author: Parker, P. J.,

text:
    Hendricks-Caskey Company v. Franklin Lumber Company.

      A. R. & N. F. Osmer, for plaintiff; G. G. Martin, for defendant.
    April 9, 1928.
   Parker, P. J.,

This is an action in assumpsit brought by the plaintiff against the defendant to recover the sum of $465.19 for the alleged breach of a contract between plaintiff and defendant for the sale and purchase of a quantity of Douglas fir lumber. The case was submitted to the jury, and a verdict was found in favor of the plaintiff for $219.34. Motions were filed by the defendant, both for judgment n. o. v. and for a new trial.

The sole question with which we are concerned arises under the 4th section of the Uniform Sales Act of May 19,1915, P. L. 543. At the trial, it appeared that L. W. Crane, a salesman and agent of the Hendricks-Caskey Company of Buffalo, N. Y., a corporation, met Edgar Thorp, president of the defendant company, at Franklin on June 2, 1926, when a verbal contract was made between the Hendricks-Caskey Company and the Franklin Lumber Company for the sale of a quantity of Douglas fir lumber. After the arrangement had been made, L. W. Crane made a sale memorandum in duplicate, giving one copy to Mr. Thorp, as president of the defendant company, and retaining one copy himself. This memorandum was produced and offered in evidence, and is follows:

Hendrieks-Caskey Co., Marine Bldg., Buffalo, N. Y.
Prices F. O. B. Franklin, Pa. June 2, 1926.
Ship to — Franklin Lbr. Co. At ijranklin, Pa. Delivering Road N. Y. C. When— June Boat.
Terms — Freight net cash, balance note on receipt of shipment at 60 days from date of arrival, or 1% per cent discount for cash settlement within 5 days from date of arrival. Orders taken subject to prior sale, also strikes, accidents or other causes beyond our control.
No. 1 Douglas Fir. S 4 S J scant. Via Boat. 10% No. 2 allowed.
150 pcs. 2x10-12'.....$38.00 200 pcs. 2x4 -12'.....$38.00
500 “ 2x10-16'..... 38.00 200 “ 2x4 - 14'.....38.00
100 “ 2x10-20'..... 38.00 200 “ 2x4 -16'.....38.00
150 “ 2x10-18'..... 38.00 200 “ 2x4 -18'.....38.00
Sold on 25 %c rate any reduction in rate from Balti. for buyers account.
L. W. CRANE.

On July 19, 1926, the defendant company wrote the plaintiff the following letter:

Franklin Lumber Company, Building Material,
Hendrieks-Caskey Co., Franklin, Pa. 7/19/26.
Marine Trust Bldg.,
Buffalo, N. Y.
Gentlemen: We have never received invoice for our Order given you June 2nd, 1926, for a car fir dimension.
This morning the N. Y. C. advise us at Franklin, Pa., that they have a 22c rate going into effect August 1st on lumber arriving by boat at Balto, M. D. via P. R. R. and N. Y. C. delivery Franklin, Pa. .
As this order was taken on 25 %c rate if the stock arrives at Balto on or after August 1st, we can get the advantage of this rate if routed from Balto. that route.
Advise about when this boat will arrive with this stock.
Yours very truly,
FRANKLIN LUMBER CO. (T)

Parol evidence was received to show the circumstances attending the transaction and the connection between the order and the letter. As part of this parol testimony, Mr. Thorp, the president of the defendant company, was called as a witness for the plaintiff as on cross-examination. He testified that, as president and general manager of the defendant company, he met Mr. Crane, the agent of the plaintiff company, on June 2, 1926, and gave him an order for the lumber, and on the terms set forth in the statement of claim and written memorandum which was signed by Crane; that at this same meeting, Mr. Crane then made out the written memorandum which embodied their entire agreement and delivered a copy to the witness. From this testimony, it appears that this was the only business transacted at that meeting.

On the trial, the court admitted in evidence the memorandum of June 2, 1926, and the letter of July 19, 1926, over the objection of counsel for the-defendant. Counsel for defendant contended, and now maintains, that this, did not constitute a sufficient memorandum in writing to satisfy the conditions of section 4 of the Sales Act. At the argument of the pending motion,, the specific position of counsel for the defendant was based upon a contention that the letter of July 19th did not contain any intrinsic reference to the-memorandum of June 2nd; that if it contained any reference to any other matter, it was to the oral contract of June 2nd and not to the written, memorandum.

The portion of the Sales Act with which we are concerned is as follows: “A contract to sell or a sale of any goods or choses in action of the value of $500 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

We are only concerned with the question as to whether or not the memorandum of June 2nd and the letter of July 19th constituted a sufficient note or memorandum in writing to come within the exception in the statute. At the outset, it will be observed that the effect of the statute is not to determine what shall constitute a valid contract, but, on the contrary, to require certain formalities in order that the contract may be enforceable in court. This is expressed in 1 Williston on Contracts, 1114, and quoted with approval by Mr. Justice Sadler in Franklin Sugar Co. v. John, 279 Pa. 104, 109, as follows: “As the purpose of the statute is to require a formality of proof in order to make a contract enforceable, not to impose a new rule of law as to what constitutes a valid contract, it is immaterial with what purpose or in what way, so long as it is signed, the requirement of the statute is fulfilled.”

The memorandum required by the statute may be on different papers if one contains reference to the other. The subject-matter of the contract may appear from the writing, but it may be expressed in general terms, and parol evidence is admissible to identify it.

“It is to be noted that the Act of 1855, supra, does not require that the whole agreement upon which the action is brought shall be reduced to writing, but merely that ‘some memorandum or note thereof shall be in writing.’ After giving the general rule that oral evidence cannot ordinarily be accepted to supply deficiencies in the writing sued upon, 20 Cyc., 318, states: ‘However, this rule does not prevent the admission of oral evidence to show the circumstances under which the contract was made ... or to show to what subject-matter ... it applies, . . . and separate writings may be connected by oral evidence, provided they contain certain internal reference to each other.’ Reed on the Statute of Frauds, Vol. 1, Sec. 341 (also, see section 351), says: ‘The memorandum required by the statute of frauds may be on different papers, one of which must contain reference to the other.’ Brandt on Suretyship and Guaranty (3rd ed.), Vol. 1, page 195, states: ‘The subject-matter of the contract must appear from the writing, but it may be expressed in general terms, and parol evidence is admissible to identify it.’ See, also, Browne on the Statute of Frauds (5th ed.), §§ 345, 346, 348, which states the rule as already given from the other text-books, and Beckwith v. Talbot, 95 U. S. 289, 292. We have numerous cases in Pennsylvania bearing either directly or by analogy upon the subject before us:” Title G. & S. Co. v. Lippincott, 252 Pa. 112, 117.

“A memorandum need not be contained in one writing; any number may be taken together to make out the necessary written expression of the terms of the bargain, provided there is sufficient connection made out between the papers, without the aid of parol evidence further than to identify papers to which reference is made. This connection may be established either by the physical attachment of the different papers at the time of signature or by reference:” 1 Williston on Sales, § 107.

“It is true that the statute may be satisfied where the memorandum is made up of several papers which together will furnish the essential terms; but the separate writings must bear internal reference one to the other. In such case, oral testimony may be offered to identify and show the connection between them, but such evidence cannot be used to supply proof of the terms of the contract itself:” M. L. & H. Co. v. Lamp, 269 Pa. 517, 520.

These principles are admitted in the defendant’s brief, but it is contended that they are not applicable for two reasons: (1) We will here quote the language of the brief: “To recover, the plaintiff must prove its contract, and to do so must, as it did on the trial, resort to parol to establish its terms, thus reducing the whole agreement to a parol contract. ‘He pulls down the house on his own head.’ When he converts the writing into an oral agreement, the statute declares it to be void;” (2) even though there may be an intrinsic reference in the second writing to an order of June 2nd, it is not to the memorandum, but might be applicable either to the oral contract or the written memorandum.

Taking up the first contention, we believe that it is founded on a false premise. A contract of sale involving more than $500 is not unenforceable by action because it is a parol contract, but because there is not a written memorandum of that contract or one embodying the substance of the contract. We believe the law is well settled that a parol contract may be enforced with the aid of a written memorandum. It is true that a written contract is enforceable, but likewise is a parol contract enforceable when accompanied by a written memorandum signed by the party to be charged, or his agent in that behalf. The difficulty arises from a confusion of the terms “parol evidence” and “parol contract.” It will be noted that the memorandum may be signed by only one of the parties, and if the party to be charged has signed that memorandum, it is enforceable, and yet might not be enforceable against the other party.

“The difference between a contract in writing and a memorandum of a parol contract is important. Thus, a note or memorandum may be made at any time prior to the beginning of the action, and, as will appear from subsequent discussion, need not be made with the intent of making a memorandum. The parol evidence rule also affects differently a contract in writing from a memorandum in writing:” 1 Williston on Sales, § 100.

It is true that in a number of cases the court speaks of the whole matter being in parol when an essential element is in parol, but it is there speaking of the evidence of the contract which may still be or not be a parol contract.

Taking up the second reason advanced in support of the motion, we have a more serious question, and one that has been much debated by the courts. The position of the defendant is best stated in 1 V/illiston on Sales, § 110: “Recent English cases have adopted a doctrine going quite as far as the doctrine criticised in the preceding section. Where a signed document refers to the transaction in question, an unsigned memorandum describing the transaction has been treated as incorporated therewith. One or two dissimilar decisions have been made in the United States. Such decisions go beyond what seems permissible, for the signature of the party to be charged does not authenticate an unsigned memorandum of the purchase merely because the signed paper makes some reference to the purchase. The signature vouches for the fact that there was a purchase, but it does not vouch for the terms of the purchase as described in the unsigned paper.”

