author: Boose, P. J.,

text:
    Commonwealth v. McVicker.

      James B. Landis, District Attorney, and D. R. Heckman, for Commonwealth.

      F. A. Holbert, for defendant.
    June 21, 1930.
   Boose, P. J.,

This is an appeal from a summary conviction and sentence by a justice of the peace. The defendant was arrested, tried, convicted and sentenced for a violation of section 2 of the Act of June 9, 1911, P. L. 861, as amended by the Act of April 27, 1925, P. L. 322, and further amended by the Act of May 4, 1927, P. L. 706, which provides:

“If any person shall willfully or maliciously cut bark from, or cut down, injure, destroy or remove a tree . . . growing or standing upon the land of another, without the consent of the owner; . . . such person on conviction thereof in a summary proceeding before any . . . justice of the peace, shall be sentenced to pay a fine of not less than twenty-five ($25) dollars and costs of prosecution for each such tree. . . .”

From the evidence taken at the trial of this appeal, it appears that the prosecutor, Dr. C. T. Saylor, and the defendant, A. E. McVicker, live upon adjoining lots or properties fronting on Main Street, in the Borough of Rock-wood, separated by a public alley about sixteen feet in width, running back the full length of their lots, and intersecting with another public alley on the rear thereof. On Dec. 18, 1929, the prosecutor left his automobile standing in this alley alongside of his property; and the defendant, desiring to drive into this alley with his automobile to the rear of his lot, and claiming that the said alley was obstructed by the prosecutor’s car, drove over onto the prosecutor’s lot and over a catalpa tree standing and growing thereon, and shortly thereafter drove his car out of said alley and again over said tree, thereby injuring and destroying the same. The facts are not in dispute, and the defendant seeks to justify his acts in driving over said tree under a claim of right to use said alley unobstructed.

Assuming, therefore, that the defendant committed the acts complained of, is he guilty of a violation of the act of assembly under which he was tried, convicted and sentenced? The Act of June 9, 1911, P. L. 861, is entitled “An act to protect trees and woodlands, and providing punishment for the violation thereof.” The purpose of this aot and its amendments is to protect woodlands, trees and shrubs growing thereon. It does not embrace and has no application to fruit or ornamental trees, such as the defendant is alleged to have injured and destroyed. Fruit or ornamental trees and shrubs are, however, under the protection of the law. The penalty, as well as the mode of procedure, for mutilating or damaging such trees or shrubs is prescribed by the Act of June 18, 1895, P. L. 196, which amends section 1 of the Act of June 8, 1881, P. L. 82, which repealed the Act of March 30, 1860, P. L. 362, as to the punishment and mode of procedure. The prosecutor’s remedy was under this act and not under the Act of June 9, 1911, P. L. 861, and its amendments. All that we need or do decide is that the defendant is not guilty, under the admitted facts, of a violation of the latter act. Upon the trial of an appeal from a summary conviction, the complaint or information stands in lieu of a bill of indictment; and the court cannot go beyond it and determine the guilt or innocence of the defendant of any offense not therein specifically set forth.

Decree.

And now, June 21, 1930, the defendant is adjudged not guilty of a violation of section 2 of the Act of June 9, 1911, P. L. 861, as amended by the Act of May 4, 1927, P. L. 706; and the appeal is, therefore, sustained.


source: Caselaw Access Project

author: Potter, P. J.,

license: Public Domain

text:
    Arnold v. Arnold et al., Administrators.

      Madore & Madore and Simon H. Sell, for plaintiff.

      Alvin L. Little, for defendants.
   Potter, P. J.,

17th judicial district, specially presiding, May 22, 1930.— This suit was instituted on Nov. 2, 1929. It was tried before a jury, who, on Jan. 31, 1930, rendered a verdict for the plaintiff in the sum of $1218.79. A motion for a new trial was promptly made and reasons were filed in support of it, which we have before us.

Winfield S. Arnold, the plaintiff, and James E. Arnold, deceased, were brothers, the decedent being represented in this suit by three named defendants, who are his children and heirs. The plaintiff has been for some years the owner and operator of a planing mill in Bedford, and was also engaged in the contracting and building business. James E. Arnold died on April 13, 1929, and, from what we gathered during the course of the trial, was a farmer.

These two brothers had for many years been mutually dealing back and forth with each other, the plaintiff furnishing to his brother building and repair material from his planing mill, and the decedent furnishing to his brother products from his farm, these mutual business relations having reached back as far as the year 1874. However, from 1874 on no dealings between them occurred on either side till the year 1888, a lapse of fourteen years. In our judgment, the dealings of 1874 would be barred by the statute of limitations. Then, again, we have a lapse from 1888 till 1896 with no dealings between them. Again, we think the limitation applies to the items of 1888. However, from 1896 on up to 1925 mutual business transactions existed between them with no lapse of the statutory limitation period of six years. So that for the purposes of this trial we are considering mutual items only within this period.

The plaintiff introduced proof of articles sold by him to the defendants’ decedent during this period amounting to $1311.27. He, however, admits a credit of articles furnished to him by the decedent amounting to $356.06, leaving his net claim $955.21, on which interest from June 25, 1925, the date of the last business relation between them, up to Jan. 31, 1930, the day of the verdict, is computed, amounting to $263.58, thus making the total claim of the plaintiff $1218.79, for which sum the verdict was rendered.

The defendants offered no testimony whatever, so we have only the plaintiff’s version of the controversy.

The last item furnished by the plaintiff to the defendant was on June 25, 1925. As the defendants offered no testimony we have no means of knowing, from their version of the matter, when the last item was furnished by their decedent to the plaintiff. However, the credit of $356.06 was admitted by the plaintiff and was not denied by the defendants, and had accumulated between the years of 1896 and 1925.

It is claimed by the defendants that the last item furnished by the decedent to the plaintiff was far more than the six-year limitation period before the time of bringing the suit, that this was not a mutual account between these brothers, and that the limitation must eliminate all items of the plaintiff’s claim prior to the six years back from Nov. 2, 1929. Upon the trial of the case we reserved this as a question of law to be disposed of by us, and we find the reasons for a new trial all hinge on this legal proposition. Wherefore, as we view it, the question before us is, is this such a mutual account between these two brothers as will take it out of the statute of limitations, and can this account be considered as extending back to the year 1896, and the one side of it operate as a set-off to the other, and must there be an exchange of items from each to the other within six years prior to the bringing of the suit?

In 37 Corpus Juris, 865, we have the following relative to mutual accounts current: “Where there is a mutual, open and current account consisting of reciprocal demands, the general rule is that the cause of action to recover the balance is deemed to accrue at the date of the last item proved [not items on each side of the account], and that the statute of limitations runs from that time, so that, if the last item on either side of the account is not barred, it ‘draws to itself all the other items’ which will become barred only when the statute has run against the last, no matter how far back the account commenced. . . . And it is commonly stated that the main ground upon which the rule as to mutual accounts rests, independent of express statutory provision, is that every new item and credit in an account given by one party to the other is an admission that there are some unsettled accounts between them, each item within the statutory period being regarded as equivalent to evidence of a promise which takes all the prior items out of the statute.”

A mutual, open and current account is an unsettled debt arising from items of work and labor, goods sold and delivered, and other open transactions not reduced to writing and subject to future settlement and adjustment: 37 Corpus Juris, 865, note 96 a. It is elementary that in cases of mutual accounts the statute of limitations commences to run from the day of the date of the last item on either side: Davidson v. Davidson, 262 Pa. 520; McFarland v. O’Neil, 155 Pa. 260; McCain v. Peart, 145 Pa. 516; Chambers v. Marks, 25 Pa. 296; Thomson v. Hopper, 1 W. & S. 467; Van Swearingen v. Harris, 1 W. & S. 356; Radenbach’s Estate, 52 Pa. Superior Ct. 461. To make an account mutual within the meaning of the rule the items on the different sides of the account must be capable of being set off against the other, and one item alone does not comply with the requirement. The account on both sides must be between plaintiff and defendant and must have originated between them, and the parties must have dealt with each other in the same capacity or relation: 37 Corpus Juris, 869 and 870. In brief, the items on both sides must constitute parts of the actual account upon which they operate to set off or extinguish each other pro tanto, so that the balance on either side becomes the debt: Mattern v. McDivitt, 113 Pa. 402. And the account must be continuous, open and current. A mutual account is one based on a course of dealing wherein each party has given credit to the other in reliance on the understanding that upon settlement each side of the account will be allowed, so that one will reduce the other. In such cases every item of account on either side ending in a debt is to be deemed a credit in favor of the party pro tanto upon the final adjustment, and the several items of credit become converted eo instanti into payment as to items of debit, and only the balance is recoverable: 1 Corpus Juris, § 6, page 598.

These two brothers had been dealing back and forth with each other since 1876, and, apparently, never settled. Within a week prior to his death James E. Arnold had met with his brother at his home, and they took steps to effect a settlement of their account. From the testimony given, it seems they^ were getting together on a settlement. They parted, agreeing to meet again to finish the settlement within a few days, before which time the decedent took sick and soon thereafter died, by reason of which the settlement was not consummated. Had he lived, we have no doubt but that the settlement would have been effected and this ease would not be before us. But, by taking steps to settle, they surely regarded their dealings as a mutual and reciprocal account. And if they so regarded it, we see no reason why we should not, which takes it out of the statute of limitations in this respect.

