author: Reader, P. J.,

text:
    Metropolitan Refining Company, Inc., v. Beaver Valley Mill Supply Company.

      Moore & Moore, for plaintiff; Martin, Swaney & Ewing, for defendant.
    April 10, 1930.
   Reader, P. J.,

The above entitled case is before us on a motion for judgment for want of a sufficient affidavit of defense.

The action was brought by the plaintiff to recover from the defendant the sum of $522.50, claimed as a balance due upon the sale by plaintiff to defendant of certain materials. The contract for the sale of the materials is alleged to have been in writing, and a copy of it is attached to the plaintiff’s statement. It is alleged that the goods were sold and delivered pursuant to the contract in writing, and that the amount claimed is the balance due on the purchase price.

The affidavit of defense admits the execution of the agreement or written order attached to the statement and above referred to. It is averred, however, that the execution of the said contract was procured by fraud actually practiced by the plaintiff upon the defendant through plaintiff’s selling agent. It is further averred that on Aug. 15, 1928, the plaintiff’s agent proposed to defendant that it purchase a certain amount of the plaintiff’s product on trial for a period of ninety days; that defendant authorized plaintiff, through its agent, to ship a certain quantity of plaintiff’s products to defendant on trial for said period of ninety days, but that when said order was submitted to the plaintiff it refused to accept the order and declined to make shipment. It is further averred that, on Aug. 20, 1928, the agent of the plaintiff again called upon the defendant for the purpose of securing an order for the plaintiff’s product. It is averred that on this occasion the plaintiff’s agent stated to defendant that he had at that time valid outstanding orders from a number of purchasers of plaintiff’s product, these purchasers being named in the affidavit of defense, and that if defendant would give the plaintiff an order for the amount and kind of product set out in the contract attached to the plaintiff’s statement, defendant would be appointed agent for the plaintiff’s product in Beaver County, and that the said orders would be turned over to the defendant to be filled by him from the product that he was to secure by virtue of said contract. It is further averred that defendant, relying upon the truth of these statements of the plaintiff’s agent with reference to these existing orders for part of the product the defendant was agreeing to purchase, executed and delivered the contract in suit, and at the time of the execution thereof was given by plaintiff’s representative a list of the names of persons and firms who, as the agent said, had given said orders. It is further averred that defendant requested plaintiff’s agent to include said orders in the written agreement and to make them a part of it, but that said agent stated that it was unnecessary; that the orders were good and no difficulty would be had with them.

It is further averred that when the products covered by the contract attached to plaintiff’s statement were received by the defendant, defendant delivered to the persons and firms the amount of the product that the plaintiff’s agent had represented they had ordered and purchased from him. In all instances, it is averred, the persons and firms to whom the product was delivered denied having purchased the same from plaintiff’s agent, or any one else, and stated that the statements of plaintiff’s agent to the effect that they had purchased these goods were false and untrue. It is averred that defendant was required, for these reasons, to retake the product from the premises of all of the persons to whom it had delivered such product by virtue of the statements of plaintiff’s agent that orders for the goods had been given by such persons. It is further averred that defendant notified plaintiff’s agent that all of the persons named by him had repudiated his statements that orders had been given by them; and demand was then made upon the plaintiff to make good its undertaking; and when, after a reasonable length of time, nothing had been done by the plaintiff, it was notified that the goods were held subject to its order, and that defendant would not pay therefor. It was averred that the statements made by plaintiff’s agent to defendant as to the alleged existing orders at the time the contract in suit was entered into were false and fraudulent representations, known by the plaintiff’s agent to be such; that they were relied upon by the defendant, and induced the defendant to enter into the contract.

In support of the motion for judgment for want of a sufficient affidavit of defense, plaintiff urges that the allegations of the affidavit of defense are so inconsistent with the terms of the written contract that they cannot be proven to establish a contemporaneous parol agreement upon the strength of which the written contract was entered into. Our attention is called to cases holding that if the subject-matter of the oral contract is covered in writing a breach of faith or failure to perform an agreement which induced the execution of the writing is not such a fraud as will justify the court in setting aside the contract; and that evidence of a contemporaneous parol agreement will not be received if it varies or extends the terms of the written agreement: Wolverine Glass Co. v. Miller, 279 Pa. 138; Gianni v. Russell, 281 Pa. 320. As we understand the affidavit of defense, however, it does not attempt to introduce the defense of a contemporaneous parol agreement as modifying the terms of the written agreement.