An examination of the cases referred to in this paragraph shows that they do not satisfactorily sustain the position of the learned author, for in a majority of the cases sustaining his position the specific question has not been raised. The language of the opinions is broad enough to sustain the general principle involved, but does not indicate that the decision has been rendered with the particular question in mind as to whether the signed memorandum refers to the purchase or to the memorandum. The author refers for support, among other cases, to that of Llewellyn v. Sunnyside Coal Co., 242 Pa. 517. In that case Mr. Justice Stewart specifically calls attention to the fact that there is not any intrinsic evidence of any kind in the signed paper connecting it with the unsigned paper. This, of course, is an essential element. And, in addition, the decision in that case is based upon another provision of the statute of frauds involving the sale of land, and discloses that the authority of an agent pretending to act for the owner was not in writing. What is said in that case must be taken in connection with the specific matter that was before the court. We have made a careful examination of that case, and do not see anything in it to support defendant’s contention. On the other hand, the English cases and one or two American cases sustain the contention of plaintiff.

In Long v. Millar, 4 C. P. D. 450, the defendant signed the following receipt: “Received of Mr. George Long the sum of Thirty-one pounds as a deposit on the purchase of three plots of land at Hammersmith. £31 0 0. Charles W. Millar.”

The plaintiff was allowed to treat as incorporated in this receipt a memorandum of the purchase which had been signed by him on the same day, and which contained the full terms of the bargain. The receipt did not refer to a document, but to a transaction. This case went further than the Pennsylvania cases, for there was not any intrinsic reference to the former transaction by which it could be identified.

We also refer to the cases of Smith v. Colby, 136 Mass. 562, and Beckwith v. Talbot, 95 U. S. 289, and decisions in Kentucky and Kansas. The strongest case that we have found supporting the contention of defendant is that of Wagner v. Holland, 192 N. W. Repr. 552, where a signed letter referring to “our order” was held not to incorporate a written confirmation, signed by the plaintiff, of the defendant’s oral order.

An examination of our own decisions and those of other courts leads us to the conclusion that the question was an open one for this court until the decision in Weinreth v. Mill End Clothing Co., 84 Pa. Superior Ct. 107. We are unable to distinguish that case in any respect from the one in hand, except that in the instant case the intrinsic evidence of reference in the signed memorandum to the unsigned memorandum is more specific than in' the Superior Court case. In that case it appeared that on June 21, 1921, an order for 200 dozen boys’ knee pants was given by plaintiff to defendant, who reduced it to writing and gave a carbon copy thereof to plaintiff. That memorandum was not signed by either party. On June 27, 1921, defendant wrote plaintiff a letter, stating, inter alia, “We received your order given our Mr. Simon, and wish to thank you very much for same. This merchandise is now being cut specially for your order and will be shipped as per the instructions given.” On Aug. 8th, plaintiff wrote defendant as follows: “Regarding my order placed with you on June 21st; delivery September 1st and October 1st, if these goods are ready you may ship same immediately, provided you will date bill in accordance with your order.” Defendant replied on Aug. 15th: “Your letter of the 8th instant to hand and contents carefully noted. In reply to same, wish to state that we will not be able to make any shipment on your order before September 15th to October 1st. Kindly let us know if same is satisfactory.”

In that case the purchaser sued the seller, the defendant, for failure to comply with the contract. The main contention of the defendant was that it violated the 4th section of the Sales Act. The Superior Court replied to this contention as follows: “The original memorandum of sale was not signed by defendant or his agent. Defendant’s letter of June 27th does not identify the order of June 1st as the one which it confirms. But parol evidence was admissible to show the circumstances attending the transaction and the connection between the order and the letter: Title G. & S. Co. v. Lippincott, 252 Pa. 112. It is conceded that the parties had no dealings until June 21, 1921; that that was the only transaction between them prior to June 27th, and that the letter of June 27, 1921, could refer only to the order of June 21st. Under the circumstances, we cannot say that the letter did not contain sufficient reference to the order to connect them and justify the admission of both. It is unnecessary to decide this question solely upon the order and letter referred to. Defendant’s letter of Aug. 15th, written in answer to plaintiff’s letter of Aug. 8th, speaking of an order of June 21st, refers to the order of June 21st. We are clear that the order and these two letters constituted a memorandum in writing signed by defendant, which is sufficient to meet the requirements of the statute. The only essential element of the contract which was wanting in the original sales memorandum was the signature of defendant or his agent. This is supplied by the two letters. It has been held in many cases that the memorandum may consist of more than one document. See Title G. & S. Co. v. Lippincott, supra. It is only necessary that there exist such clear evidence on the face of the papers of a connection between them as to give them the effect of one document: Lippincott v. Stringer, 80 Pa. Superior Ct. 162.”

In the instant case, the memorandum which was not signed by the party to be charged set forth in detail the contract, and there is not any contention that this memorandum, if admissible, did not show a valid contract. Among other things, it contained the following:

Delivery Road — N. Y. C. When — June Boat. No. 1 Douglas Fir. Sold on 25 y2c rate. Any reduction in rate from Balti. for buyers account.

This was identified in the signed memorandum of July 19th, as follows:

We have never received invoice for our order given you June 2nd, 1926, for a car fir dimension.
This morning the N. Y. C. advise us that they have a 22c rate going into effect August 1st on lumber arriving by boat at Balto. M. D. via P. R. R. and N. Y. C. delivery Franklin, Pa. As this order was taken on 25 % c rate, if the stock arrives at Balto. on or after August 1st, we can get the advantage of this rate if routed from Balto that route.
Advise about when this boat will arrive with this stock.

It will be noted that this signed memorandum refers to the defendant’s order of June 2, 1926, for fir, that the rate is going to be changed when there is New York Central delivery, that the order was taken on a 251-eent rate, that it is expected on a boat, and the defendant will be entitled to the advantage of reduced rate. This is a much more explicit intrinsic reference than that contained in the case of Weinroth v. Mill End Cloth Co., supra. In addition to this, it was testified for the purpose only of showing the attending circumstances and the connection between the two writings, that Crane had made the sale to defendant on June 2nd, that he had made out a written copy of the contract in exact accord with the parol understanding, that the letter of July 19th referred to the agreement made that date, and although Mr. Thorp, the sole representative and president of the defendant company, admitted such facts, it was not suggested that there was any other order to which the ■written confirmation could be applied. We are bound by the decision of the Superior Court, for the instant case and the one referred to are not distinguishable.

Motion for a new trial.

- No reasons have been filed in support of the motion for a new trial, but in the typewritten brief submitted to the court there is one paragraph as follows:

“But even were it otherwise, and if it could be said that the letter of July 19th refers to the writing of June 2nd and not to the parol contract of that date, is that not a question for a jury to find, and not a question to be declared by the court as a matter of law?”

We will consider this as the reason assigned in support of the motion we are now considering.

The fifth paragraph of the statement of claim, which was not denied by the defendant, set up: “That the defendant, on or about the 2nd day of June, 1926, at Franklin, Pa., ordered from the plaintiff by verbal order given by it to one L. W. Crane, an agent and salesman of said plaintiff, a certain quantity of No. 1 fir lumber as then and there set forth, and at the price and upon the conditions and terms, also then and there set forth in a memorandum of said order then and there made by said L. W. Crane, of which memorandum a true and correct copy was then and there delivered to said defendant, and of which the following is a true copy.” There then follows the memorandum of June 2, 1926, referred to at the beginning of this opinion. This was not denied in the affidavit of defense, was offered in evidence, and is, therefore, to be taken as admitted.

The president and general manager of the defendant company was called on cross-examination, and testified that he had the entire dealings on behalf of the defendant with the plaintiff about the subject-matter of this suit; that he wrote the letter himself dated July 19th, and that the original which was produceed by plaintiff was signed and mailed by him. The only matter discussed between the parties, and as to which they dealt, was the subject-matter of this controversy and that described in the memorandum of June 2nd. He admitted that he received the written memorandum, and that it correctly represented their understanding. There was, therefore, not any matter in dispute between plaintiff and defendant as to the circumstances surrounding the making of the memorandum on June 2nd, or the sending of the letter of July 19th. In addition to this, the president of defendant company specifically admitted that when he wrote the letter of July 19th, he referred to the transaction of June 2nd. There was, therefore, not any possible question to submit to the jury with reference to the execution and delivery of these papers, and all of the circumstances surrounding same, as claimed by the plaintiff, were admitted by the defendant. Therefore, there was not any fact in dispute, and we are not unmindful of the fact that, even where the testimony of a plaintiff is undisputed, it is still for the jury to pass upon the credibility of plaintiff’s witnesses; but that is not the present case. Here, all the facts were admitted by the only person that was in a position to speak for the defendant or knew anything of the controversy. Therefore,

Now, April 9, 1928, the motions of the defendant for judgment n. o.‘v. and for a new trial are refused, and the rules to show cause issued thereon are discharged, and judgment may be entered for the plaintiff on the verdict upon compliance with the court rules.

From George S. Criswell, Jr., Franklin, Pa.


source: Caselaw Access Project

author: Koch, P. J.,

license: Public Domain

text:
    Commonwealth v. Sukena.

      N. C. Watkins, for motion; C. A. Snyder, District Attorney, contra.
    July 2, 1928.
   Koch, P. J.,

The defendant was committed to prison on April 26, 1928, on the charge of murdering his wife very shortly prior thereto. Our next term of criminal court, at which the case was triable, began on Monday, May 7th, and lasted for two weeks, and the defendant was indicted on the 12th of said month. Our June Term of said court began on Monday, June 18, 1928, and lasted for two weeks, the last day being on Saturday, June 30th, and as the case had not been tried prior to that time, the defendant’s counsel has moved for his discharge from prison in accordance with the provisions of section 54 of an act entitled “An act to consolidate, revise and amend the laws of this Commonwealth relating to penal proceedings and pleadings,” approved March 31, 1860, P. L. 427. Said section is as follows:

“If any person shall be committed for treason or felony, or other indictable offence, and shall not be indicted and tried sometime in the next term, session of oyer and terminer, general jail delivery, or other court where the offence is properly cognizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required on the last day of the term, sessions of court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, mentioning their names, could not then be produced; and if such prisoner shall not be indicted and tried the second term, session or court after his or her commitment, unless the delay happen on the application or with the assént of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment: Provided always, That nothing in this act shall extend to discharge out of prison any person guilty of, or charged with, treason, felony or other high misdemeanor in any other state, and who by the Constitution of the United States ought to be delivered up to the executive power of such state, nor any person guilty of, or charged with, a breach or violation of the laws of nations.”