And now, whether or not there must be items on both sides of the account to take it out of the operation of the statute. At the time of the trial we thought not, and we think so yet. Where there are mutual demands, if any item of such account be within six years from the commencement of the suit, such item is deemed equivalent to a subsequent promise reviving the debt. It takes the case out of the statute: Van Swearingen v. Harris, 1 W. & S. 356; Thomson v. Hopper, 1 W. & S. 467; Chambers v. Marks, 25 Pa. 296; McFarland v. O’Neil, 155 Pa. 260; Lowber v. Smith, 7 Pa. 381, and other authorities already cited, which are identical with the dictum laid in Corpus Juris, hereinbefore cited. It is to be noted that all these authorities refer to “any item” in the mutual account within the six-year period. The word “items” is not used. If it was, we might well understand that the last item on each side of the account was meant. The transactions on both sides are regarded as one account. Wherefore, we are of the opinion that if the last item on one side of the account is more than six years back of the date of the bringing of the suit, and the last item on the other side is within six years of it, this item carries with it both sides of the account. To hold otherwise in the case of a mutual current account would be inequitable and must necessarily work a great hardship on the one whose side of the account might be a few days back of the six-year period. If A’s side of the account was within the six years and B’s side of it was outside of it, if, for this reason, on a settlement, B’s account was barred, this would prove a very fertile field for the one to defraud the other out of his just and honest credits by A selling to the unsuspecting B a small item within the period, or of A ceasing to receive goods from B till the six-year period was passed. We do not think this to be the law in the case of mutual accounts.

May 22, 1930,

We see no reason for further discussion of the question, and, therefore, enter the following order:

And now, to wit, the new trial is refused, the reasons assigned therefor are dismissed, and we direct that judgment be entered on the verdict upon compliance with the usual legal requirements.

From R. W. Williamson, Huntingdon, Pa.


author: Chalfant, J.,

text:
    McLaughlin’s Estate.

      Maynard Teall and Reed, Smith, Shaw & McClay, for exceptant.
    O. K. Eaton, contra.
    March 13, 1930.
   Chalfant, J.,

Decedent, a widower, died Jan. 28, 1929, after an illness of three months which confined him to his home, but not to his bed. He executed his will on May 26, 1928, and it was duly probated and letters testamentary issued. He bequeathed $5000 to his daughter, who is an only child, and, after some charitable bequests, gave the residue to his executors in trust for her with power of consumption of the principal. On Dec. 12, 1928, he requested his nurse to summon his daughter, who was living at his home, and when she came he said he wanted to turn over to her his seat in the Pittsburgh Stock Exchange, and asked for pen and ink. When these were produced he dictated to his daughter and she wrote the following: “Dec. — 28. Please give my daughter, Mary Louise McLaughlin Sterrett, my seat in the exchange.” He then signed his name to the paper and delivered it to his daughter, who kept it until June, 1929, when it was delivered to the Pittsburgh Stock Exchange for transfer, accompanied by an application for membership and the required fee as provided by the by-laws of the exchange. On July 19, 1929, and before any action had been taken on the application, the executors filed their inventory, in which was included the seat in the exchange. The daughter then presented her petition to this court at No. 689, September Term, 1929, claiming ownership of said seat and asking that it be decreed to her as her property, to which an answer was filed and testimony was taken in connection with the audit of the first and final account of the executors, which was filed at No. 323, October Term, 1929, and to which she had filed exceptions raising the same question of ownership. All debts of the decedent have been paid.

There can be no doubt as to the intention of the decedent to transfer the seat to his daughter, and the questions are whether the seat is property, and, if not, is it of such a nature that it is susceptible of a gift, and is the paper which he executed, together with his expressed oral desire, sufficient to constitute a gift inter vivos.

In Thompson v. Adams, 93 Pa. 55, which case involved a seat in the Philadelphia Stock Exchange, our Supreme Court said: “The seat is not property in the eye of the law; it could not be seized in execution for the debts of the members. It is the mere creation of the board, and, of course, was to be held and enjoyed with all the limitations and restrictions which the constitution of the board chose to put upon it.” In this case, however, the owner of the seat had died owing various sums to other members of the board, and the seat had been sold by the exchange, and the question was, whether the proceeds of the sale should go to member creditors or to an outsider, who claimed to have furnished the money to buy the seat. The court decided that the fund should go to the creditors.

The principle above quoted was approved in Gartner v. Pittsburgh Stock Exchange, 247 Pa. 482, where the owner of the seat was in bankruptcy and his seat was sold by the exchange and the proceeds applied to members of the exchange who were creditors. A brother of the member claimed that the seat had been pledged with him as collateral for a loan, and brought suit against the exchange for the value of the seat.

In Paneoast v. Gowen, 93 Pa. 66, which involved a seat in the Philadelphia exchange, the court said: “A seat in the board of brokers is not property subject to execution in any form. It is a mere personal privilege, perhaps more accurately, a license to buy and sell at the meetings of the board. It certainly could not be levied on and sold under a fi. fa.” In this case an execution attachment on a judgment against a member was issued and the stock exchange summoned as garnishee, and the court dissolved the attachment.

While these cases hold that such a seat is not property, there is nothing to indicate that it is of such a nature as not to be the subject of a sale or gift. On the other hand, our Federal courts, including the United States Supreme Court, have held that such a seat is property. In the case of In re Stringer, 253 Fed. Repr. 352, a question arose as to whether a seat on the New York Stock Exchange was a firm or an individual asset, and the court in its opinion said: “Before considering that question, it may be pointed out that a difference of opinion has existed in the courts as to whether a seat or membership in a stock exchange, or merchants’ exchange, or board of trade is property which, if fraudulently conveyed or assigned, may be reached in equity by creditors. That the creditors cannot reach it seems to have been held in Barclay v. Smith, 107 Ill. 349, . . . Pancoast v. Gowen, 93 Pa. 66 [citing other cases]. But whatever may have been thought at one time on this subject, the Supreme Court of the United States has settled the matter that membership in a stock exchange is property which passes to a trustee in bankruptcy as assets of the bankrupt’s estate: Page v. Edmunds, 187 U. S. 596; Hyde v. Woods, 94 U. S. 523 [and other cases cited]. While such property is peculiar and in its nature a personal privilege, yet such value as it may possess, notwithstanding the restrictions to which it is subject, is held to be susceptible of being realized by creditors.”

The Pittsburgh Stock Exchange is a corporation of the first class chartered by the Common Pleas Court of Allegheny County under the Act of April 29, 1874, P. L. 73, and its supplements, and its purpose is to furnish the usual facilities for the transaction of the business of its members in buying, selling and dealing in stocks, bonds and other securities. That the members of this exchange consider a seat of such a nature that it can be sold and transferred appears from the following quotation from the charter and by-laws:

Article ix of the amended charter provides: “The corporation shall have the right to admit, expel, suspend of fine such members as it may see fit in the manner to be prescribed in the by-laws thereof.”

Article XI. “A membership may be transferred upon the terms, conditions and in the manner prescribed in the by-laws, subject to the discharge of obligations,” etc.

Article xii. “In case of death of a member, his legal representative shall for the period of one year have the right to transfer his membership as provided in the case of ordinary transfer. . . .’

Article IV of the by-laws. “Any member wishing to sell or transfer his membership shall have the right to do so, provided he has no unsettled contracts against him with the exchange,” etc.

Sec. 2. “When any member wishes to transfer his membership he shall deposit with the committee on membership his resignation and the application of the transferee in the form prescribed for admission to membership,” etc. Then follow requirements as to notice to members and report of committee to the board of directors for approval.

We, therefore, conclude from the foregoing that, whether the seat be styled as property, personal privilege or license, or by some other designation, it is capable of being sold or given away. The fact that the donee or purchaser might not be able to succeed to the privileges of the member would not avoid-the gift as between donor and donee. In considering this case we have not lost sight of the proof necessary to uphold a gift (inter .vivos, as laid down in Turner’s Estate, 244 Pa. 568, and the many other cases in which this subject is discussed by our appellate courts; but we do not think that the circumstances under which this gift was made and the nature of the property given, and especially the relation between the parties, require the same amount of proof as the general run of these cases. Testator had made his will in May, 1928, and in that his daughter was the main object of his bounty, and while the greater portion of his estate was bound by a trust, it was for her benefit and the trustees had the power of expending the whole of the principal and income for her use. Prom October, 1928, until his death, testator was confined to his room. He had no certificate or other evidence of his ownership of the seat which required an assignment or transfer by him. He did everything in support of his intention to part with his ownership, unless it was his resignation, and we believe what he did was equivalent to this.