The rule with reference to the effect of a contemporaneous parol agreement is, that where one has secured the execution of a written agreement through the inducement of such contemporaneous parol agreement, and then attempts to enforce the written agreement in violation of the terms of the parol agreement, his conduct in this respect will be regarded as a fraud upon the other party to the contract, and the latter may defend against the enforcement of the written contract, in so far as it is contrary to the terms of the parol agreement which induced it. In the instant case it seems to us that the defense is not that the plaintiff is attempting to use the written contract contrary to the terms of the parol contemporaneous agreement, but that the defendant was induced to enter into the written contract by actual representations as to matters of fact which were false and fraudulent as against the defendant. This defense is of a different character from that based upon the attempted use of a written agreement inconsistent with the terms of a parol agreement which induced the former.

Where one is induced by false and fraudulent representations to enter into a contract, he may, upon discovery of the fraud which led him into the contract, rescind the same and refuse further compliance therewith, in which case he may defend against the collection of any purchase price he may have agreed to pay, on the ground of such false and fraudulent representations. If, when the fraud is discovered, the contract has already been complied with, or so far complied with that he cannot advantageously withdraw from it, he may maintain an action of deceit to recover any damages he may have suffered on account of the contract and resulting from the fraud practiced upon him. The general rule as to the right of action for fraud inducing one to enter into a contract is thus stated in 12 Ruling Case Law, 239:

“The law requires good faith in every business transaction, and does not allow one intentionally to deceive another by false representations or concealments, and if he does so it will require him to make such representations good, but it does not make one party to a contract responsible in damages for every unauthorized, erroneous or false representation made to the other, although it may have been injurious. The ground of the action of deceit is fraud and damage, and when both concur the action will lie. Moreover, both must concur to constitute actionable fraud, a common statement of the rule being that neither fraud without damage, nor damage without fraud, is sufficient to support an action. The essential elements required to sustain an action for deceit are that the representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.”

Again, in 4 Ruling Case Law, 495, the rule is stated as follows:

“In harmony with these principles, courts of equity will cancel contracts on the ground of false representations constituting an inducement to the contract, and on which the injured party had a right to rely, especially where such representations are peculiarly within the knowledge of the party making them.”

If such representations were made to defendant as are averred in the affidavit of defense; if they were false, and were made by the plaintiff recklessly or carelessly, and without knowledge of their truth or falsity, and if the defendant was induced by them to enter into the contract, this situation would justify a rescission of the contract by the defendant and would constitute a defense to the action of the plaintiff to recover the balance of purchase money. The rule is more favorable to one who is seeking to defend against the enforcement of a contract procured by such fraud than to one seeking to recover in an action of deceit against the person alleged to have made the false representations. “A distinction is made in some cases according to the nature of the relief sought, and it is held that, though a misrepresentation without knowledge of its falsity may entitle the purchaser to equitable relief by way of rescission, it will not furnish ground for an action for damages for fraud or deceit:” 27 Ruling Case Law, 358.

In the case of Bower v. Fenn, 90 Pa. 359, it appeared that Bower sold the stock, fixtures, lease and good-will of his drug store in Philadelphia to Fenn, making certain representations of fact as to the value of the stock and fixtures contained in his drug store. Fenn, who had no experience or knowledge in such matters, relied upon the representations of Bower, and made but a slight examination of the store, and no inventory of the stock, and purchased the stock, fixtures, lease and good-will of the store. Part of the purchase price was paid in cash, and the balance was secured by a mortgage given by Fenn and his wife upon certain real estate, the title to which was in the wife. Upon an attempt by Bower by an action of ejectment to enforce the payment of the mortgage, it was held that defense could be made to the same on the ground that the execution of the mortgage had been induced by the fraudulent representations of Bower. The court said upon the question there involved (page 362) :