When th© application was made, we heard the district attorney in opposition, and,, after due consideration, we think the prisoner is entitled to have his motion granted. We are satisfied that the case could have been tried at the June Term. We are aware of the fact that many cases remain untried, but prisoners are entitled to have their eases tried in preference to defendants who are at liberty under bail. No sufficient reason has been made to appear for the refusal of this motion.

The language of the act requiring the prisoner’s discharge from prison at this time is imperative. His discharge from prison does not imply an end of the case against him. His ease simply remains open for trial hereafter upon due and proper notice given to the defendant of the time when his case will he called. The motion is granted and the prisoner is discharged.

Prom M. M. Burke, Shenandoah, Pa.


author: Thompson, J.,

text:
    Wanamaker’s Estate.

      Robert M. Boyle, for Hon. William F. Campbell, Register of Wills of Philadelphia County, exceptant.

      Harry J. Alker, Jr., for Hon. Robert C. Miller, Register of Wills of Montgomery County, contra.

      Owen J. Roberts and Maurice Bower Saul, for executors, contra.

      F. B. Bracken, for Fidelity-Philadelphia Trust Co., residuary legatee, contra.
    Dec. 7, 1928.
   Thompson, J.,

Rodman Wanamaker died March 9, 1928, and the question before, us involves the finding of what was his “family or principal residence” as determining the proper place for the probate of his will and codicils and granting letters testamentary thereon.

The will and codicils were probated in Philadelphia County and letters granted thereon, and the Register of Wills of Montgomery County and the Fidelity-Philadelphia Trust Company, trustee under certain trusts in decedent’s will, have taken an appeal from the action of the Register of Wills of Philadelphia County as aforesaid, alleging that the family or principal residence of the decedent was in Montgomery County.

The pertinent parts of section 4 of the Register of Wills Act of 1917 are as follows: “Wills shall be probated only before the register of wills of the county within which was the family or principal residence of the decedent at the time of his decease. . . .”

And the pertinent parts of section 2, subdivision (a) of the Fiduciaries Act of 1917 are as follows: “Letters testamentary and of administration shall be granted only by the register of wills of the county within which was the family or principal residence of the decedent at the time of his decease. . . .”

Said appeals come before us on exceptions to the findings of the Hearing Judge, who held that the “principal residence” of the decedent was in Montgomery County, and sustained the appeal of the Register of Wills of Montgomery County, and at the same time dismissed the appeal of the Fidelity-Philadelphia Trust Company, trustee as aforesaid, on the ground that they were not a party aggrieved under section 21 (a) of the Register of Wills Act of June 7, 1917, P. L. 403.

We have read the testimony taken before the Hearing Judge with care and agree with him that the facts are not in the main controverted. There is no evidence that the decedent had a residence in Philadelphia, much less its location, although there is evidence that the decedent intended to acquire a residence in Philadelphia, and that one was purchased for him, but title thereto never passed, nor did decedent ever occupy the same.

Findings of fact by a hearing judge will not be disturbed except for manifest error, which we all agree does not exist in this case.

We do not consider it necessary to discuss the exceptions filed by the Fidelity-Philadelphia Trust Company, as aforesand, to the action of the Hearing Judge, for the reason that, as the appeal of the Register of Wills •of Montgomery County is sustained, that which the Fidelity-Philadelphia Trust Company, trustee as aforesaid, seeks to accomplish has been accomplished, whether they have a standing or not to take an appeal.

The exceptions are, therefore, dismissed, and we enter the following

Decree.

And now, Dec. 7, 1928, the appeal of the Register of Wills of Montgomery County be and is hereby sustained, the probate of the said will and codicils be and is hereby vacated, the letters testamentary be and are hereby revoked, and the Register of Wills of Philadelphia County is hereby directed to deliver the said original will and codicils to the Register of Wills of Montgomery County.


author: Martin, P. J.,

text:
    The Real Estate-Land Title and Trust Co. v. Philadelphia-Girard National Bank.

      M. W. Sloan, for plaintiff; Wolf, Block & Schorr, for defendant.
    July 23, 1928.
   Martin, P. J.,

On June 29, 1922, the real estate department of The Real Estate Title Insurance and Trust Company drew a check upon The Real Estate Title Insurance and Trust Company to the order of Rose Zinman for $3458.87. The check was endorsed in the name of Rose Zinman, deposited in the State Bank of Philadelphia, and paid by The Real Estate Title Insurance and Trust Company to the Philadelphia-Girard National Bank, on June 30, 1922, through the clearing-house.

On April 4, 1928, the suit in this case was instituted by The Real Estate-Land Title and Trust Company (the reorganized Real Estate Title (Insurance and Trust Company) against the Philadelphia-Girard National Bank.

A statement of claim was filed, alleging that the endorsement of “Rose Zinman” on the check was a forgery and was not made or authorized by her; that The Real Estate Title Insurance and Trust Company paid the check to defendant by mistake on the assumption that the signature of Rose Zinman was genuine; and that The Real Estate Title Insurance and Trust Company did not know, and was not able to know, of the forgery until Jan. 18, 1928, and on that day notified the defendant of the forgery; that plaintiff has demanded a return of the money paid on the check, but defendant has refused the demand.

An affidavit of defense raising questions of law was filed by defendant, averring that the statement of claim fails to set forth a valid cause of action in law; shows laches on the part of plaintiff in not giving notice to the defendant of the alleged forgery for a period of five and a half years; and fails to set up any valid reason to excuse the laches.

It was the duty of plaintiff to notify the bank upon which the check was drawn promptly of the forgery. A lapse of five and' a half years, in the absence of explanation, is presumptive evidence of negligence and of lachesin serving notice of the forgery upon the payee.

The statement of claim avers that plaintiff did not know, and was not able to know, of the forgery until Jan. 18,1928, and on that day notified defendant of the forgery.

Plaintiff will be required, if the case proceeds to trial, to prove the circumstances which should relieve it from suffering the loss caused by its negligence, and it can “do this only by showing the relations of the parties to each, other and to the transaction and the facts growing out of them:” Union Nat. Bank v. Farmers’ & Merchants’ Nat. Bank, 271 Pa. 107, 113.

“It is error to enter judgment for defendants on points of law raised in an affidavit of defense, unless it appears from the statement of claim itself ‘as a, question of law’ that the plaintiff is not entitled to recover in this proceeding. No weight can be given to objections alleging that the statement is vague, indefinite and insufficient to support the action:” Morris & Bailey Steel Co. v. Bank v. Farmers & Mechanics Nat. Bank, 271 Pa. 107, 113.

If the statement of claim does not aver sufficient facts to inform defendant of what it is called upon to answer, a rule may be entered for a more specific-statement: Sovich v. Reading Co., 10 D. & C. 194.

Section 5 of the Practice Act of May 14, 1915, P. L. 483, requires every pleading “to contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved, or inferences, or conclusions of law.”

The Amendment of March 30, 1925, P. L. 84, provides that “every allegation of fact in the plaintiff’s statement of claim ... if not denied specifically or by necessary implication in the affidavit of defense . . . shall be taken to be admitted.”

The plaintiff is not obliged to set out in the statement of claim the evidence upon which it will rely to disprove the presumption of negligence or of laches arising from the delay of five and a half years in learning of the forgery. It is averred in the statement of claim that defendant was informed on the same day that plaintiff learned of the forgery. The burden is on plaintiff to prove that there was no negligence on its part. The allegations of the statement of claim will permit the introduction of any competent evidence to prove the averments.

Where a doubt exists as to whether or not summary judgment should be entered, this should be resolved in favor of refusing to enter it: Rhodes v. Terheyden, 272 Pa. 397.

• “Where, as here, plaintiff's statement makes a prima, facie case, he cannot be turned out of court on demurrer thereto:” Scranton Axle and Spring Co. v. Scranton Board of Trade, 271 Pa. 6, 9.

And now, to wit, July 23, 1928, the affidavit of defense raising questions of law is not sustained. Defendant is given fifteen days to file a defense to the averments of fact in the statement of claim.


author: Kun, J.,

text:
    E. & S. Motor Transportation Co., Inc., v. Pennsylvania Alcohol Permit Board.

      D. S. Malis, for appellant; William F. Knauer, for Commonwealth.
    Nov. 15, 1928.
   Kun, J.,

This is an appeal from the action of the Pennsylvania Alcohol Permit Board revoking appellant’s permit to transport alcohol and alcoholic liquid under the Act of Feb. 19, 1926, P. L. 16. The act under which the board is established was passed in the exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace, safety and morals of the people of the Commonwealth, “and all of its provisions shall be liberally construed for the accomplishment of these purposes,” as provided in section 1 of the act.

The Alcohol Permit Board is a departmental administrative board of the Department of Welfare and consists of the Secretary of Welfare, the Secretary of Health and the Attorney-General. Any permit issued by the board may be revoked by it for any violation of the act or of any rule or regulation promulgated by the board under the authority of this act, following a hearing, if upon such hearing the board is “satisfied that any such violation has occurred” (section 13), and the aggrieved permittee may appeal to the Court of Common Pleas. The same section also provides that mere technical irregularities in the procedure of the board shall be disregarded.- It is contemplated that this legislation be liberally construed.