Our courts have repeatedly held that a valid gift inter vivos can be made even though there remains something to be done to make the actual transfer. In Com. v. Crompton, 137 Pa. 138, the court said: “It is now settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or endorsement in writing. This principle has been applied to notes, bonds, stock and deposit certificates and life insurance policies.” This case is cited as late as Connell’s Estate, 282 Pa. 665, and the same principle is laid down in Shaffer v. Hoke, 80 Pa. Superior Ct. 434. Our courts have also ruled that in cases involving gifts inter vivos all the circumstances must be considered. In Packer v. Clemson, 269 Pa. 1, we find this principle laid down: “In determining whether there was a valid gift, we must confine our inquiry to what transpired at the time the gift was supposed to have been made. . . . Words, phrases and acts must receive their usual and accepted meaning without strained inferences or constructions.” And in the case of Leadenham’s Estate, 289 Pa. 216, Mr. Justice Walling in his opinion said: “While the change of possession may be either actual or constructive, it must be such as is consistent with the nature of the property and the situation of the parties. . . . Less proof of a gift to a near relative is required than of one to a stranger.'” In Yeager’s Estate, 273 Pa. 359, cited in Leadenham’s Estate, supra, the court said: “To establish a gift inter vivos as here alleged two essential elements must be made to appear: an intention to make the donation then and there, and an actual or constructive delivery at the same time, of a nature sufficient to divest the giver of all dominion and invest the recipient therewith: Reese v. Philadelphia Trust Co., 218 Pa. 150; Ashman’s Estate, 223 Pa. 543. The quality and quantity of proof required to meet this obligation varies greatly, depending upon the circumstances of the particular case. Where the parties are strangers, the presumption against voluntary transfers is greater than in transactions between those holding more intimate relations. If the gift is from husband to wife (Crosetti’s Estate, 211 Pa. 490), or parent to child (Langdon v. Allen, 1 W. N. C. 395), the action of the donor is viewed as but natural and less evidence is required to establish the intention.”

The gift in the instant case was from a father to his only child, and the proof required is not so strict as if it had been to a stranger. If, in order to part title with his ownership in the seat, the owner must conform to all the requirements for transfer, decedent’s attempt to give the seat to his daughter would fail; but we do not believe he was so required, and especially as between him and his daughter. We, therefore, find that the gift of the stock exchange seat was a valid one, and the first and second exceptions will be sustained.

In this estate the stock exchange seat was appraised in the inventory at $15,000. In their account, the executors charge a commission of 5 per cent, on the amount of the corpras. Exceptions were filed by Mary Louise McLaughlin Sterrett to the allowance of commissions based on the value of the said seat, and, since we have found that the seat was not a part of the estate, the executors would not be entitled to a commission based on the value thereof, and the third exception will be sustained and accountants will be surcharged with 5 per cent, of $15,000, or $750.

Let a decree be prepared accordingly.

From William J. Aiken, Pittsburgh, Pa.


author: Alessandkoni, J.,

text:
    Beaver Beneficial Ass’n et al. v. Fraternal Order Beavers et al.

      Ardemus Stewart, for plaintiffs; John A. MawMnney, for defendants.
    Nov. 20, 1930.
   Alessandkoni, J.,

The bill sets forth that the Beaver Beneficial Association and Peter Mullen hold overdue bond obligations of the defendant association. It is averred that the obligations are long overdue; that the defendant is insolvent; and the bill contains prayers requesting the appointment of a receiver. Preliminary objections to this bill were filed and subsequently the plaintiffs filed a petition to amend the prayers of the bill so as to include a prayer for judgments in favor of the respective plaintiffs for the amounts proved to be due them. Under Rule 56 of Equity Practice, “all pleadings may be amended, as of course, at any time prior to final decree, so far as relates to the prayers for relief or any other unimportant matter. . . .” The right of the plaintiffs to amendment of the bill regarding the prayers is clear. The mere fact that the rule to amend was filed after the preliminary objections is immaterial.

The preliminary objections filed to the bill set forth numerous reasons. It is contended that the plaintiff has an adequate remedy at law. It is firmly established in this jurisdiction that there is no such entity known to the law as an unincorporated association, and an action in assumpsit will not lie against such a body. The remedy in an action against such association lies in equity, where suit may be brought against some of the members as representing themselves and all others who have the same interest: Oster v. Brotherhood of Locomotive F. & E., 271 Pa. 419. An action in assumpsit will not lie in this case and the plaintiffs’ proper remedy is in equity.

The remaining objections state that another proceeding is pending in this court as of a different term and number between these parties and that in the bankruptcy proceedings filed in the District Court of the United States the defendants were found solvent on Oct. 30, 1929. Both these objections may be considered together. While the bill recites that the Fraternal Order of Beavers have brought another proceeding in this court to enjoin the collection of increased contributions, this fact is only recited as an illustration of the mismanagement of the defendant association which requires the appointment of a receiver. The facts alleged by the defendants constitute matters extraneous to the facts alleged in the bill, and this court cannot inquire into or take judicial knowledge of proceedings in cases other than that at bar, even though the suit may have been brought in the same court. In Weaver v. Reinhart, 11 D. & C. 120, a demurrer set forth that other proceedings were pending in the same court. It was ruled that this was a speaking demurrer and bad. The court stated: “Any demurrer not founded upon averments of the statement is a speaking demurrer, which from the earliest days has been held to be bad (Brownsword v. Edwards, 2 Ves., Sr., 243, 245) and is still so held: Wright v. Weber, 17 Pa. Superior Ct. 451, by Rice, P. J. At all times the direct rule has been and still is that ‘courts, including those of probate, cannot in one case take judicial notice of their own records in another and different case, even though the trial judge in fact knows or remembers the contents thereof’ (23 Corpus Juris, 113), except, perhaps, in a few rare instances having no relevancy here: Steel v. Levy, 282 Pa. 338.” The rules of equity practice (Rule 48) make no provision for the filing of preliminary objections to a bill stating facts extraneous to those included in the bill. Questions raised by preliminary objections are in the same category as those raised by demurrer. They cannot be based on matters extraneous to the facts set forth in the bill: Paris v. Reichard, 40 York Leg. Record, 142; Wettengel v. Robinson, 74 Pitts. L. J. 325.

And now, to wit, Nov. 20, 1930, preliminary objections are dismissed and the respondents are required to file an answer to the bill within fifteen days. The rule to amend the prayer of the bill is made absolute.


author: Sinkleer, J.,

text:
    Loughlin’s Estate.

      Loughlin & Woolford, for petitioner.
    Jan. 2, 1931.
   Sinkleer, J.,

Mary E. Loughlin died March 23, 1929, leaving a will dated July 1, 1921, and three codicils thereto. Clause 12 of the will appointed her husband, Henry C. Loughlin, executor; if he be deceased, her brothers, James J. McEvoy and Thomas A. McEvoy; if they both be deceased, John K. Loughlin; and if he be deceased, the Continental-Equitable Title and Trust Company. Clause 11 of the will gives her executors power to sell real estate at public or private sale for such prices as to him [sic] shall seem proper, without liability on the part of the purchaser or purchasers to see to the application of the purchase money. Clause 1 of the will gives to her husband, Henry C. Loughlin, all of her estate. Clause 2 and subsequent clauses provide for the contingency of her husband dying before her. Clause 9 of the will is as follows: “All the rest, residue and remainder of my property and estate I give, devise and bequeath unto John K. Loughlin, son of William H. Loughlin, and the Continental-Equitable Title and Trust Company in trust” for the purposes therein set forth. No power of sale is given to the trustees. Neither the second nor the third codicil makes any changes in the executors, trustees or the powers given to them. None of the three codicils makes any change in the residuary clause.

Testatrix’s husband died before her. On April 11, 1929, the will and codicils were duly admitted to probate and letters testamentary were granted to James J. McEvoy. The executor filed his account and the same was duly adjudicated by this court on June 5, 1930. On Nov. 8, 1930, he filed his petition, reciting that on April 16, 1930, he had entered into an agreement of sale with Bessie Blasi for the sale to her of a lot of ground in the City of Philadelphia for $1800; that this agreement was made in reliance on the power of sale contained in the eleventh clause of the will; that the title company to which the purchaser made application for title insurance had questioned the right of the executor to convey in accordance with the contract of sale, because one year had elapsed after the death of the testatrix. It concludes with a prayer that the court enter a declaratory judgment declaring that the power of sale vested in the executors did not terminate at the expiration of one year from death, but was intended by the testatrix to continue in her executors until the final disposition of her real estate. John K. Loughlin and the Continental-Equitable Title and Trust Company, trustees under the will of said Mary E. Loughlin, and Bessie Blasi, the purchaser of the tract in question, have acknowledged notice of the facts stated in the petition and join in the prayer thereof. No answer has been filed. At the argument before the court in banc, the petitioner was represented by John K. Loughlin as counsel, and the purchaser did not appear either in person or by counsel.

The brief of argument contains a short quotation from Crozer v. Green, 298 Pa. 438, but gives no recital of the facts. Crozer appointed three individuals executors of his estate, and gave them a power of sale of real estate. He appointed the same three individuals and a trust company as trustees of his estate, but did not give his trustees a power of sale. The executors entered into a contract for the sale of certain real estate belonging to the decedent and brought an action of assumpsit for the purchase money in the Common Pleas Court, which gave a judgment for the plaintiff for want of a sufficient affidavit of defense. This was affirmed by the Supreme Court.

