for plaintiff; Samuel B. Stilwell, for defendant.
    June 3, 1929.
   Keller, J.,

The plaintiff asks to recover from the defendant upon an alleged paper writing designated as a guarantee of payment of a certain promissory note dated Jan. 13,1925, signed by one Howard Miller, and promising to pay to the order of N. B. Keim & Son, at the Peoples National Bank of Langhorne, Penna., one day after date, the sum of $210.10, upon which were made three payments aggregating $35, leaving a balance due of $175.10, a copy of which note is set forth in the plaintiff’s statement. Plaintiff further avers, that at the time said promissory note was executed, the said Howard Miller delivered to the plaintiff a paper writing bearing the same date and executed by the defendant and duly witnessed, guaranteeing the payment of the said promissory note, which paper writing subsequently became lost or mislaid; that a diligent search has failed to disclose its whereabouts and that frequent demands for payment have been made of the defendant above named, under his written guaranty, but that he has refused to pay the same or any part thereof.

The defendant filed an affidavit of defense in lieu of a demurrer, averring that the plaintiff has not made out a complete cause of action, in that he failed to set forth a copy of the alleged written instrument designated as a guaranty of payment of said note.

This action is based entirely upon the alleged guaranty. Under the statute of frauds, any promise to pay the debt of another, in order to be enforceable at law against the promisor, must be in writing, and under section 5 of the Practice Act of May 14, 1915, P. L. 483, and amendments thereto, “every pleading shall have attached to it a copy of all notes, contracts, book entries, ... if any, upon which the party pleading relies for his claim.”

Where a pleading is defective in form, the proper practice is to have it amended or stricken off or a rule taken for a more specific statement, but where there is a defect in substance, or where the statement is not self-sustaining, an affidavit of defense raising a question of law may be filed.

Before the plaintiff can hold the defendant to answer his statement, he must set out a complete and valid statement of claim. “To entitle one to judgment for want of a sufficient affidavit of defense, his statement of claim must aver, in clear and concise terms, all facts essential to support the judgment asked:” Parry v. Bank, 270 Pa. 556-559.

It is contended by the defendant that the claimant should have set forth in his statement a copy of the alleged paper writing or guaranty, because of the fact that the legal effect of writings attached to the pleadings in a ease is for the court. In this we agree. This suit being brought upon a contract or agreement which would be unenforceable unless reduced to or confirmed by writing, such writing is, therefore, part of the contract upon which plaintiff must rely for his claim, and under our Practice Act a copy thereof must be attached to the statement.

There is a further objection to the sufficiency of this statement. Assuming that the alleged writing is a guaranty of payment of the note set forth in the statement, it imposes a secondary rather than a primary liability on the part of the defendant. There is nothing in the statement to show that the plaintiff has made any demand upon or has used due diligence to recover the money from the maker, the only averment in this connection being that the demand was made of the defendant. A contract of guaranty, unlike that of surety-ship, is collateral and secondary, the guarantor being liable only where the debtor has proven insolvent after due diligence by the creditor to obtain payment.

The only reference in the plaintiff’s statement to the alleged guaranty is “a paper writing guaranteeing payment.” This is purely an inference or conclusion of law and insufficient without more, in the opinion of the court, to require the defendant to answer.

We feel that the plaintiff’s statement is defective in substance and insufficient, and the question of law raised by the affidavit of defense is, therefore, decided in favor of the defendant, without prejudice, however, to the right of the plaintiff to amend the present statement of claim or to file a new statement of claim which will contain the necessary averments as to said writing and contents, and demand of the person primarily liable, within fifteen days from this date.

Prom Calvin S. Boyer, Doylestown, Pa.