The Alcohol Permit Board is not charged with any judicial functions, but is an administrative board. As stated by the Supreme Court, referring to the functions of the Board of Censors of motion pictures, with special reference to the measure of discretion to be exercised by it: “What is required is that it must be commensurate with the intelligent understanding by the board of the object and purpose of the law, associated with an honest desire and endeavor on its part to impartially enforce its provisions:” Goldwyn Distributing Corporation, 265 Pa. 335. “Where such inquiry arises, the investigation starts with the presumption that the tribunal making the order or decree appealed from acted within the reasonable scope of its power and discretion, and it can be called to answer only as the party complaining, upon whom rests the burden, can show that the decision of the board rests upon some ground that did not authorize the exercise of discretion. . . . The general rule is that the onus is upon the appellant to show affirmatively that the decision was made on a ground not involving the exercise of discretion (citing 3 Corpus Juris, 471, 289) :” Goldwyn Distributing Corporation, 265 Pa. 335, 342. “The evident intent was to grant the right of appeal to the Common Pleas so that tribunal could correct any arbitrary and oppressive orders which the Board of Censors might make, and nothing more; in other words, that the court might reverse the censors when the latter were guilty of an abuse of discretion. This is the ordinary rule to which, on appeal, even this court restricts itself in reviewing an exercise of discretion, particularly of administrative officials:” Goldwyn Distributing Corporation, 265 Pa. 335, 339, 340.

Perhaps a closer analogous authority is that of the board under the Workmen’s Compensation Act, with reference to which it was stated by the Supreme Court that it “contemplates liberality in the admission of proofs and the inferences reasonably to be drawn therefrom, . . . yet, after all the data has been gathered without regard to technical rules, all irrelevant and incompetent testimony must be rejected and the findings made to rest upon such relevant and competent evidences of sound probative character as may be left, whether circumstantial or direct:” McCauley v. Imperial Woolen Co., 261 Pa. 312, quoted in Altoona Beverage and Ice Co. v. Pennsylvania Alcoholic Permit Board, 11 D. & C. 60.

It was pointed out in Premier C. & B. Co. v. Pennsylvania Alcohol Permit Board, 292 Pa. 127, 133, in which the constitutionality of the act creating the board was upheld, that the practice in the Federal courts where a review of the commissioner’s action in revoking a permit is had is to determine only “whether his action was based on an error of law, as a finding without evidence, or was purely arbitrary,” citing Senger Drug Co. v. Mellon, 20 Fed. Repr. (2nd) 1000; Chicago Grain Products Co. v. Blair, 12 Fed. Repr. (2nd) 90; Ma-King Co. v. Blair, 271 U. S. 479.

The appellant in this case had a permit to “transport for any person exempted or not exempted by the regulations, alcohol or alcoholic liquid for hire.” The appellant did not have a Federal permit to transport pure ethyl alcohol, but, according to the State permit, was authorized to transport denatured alcohol only.

It is admitted in the case that a truck operated by appellant’s employee was sent to Baltimore on July 31, 1927, where it was loaded in the night with two and three-gallon cans of pure or ethyl alcohol in unmarked boxes, after which the loaded truck was on its way back to Philadelphia; it was stopped at Upper Darby Township, Delaware County, for passing a traffic light. The employee was arrested by Federal prohibition agents, indicted for the unlawful transportation of alcohol, pleaded guilty in the United States District Court of Philadelphia, and was fined. An anaylsis of the alcohol showed it to be ethyl or grain alcohol containing 98.8 per cent, alcohol by volume.

The appellant company contended that the truck was hired by an unknown person to go to Baltimore empty and return with a load of hardware, and that the officers of the company had no knowledge of the nature of the shipment. The witnesses appeared in person before the board, which had the best opportunity of appraising the value of their testimony. No doubt, the alleged hiring of the truck at the time in question by an alleged unknown person without taking an address of any kind, ostensibly, as claimed, for the purpose of transporting a large quantity of hardware, with no destination of the shipment indicated, was a strong circumstances, in connection with the other elements in the case, which led to the exercise of the discretion by the board resulting in the revocation of the appellant’s permit.

Perhaps the operation by appellant of its business in such a loose and unbusinesslike manner as indicated, facilitating violations of the law, but as to which it could disclaim knowledge, was persuasive that it was unfit to hold the permit granted to it by the State.

In a proceeding of this kind before the board, it is not required that the complaint be established beyond a reasonable doubt, as in criminal cases, although a jury might well, under all the facts and circumstances in this case, come to the same conclusion.

The court cannot say as a matter of law that there is nothing whatever in the record to sustain the finding of the board, or that its decision rested upon grounds that did not authorize the exercise of discretion, so that its action was arbitrary and an abuse of the discretion reposed in it by law.

The order of the board is affirmed and the appeal is dismissed.


author: Stewart, P. J.,

text:
    Crane Iron Works v. Emanuel Slag Company.

      Skillman & Smith, for plaintiff; Orrin Serf ass, for defendant.
    Feb. 13, 1928.
   Stewart, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defense. Plaintiff’s claim is based on two leases. The lower slag bank was leased from Jan. 1, 1914, to Sept. 1, 1921, by a lease dated Feb. 1, 1914, marked in the statement Exhibit “A.” The rent was $1500 per year, payable in equal semi-annual instalments on July 1st and Jan. 1st of each year. By a lease dated Jan. 5, 1917, marked Exhibit “B,” the above term was extended to Dec. 31, 1928, and the rental was increased to $1750 per annum, after Sept. 1, 1921, payable in semi-annual instalments on July 1st and Jan. 1st of each year. The upper slag bank was leased from Jan. 1, 1917, to Dec. 31, 1928, by a lease dated Jan. 2, 1917, marked in the statement Exhibit “C.” The rent was $1500 per annum, payable in equal semi-annual instalments on July 1st and Jan. 1st of each year. This lease contained a minimum quantity clause of 50,000 tons per year, and provided: “In the event that the Lessee fails to remove such minimum quantity in any year, it shall within three (3) months after the close of said year, or by April First following, pay to the Lessor three cents (3c) per net ton for each ton less than such minimum, which payment shall be in addition to the annual rental hereinbefore specified, and shall be considered as liquidated damages for failure on part of the Lessee to fulfill the conditions as to minimum tonnage.” On the Exhibits “A,” “B” and “C,” filed with the plaintiff’s statement of claim, it is averred that the following is endorsed: “A,” “Allentown April 19, 1925 The within lease is hereby cancelled by mutual consent.” Then follow the signatures of the parties. On Exhibit “B,” the endorsement is: “Can-celled April 18, 1925 By Mutual Consent.” Then follow the signatures of the parties. On Exhibit “C,” the endorsement is: “Cancelled By Mutual Consent April 18, 1925.” Then follow the signatures of the parties. The defendant, in the affidavit of defense, sets out that the above endorsements are inaccurate and that on each of the above Exhibits “A,” “B” and “C” is endorsed the following: “In consideration of the execution of the agreement dated 15th day of April 1925 between the Replogle Steel Co and Emanuel Slag Co the within lease is hereby cancelled by mutual agreement and consent by the parties hereto.” Then follow the signatures of the parties.

In the consideration of this rule, the latter wording of the cancellation must be assumed as absolute verity. The agreement referred to in the cancellations, set forth as Exhibit No. 1 of the affidavit of defense, was made by the Replogle Steel Company and the Emanuel Slag Company and was dated April 15, 1925, for a term beginning April 1, 1925, and ending April 1, 1939, for the same premises as were leased above between the Crane Iron Works and the defendant. On the back is an assignment to the Duquesne Slag Company of Pittsburgh, dated April 15, 1925. The statement of claim has Exhibit “D” attached, wherein plaintiff claimed the following items:

“Rental of Upper Slag Bank at Catasauqua for period of three and one half months ended April 15th, 1925 @ $1500.00 per annum................................... $437.50
“Rental of Lower Slag Bank at Catasauqua for period of three and one half months ended April 15th, 1925 @ $1750.00 per annum................................... 510.42
“Charge for failure to remove required tonnage: Three and one half months minimum @ 50,000 tons per annum, 14,583 tons @ $.03 per ton............................. 437.50
$1,385.42”

It will be perceived that the third item is referred to as “Charge for failure to remove,” &c. By the terms of the lease Exhibit “C,” payment of this item is due within three months after the close of any year, and it was to be in addition to the annual rental and was to be considered as liquidated damages. It is impossible to find accurately from Exhibit “D” and from the fifteenth paragraph of the statement what period the three and a half months cover. If we assume that it means from Jan. 1, 1925, to April 15, 1925, there can be no recovery, for the reason that the entire year 1925 was, by the terms of the lease, given for the removal of the full amount of 50,000 tons, and when the parties themselves canceled the lease, the plaintiff could not ask for the penalty for failure to remove for three and a half months of that year. If the period of three and a half months were for a prior year, the situation would be different. The status of this item, however, was not differentiated from the others by counsel on the argument. It was assumed that all three items constituted rental from Jan.. 1, 1925, to April 15, 1925.