While this case seems to be in point as to the survival of the power of sale given to the executors, the further question must be decided as to whether this court should, under the existing conditions, make the decree prayed for, the decision relied upon by the petitioner being upon an appeal ’taken from an action in the Common Pleas Court and not upon a declaratory judgment. There is no discussion of this subject in the brief of the petitioner, and no cases are cited by him. It is necessary for us to determine the propriety of entering such a judgment upon the authority of the cases heretofore decided.

There are many reported decisions, both of the appellate courts of this state and of the county courts. The latest decision of the Supreme Court is Cryan’s Estate, 301 Pa. 386. The illuminating opinion of Chief Justice vonMoschzisker renders it unnecessary for us to make any extensive review of the earlier cases. He cites at length the act itself, refers to all the reported cases of the appellate courts construing the act, and discusses some of them at length. He points out that the early decisions on the subject decided that relief can be given only in cases where an actual controversy exists or is imminent. Had this not been so ruled, the Uniform Declaratory Judgments Act “must have been held unconstitutional as a legislative effort to turn the courts from tribunals organized to determine controversies judicially into those for the giving of legal advice, a function not contemplated by our organic law.” He further points out the extreme view taken by some other jurisdictions. The Federal courts “cannot conceive of declaratory judgments as other than merely advisory judgments, and, therefore, unconstitutional.”

In addition to the general principle that a real controversy must exist, there is a second which has been repeatedly laid down in the decisions, that a declaratory judgment cannot be properly given where an established and adequate remedy exists.

As to the first principle, a number of cases of our appellate courts decide that a real controversy means one in existence or where there are ripening seeds thereof, and not a matter which is merely moot or academic. We are of the opinion that the term “real controversy” is properly to be construed in these cases as having another meaning also, that is, actual and antagonistic controversy. In Duff’s Estate, 4 D. & C. 315, the first ease which came before our court, we, in an opinion by Gest, J., refused the petition on the ground, inter alia, that there was no actual conflict. In Cryan’s Estate, supra, we find these words: “The pleadings show antagonistic claims between parties entitled to property. ...” We are aware that in the last reported case of this court, Paine’s Estate, 13 D. & C. 629, a declaratory judgment was granted in an ex parte proceeding. On examining the opinion of Gest, J., it is apparent that he felt compelled to grant the petition because of decisions of the Supreme Court in the following cases: B’Nai B’Rith Orphanages. Roberts, 284 Pa. 26; Kariher’s Petition, 284 Pa. 455; and Kidd’s Estate, 293 Pa. 21; although, in his own judgment, the relief should not have been granted. In the present case, although the trustees of the estate and the prospective purchaser have joined in the prayer of the petition, the proceeding is in effect an ex parte one, and there is no real controversy in the sense that there are no antagonistic claims revealed in the record.

The second principle frequently pronounced in the decisions construing the act is that a declaratory judgment will not be entered where there is an adequate remedy at law. An illustration of the application of this principle is to be found in Dempsey’s Estate, 288 Pa. 458. This was an appeal from exceptions dismissing a master’s report in Philadelphia County. From the decision in the Supreme Court, it appears that the petition filed with the lower court asked relief under the Uniform Declaratory Judgments Act, and also related to the duty to file an account. On examining the decree of the Orphans’ Court, nothing is found in relation to the declaratory judgment, but the Supreme Court holds that the petition under the Uniform Declaratory Judgments Act should have been dismissed, since all that was sought thereby could have been obtained as speedily and effectively in a proceeding to compel an account. The decree of the court below, so far as relates to the duty of filing an account, was confirmed.

In Sterrett’s Estate, 300 Pa. 116, a declaratory judgment entered by the court below was reversed on the ground not only that there was no actual controversy but because the court has uniformly ruled that relief will not be granted in this manner where another established remedy is available. In his penultimate opinion on the subject of declaratory judgments, the learned Chief Justice concludes: “We are determined that the Declaratory Judgments Act, an excellent piece of legislation when kept within proper bounds, shall not be used in cases to which it is not properly applicable.”

In the present ease an existing remedy is available. The petitioner may, if he choose, take the action which was availed of in Crozer v. Green, supra, which he cites to us. There are other existing legal remedies to which he may resort.

Section 6 of the Uniform Declaratory Judgments Act is headed “discretionary.” The discretion is limited, in that the act provides that the court may refuse to enter a declaratory judgment where it would not terminate the uncertainty or controversy giving rise to the proceeding. In the present ease we are of the opinion that the uncertainty would not be terminated in the proceeding which the petitioner has elected to pursue, and that we should refuse to enter the declaratory judgment.

There does exist in the present case a real controversy, in the sense that there is a state of affairs actually existent. But we consider that the petition should be dismissed for the two reasons just stated; first, that an existing remedy is available; and, second, because a declaratory judgment would not terminate the uncertainty. The petition is, therefore, dismissed.


author: Stearne, J.,

text:
    Irwin’s Estate.

      James W. Laws and Daniel C. Donoghue (of Donoghue, Gibbons & Donoghue), for exceptants.

      Sidney E. Smith and Newbourg, Butterworth & Grubb, contra.
    Jan. 9, 1931.
   Stearne, J.,

Testator provided that $40,000 should be placed in trust for the benefit of his wife for life, and upon her death (which has occurred) said fund was to be paid “to my children absolutely who shall be living at the time of my death and to the legal issue of any deceased child or children who shall as aforesaid survive said date by way of representation of such child or children.”

One of testator’s children, prior to the date of the will, predeceased him, leaving two children to survive. These grandchildren are provided for nominatim in other items of the will. Exceptants contend that these grandchildren are not entitled to participate in the distribution of the present trust fund.

It seems clear that testator contemplated a distribution, upon the death of his widow (the life tenant), among his surviving children and the issue, by representation, of his deceased children. There is no warrant to exclude issue of a deceased child merely upon the ground that such deceased child happened to die in the lifetime of the decedent.

Exceptants recite numerous rules of grammar tending to establish that the correct grammatical construction of the sentence would limit the issue'entitled to take to issue of a deceased child who had survived the testator. In other words, the child of such testator must survive the decedent before the issue of such child could take. It is to be observed, however, that should such a construction be accepted, such words as dispository provisions would be rendered meaningless. A surviving child by the immediately preceding clause has already been given a vested share. As such child would be living at the time of the testator’s death, and, therefore, entitled to take, the clause respecting his issue would then, of course, be of no effect. We can attribute no intention to a testator of writing meaningless words in his will when another construction gives such words intelligent and proper meaning. The use of incorrect or inaccurate language cannot defeat a testator’s plain intent: 1 Page on Wills (2nd ed.), §825.

While not argued by counsel for exceptants, either before the court en banc or the Auditing Judge, the principle of Kessler’s Estate, 288 Pa. 91, has been invoked. A careful reading of Kessler’s Estate convinces us that there the testator, by his holographic will, intended to limit its provisions to his children, to the exclusion of his grandchildren, children of a child who was deceased at the time of making the will and where such grandchildren were specifically provided for.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Wickeksham, J.,

text:
    Commonwealth v. The Bell Telephone Co. of Pennsylvania.

      Philip S. Moyer, Deputy Attorney-General, for plaintiff.

      Arthur H. Hull, for defendant.
    May 5, 1930.
   Wickeksham, J.,

By agreement of counsel this case was submitted to the court without a jury under the provisions of the Act of 1874 [P. L. 109]. The learned Attorney-General and counsel for the defendant have agreed upon a stipulation of facts, which we direct to be filed and to become a part of the record in this case. For convenience we restate briefly the

Facts.

It is agreed that The Bell Telephone Company of Pennsylvania, the defendant, was engaged in the telephone business in the State of Pennsylvania during the sixth months’ period ending June 30, 1929; that it filed in the office of the Secretary of Revenue of the Commonwealth of Pennsylvania, under the provisions of the Act of May 14, 1925, P. L. 706, its gross receipts report for the six months’ period ending June 30, 1929, showing gross receipts within the state from all sources of $34,247,463.20, on which report the Secretary of Revenue made a settlement of gross receipts tax, approved by the Auditor General, on $33,744,571.83, amounting to $269',956.57, from which report and settlement the defendant appealed.

Included within the said report were the items (see paragraph IV of the stipulation of facts):

From removal charges.............................. $69,634.00
From charges for material furnished and for work done by reporting company’s employees; the answer hereto including all receipts from custom work or for installation of reporting company’s own equipment or service .............................................
From other sales of new materials...................
From sale of old materials........................... 128,530.84
From rental of wires................................
From rental of conduits.............................
From charges for pole rights........................ 126,067.40
From directory advertising.......................... 1,253,289.39

These items of gross receipts totaling $1,577,521.63 were included by the taxing officers in the said settlement of $33,744,571.83. Defendant objects to the settlement of the taxing officers upon the items above set forth, for the reason that they are not subject to taxation under the provisions of said Act of May 14, 1925, P. L. 706.

The defendant paid into the State Treasury the sum of $257,336.40, being the tax imposed under the provisions of said act of assembly upon the total amount of the items of gross receipts as set forth in said report, amounting to $32,167,050.20, which the defendant admits to be due.