“It will be observed that this point is put upon the ground that Fenn relied upon the statements concerning the value of the property, made by Bower, and, consequently, that he dealt upon the faith of those representations. This, of course, means that Fenn was induced to depend upon Bower’s knowledge of the stock, and to trust to that knowledge rather than to information which he might have acquired by an inventory, or by other means. This statement of the question, however, settles the controversy adversely to the point put, for if, as the jury have found, the statements, made by the plaintiff, of the value of the property were false in fact, his belief that they were true was of no consequence; for, because of such belief, they were none the less false, neither was Fenn the less deceived thereby. If Bower chose to permit Fenn to contract with him on the faith of his statements of value, he was bound not merely to believe, but to know, that they were true. This very point is ruled in the case of Fisher v. Worrall, 5 W. & S. 478, wherein it was held that a misrepresentation by a vendor of an occult quality in land, though it may have been made in ignorance of the truth, and although the vendee agreed to run the risk of this, was, in an action for the recovery of the purchase money, a decisive objection to the plaintiff’s recovery. Here, as in the case in hand, the contract resulted from the plaintiff’s representations, which, in the end, turned out not to be true; without these, the contract never would have been made; hence, without regard to his belief, the plaintiff was responsible for their verity. The best, indeed, that can be said for Bower is, that he asserted for truth what he did not know to be so, but this, as is ruled in the case above cited, is equivalent to the assertion of a known falsehood.”

In the instant case it seems to us there can be no question that if the statements alleged to have been made by the agent of the plaintiff to the defendant were actually made by him, he could not well have been ignorant of their truth or falsity. Further discussion of the rule of law above stated will be found in 28 L. R. A. (N. S.) 201, note on page 204; Babcock v. Case, 61 Pa. 427; Sutton v. Morgan, 158 Pa. 204; Ohlbaum v. Mayer, 285 Pa. 260.

It is further contended by the plaintiff that the defense above referred to is in this case precluded by the provisions of the contract sued upon. The terms of the contract referred to are found in paragraph 8, which reads as follows:

“8. The foregoing embodies all the terms and conditions of this agreement. Any further agreements to be recognized must be incorporated both on the original and duplicate of this agreement.”

Our attention is called to the line of cases holding that such a provision in a contract prevents the introduction of evidence tending to establish a contemporaneous parol agreement, the effect of which would be to introduce other terms into the contract. We have examined many of the cases, of which the following are typical: Ridgeway Dynamo & Engine Co. v. Penna. Cement Co., 221 Pa. 160; S. Morgan Smith Co. v. Monroe County Water Power & Supply Co., 221 Pa. 165; General Motors Truck Co. v. Philadelphia Paving Co., 248 Pa. 499; Gross v. Exeter Machine Works, Inc., 277 Pa. 363; Hauer v. Martin, 284 Pa. 407; Tranter Manuf. Co. v. Blaney, 61 Pa. Superior Ct. 379; Philadelphia & Gulf S. S. Co. v. Pechin, 61 Pa. Superior Ct. 401; Outcault Adv. Co. v. Ritchey, 63 Pa. Superior Ct. 597; Oxweld Acetylene Co. v. Hastings, 71 Pa. Superior Ct. 178; Holcomb & Hoke Manuf. Co. v. Gamba, 80 Pa. Superior Ct. 191. Our examination of these cases satisfies us that the rule therein stated is a rule established to prevent the breaking down of written contracts by the introduction of terms existing in parol only, and to give effect to a written provision in the contract itself that no terms of the contract exist except those found in the written contract.

The defense of actual fraud inducing a party to enter into the contract, the effect of which is not to vary the terms of the written contract by adding to or taking from them, but to defeat it altogether on the ground that it is the result of fraud, is not precluded by the rule above stated. It is not within the scope of the rule. This principle is well stated in the language of Chief Justice Rugg in the case of Butler v. Prussian (Mass.), 147 N. E. Repr. 892. In this case the contract in suit contained a provision even stronger than that found in the contract sued upon in the instant case. The defense of actual fraud in procuring the execution of the contract was raised, and of this defense the court said:

“Fraud which enters into the making of a contract, as distinguished from that which is antecedent to it, cannot be excluded from the reach of the law by any form or phrase inserted in the contract itself. Parties may stipulate by their contract that the statements inducing its execution are all included in its recitals and that no agent has authority to make any representations not therein contained, hut they cannot by written words prevent the law from inquiring into and granting redress for fraud which enters into the very substance of the contract itself.”

The rule is stated to the same effect in other cases from other jurisdictions called to our attention by counsel for the defendant, among which are:

Elliott Supply Co. v. Green (N. D.), 160 N. W. Repr. 1002; Hetrick v. Gerlinger Motor Car Co., 164 Pac. Repr. 379; Scarsdale Publishing Co. v. Carter, 116 N. Y. Supp. 731; Simpson v. Case Co., 170 N. Y. Supp. 166.