The legal question presented is not a difficult one. When the parties canceled the leases, no rent had accrued to the plaintiff. It would not be due until July 1st following the date of cancellation. That would be the result if it were a mere parol surrender and acceptance, but the parties hereto did not rely on any parol agreement for surrender and acceptance, but they placed their intention in writing and made the execution of the new agreement of April 15, 1925, the consideration for the cancellation. Nothing could be plainer than that such endorsement prevents the plaintiff from recovering in this case. In Fisher v. Milliken, 8 Pa. 111, is found the oft-quoted dictum of Chief Justice Gibson, as follows: “Nothing but a surrender, a release, or an eviction can, in whole or in part, absolve the tenant from the obligation of his covenant with his landlord.” In Pratt & Reath v. Richards Jewelry Co., 69 Pa. 53, the syllabus is: “If the surrender was an accomplished fact, the Statute of Frauds did not apply; the lessor holding the premises would be estopped from claiming rent.” In Auer v. Penn, 92 Pa. 444, the syllabus is: “The fact that a lease is for a longer term than three years does not present a rescission thereof by a parol agreement of the parties when accompanied by a surrender of the lease and possession by the tenant to the landlord and the acceptance thereof by the latter. It is not like a sale and transfer to a stranger of an interest in land greater than a term of three years, and is not, therefore, within the Statute of Frauds. By such acceptance and surrender, the relation of landlord and tenant is ended; and the landlord, having taken possession of the premises, either personally or by another tenant, is estopped from collecting rent.” It is, however, contended that the defendant is liable because this rent had accrued. Plaintiff’s counsel cite Hall et al. v. Bardsley, 5 W. N. C. 553. The facts are stated on page 554, and the opinion of the Supreme Court points out the exact point decided. It is short, and is as follows : “If the affidavit of defense in this case had alleged that the agreement of surrender and substitution of Howard R. Kern’s liability for the rent declared upon was made before the unpaid rent fell due, there might be a plausible ground of defense. But these things occurred in 1877, while the rent fell due in 1875. Now, the original tenant was clearly bound for this rent under the terms of his covenant, while nothing in the affidavit avers a release or discharge of the rent thus previously accrued.” So, also, the other case cited, Rafferty v. Klein, 256 Pa. 481, in the second syllabus, contains a correct statement, as follows: “A surrender of the demised premises by the lessee accepted by the lessor severs the relation of landlord and tenant and constitutes a complete defense to a claim for rent thereafter accruing.” The rent in this case did not accrue de die in diem. Rent is not apportionable unless made so by statutory authority. In the very well-considered case of Bank v. Wise, 3 Watts, 394, Mr. Justice Kennedy said: “In no case whatever has rent ever been permitted by the common law to be apportioned in respect to time; no, not even in equity.” Those principles are well settled. The rule is well stated in 18 Am. & Eng. Ency. of Law (2nd ed.), pages 294 and 295, as follows: “It is well settled that a surrender of the term ends the relation of landlord and tenant and releases the tenant from liability for rents to accrue. And when the surrender is between rent days, the tenant is discharged from all liability for rent, even for the period between the surrender and the last rent day, and cannot be held liable therefor in an action for use and occupation, nor can the rent be apportioned. The parties may, of course, expressly provide at the time of the surrender that the surrender shall not release the tenant from liability for rents not then accrued. A surrender has no effect upon the liability of the tenant for rents accrued at the time of the surrender. And this is true though the rent was payable in advance for a period beyond the time of the surrender, and a fortiori rent paid in advance cannot be recovered on surrender.” If the plaintiff had intended to claim this rent, it should have been provided for in the agreement of cancellation. The absence of such a provision shows the plaintiff was not intending to demand payment of the rent which at that time was not due.

One matter remains. The defendant sets up in the affidavit of defense that it “was duly and legally dissolved on the 5th day of December, 1925, and such dissolution was duly filed in the office of the Department of State of the State of New Jersey on December 22, 1925.” The statement of claim averred that, the defendant was a New Jersey corporation. There is nothing in the pleadings that shows the requirements of the laws of New Jersey upon dissolution, of a corporation, but, assuming they are similar to ours, ought not the plaintiff to have a receiver substituted? This is only a suggestion. We base our decision on the ground that the plaintiff has no claim.

And now, Feb. 13, 1928, rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense is discharged.

Prom Henry D. Maxwell, Easton, Pa.


author: McLaughry, P. J.,

text:
    Commonwealth ex rel. Harter v. Bobby.

      Service, McNeal & Buckley, for petitioner; L. R. Rickert, for respondent.
    May 18, 1928.
   McLaughry, P. J.,

This proceeding was brought under the* Act of June 14, 1836, P. L. 623, which provides that writs of quo warranto■ shall issue “in case any person shall usurp, intrude into or unlawfully hold or-exercise any county or township office within the respective county.”

The affidavit of quo warranto was made by O. A. Harter, and in the same-he asks that one Andrew Bobby show cause by what authority he exercises the duties of the office of Councilman of the 4th Ward of the Borough of' Farrell; and he further asks for a judgment of ouster against the said. Andrew Bobby from said office of councilman, and that the court make an, order upon the election board to issue to the said O. A. Harter a certificate of,' election, and direct that the said 0. A. Harter be authorized to carry out the, duties of the said office.

From the pleadings and the arguments of counsel, it is apparent that the authority of the court to oust the said Andrew Bobby from the office of councilman in said ward is based upon the contention that he did not receive the highest number of votes cast at the election. It appears that there are two precincts in the said 4th Ward of Farrell and that the return made by the election board shows that Andrew Bobby did receive the highest number of votes cast in the said 4th Ward, after adding the number cast in the 1st Precinct to the number cast in the 2nd Precinct, and the said Andrew Bobby assumed the duties of the office and was properly sworn in as a member of Council of the Borough of Farrell. Taking the result of the election in said 4th Ward as returned by the election officers, there is no ground for the request that the said Andrew Bobby be ousted from the office of councilman.

It seems that after the election held on Nov. 8, 1927, when the said Andrew Bobby and O. A. Harter were candidates for the office of councilman in said 4th Ward, a petition was presented by qualified electors of the 1st Precinct of the 4th Ward requesting that ballot-box in said precinct be opened under the provisions of the Act of April 23, 1927, P. L. 360, and that, as a result of said proceedings in the Court of Common Pleas, it was shown, and appears on record, there was a total vote for Andrew Bobby of 272 votes and for 0. A. Harter 254 votes. We are now asked to take this result as found in the report of the persons appointed by the court to compute and canvass the votes under the provisions of said Act of 1927, and add the same to the number of votes reported by the election board in the 2nd Precinct of the 4th Ward, showing a result of 474 votes for Andrew Bobby and 501 votes for O. A. Harter, making a plurality for the said O. A. Harter over Andrew Bobby of 27 votes. It is, therefore, claimed that the said Andrew Bobby is illegally holding the office of councilman. In other words, we are asked to find that the computation of votes made by the election officers in the 1st Precinct is an incorrect computation and that the 2nd Precinct is a correct computation of the votes cast.

The first question to be determined is whether or not the computation made under the provisions of the Act of 1927 can be taken as a final adjudication of the results of the election and be substituted for the return made by the election board. We are of the opinion that this was not the purpose of the Act of 1927, and there is nothing in the act that would give the court the power to make such a substitution. The third section of the act of assembly says: “If upon opening any ballot-box under the provisions of this act it «hall appear that fraud or substantial error was committed- in the computation of the vote cast in the ballots contained therein, or fraud in the marking of the ballots contained therein, or otherwise in connection with such ballots, it shall be the duty of the court to certify to the prothonotary such fact.”

This part of the act of assembly, together with the fact that the first section requires that the petitioners must set forth “that they believe that fraud was committed,” leads to the conclusion that the entire purpose of the Act of Assembly of 1927 was to ascertain whether or not there was foundation for a criminal charge against the persons having charge of the election. Section 5 of the act sets forth what shall be done in case the ballot-box. was opened under the provisions of the act before completion of the computation and canvassing of all of the returns of the county, but this has no application in this case. Outside of section 5, there is nothing that even requires that any report be made of the number of votes east for individual candidates. It requires only that the question be determined as to whether or not there was fraud or substantial error committed, and if such was the case to certify this fact to the prothonotary and to “make such order as shall be appropriate to enable the ballot-box and the contents thereof to be available as evidence in any prosecution which may be begun against any person, or persons, alleged to be guilty of such fraud.”

We think the court is without power to substitute the computation of the votes in the 1st Precinct as set forth in the report made under the provisions of the Act of 1927 for that made by the election board; and if we cannot do this, we are unable to say that Andrew Bobby is unlawfully holding the office of Councilman in the Borough of Farrell.

It may be said that this would be permitting Andrew Bobby to remain in office while O. A. Harter had received the greater number of votes. We cannot say this for a certainty. The only way to determine this would be to have a recount of the 2nd Precinct, as well as the 1st Precinct. The legislature has made provision specially provided for cases where there are two claimants for the same office, provided that action is commenced within a certain time fixed by the legislature. There are, no doubt, many instances where persons are holding offices who did not receive the highest number of votes actually cast, those who had charge of the election having reported otherwise, and no action having been brought within a fixed time, the computation of the votes as reported by the election board is presumably correct and the person declared to be elected is legally performing the duties of the office.

There are other questions raised in this case which we think unnecessary to discuss after reaching the foregoing conclusion as to the purpose and intent of the Act of April 23, 1927.

Order. — And now, May 18, 1928, this matter came on to be heard on pleadings and arguments of counsel, and for the reason stated in the foregoing opinion, the rule heretofore granted is dismissed, and it is ordered that the costs be paid by the petitioner, O. A. Harter.

From W. G-. Barker, Mercer, Pa.


author: Sando, P. J.

text:
    Hollenback’s Estate.

      W. W. Kohler, for petitioner; C. H. Horton, for guardian.
   Sando, P. J.

This petition is presented by H. F. Snowden, undertaker, praying for citation directed to Armene Myers, guardian of the minor, to show cause why she should not, as guardian, pay the funeral expenses of the minor’s father, amounting to $511, from the estate of the minor.

The guardian has demurred to the petition, setting up various grounds of demurrer, which we do not deem necessary to consider in detail. It is sufficient to consider the question of the jurisdiction of this court and its authority to make the order prayed for, as in the instant case.

It will be observed that this is not the usual case of guardian in possession of the estate of the minor, praying authority under the provisions of the Fiduciaries Act of June 7, 1917, § 59 (i), P. L. 447, to expend for the “support and education” of the minor an allowance to be fixed by the court. On the contrary, it is the unusual application of a creditor of the estate of the minor’s deceased father for the allowance out of the estate of the minor for the purpose of paying the deceased parent’s funeral expenses.

The petition avers, inter alia, that he was informed that there was a policy of insurance on the life of Clarence Hollenback, father of the minor, which policy was given to a relative, directing him, in case of death, to collect, and from the proceeds of which was to be paid his funeral expenses and expenses of his last illness, and the surplus to be given to Helen A. Hollenback, his minor daughter; that Clarence Hollenback left no estate other than this policy of insurance; that in accordance with the request of Walter Hollenback, a brother, the petitioner conducted the funeral of Clarence Hollenback at an expense of $511.

On Feb. 10, 1927, on the petition of Helen A. Hollenback, born May 19, 1919, Armene Myers was appointed guardian of her estate, which, according to the petition, amounts to $1000. No inventory of the minor’s estate has been filed.

In Van Ness’ Estate, 66 Pitts. L. J. 814, the court ordered payment for the funeral of an indigent father from the estate of the minor, which estate consisted of insurance on the father’s life, and based its conclusions on “common decency.”