The defendant denies liability for tax on the amount of $1,577,521.63, with the resultant tax of $12,620.17, the said sum being derived from money received by the defendant during the period of time covered by the report from directory advertising, sale of new directories, lease of street address directories, sale of foreign directories and .trade-mark service.

The item of $128,530.84, heretofore mentioned and found in paragraph IV of the stipulation of facts, includes receipts upon which no claim for tax is made in the amount of $29,243.36, leaving a balance of receipts in the amount of $99,287.48, upon which the Commonwealth claims a tax and upon which the defendant denies liability for the reasons set forth at length in paragraph VII of the stipulation of facts, to which specific reference will be made in our discussion of this case.

In paragraphs VIII and IX of the agreed stipulation of facts further reference is made to the items in paragraph IV of said stipulation, agreeing that the item “from removal charges, $69,634.00” includes amounts received by the telephone company for moving of subscribers’ telephones and rearranging inside wires at the request of subscribers in connection with such subscribers’ telephones, which item also covers moving of telephones and rearranging of wires from one location to another on the same premises; and the amount of receipts referred to in paragraph IV, entitled “from rental of wires, from removal of conduits, from charges for pole rights, $126,067.40,” includes items more specifically set forth on page 12 of the stipulation of facts.

The stipulation of facts in paragraph X is as follows:

“The Commonwealth of Pennsylvania claims gross receipts tax upon amount of receipts set forth in paragraph VI, supra,, to wit, $1,253.289'.39; the amount of receipts set forth in paragraph VII, supra, to wit, $99,287.58; the amount of receipts set forth in paragraph VIII, supra, to wit, $69,634.00; and the amount of receipts set forth in paragraph IX, supra, to wit, $126,-•067.40, totaling $1,548,278.37, the amount of the tax thereon being $12,286.23, with interest thereon from sixty days from date of the approval of the original settlement made by the Secretary of Revenue, to wit, Aug. 22, 1929, together with Attorney-General’s commission and costs, which liability defendant denies.”

Discussion.

This is an appeal by The Bell Telephone Company of Pennsylvania from the settlement made against it by the Secretary of Revenue of the Commonwealth, approved by the Auditor General, for tax on its gross receipts for the six months ending June 30, 1929. This appeal differs somewhat in the facts and the law applied thereto from the former appeal in Commonwealth of Pennsylvania v. The Bell Telephone Company of Pennsylvania, decided by this court March 18,1929, and reported in 12 D. & C. 617, in which latter ease the defendant appealed from the settlement of the Auditor General and State Treasurer made under the provisions of section 23 of the Act of June 1, 1889, P. L. 420, 431, for the six months’ period ending June 30, 1923, and in which appeal we were passing upon and interpreting said section. We there decided that a telephone company is liable for tax on gross receipts for the amount derived from directory advertising and for the amount derived from the sale of materials and appliances. From this decision no appeal was taken.

In the instant ease, however, we are interpreting section 23 of the Act of 1889, as amended by the Act of May 14, 1925, P. L. 706. We find the Act of 1925, in so far as it relates to the tax to be imposed upon telegraph and telephone companies, differs materially from the Act of 1889, which we will now proceed to demonstrate. Section 23 of the said Act of 1889 provides, inter alia:

“. . . Every telephone or telegraph company incorporated under the laws of this or any other state or of the United States and doing business in this Commonwealth . . . shall pay to the State Treasurer a tax of 8 mills upon the dollar upon the gross receipts of said corporation, . . . received . . . from telegraph, telephone . . . business done wholly within this state, . . . and for the purpose of ascertaining the amount of the same, it shall be the duty of the treasurer ... to transmit to the Auditor General a statement ... of the amount of gross receipts . . . derived from all sources, and of gross receipts from business done wholly within the state during the preceding six months. . . .”

In the instant case, as we have stated, the appeal is from the settlement of the gross receipts tax for the six months ending June 30, 1929, settled as provided in section 23 of the Act of 1889, as amended by the Act of 1925, which reads, inter alia, as follows:

“Every telephone or telegraph company incorporated under the laws of this or any other state or of the United States, and doing business in this Commonwealth . . . shall pay to the State Treasurer a tax of 8 mills upon the dollar upon the gross receipts of said corporation . . . received . . . from telegraph or telephone traffic, or express business done wholly within this state.”

It appears, therefore, that, whereas, under section 23 of the Act of 1889 “. . . every telephone . . . company . . . shall pay to the State Treasurer a tax of 8 mills upon the dollar upon the gross receipts of said corporation . . . received . . . from . . . telephone business,” under the same section as amended by the Act of 1925, it is provided that “. . . every telephone . . . company . . . shall pay to the State Treasurer a tax of 8 mills upon the dollar upon the gross receipts of said corporation . . . received . . . from . . . telephone traffic.”

The question for determination is, therefore, What is meant by the phrase “telephone traffic?” We must inquire and determine what was the intention of the legislature in amending the said section 23. It is the contention of the learned Attorney-General that “telephone traffic” and “telephone business” are synonymous terms, indicating that it was not the intention of the legislature to change the subject-matter of the act. The word “business” occurs on a number of occasions in the amendment just the same as the word'is used in section 23 of the Act of 1889, and reference is made to the definition of “traffic” in the dictionaries. “Traffic” is defined in the Century Dictionary to be “interchange of goods, merchandise or property of any kind between countries, communities or individuals; trade; commerce. The coming and going of persons or the transportation of goods along a line of travel as on a road, railway, canal or steamship route. Dealings; intercourse; a piece of business; a transaction. To deal; to have business dealings.”

It mut be conceded that taking the definition of “traffic” in its broadest and most comprehensive sense lends some support to the contention of the Attorney-General. However, applying the rule of reason and the well known canons of interpretation of statutes, we think this contention cannot prevail. We cannot think that the legislature intended to do a vain thing if “traffic” and “business” are to be construed as synonymous; and if the legislature did not intend to limit and remove certain items from taxation, then why did it amend section 23 of the Act of 1889? If the Commonwealth now has the power to levy a tax on the gross receipts for the amount derived from directory advertising and from the sale of materials and appliances, then the legislature, in amending section 23 of the act now imposing a tax of 8 mills on the gross receipts of the defendant corporation for telephone traffic and not for telephone business, did a vain thing. This is unthinkable.

“An amendment of a statute so as ‘to read as follows,’ etc., repeals the latter as to all matters wherein the two differ, and as to everything else merges the old law in the new, leaving the old no vitality distinct from the new, continuing the former as to past transactions, but as to future ones resting the whole force of the legislation upon the amendatory statute. . . . Of course, where a statute is passed upon a subject already legislated upon, it cannot be proper to suppose that nothing new was intended, because that would treat the enactment as a work of supererogation, which the legislature, knowing the existing law, Howard Association’s Appeal, 70 Pa. 344, 346, cannot be assumed to have designed it to be: Pardee’s Appeal [100 Pa. 408] Brown v. Title and Trust Co., 174 Pa. 443, 459.

The intention of the legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding: Brown v. Barry, 3 Dallas, 365, 367. A departure from the words of a prior statute upon the same subject is an intimation that another and not the same meaning is intended to be given to the new enactment: Rich v. Keyser, 54 Pa. 86; Brown v. Title and Trust Co., supra. The words of a statute, when unambiguous, are the true guide to the legislature’s will; that they differ from the words of a prior statute on the same subject is an intimation that they are to have a different construction: Rich v. Keyser, supra. It is an old rule of construction that if one interpretation would lead to absurdity, the other not, we must adopt the latter; so that interpretation which leads to the more complete effect, which the legislature had in view, is preferable to another: City of Philadelphia v. Ridge Avenue Ry. Co., 102 Pa. 190, 197.

Inasmuch as the Act of 1925 changed the subject of taxation from “telephone business,” as used in the Act of 1889, to “telephone traffic,” only one conclusion can be reached, namely, that the same meaning was not intended to be given to “telephone traffic” as to “telephone business.” Where it appears from the language of an act that a certain word or phrase therein was not intended to operate in its broadest sense, it will be restricted so as to accord with the intention: Holman’s Appeal, 106 Pa. 502. In this case it was held that the Act of April 22, 1856, P. L. 532, requiring judgments, recognizances, sci. fas. and executions to be entered in “a book to be called the judgment index,” in order to constitute a lien, does not apply to recognizances in partition in the Orphans’ Court, nor does it require any index in the nature of a judgment index to be kept in the offices of the Orphans’ Court.

In Clohessy v. Roedelheim, Bing & Co., 99 Pa. 56, it was held that the Act of March 29, 1860 [P. L. 346], which provides that in all actions for the sale of any spirituous, vinous or malt liquors the fact that such liquors or admixtures thereof were impure, vitiated or adulterated shall constitute a good and sufficient defense, applies only in those cases where the quality or value of such liquors has been impaired by the impurity, vitiation or adulteration. See opinion of Mr. Justice Sterrett, page 61, in which he says:

“. . . The act was not intended to prevent every admixture of liquors, for by its very terms ‘admixtures thereof’ are recognized. The penalty of the act is aimed at such impurity, vitiation or adulteration of liquors or admixtures thereof as impairs either their quality or value. This, of course, forbids the introduction of all poisonous or noxious ingredients, because these necessarily impair the quality, if not also the value, of the liquor.