For the reasons stated, we are of the opinion that the rule invoked by the plaintiff based upon the term of the contract above quoted is not applicable to -the defense raised by the affidavit of defense in the instant case.

It seems to us that the defense set out in the affidavit of defense is permissible upon another ground. It is evident that defendant became interested in the product of the plaintiff with a view of dealing in it and selling it to its own customers. The representation by the agent of the plaintiff company, if made, to the effect that orders had already been received by him for the sale of a considerable part of the product which defendant was about to contract to buy, would seem to us to be a very material part of the consideration for the entering into the contract on the part of the defendant. To have these sales already effected before the delivery of the goods to the defendant would to this extent mean to the defendant the saving of the cost of making sales. It would constitute a direct pecuniary advantage to the defendant. A failure on the part of defendant to receive the advantage represented by these sales already made would be to that extent a failure of the consideration of the contract.

It is always permissible to show by parol testimony what the true consideration for a contract is. The consideration stated in a written instrument is only presumptive evidence of the real consideration, and it may be overcome by parol evidence of another consideration, greater or less, if not directly inconsistent with the instrument. This rule of the law is established by a long line of cases. It is thus stated in Cridge’s Estate, 289 Pa. 331, 338:

“A distinction has, however, been drawn in the decisions, where the effort is made to show by parol the true purchase price. ‘The amount of the consideration in a contract, whether large or small, does not usually affect the covenants of the parties, and, therefore, the fact that there was some other or different consideration than that expressed in writing may be orally shown, the consideration mentioned being held only presumptive evidence that it is the real one:’ Henry on Trial Ev., 383. Thus it has been held permissible to prove that the sum named was more than that stipulated for in the deed, and that additional amounts were to be paid (Piper v. Queeney, 282 Pa. 135; Croyle v. Cambria L. & I. Co., 233 Pa. 310; Potter v. Grimm, 248 Pa. 440; Faux v. Fitler, 223 Pa. 568; Henry v. Zurflieh, 203 Pa. 440; Patterson’s Estate, 86 Pa. Superior Ct. 299), that other obligations not named have been assumed (Buckley’s Appeal, 48 Pa. 491), or that there was no money consideration, though one is named, the transaction constituting a mere gift (Audenried’s Appeal, 89 Pa. 114; Lewis v. Brewster, 57 Pa. 410), or that there was a limitation on seeming liability: Humbert v. Meyers, 279 Pa. 171.”

It is further contended by the plaintiff that it does not appear that the selling agent of the plaintiff had any authority to make such representations as are alleged in the affidavit of defense or that the plaintiff ever ratified such statements if made. We are of the opinion, however, that if such statements as are alleged in the affidavit of defense were made by plaintiff’s agent to the defendant and induced the execution of the contract in suit, the adoption of the contract itself by plaintiff, its conduct pursuant to the contract, and its institution of this action to enforce the contract, constitute an adoption by the plaintiff of the representations made by its agent to secure the execution of the contract.

In the case of Singer Manuf. Co. v. Christian, 211 Pa. 534, the plaintiff sued to recover the purchase price of certain machinery sold to the defendant. The defendant resisted the collection of the purchase money on the ground, that the agent of the plaintiff in making the sale to defendant had represented to defendant that the plaintiff company would furnish to defendant work continuously for all the machines sold to him at profitable prices, and that he would not be responsible to the plaintiff except that out of the net profits realized by the work furnished by the Singer Manufacturing Company payment should be made. The defendant averred that the contract had been broken by the failure of the plaintiff to furnish such work, by reason of which the machinery had been idle in the defendant’s hands for a considerable time and sufficient profits had not been made to pay the purchase price of the machinery. It was contended by plaintiff that it was not within the authority of their agent to enter into such a contract. The court said, however:

“The plaintiff in the present action is seeking to enforce the contract made by its agent, and even if as a matter of fact that agent exceeded his authority, yet if the plaintiff company seeks to take the benefit of the bargain so made, it must adopt the contract as its agent made it: Keough v. Leslie, 92 Pa. 424; Caley v. Phila. & Chester County R. R. Co., 80 Pa. 363. This principle is very well stated in Bristow v. Whitmore, 9 H. L. Cases, 391, wherein Lord Kingsdown said: ‘The principal cannot approbate and reprobate the contract. He cannot at the same time take the benefit which it confers and repudiate the obligation which it imposes.’ ”