The court must not yield to personal views or feelings, however persuasive, but must obey the mandate of the law.

The principles of action which are sanctioned by the statute would not justify the allowance here asked for: Hunter’s Estate, 8 D. & C. 533; Carroll’s Estate, 26 Dist. R. 1058; Kehoe Minors, 10 Schuyl. Legal Rec. 142.

And now, Sept. 23, 1927, the demurrer is sustained.

Prom William A. Wilcox, Scranton, Pa.


author: Seakle, P. J.,

text:
    Mervine v. Indian Queen Hotel Corporation et al.

      R. L. Mervine, for plaintiff.

      Harold C. Edwards (of Eilenberger & Huffman), for defendants.
    Feb. 16, 1928.
   Seakle, P. J.,

22nd judicial district, specially presiding,

This action is one in equity, the bill alleging:

1. The defendant, the Indian Queen Hotel Corporation, is a corporation organized and existing under the laws of the State of Pennsylvania.

2. On or about Jan. 15, 1927, and for a long time prior thereto, H. H. Harris, the other defendant, owned, operated, maintained and conducted a hotel business, known as the Indian Queen Hotel, on Main Street, in the Borough of Stroudsburg, County of Monroe and State of Pennsylvania.

3. The defendant, H. H. Harris, was the owner of, and used in the conduct of said hotel business, certain valuable goods and fixtures, consisting of furniture, hotel furnishings, dining-room equipment and supplies, cooking equipment and utensils, bedroom furnishings and other hotel furnishings, fixtures and equipment.

4. On or about Jan. 15, 1927, the defendant, the Indian Queen Hotel Corporation, bargained for and purchased from the defendant, H. H. Harris, all of the goods and fixtures and the other hotel furnishings and equipment mentioned in paragraph 3 of this bill of complaint, in bulk, for cash.

5. The defendant, the Indian Queen Hotel Corporation, in the bargain and purchase aforesaid, did not comply with the Bulk Sales Act of the General Assembly of the Commonwealth of Pennsylvania, approved May 23, 1919, P. L. 262.

6. The defendant, H. H. Harris, at the time of the aforementioned bargain and purchase, was bona fide indebted to the plaintiff, W. H. Mervine, in the sum of $1500, together with interest from Oct. 17, 1926.

7. The plaintiff, W. H. Mervine, a creditor of the defendant, H. H. Harris, as aforesaid, was not, at least ten days before completion of the said purchase or the payment therefor, either personally or by registered mail, notified of said proposed sale, the price to be paid therefor, nor did he receive a copy of the statement of creditors, as is provided for by said Act of Assembly of May 23, 1919, P. L. 262.

8. No portion of the purchase money of said property was applied to the payment of the bona fide claim of the plaintiff, W. H. Mervine, and the defendant, H. H. Harris, has never paid and is still indebted to the plaintiff, W. H. Mervine, in the sum of $1500, with interest from Oct. 17, 1926.

Plaintiff prayed: First, that the said sale and transfer be set aside and the same be declared fraudulent and void; and, second, that the said Indian Queen Hotel Corporation be held liable to the then creditors; that is to say, to W. H. Mervine and to those other persons who were creditors of the said H. H. Harris at the time of the aforementioned bargain and purchase, as a receiver of the fair value of all the property so bought by the Indian Queen Hotel Corporation, defendant, from the defendant, H. H. Harris.

Defendants filed an answer raising preliminary objections to plaintiff’s bill, setting forth, inter alia, that the Bulk Sales Act approved May 23, 1919, P. L. 262, does not apply to the sales set forth in the plaintiff’s bill, and that the plaintiff has not, in or by said bill, shown any case entitling him to the relief prayed.

At the hearing and argument of the answer raising preliminary objections to plaintiff’s bill, counsel for the defendants stated to the court that plaintiff’s claim would be fully paid, and at a later hearing, on Feb. 17, 1927, counsel for the parties announced to the court that said claim had been so paid, and by agreement of the parties the court dismissed the bill, at plaintiff’s costs. When the bill was so dismissed, counsel for the defendants requested the court to give an opinion upon the said preliminary objections, and in the order dismissing the bill we wrote that “an opinion may be written later.” And, therefore, though the questions at issue have become mooted, yet, as defendants have carried out their agreement to pay plaintiff’s claim, and for guidance in similar cases, and to free the defendants and their counsel of any implication of sharp or illegal procedure in the sale of the Indian Queen Hotel, above referred to, we are pleased to give an opinion upon the issues involved.

The controlling issue in this case is whether this sale comes within the provisions of the Bulk Sales Act of May 23, 1919, P. L. 262.

This act is highly penal and so opposed to the common law and common practice that its terms should be strictly construed.

The decisions under the Bulk Sales Act of 1905 will, we think, apply to the sale of a hotel and fixtures made since the Act of 1919.

“Stock. In mercantile law. The capital of a merchant, tradesman or other person, including his merchandise, money and credits. The goods and wares he has for sale and traffic:” Bouvier’s Law Dictionary, page 318.

We think the word “fixtures” mentioned in the Act of 1919 are those fixtures used by a merchant in his ordinary business in selling goods and merchandise and not the fixtures of a hotel.

In the case of Wilson v. Edwards, 32 Pa. Superior Ct. 295, President Judge Rice, delivering the opinion of the court, in construing certain phases of said act of assembly, uses the following language: “The act speaks of a stock of merchandise and fixtures and of a sale of them otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller’s business. When read together with the context, these clauses imply, we think, not simply that, but that at the time of the sale they still bore the character of a stock of merchandise; that is, goods and merchandise employed in trade, which in the ordinary course of trade and in the regular and usual prosecution of the seller’s business would be sold or bartered otherwise than by a sale in bulk.”

In the case of Cressman’s Sons v. Haas et al., 26 Dist. R. 812, Judge New-comb decided that the stock and fixtures of a restaurant are not-merchandise within the meaning of the Act of 1905. It has been held that the vehicles, harness and other equipment used in such business do not constitute a stock of merchandise within the meaning of the statute: Miller v. Lincoln, 63 Pitts. L. J. 700, and 25 Dist. R. 549.

The precise question was raised in the case of Kemp and Davis v. Corbin & Co., 22 Dist. R. 215. Judge Galbreath, in a well-considered opinion, decided that the Act of 1905 applied to goods bought by a merchant for the purpose of selling in the conduct of his business, and not to the furniture of various kinds ordinarily used in the conduct of a public house or licensed hotel. “They did not constitute a stock of goods which he traded in in the conduct of his business, although necessarily incident thereto. The same thing might be said of the farmer who, in the conduct of his farm, is the owner of horses, cattle, sheep and such machinery as is necessary in the carrying on of his. business. The same thing is true of the tools used by a mechanic, but we think that neither in the case of the farmer nor of the mechanic would the stock and machinery of the one, or the implements of his trade in the case of the other, be considered a stock of merchandise or fixtures within the meaning of the last act of assembly. To hold that the furniture of various kinds ordinarily used in the conduct of a public house constitutes a stock of merchandise which may not be sold in bulk would be, we think, to open up the possibility of an extension of the meaning of the act of assembly far beyond anything that was contemplated by the law-making body. The things levied upon were not kept for sale and did not constitute the subject-matter in which the vendor was dealing. To hold that their sale in bulk was fraudulent in law without the notice required by said act of assembly would also mean that the person making the sale thereby also subjected himself to the severe penalties of the law.”

In Northrop v. Finn Construction Co., 260 Pa. 15, on page 19, Justice Walling says: “The Act of March 28, 1905, P. L. 62, making voidable certain sales of merchandise and fixtures in bulk, is not applicable to this case, as the property of Mr. Finn transferred to the corporation, consisting of horses, carts, hoisting machines, etc., such as constitute a builder’s equipment, were neither merchandise nor fixtures within the meaning of the act: Wilson v. Edwards, 32 Pa. Superior Ct. 295, 302.”

To like intent, see Bechman v. Hershey Creamery Co., 30 Dauphin Co. Repr. 371. In this case, Judge Wickersham cites with approval certain of the cases above referred to, and decides that the provisions of the Bulk Sales Act of 19191 do not apply.

In conclusion, we state, and so decide, that the Bulk Sales Act of 1919 did not apply to the sale of the Indian Queen Hotel and fixtures, as set forth in plaintiff’s bill. Further discussion is unnecessary. The bill is dismissed, at plaintiff’s costs.

From C. C. Shull, Stroudsburg, Pa.


author: Evans, P. J.,

text:
    Commonwealth v. Edeburn.

      Mayer Bniderman, for petitioner.
    Jan. 5, 1928.
   Evans, P. J.,

The relator was arrested on a warrant issued on an indictment charging the said relator with committing the crime of nonsupport of minor children in the County of Ashtabula, in the State of Ohio, and by a requisition the Governor of Ohio demanded of the Governor of Pennsylvania the arrest and removal of the said relator as a fugitive from justice. The Governor of Pennsylvania honored the requisition, the relator was arrested, an'd on the completion thereof a writ of habeas corpus was issued, which came' before this court for disposition.

The relator Was married to the mother of the minor children, which it is alleged that the relator has criminally left in the State of Ohio, refusing to support said children. In November, 1919, and for something more than three years until-January, 1923, he and his wife and one child lived together in New Kensington, Westmoreland County, of this State, and in January of 1923 the wife, Gertrude Kuhn, without the knowledge of her husband and without any reasonable cause, left his home in New Kensington, Pennsylvania, and returned to the home of her parents in Ashtabula, Ohio, and took with her the older of the two children, which, it is alleged, he has now refused to support. Almost immediately after her desertion, he was taken to the Citizens’ General Hospital of New Kensington, Pennsylvania, and was there continuously for about four months. During that time his wife did not visit her husband, or, so far as he knows, make any attempt to ascertain what his condition was. After he got out of the hospital he was unable to go to work and went to Ashtabula, Ohio, and spent some little time there — about two months — and he tried to get her to return with him to live in Pennsylvania. He was, during this time, unable to work.