See, also, Appeal of Fox et ux., 112 Pa. 337, and Keath v. Shiffer, 25 Lane. Law Rev. 253, 254.

An analysis of the amended section 23 clearly demonstrates, in our opinion, what the legislature had in mind when section 23 of the Act of 1889 was amended by the Act of 1925. We will now proceed to analyze section 23, as amended by the Act of 1925.

The word “traffic” is used in the act in connection with the taxable receipts of railroads. The taxable receipts of railroads are those “received from passengers and freight traffic,” which receipts generally are by no means limited to receipts from “passenger and freight traffic,” for revenue is derived in a variety of ways, such as tolls, rental of restaurants, news-stands, barber shops, etc., but the taxable receipts are limited to receipts from “passengers and freight traffic.” The receipts from “freight traffic,” it must be admitted, are receipts from the transportation of freight, and, by comparison, the use of the word “traffic” in the Act of 1925, relating to telephone and telegraph companies, indicates that it is used in a cognate connection; that is to say, transportation of messages.

In a comparison of the Acts of 1889 and 1925, relating to electric light companies, we find that in the Act of 1889 it is provided:

“. . . and every electric light company . . . shall pay ... a tax of 8 mills upon the dollar upon the gross receipts of said corporation . . . received . . . from business of electric light companies.”

In the Act of 1925, however, the language has changed so as to read:

“. . . and every electric light company, water power company, and hydroelectric company, . . . shall pay ... a tax of 8 mills upon the dollar upon the gross receipts . . . from the sale of electricity.”

“Business,” as contained in the Act of 1889, was defined in Com. v. Brush Electric Light Co., 204 Pa. 249, 252, as applied to electric light companies, to be:

“. . . The tax is not to be paid upon the gross receipts from electric lighting, but from the gross receipts from the business of the company. ... It is taxed on what it does. The statute imposes the tax not upon a portion of its receipts — those derived from a particular commodity it supplies to the public — but upon all of its receipts from its general business conducted under its franchises.”

It is very significant, therefore, that the legislature having used and the courts having defined “receipts . . . from the business of electric light companies,” as used in section 23 of the Act of 1889, the legislature in 1925 deliberately gives up this long used expression and limits the receipts upon which the tax shall be paid to the receipts “from the sale of electricity.” It cannot be contended that the expression “receipts from the sale of electricity” includes receipts from the sale of fixtures, junk, etc. The legislature having deliberately given up the long used words “receipts . . . from the business of electric light companies,” we think the clearly defined idea for which it stood must go, unless it is otherwise plainly seen to be retained: Com. v. Railroad Co., 145 Pa. 200, 205.

Applying the reasoning in the case of Com. v. Railroad Co., supra, to the effect of the Act of 1925 as affecting electric light companies, it is apparent that when the legislature changed the expression “receipts from business of electric light companies” to “receipts . . . from the sale of electricity,” the meaning of business as used in the Act of 1889 and as defined in the case of Com. v. Brush Electric Light Co., supra, must go; and since the definition of the word “business,” as stated in the case of Com. v. Brush Electric Light Co., was adopted by this court and controlled the definition of “business” as applied to telephone companies, the meaning, so far as affecting taxable gross receipts of telephone companies, must go, since the Act of 1925 omitted the word “business” and substituted the word “traific.”

It follows, therefore, that in the Act of 1925, by limiting the taxable gross receipts of telephone companies to receipts from the transmission of messages, and by limiting the taxable receipts of electric light companies, water power companies and hydro-electric companies to receipts from the sale of electricity, the legislature has made uniform the taxable gross receipts and eliminated the receipts which discriminated against electric light, water power, hydro-electric and telegraph and telephone companies.

Applying the law as we have found it to be to the agreed stipulation of facts, we find:

(a) Receipts from directory advertising are not now taxable for gross receipts under the Act of 1925.

(b) The receipts from the lease of street address directories, sale of foreign directories and trade-mark service are not taxable because not accruing to the company from the transmission by it of messages.

See paragraph VI, (a,) (b), (c), (d), (e), of stipulation of facts.

Paragraph YII of the stipulation of facts, sections numbered respectively from 1 to 10, inclusive, explains the classification of receipts upon which the Commonwealth claims tax included under the heading “From charges for material furnished and for work done by reporting company’s employees, etc., . . . $128,530.84,” as set forth in the second item of paragraph IV of the stipulation. The Commonwealth makes no claim upon certain of these receipts totaling $29,243.36, but none of these items are included in sections 1 to 10 of paragraph VII of the stipulation. The classification of these receipts follows substantially the classification followed in the former case. No receipts from the transmission of messages are included in any of these classifications. We think the item set forth in the several sections of paragraph VII of the stipulations are not subject to gross receipts tax.

Paragraph VIII of the stipulation of facts represents receipts “from removal charges.” These amounts are received by the telephone company for moving subscribers’ telephones and rearranging inside wires at the request of subscribers in connection with their telephones. We think none of these receipts are for the transmission of messages, and they are not, therefore, telephone traffic, and are not taxable.

Paragraph IX represents receipts “from rental of wires, from rental of conduits and from charges for pole rights.” Under the item “from rental for wires” are included amounts received by the telephone company for lines and equipment forming part of its exchange plant leased to others for use as private lines without exchange connections with other subscribers. The defendant company leases the equipment but does not render exchange service. We think the sums derived for this service, amounting to $66,025.61, are taxable.

In section 2 of paragraph IX the receipts of the company, amounting to $60,041.79, are derived from rental of conduits and charges for pole rights. The defendant company rents space in its tubes or conduits. It has nothing whatever to do with the use that the lessee company makes of the space, and is no different from the rent that the defendant company might receive if it rented a room in one of its buildings. The same is true of “charges for pole rights.” The company simply leases to another company the right to attach to its poles; it has nothing to do with the use that the lessee company makes of the exercise of the right, and is no different from leasing a room in a building.

We are of the opinion, therefore, that the items mentioned in paragraph IV of the stipulation of facts are exempt from the gross receipts tax imposed by section 23 of the Act of 1889, as amended by the Act of 1925, with the following exception:

We think the items mentioned in section 1 of paragraph IX of the agreed stipulation of facts, the same being the amount of receipts “from rental of wires, from rental of conduits, from charges for pole rights, $126,067.40,” which includes an item of rental of wires, including amounts received by the telephone company for lines and equipment forming part of its exchange plant, leased to others, for use as private lines, without exchange connections with other subscribers, which includes wires, receivers, transmitters, etc., amounting to $66,025.61, is taxable.

Conclusions of law.

1. The item in paragraph IV of the stipulation of facts being receipts from removal charges, amounting to $69,634, is not taxable for gross receipts, authorized by section 23 of the Act of 1889, as amended by the Act of May 14, 1925, P. L. 706.

2. The item in paragraph IV, entitled “receipts from charges for material furnished and for work done by reporting company’s employees, including all receipts from custom work or for installation of reporting company’s own equipment or service,” including sale of new materials and sale of old materials, amounting to $128,530.84, is not taxable for gross receipts under said act.

3. The item in paragraph IV of the agreed stipulation of facts for receipts from the rental of wires, amounting to $66,025.61, is taxable for gross receipts, as authorized by the said act.

4. The amount derived from receipts for the rental of conduits and charges for pole rights, amounting to $60,041.79, is not taxable.

5. The receipts of the telephone company received from directory advertising, amounting to $1,253,289.39, are not taxable for gross receipts, as authorized by the said act.

6. The costs of these proceedings are to be paid by the defendant.

Tax.

Amount of tax, 8 mills on $66,025.61............ $528.20

Interest at 6 per cent, from Oct. 21, 1929, being sixty days after date of final settlement, to May 5, 1930 ....................................... 17.08

-- $545.28

Attorney-General’s commission of 5 per cent............. 27.26

Total............................................ $572.54

Judgment.

And now, May 5, 1930, judgment is hereby directed to be entered in favor of the Commonwealth and against The Bell Telephone Company of Pennsylvania in the sum of $572.54, unless exceptions be filed within the time limited by law.

From Homer L. Kreider, Harrisburg, Pa.


author: Evans, P. J.,

text:
    Vipond v. Vipond.

      John M. Snyder and Robert W. Smith, for plaintiff.

      John Woodcock, W. I. Woodcock and J. Calvin Lang, Jr., for defendant.
   Evans, P. J.,

47th judicial district, specially presiding, July 12, 1930.— At the time of the trial of this case we expressed ourselves as being of the' opinion that there was not sufficient evidence of mental unsoundness to warrant the submitting of the case to the jury. A careful examination of the testimony since it has been transcribed would show, however, that this was not a correct conclusion, although the impression was very strong that the testimony would warrant the conclusion that William M. Vipond was capable of attending to business at the time of the transaction which was in question. However, there was another ground also which we felt at the time had more weight in supporting the application for a compulsory nonsuit, and, after a careful consideration of the testimony and the arguments of counsel, we still feel that it is controlling in this case. This reason was that no notice whatever was given to Edgar R. Vipond, to whom a conveyance of the property was made; nor was there any testimony of any facts which would indicate or warrant the conclusion that Edgar R. Vipond knew of any mental disability on the part of William Vipond. This matter is covered in the eases of Wirebach’s Exec’r v. First National Bank of Easton, 97 Pa. 543; Rubins v. Hamnett, 294 Pa. 295, and Lancaster County National Bank v. Moore, 78 Pa. 407.