In the case of Caley v. Phila. & Chester County R. R. Co., 80 Pa. 363, Caley had subscribed for certain shares of stock of the railroad company and was sued for certain instalments upon the stock. His defense was that the subscription was made upon certain conditions as to the location of the railroad and its termini, and also upon representations made by the chief officers of the railroad with reference to the location of the road and to the effect that the work would not be undertaken nor the money called for until subscriptions to the amount of $150,000 had been procured. It was held that the subscription was conditional and that the contract of subscription could not be enforced if the railroad company failed to comply with the conditions. It appeared that the location of the railroad had been changed to some extent subsequent to the making of the subscription, and that the subscriptions had not amounted to the sum of $150,000 prior to the calling of the instalments of the defendant for which suit was brought.

In the case of Keough v. Leslie, 92 Pa. 424, the suit was upon a written contract appointing the defendants agents of the plaintiff to sell certain patterns furnished by the plaintiff. The contract provided for the purchase of $300 worth of patterns by the defendant. In an action by the plaintiff to recover on this contract for the patterns sold, defendants set up in defense a representation made by the agent of the plaintiff at the time of entering into the contract, and as an inducement thereto, to the effect that defendant would be required to pay only for such patterns as he actually sold, and at the end of the year, if the transaction was not a success, the plaintiff would take back the patterns then on his hands and the defendant would he at no loss. It was held that the defense might be shown, and that if the representations were made by plaintiff’s agent, although beyond his authority, plaintiff would be bound by them if it undertook to enforce the contract of sale.

In the case of Federal Sales Co. v. Farrell, 264 Pa. 149, the suit was upon a note given in the course of a transaction resulting in the leasing of four automobile trucks by four written agreements. The defense was, in part, that certain provisions were omitted from the agreements by mistake, and, further, that defendant was induced to enter into the agreements by certain oral warranties made by plaintiff’s agent. The plaintiff admitted that certain Warranties were made, but denied the authority of its agents to make the warranties set up by the defendant; and the court said:

“. . . but if the contract was induced by those warranties, as we must assume to be true on a rule for judgment for want of a sufficient affidavit of defense, it is a matter of indifference whether or not the agents had such authority, for plaintiff cannot enforce the contract induced by the warranties and deny the right to make them: Singer Manuf. Co. v. Christian, 211 Pa. 534.”

In the case of Danish Pride Milk Products Co. v. Marcus, 272 Pa. 340, the defendants gave the plaintiff, through its agent, a written order for 800 cases of a certain brand of condensed milk at $5 per case, subject to the plaintiff’s confirmation. This confirmation was given, the milk was shipped to Pittsburgh, where it arrived and was received by the defendants. In defense to an action for recovery of the purchase price, defendants averred that they had expressed to plaintiff’s agent doubt as to their ability to sell the same, and gave the order only because of a verbal agreement then made by the agent that plaintiff would take off their hands all of the 800 cases which they were unable to sell, and that they were only able to sell sixty cases. Evidence offered at the trial in support of this alleged verbal agreement was excluded by the court. This was held to be error, and the court said, among other things: “As plaintiff confirmed the order taken by the agent and retained the benefit thereof, it cannot repudiate his authority to make the alleged oral agreement.” See, also, Ohlbaum v. Mayer, 285 Pa. 260.

We think the instant case is, in the respect now under consideration, governed by the cases last above cited. The representations alleged to have been made by plaintiff’s agent related directly to the subject-matter of the contract itself. If they were an inducement to the execution of that contract, they were adopted by the plaintiff itself, even though not within the scope of the agent’s authority, when the plaintiff adopted and undertook to perform, and later to enforce, the contract itself.

For the reasons above stated, we are of the opinion that the affidavit of defense states a defense which, if proven by competent and sufficient evidence, will constitute a valid and effective defense under the law.

Order.

Now, to wit, April 10,1938, for the reasons stated in the foregoing opinion, the rule for judgment against the defendant for want of a sufficient affidavit of defense is discharged and judgment is refused.

From Wm. F. Schutte, Beaver Falls, Pa.


source: Caselaw Access Project

author: Schaeffer, P. J.,

license: Public Domain

text:
    Ohlinger et al. v. City of Reading.