She refused to go back with him, and when he returned to New Kensington, he returned to the hospital and was there for several months before he was able to go out and to go to work. During the time that the relator was in the hospital at New Kensington the second child was born. When he was able to return to work, he went to Ashtabula, Ohio, to persuade his wife to live with him again, and she refused to live with him, even in Ashtabula. He stayed there for a little while; she promised at first that she would return to live with him if he would get a home for her. He got the home and then she refused to live with him. He attempted to earn a living' in Ashtabula, but was unable to do so, and he tried to persuade her to come back with him to Pennsylvania, but she refused to come, and shortly after his return to Pennsylvania she began proceedings for divorce.

The wife has now, and always had, her children with her. She has, since the divorce, married, and so has he.

These are the facts not denied, and the defendant has been arrested as a fugitive from justice on an indictment in Ashtabula County, State of Ohio, for the purpose of taking him back there to prosecute him for not supporting his children. We have had some cases similar to this before, where the wife, without cause, leaves her husband in Pennsylvania and goes away to another state to her own family, takes her children with her and makes an information against him there as a fugitive from justice, and attempts to take him to that state and try him for desertion and non-support. I am of opinion that in this ease this man is not a fugitive from justice. Where a wife deserts her husband and takes her children with her and refuses to come back to Pennsylvania, and then tries to take him by warrant where she has gone voluntarily without him, we have no hesitancy in releasing him on a writ of habeas corpus. From William J. Aiken, Pittsburgh, Pa.


author: Chambers, J.,

text:
    C. B. Goorin Company v. De Robbio.

      Gilfillan & Patterson, for plaintiff; Clyde Gibson, for defendant.
    June 30, 1928.
   Chambers, J.,

This is a certiorari directed to J. R. Brodbeck, Justice of the Peace of Taylor Township. The prsecipe, affidavit and bond were filed March 10, 1928. The writ of certiorari was issued the same day, returnable to the first Monday of April, 1928. The writ of the justice was filed March 27, 1928. On April 23, 1928, Gilfillan & Patterson, attorneys, enter their appearance for plaintiff. On May 3, 1928, the assignments of error were filed by the defendant. The case was set down for argument and came before the court for hearing on the merits.

The record of the justice is clearly defective. While it shows a proper-service of summons upon the defendant, it does not show service of any statement of claim. The record shows a probated account which might stand for a statement of claim spread upon the transcript, but the record shows no service of this upon defendant nor any attempt to entér judgment for want of an affidavit of defense. The defendant does not appear at the time fixed for hearing, nor does the record show that the plaintiff, or any witnesses were present, or that any such were sworn, or that any testimony was taken. It is apparent, therefore, that any judgment that was entered was entered on the probated account. Such a judgment should be reversed.

“Where the justice’s record shows that the only evidence offered before him was the probated account of plaintiff’s book account and that the parties were not present except by counsel, judgment should be reversed:” Munroe v. Klepser, 5 Dist. R. 60; Hertog v. Hassenfratz, 16 Montg. Co. Law Repr. 195; Aldrich v. Ruof, 13 Lanc. Law Rev. 78; Bureau of Literature v. Meisenzhelder, 15 York Leg. Record, 152.

At the time of the argument upon the merits, attorneys for plaintiff called the attention of the court to the following rule of court:

Rule 7, § 3: “The plaintiff in error shall, within ten days after the return-day, if the return has been made, if not, then ten days after notice of the return, assign specifically the errors upon which he relies, and in default thereof, the judgment below shall be affirmed of course by the prothonotary.”

It was then argued that the assignments of error had not been filed in time and should not be considered by the court and that the judgment should be affirmed.

This question has given the court some difficulty. Under this rule of court, had plaintiff proceeded at the time appearance was entered to have asked for judgment, it would have been entitled to receive it. No such demand was made, however, and no judgment was entered. The record is allowed to remain open and later the specifications of error are filed. The case comes on for hearing on the merits and then this rule of court is invoked. Should it now be enforced?

In Dodgson v. Greiner, 11 W. N. C. 498, a writ of attachment had been issued returnable to the first Monday of May. On May 12th, at 9.40 A. M., an appearance was entered. At 11.40 on the same day, before the appearance had been noted on the docket, a rule was entered for judgment in default of appearance. It was there held: “The appearance was entered some two hours before the rule for judgment was entered and, therefore, this judgment is a nullity.”

In Work v. Adams, 72 Pa. Superior Ct. 262, the court, on page 265, says: “When the appellant appealed to the court for a hearing on the merits, he waived the formal defects in the form of service and must be held to have' submitted himself to the jurisdiction of the court: Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33, 197 Pa. 230; Philadelphia v. Adams, 15 Pa. Superior Ct. 483.”

Considering the principles involved in the foregoing cases, we feel that plaintiff is too late in invoking this rule of court. Had a praecipe been filed asking the prothonotary to affirm the judgment and had the judgment been affirmed, defendant could not now be heard except upon strong cause shown; however, no judgment having been asked for and none entered until after the specifications had been filed and the case was on for hearing on the merits, we feel that plaintiff has waived his right and that it is now the duty of the court to dispose of the matter upon the merits. The judgment, in the opinion of the court, being defective, we, therefore, make the following order:

And now, June 30, 1928, the judgment of the justice is reversed and judgment for the defendant on this writ.

From William McEIwee, Jr., New Castle, Pa.


author: Gordon, Jr., J.,

text:
    Commonwealth v. Stenton Pharmacy et al.

      W. F. Knauer, for plaintiff; C. J. Green, for Sarah Mayer, defendant.

      Ladner & Ladner, for Leon A. Spielman and Louis May, defendants.
    Nov. 15, 1928.
   Gordon, Jr., J.,

This is a bill in equity brought by the Commonwealth of Pennsylvania, at the suit of the Attorney-General, against Leon A. Spielman and Louis May, trading as Stenton Pharmacy, and Sarah Mayer. The proceeding is under section 7 of the Act of March 27, 1923, P. L. 34, known as the Prohibition Enforcement Act, and the bill prays for an injunction, enjoining and abating a certain “common and public nuisance,” as defined in section 6 of said act, and alleged to exist upon premises situated at the southeast corner of Broad and Spruce Streets, in the City of Philadelphia; and for an injunction restraining the defendants from hereafter maintaining, or permitting the continuance of, said alleged nuisance, and prohibiting the use or occupancy of said premises for a period of one year from the date of said decree.

The bill avers that the defendant, Sarah Mayer, is the owner of said premises, and that the defendants, Spielman and May, trading as the Stenton Pharmacy, were “the proprietors of the business located on said premises or otherwise actively connected with the operation of the said nuisance;” that said premises are used and maintained as a place where intoxicating liquor is “manufactured, sold, offered for sale, bartered, furnished and possessed by the defendants, in violation of said Prohibition Enforcement Act, and is a common nuisance as defined by Section 6 thereof;” that on June 25, 28, July 2, 10 and 12, 1928, and at divers other times prior thereto and thereafter, the defendant habitually and continually, in violation of sections 6 and 7 of said act, manufactured, sold, offered for sale, bartered, furnished and possessed intoxicating liquors on said premises fit for beverage purposes and containing one-half of 1 per centum, or more, of alcohol by volume, and maintained said premises as a common nuisance; and that the said defendants, unless restrained by injunction* will continue to keep and maintain said premises in violation of said Prohibition Enforcement Act and as a public and common nuisance as aforesaid.

The defendants, Spielman and May, filed no answer to the averments of the bill, but upon hearing admitted all the specific acts of violation set up against them in the bill. The defendant, Sarah Mayer, in her answer to the averments of the bill, avers that she had no knowledge that such nuisance existed upon the said premises; that she is the owner of premises complained of as a nuisance; that the defendants, Spielman and May, trading as Stenton Pharmacy, were, on the dates mentioned in the bill, the proprietors of the drug-store business located on said premises; that she has no knowledge that the said premises have been occupied and used in maintaining a common nuisance as defined and declared by section 6 of the said Prohibition Enforcement Act; that at no time did the plaintiff notify her that the premises were used and maintained as complained; that she “will immediately abate the said nuisance by the enforcement of her rights under the lease before referred to,” and prays that the bill, as to her, be dismissed.

Under these pleadings, the following issue of fact is presented for our determination:

1.Whether the alleged violations of said Prohibition Enforcement Act and the existence of a common and public nuisance on said premises, as averred in the bill, have been established by the evidence.

Findings of fact.

1. That the bill in equity in this case was filed Aug. 31, 1928, and served upon Leon A. Spielman, Louis May and Sarah Mayer, defendants, on Sept. 6, 1928, and that appearance has been entered for the said defendants by counsel.

2. That on Sept. 27, 1928, a hearing was held before this court, at which time all the defendants were represented by counsel and which hearing was, upon agreement of counsel, considered as a final hearing.

3. That two of the defendants, Leon A. Spielman and Louis May, trading as the Stenton Pharmacy, are now, and were at the time of the commencement of these proceedings and prior thereto, conducting a drug store at the southeast corner of Broad and Spruce Streets, in the City of Philadelphia, State of Pennsylvania.

4. That the defendant, Sarah Mayer, is the owner in fee of the premises located at and known as the southeast comer of Broad and Spruce Streets, in the Seventh Ward of the City of Philadelphia, the deed to said property being recorded in the Office for the Recording of Deeds in Philadelphia County, in Deed Book J. M. H., No. 2692, page 415, the said premises being more particularly described by metes and bounds in the bill in equity filed in this case.

5. That the defendants, Leon A. Spielman and Louis May, are, and were at the time of the commencement of these proceedings, the lessees of the said premises at the southeast corner of Broad and Spruce Streets, in the City of Philadelphia, under lease made and executed by or on behalf of the defendant, Sarah Mayer, for a term of eight years and two months beginning Sept. 1, 1927, at the annual rental of $6000 per annum, which rental was to increase after Oct. 1, 1929.

6. That the first or ground floor of said premises is equipped and stocked as a drug store and is a place to which the public, or any part of the public, desiring to enter may do so.