It appeared in this case that William M. Vipond and his wife were having marital difficulties and had agreed to separate. They owned some real estate by entireties and William M. Vipond had some indebtedness. They agreed that the real estate should be disposed of and a sum of money paid to the wife and that they would then separate. For the purpose of carrying out this separation plan and furnishing the funds, it was arranged that there should be a conveyance of this real estate to Edgar R. Vipond, a cousin of William M. Vipond, the arrangement being made by the father of William M. Vipond. The conveyance was made to Edgar R. Vipond, who secured a loan upon the property and furnished the funds so that payment of the cash could be made to the wife and the debts of William M. Vipond paid. The wife was to receive the sum of $3000. However, when the money was paid, she accepted $2500 and permitted her husband to have $500. There had been $1000 additional, or $4000 in all raised by the mortgage, but $1000 of this was used to pay an obligation of William M. Vipond to his father.

The agreement entered into with Edgar R. Vipond provided that the property was to be held three years, subject to the right of William M. Vipond to reacquire the same. During that three-year period, however, the property was sold and the testimony shows that the mortgage was paid and the major part of the balance of the purchase money paid to William M. Vipond by check, which was endorsed by him and deposited in the bank. A small portion remaining of the purchase money was not accounted for.

The result of the whole situation is that the property was sold and the proceeds turned over to William M. Vipond and his wife, who have consumed the same, and now come into court and seek to have the cousin, who was undertaking to accommodate them, and who, so far as the record shows, received no benefit whatever, compelled to pay to them the value of the property which they had already received and consumed. There had been no proceedings to have William M. Vipond declared a feeble-minded person or a lunatic. There was nothing whatever to show that Edgar R. Vipond had any notice whatever of the various things testified to by relatives as to the basis for the opinions they expressed, and the strongest witness as to mental incapacity was the wife, who participated in a legal action, to wit, the sale of the real estate as a result of which she received $2500, now contending that her husband was incapable of doing business at the time. The whole situation impresses us as being tainted with fraud upon the part of William M. Vipond and his wife. We do not mean to indicate that there was no evidence of any mental incapacity at any time upon the part of William M. Vipond. On the contrary, the doctors testified that his mind was affected at certain times, but that at other times he was capable of attending to business. It is a fact that he was permitted to go about and do business; that he worked and earned money; that he conducted his own business, and that he became the subject of melancholia, which was apparently the result of marital worries and troubles. But no doctor testified that at the time of this transaction William M. Vipond was incapable of doing business. On the contrary, the fact appears that he was actually doing business as an ordinary man would, without anything to warn those with whom he was doing business that he was incapable of such action. We are of the opinion, therefore, that the motion to strike off the compulsory nonsuit should be overruled.

July 12, 1930,

Decree.

And now, motion of plaintiff to strike off the compulsory non-suit is overruled.


author: Fleming, P. J.,

text:
    Commonwealth ex rel. Fetzer v. Nyman.

      N. B. Spangler and Ivan Walker, for plaintiffs.

      S. D. Gettig and John J. Bower, for defendant.
    April 23, 1930.
   Fleming, P. J.,

This is an action of quo warranto to try the right of the defendant to hold the office of school tax collector in Curtin Township, Centre County. The matter was tried before a jury, at which trial the court gave binding instructions for the plaintiff. The matter is now before us on defendant’s motion for a new trial.

It appears that prior to Aug. 10, 1926, John A. Mann was the duly elected and qualified collector of taxes in Curtin Township, and that on said date Mr. Mann resigned by reason of ill health. On or about Aug. 13, 1926, the late Judge Keller, under a misapprehension of his authority, named the relator as tax collector for Curtin Township to succeed John A. Mann, resigned. The relator forthwith executed and filed his bond with the county commissioners after the court had approved the same. Subsequently it was discovered that an error had been made and that the power of appointment was in the county commissioners and not in the court, whereupon the county commissioners, at a regular meeting of their board, held Aug. 24, 1926, appointed the relator and a new bond was presented by him to the commissioners, which was duly approved by the court and filed. The relator then informed the school board of his appointment by the commissioners, and Mr. Confer, treasurer of the school board, informed the relator of the amount of bond which would be required by the school board, gave him instructions that The First National Bank of Bellefonte, Pa., was their designated depository, and further informed him that a surety bond would be required. There is also evidence to show that the school district took the county duplicate, which was in relator’s possession, and after some time returned it to him with the several items of school taxes inserted therein.

The relator, within a reasonable time, made application to a responsible surety company for a bond. On Sept. 27, 1926, relator delivered the surety bond to S. L. Shortledge, secretary of the board, and Mr. Shortledge declined to receive it and informed the relator that the school board had appointed another collector, the defendant. The relator then brought the bond to his attorney in Bellefonte and the attorney mailed such bond to S. L. Shortledge, secretary of the board. There is no evidence that such bond was ever returned to the relator or his attorney. Mr. Shortledge testified that he had received such bond in a letter from relator’s attorney and that he had given it to Mr. Heverly, the president of the school board. Mr. Heverly testified that he had brought the bond to Bellefonte and had given it to Judge Furst, the attorney for the school district. Judge Furst was not called and there is no evidence to show that such bond was returned to the relator or his attorney.

There was offered in evidence the minute of the meeting of the board held on Sept. 20,1926, as follows:

September 20, 1926.

“Meeting held at Orviston school house with the following members present: George Heverly, John Heverly, Harry M. Herr and S. L. Short-ledge, to decide on a tax collector as Mr. Fetzer has not filed his bond yet, it being fifteen days and more.

“On motion made by Harry M. Herr and seconded by Louis Heverly, we appoint Joseph Nyman to collect our school taxes.

“On motion made by S. L. Shortledge and seconded by John Heverly we adjourned.”

It was further testified that the above minute was the only minute found anywhere in the records of the school district pertaining to the collection of school taxes in Curtin Township subsequent to the resignation of John A. Mann. We must infer, therefore, that no notice was given to the relator to file his bond within fifteen days from a given date.

We regret to find this muddled condition of school affairs in Curtin Township. When school directors disagree and allow themselves to become at such extreme odds with any of those charged with the administration of school affairs it is the youth of the community who suffer. We have been informed that both the relator and the defendant are now out of office and that another has since been elected as tax collector and is duly and properly functioning. This is well for the good of this township. There appears, therefore, to be no good purpose to be served herein other than to release moneys refused to be accepted by the school board from the relator and to determine costs and to define the indirect liability of relator’s surety in connection with this matter.

The right of the school district to choose its own collector upon the resignation of Mr. Mann and the appointment of the relator by the county commissioners was clearly held in Black v. Duquesne Borough School District, 239 Pa. 96, in an interpretation of the powers vested by section 547 of the School Code [of May 18, 1911, P. L. 309]. In other words, the school board could accept the relator as its school tax collector or could name any other person whom they might select.

While it appears that the minutes of the school board show no corporate action accepting the relator as their school tax collector, the testimony, at the trial, was uncontradicted that the relator advised the board of his appointment by the commissioners; that he was told what the amount of his bond as school tax collector would be; that he was advised as to where the tax money was to be deposited; that he was informed that he must secure a surety bond; and that the items of school taxes were entered into his duplicate and delivered to him by the board. There is no evidence that the relator was slothful or delinquent in procuring the required bond. Nor is there any evidence that he had been advised by the board that they were tired waiting and would elect another unless such bond was filed forthwith. The only item of authority wanting was the formal warrant, but there is so much informality present in the instant case that it is reasonable to suppose that the only reason a warrant was given to the defendant was that a printed form thereof was contained in the separate duplicate which remained in the board’s possession.

Section 550 of the School Code provides as follows:

“Section 550. Every person appointed or elected collector of school taxes in any school district of the second, third or fourth class in this Commonwealth, in addition to any bonds that he may now be required by law to give, and before receiving his tax duplicate and warrant to collect said school taxes, shall furnish to the school district a proper bond, in an amount to be fixed by the board of school directors, with such surety or sureties as it may approve, conditioned upon the faithful performance of his duties as such tax collector. In case any person elected or appointed tax collector shall fail to furnish a proper bond within fifteen days after his appointment, or notice so to do, then, in any such case, the board of school directors shall appoint another suitable person as collector of the school taxes in said district in his place and stead, who, upon giving the proper bond required by the provisions of this act, shall be the duly authorized person to collect the school taxes in said district for the ensuing school year.”