      David Sharman, Jr., for plaintiffs.

      John G. Rothermel, City Solicitor, and George B. Balmer, Assistant City Solicitor, for defendant.
    March 17, 1930.
   Schaeffer, P. J.,

This is a suit in assumpsit for the purchase price of two lots of land. The statement of claim, although it contains some unnecessary averments, does set forth that the plaintiffs were the owners in fee simple of two lots of land, with dwelling house, &c., thereon erected, situate in Maidencreek Township, this county; that the defendant is a municipal corporation and is engaged in the business of supplying, for a consideration, its inhabitants and communities adjacent to it with water; that on March 17, 1926, the defendant, by ordinance, appropriated and condemned plaintiffs’ property for water-shed purposes; that defendant entered upon and occupied plaintiffs’ land; that on Dec. 28, 1927, after negotiations for settlement of plaintiffs’ damages, the mayor and council of the city, at a regular session of city council, passed an ordinance providing for the purchase of plaintiffs’ land for the sum of $13,000, payment to be made “upon delivery of deed on or before Jan. 21, 1928, in fee simple, free of all liens and encumbrances, and upon possession being given, and that this purchase price be paid from Item PWD 92 in the annual appropriation to the Bureau of Water, Department of Parks and Public Property for the fiscal year 1927;” that plaintiffs thereupon removed from and vacated the premises, and on Jan. 7, 1928, tendered a deed in fee simple, duly signed and acknowledged, together with the keys to the building, to Mayor Stump and demanded payment of the consideration, but that acceptance of deed and keys was refused and the money was not paid; hence the suit.

The city, as was its right, did not file an affidavit of defense.

The trial having resulted in a verdict for the plaintiffs, defendant has now moved for judgment n. o. v. and for a new trial.

Upon the trial it developed that on Jan. 11, 1928, an ordinance was passed by council which repealed Bill No. 202, passed Dee. 28, 1927, for the purchase by the city of plaintiffs’ property. We instructed the jury that, if they found that there was a valid contract between the city and the plaintiffs for the purchase of the latter’s property, the Ordinance of Jan. 11th, purporting to repeal Ordinance No. 202, was ineffectual and such attempted repeal amounted to nothing. At the close of the charge defendant excepted to this instruction and now challenges it.

In a consideration of the effect of the Ordinance of Jan. 11, 1928, as a repeal of the Ordinance of Dec. 28, 1927, we start with the proposition that a municipality that engages in the supply of commodities such as water or gas does so as a private corporation and not as a governing body; water and gas are usually supplied by private corporations, and when municipal corporations, pursuant to law, enter upon those activities, they are not performing a governing function. “When a municipal corporation engages in an activity of a business, rather than one of a governmental nature, such as the supply of light or water, which is generally engaged in by individuals or private corporations, it acts as such corporation and not in its sovereign capacity: Western Saving Fund Society v. Philadelphia, 31 Pa. 185. The relation to the public created by its ordinances are, in such cases, not legislative, but contractual:” American Aniline Products, Inc., v. Lock Haven, 288 Pa. 420, 424. See, also, Scibilia v. City of Philadelphia, 82 Pa. Superior Ct. 328, 331; Boroughs Operating Electric Plants, 5 D. & C. 754. It is plain, therefore, that the City of Beading, in undertaking to appropriate plaintiff’s land for water shed or water supply purposes in pursuance of its plan for the present and future supply of the inhabitants of Beading with water, did so in its capacity of a private corporation and not as the governmental entity known as the City of Beading. The Ordinance of Dec. 28, 1927, became, if accepted by the plaintiffs, a contract between the city and the plaintiffs. The tender of the deed and possession by plaintiffs occurred on Jan. 7, 1928, four days before the passage of the repealing ordinance. Such tender by the plaintiffs amounted to an acceptance of the proposal by the city contained in the ordinance, and together the acceptance and the ordinance constituted an executory contract. It is elementary that a contract which has once been entered into cannot be avoided by the action of one of the parties without the consent of the other. It follows that the repealing ordinance was futile and void. It was an attempt to impair the obligation of the city’s contract with plaintiffs for the purchase of the land.