7. That the defendants, Leon A. Spielman and Louis May, trading as the Stenton Pharmacy, were the holders of a permit granted by the United States Government to dispense intoxicating liquors upon the conditions set forth in said permit.

8. It is admitted and agreed by counsel for the defendants that on June 25, 1928, the defendants at their said store, known as the Stenton Pharmacy, possessed and sold one bottle containing gin, which said gin had an alcoholic content of more than one-half of 1 per cent, by volume.

9. It is admitted and agreed by counsel for the defendants that on June 28, 1928, the defendants at their said store, known as the Stenton Pharmacy, possessed and sold one bottle of gin, which said gin had an alcoholic content of more than one-half of 1 per cent, by volume.

10. It is admitted and agreed by counsel for the defendants that on July 2, 1928, the defendants at their said store, known as the Stenton Pharmacy, possessed and sold one pint bottle of red whiskey, which said whiskey had an alcoholic content of more than one-half of 1 per cent, by volume.

11. It is admitted and agreed by counsel for the defendants that on July 10, 1928, the defendants, at their said store, known as the Stenton Pharmacy, possessed and sold one bottle of gin, which said gin had an alcoholic content of more than one-half of 1 per cent, by volume.

12. It is admitted and agreed by counsel for the defendants that on July 12, 1928, the defendants at their said store, known as the Stenton Pharmacy, possessed and sold one pint bottle of whiskey, labeled “Scotch,” which said whiskey had an alcoholic content of more than one-half of 1 per cent, by volume.

13. It is admitted and agreed by counsel for the defendants that on July 12, 1928, Federal prohibition agents entered the said Stenton Pharmacy and, in the presence of other Federal prohibition agents, served upon the defendant, Leon A. Spielman, a search warrant, and upon search of the said premises, the Federal agents found, in a hair-net case, directly back of the counter, three unlabeled one-pint bottles of alleged red whiskey and one pint bottle of whiskey labeled “Smuggler’s Scotch” whiskey, which bottles of whiskey were produced in court.

14. It is admitted and agreed by counsel for the defendants, Leon A. Spiel-man and Louis May, trading as the Stenton Pharmacy, that the liquor purchased and seized was not liquor sold or possessed under the provisions of the Federal permit.

15. It is agreed by counsel for all parties that the liquor held by the defendants, Leon A. Spielman and Louis May, trading as the Stenton Pharmacy, under Federal permit, was properly accounted for.

16. That members of the police force of the City of Philadelphia, upon authority of search warrants, from time to time during the past two years, searched said Stenton Pharmacy, but at none of such times were able to detect a violation of law. _ .

Discussion.

It is unnecessary to discuss at length the evidence in this case. It is undisputed, and the habitual and repeated violations of law which it discloses are admitted. The defendants appeal, however, to the equitable discretion of the court to withhold the padlocking injunction because of the injury it would do to the legitimate drug business they conduct on the premises and in connection with which they illegally sold liquor. This appeal is without merit. The case is one which peculiarly warrants the application of the provisions of the law relating to padlocking. The defendants are druggists, who were licensed by the Government to dispense intoxicating liquors for medicinal purposes. Their license to possess and vend such liquors was granted only after an investigation by the Government indicated that they were presumptively worthy of trust and confidence as responsible law-abiding citizens. The special privilege which they thus received and the obligations to which it gave rise only aggravated their breach of trust and rendered their law breaking the more culpable. By being permitted to keep intoxicating liquors lawfully on their premises, the secret and illegal dispensing of such commodities was facilitated, since the defendants were thereby relieved from the suspicion that would ordinarily arise from the mere possession of liquors by an unlicensed person. A betrayal of the trust reposed in him by the beneficiary of such a privilege leaves him without a standing in equity to protest the full application to his case of the remedial provisions of the law. So far as the defendant drug store proprietors are concerned, therefore, we have no hesitancy in granting the injunction which the Commonwealth asks.

As to the defendant Sarah Mayer, it may be conceded that she had no actual personal knowledge of the violations of law that were being committed upon the premises by her tenants. She intrusted the care of her interests to the hands of an agent, and, for the purposes of this litigation, it may be assumed that the agent was likewise ignorant of the conditions in this regard which existed upon the property in its charge. It cannot be doubted, however, that it could easily have informed itself of the illegal practices of the tenants, especially in view of the flagrant manner in which the law was violated by them. Whatever effect the injunction may have upon her interests, it is a risk incident to ownership. Equity might, in some circumstances, withhold a padlocking injunction because of the unmerited injury it might inflict upon a landlord, as, for instance, in the case of a sporadic and occasional use of property by a tenant in violation of law, of which the landlord, in fairness, could not and should not be expected to be cognizant. In circumstances such as the present, however, we see no reason for doing so. In addition, these tenants hold the premises under a long-term lease which has several years yet to run. The landlord has parted with her right to the possession and enjoyment of the property, upon which alone the injunction will operate, and she cannot, therefore, be legally injured by it. Her right to rent would not ordinarily be defeated by the tenant’s misconduct, and there is nothing to indicate that either the lease or the relations between the parties to it, as to which we have no concern, would alter the situation.

We, therefore, reach the following

Conclusions of lana.

1. That intoxicating liquor, to wit, whiskey and gin, having been stored, possessed and sold for beverage purposes recurrently, habitually and continuously in the drug store on the first floor of the buildings of the defendant, situate at the southeast corner of Broad and Spruce Streets, in the City of Philadelphia, State of Pennsylvania, the premises described in the bill of equity aforesaid, the first floor of said building occupied and conducted as a drug store, is hereby directed to be a common nuisance within the meaning of section 6 of the Act of March 27, 1923, P. L. 34.

2. That the plaintiff, the Commonwealth of Pennsylvania, is entitled to a permanent injunction restraining the defendants, Leon A. Spielman and Louis May, themselves or by their agents, servants and employees, from manufacturing, selling, offering for sale, bartering, furnishing or possessing any intoxicating liquor for beverage purposes in or upon the premises described in the third paragraph of the said bill in equity.

3. That the plaintiff, the Commonwealth of Pennsylvania, is entitled to a decree ordering the aforesaid common'nuisance to be abated, and that the store occupied and conducted as a drug store at the southeast corner of Broad and Spruce Streets, in the City of Philadelphia, shall not be occupied or used for one year.

4. That the cost of this proceeding be paid by the defendants.

Decree.

And now, to wit, Nov. 15, 1928, this cause having come on to be heard upon bill, answers and proofs, it is ordered, adjudged and decreed:

1. That the common nuisance existing on the premises herein described be abated.

2. That the defendants herein and their agents, servants and employees be forthwith enjoined and restrained from using and maintaining, or assisting in using and maintaining, the premises described in the bill in equity filed herein as a place where intoxicating liquor is manufactured, sold, furnished or possessed.

3. That the store located on the first floor of the building erected on the southeast corner of Broad and Spruce Streets, in the City of Philadelphia, shall not be occupied or used for a period of one year from the date of this «decree, and that the sheriff shall énter the said premises and lock and bar the said premises by placing padlocks upon all doors and. entrances of the said building, and shall place on the outside thereof a copy of this decree.

4. That the said defendant's, Leon A. Spielman and Louis May, trading as the Stenton Pharmacy, proprietors of the said business, be enjoined and restrained from manufacturing, selling, offering for sale, furnishing or possessing any intoxicating liquor contrary to the provisions of the Act of March 27,1923, P. L. 34, at any place within the County of Philadelphia.

5. That the defendants pay the costs.

The prothonotary will enter this decree nisi and give notice of the same to the parties or their counsel, and if no exceptions are filed within ten days thereafter, either party may present to the court a form of final decree then to be entered.

NOTE. — Dec. 17, 1928, exceptions dismissed by court in bane.


text:
    Lower Merion Township School District, to use, v. George H. Evans, Inc., et al.

      D. L. German, Jr., for plaintiffs; A. G. F. Curran, for defendants.
    July 11, 1928.
   Martin, P. J.,

The defendant, George H. Evans, Inc., entered into a contract with the School District of Lower Merion Township to construct a school building. In compliance with the requirements of. the acts of assembly, George H. Evans, Inc., as principal, and the iEtna Casualty & Surety Company, as surety, executed a bond, conditioned that if George H. Evans, Inc., promptly paid, “or cause to be paid, any and all persons any and all sum or sums of money which may be due for labor or material, or both, furnished, done, performed or supplied in and about the said building or work,” the obligation should be null and void; otherwise to remain in full force and virtue.

The plaintiffs furnished stone to Charles H. Orth, a sub-contractor, and the stone was used by him in the construction of the school building. Plaintiffs were not paid for the stone supplied to the building, and suit on the bond was instituted by permission of the School District of Lower Merion Township, in the name of the school district, to the use of Bernard and Thomas McCabe, trading as Rock Hill Quarry, to recover the price of the stone. A statement of claim was filed stating the terms of the agreement made by plaintiffs with the sub-contractor, the quantity of stone delivered by plaintiffs and used in the building, and averring that plaintiffs have not been paid.

An affidavit of defense was filed raising questions of law, which, after argument, was held not sufficient, and defendants subsequently filed the affidavit now under consideration.

'It is not denied in the affidavit of defense that plaintiffs supplied the stone, that the price charged is that which was agreed to be paid by the subcontractor, and that the stone was used in the construction of the school building. Defendants averred that payment for the stone was made to the subcontractor, but it is not alleged that plaintiffs were paid. The denials in the affidavit are evasive, stated on belief, but are not averred in the terms required by the authority of Buehler v. U. S. Fashion Plate Co., 269 Pa. 428.

The affidavit of defense is not sufficient to prevent judgment in favor of plaintiffs: Republic F. P. Co. v. Southwark F. & M. Co., 269 Pa. 522.

And now, to wit, July 11, 1928, the rule for judgment for want of a sufficient affidavit of defense is made absolute and judgment.is entered against the defendants in favor of the use-plaintiffs, Bernard McCabe and Thomas McCabe, copartners, trading as Rock Hill Quarry, for $2606.38, with interest from June 10, 1926.