It is not denied that relator delivered a bond to the school district and that such bond has never been returned to him. Such failure to return must be construed as an implied acceptance. Nor is there any evidence to show when the period of fifteen days in which relator was obliged to have failed to file such bond began. The school district was empowered to appoint a collector at any time after Aug. 10, 1926, the date of Mr. Mann’s resignation. That they had named the relator is evident by implication from the minutes of Sept. 20, 1926, wherein it is stated “Mr. Fetzer has not filed his bond yet, it being fifteen days and more.” But when did they select the relator? This is material in determining the validity of their action and the consequent right of the defendant to hold office.

That the provision of the School Code, section 550, was intended to compel tax collectors to use due diligence in entering their bonds is evident. Fifteen days may be a reasonable time under most conditions, but when a tax collector is required to travel from remote parts and to meet with the delays incident to failure to find the agent for the surety at home, as well as to await the forwarding of an application to distant points, and also to undergo the delays incident to the red tape exercised in such distant points, it should be the question as to whether such officer has acted with due diligence which should control and not the arbitrary calculation of passing days. Further, there is no evidence that the school board gave the relator any notice of their intention to declare a vacancy. Nor does the minute showing the appointment of defendant disclose whether such meeting was a regular or special meeting, and, if a special meeting, whether or not a proper notice was given. The minute clearly violates section 403 of the School Code, requiring a record showing how each member voted. Further, we find “Louis Heverly” seconding the motion for the appointment of the defendant, while the minute fails to show the presence of “Louis Heverly” at the meeting.

In conclusion, we find the relator to have duly notified the school district of his appointment; by implication, from the minute of Sept. 20, 1926, we find that relator had been appointed tax collector by the board; we find him advised as to the amount and kind of bond to be given and as to the designated depository; we find a duplicate delivered to him before bond furnished, which, according to the provisions of the act, would imply a waiver of the arbitrary fifteen-day period; we find that relator obtained the kind of bond requested with the designated penal sum and delivered it to the school district, and that such bond was never returned; we find a failure to properly elect the defendant.

Under all these facts, we see no reason for a new trial. We have confined our discussion to the reason attacking our direction of a verdict for the plaintiff, being of the opinion that it is the only reason meriting consideration here.

And now, April 23, 1930, a new trial is refused and judgment is directed to be entered upon the verdict.


author: MaoDade, J.,

text:
    Metropolitan Electric Manufacturing Company v. Browne.

      Howard Kirk, for plaintiff; William C. Alexander, for defendant.

      July 10, 1930.
   MaoDade, J.,

The plaintiff instituted a suit to recover the value of goods sold and delivered to the defendant. Objection by the defendant was made to the statement of claim filed by the plaintiff when the former entered a rule for a more specific statement. This was in accordance with the Practice Act of 1915, and properly so, for the proper method to attack a statement not sufficiently specific is to ask for a rule for a more specific statement: Heaton v. Pennsylvania R. R. Co., 98 Pa. Superior Ct. 162; King v. Brillhart, 271 Pa. 301. When the matter came up for argument upon the said rule, the parties entered into a stipulation' in writing, and duly filed of record, that the said statement of claim and the said rule for more specific statement of claim should be withdrawn.

Therefore, this left the record open for the filing of a supplemental statement of claim, which the plaintiff has done by filing what is called an “amended statement of claim,” basing his cause of action upon a contract in writing, whereas the original statement of claim was based upon a book account. We see no reason why the plaintiff could not properly file a statement of claim based upon a written contract, inasmuch as both statements were declared in assumpsit.

The only requirement as respects the statement of claim is that it shall contain, and contain only, a statement in a concise and summary form of the material fafcts on which the party pleading relies for his claim: Heaton v. Pennsylvania R. R. Co., 98 Pa. Superior Ct. 162.

Thereupon the defendant filed an affidavit of defense, to which the plaintiff has replied. Following this, the plaintiff entered a rule for judgment for want of a sufficient affidavit of defense and set up as reasons therefor the following:

“A. Paragraph 4 of the affidavit of defense is a general denial and not specific as required by the Practice Act.

“B. Paragraph 5 of the affidavit of defense sets forth a payment of $1550, but fails to set forth the date of such payment. The said paragraph further refers to the fact that ‘material was not as guaranteed,’ but fails to set forth the specifications wherein the material in question was not as guaranteed.”

In the affidavit of defense we learn that (1) the defendant complains that the statement of claim now under consideration purports to be an amended statement of claim, while in fact it is an entirely new claim. We fail to see any merit in this defense, and, besides, we would permit an amendment to the statement of claim to declare on a written contract for the sale and delivery of goods rather than on a book account. Where an amended statement is filed, it virtually withdraws the original: Swetlitz v. Wegryzn, 25 Luzerne Legal Reg. 149.; (2) the defendant makes a general denial and not a specific denial to the averments in the fourth paragraph of the statement of claim in the following language:

“4. It is not true and defendant denies the facts as set out in paragraph 4 of plaintiff’s amended statement of claim.”

By reference to the statement of claim, it will be observed that in the said affidavit of defense the defendant admits the first three paragraphs of the statement of claim, namely, that (1) the plaintiff is a corporation, (2) sold and delivered said bill of goods to the defendant, and (3) for the contract price named; while in the fourth paragraph of the statement of claim the plaintiff avers that he in all respects fulfilled the written contract with the said defendant for the sale and delivery of the goods therein referred to.

Therefore, it is admitted (1) that the goods were sold and delivered according to the contract; (2) that the contract price referred to was as agreed upon, and (3) we find nowhere in the affidavit of defense any averment that any complaint whatever was ever made against the said charge.

A general denial in the affidavit of defense is not sufficient and will be taken as an admission of the fact averred in the statement of claim: Myers v. Loomes, 18 Del. Co. Reps. 360; Merwine v. Boyensky, 24 Schuyl. Legal Rec. 209; Isralson v. Haines, 10 Erie Co. L. J. 240.

We held in Philadelphia Inquirer v. Lafferty, 18 Del. Co. Reps. 546, that an affidavit must contain specific denial or denial by necessary implication of facts averred in the statement of claim.

(3) In paragraph 4-A of the affidavit of defense the defendant sets up that he was- obliged by reason of the delays on the part of the plaintiff in furnishing said goods to have materials shipped by truck from the warehouse of said plaintiff in Long Island City, New York, on several occasions, costing him about $100 in all for drayage, alleging this was necessary because the defendant was obliged to get his contract completed in time.

We get no particulars at all from the defendant as to what bearing this would have upon the contract, for there is no averment on the part of the defendant that the plaintiff failed to make delivery in accordance with the terms of the contract. By reference to the written contract, we do not find any time limit, and in view of that fact we would determine that the defendant would have a reasonable time in which to make the shipment. If the defendant desired to make time the essence of the contract, a time limit for delivery should have been inserted. We see nothing in this defense.

Anheuser-Busch, Inc., v. Lenowitz, 94 Pa. Superior Ct. 184, holds that where the defense is a counter-claim, the defendant must state particulars, and that a counter-claim — and this has equal application to an affidavit of defense — must be complete with the same particularity as in a statement of claim.

(4) With respect to another matter of defense set up by the defendant relative to the allegation that the defendant paid to the said plaintiff the full sum of $1550, the amount of the contract, certainly this is not specific. The defendant should have set up when, how, where and to whom payments were made, and as averred in the fifth paragraph of the affidavit of defense there can be no other construction thereof than that the defendant is stating a conclusion. See Philadelphia Inquirer v. Lafferty, 18 Del. Co. Reps. 546, supra, which holds that an affidavit of defense which avers payment and that on a certain date defendant paid the plaintiff in full without setting forth how payment was made is insufficient.

“When payment is relied upon as a defense, all the circumstances of the alleged payment must be set forth with certainty and particularity, and not generally or inferentially.” 1 Pepper & Lewis Digest of Decisions, col. 212.

In a suit for balance due for telephone service, an affidavit of defense is insufficient which avers that a sum certain was paid on account, and makes a vague and indefinite denial by saying that defendant paid plaintiff all that he owed: Bell Telephone Co. v. Deakyne, 73 Pa. Superior Ct. 158 (1919).

When payment is alleged, it must be set forth clearly in detail: Wesley Lumber and Supply Co. v. Venditti, 2 Erie Co. L. J. 82 (1920).

An affidavit of defense averring payment, but being inspecific as to time and amount and manner, was insufficient: Fox Grocery Co. v. Stefanski, 11 Westmoreland L. J. 182 (1922).

We note the defendant has failed to file a brief in support of his argument, and this in itself would be sufficient reason for the court to sustain the motion for judgment for want of a sufficient affidavit of defense; but, however, we do not direct judgment for that reason alone. See Rhoads v. Shockley, 21 Berks Co. L. J. 155.

Therefore, in view of our conclusions set forth above, we make the following

Order.

And now, July 10, 1930, the above matter coming on to be heard by the court in banc upon a motion for judgment for want of a sufficient affidavit of defense, together with oral argument and briefs furnished by the plaintiff, after due consideration thereof, the court doth order and decree that judgment be and is entered in favor of the plaintiff and against the defendant for want of a sufficient affidavit of defense, and that the prothonotary be and is hereby ordered and directed to assess the damages as follows:

Amount of claim....................................... $675.00

Interest from Oct. 1, 1926.............................. 148.92

Total............................................ $823.92

From William R. Toal, Media, Pa.