But the defendant contends that the contract thus entered into was necessarily invalid and inoperative for the reason that there were not sufficient funds in Item PWD 72 in the city treasury on Dec. 28, 1927, to pay the contract price of $13,000 stipulated in the agreement. The ordinance directing the purchase of plaintiffs’ land specified that “the purchase price be paid from Item PWD 92 in the annual appropriation to the Bureau of Water, Department of Parks and Public Property, for the fiscal year 1927.” Upon the trial the defendant called an assistant accountant in the employ of the city, who testified that on Dec. 28, 1927, there was a balance in Item PWD 92 of $90,652.63 which was encumbered by outstanding contracts charged against it to the extent of $89,791.94, thus leaving an actual balance of but $860.69. The defendant is a city of the third class, and the Act of July 15, 1919, P. L. 968, amending section 13 of article vn of the Act of June 27, 1913, P. L. 568, is as follows: “Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded; and the estimated amount of the expenditure thereunder shall be charged against such item and so certified by the superintendent of finance on the contract before it shall take effect as a contract,” &c. As it is clear that there were not uncharged funds in the item indicated sufficient to pay the amount of the purchase price, and as the superintendent of finance did not certify that the estimated amount of expenditure under the contract had been charged against Item PWD 92, the defendant contends that plaintiffs cannot here recover. But under the decisions we are of the opinion that this statutory provision does not apply to a contract of the character here in issue. This was not a purely executory contract; it had been executed in large part. The city had by resolution of council taken plaintiffs’ land under the grant of the power of eminent domain to it by the Commonwealth and had in fact entered into possession by dumping, &c., on part of the land. Title for the purpose of erecting water-works had vested in the city at the time of the passage of the resolution appropriating the land. Accordingly, there had devolved upon the defendant the legal obligation which was present and existing of paying damages to plaintiffs, and these damages, since this was a taking of the entire property, were to be measured by the fair market value of the property at the time of taking. The statute conferring upon the defendant the power of eminent domain provides for the machinery by which the amount of damages shall be ascertained; but the statute itself provides that those means should be pursued only “in case the compensation for damages done, or the benefits accruing therefrom, have not been agreed upon:” Act of June 27, 1913, art. XIV, § 1, P. L. 568. It is clear, therefore, that the statute not only contemplates authority in the municipality to settle the question of damages by agreement, but also requires that such attempt should be made before the legal machinery designed to determine the amount of compensation should be put into motion. The city, having taken plaintiffs’ property, was under obligation to pay for it. And the duly elected officers of the city, the mayor and council, agreed with plaintiffs as to the amount of that payment. It is true that they bargained for a deed giving the city title in fee simple instead of the defeasible title to be obtained by eminent domain proceedings. But it cannot be said that that was not to the best interest of the city and at the same time a settlement of the amount of the damages to which plaintiffs were entitled. Under such circumstances, the certificate of the superintendent of finance to the effect that there were sufficient funds on hand to pay the damages agreed upon was not necessary. The failure of council to make a sufficient appropriation to pay the damages can be no defense to this action. “The appellee’s property has been taken by the city, and [plaintiffs are] not compelled to knock at the door of councils and ask for an appropriation:” Chelten Trust Co. v. Blankenburg, 241 Pa. 394, 398. “The provisions of the various acts of assembly forbidding payments from the funds of municipalities, in the absence of prior appropriations by their city councils, are inconsistent with the legislation regulating the ascertainment and payment of damages for land taken in the exercise of the right of eminent domain, and it is clear that such provisions were never intended to apply to debts arising in that way:” Roudebush v. Meadville, 241 Pa. 261, 266.

As it appeared upon the trial that there were two subsisting liens against the property taken, the jury were instructed, in case they found for the plaintiffs, to find a verdict conditioned upon the delivery by the plaintiffs to defendant of a good title, free and clear of all encumbrances, and of a release for all damages claimable against the city by reason of the taking. The verdict in this form will effect justice; it will give to the plaintiffs the money agreed upon by the city and themselves, and will give to the city what it bargained for — a good and complete title in fee simple and a release of all other claims.

And now, to wit, March 17, 1930, the rules for a new trial and for judgment n. o. v. are both discharged.

From Charles K. Derr, Reading, Pa.


author: Holland, P. J.,

text:
    Slingluff’s Estate.

      Wallace M. Keely, for continuing trustee and life tenant.

      L. M. Childs, for retiring trustee and contingent remaindermen.
    March 14, 1930.
   Holland, P. J.,

This court has authority to appoint a substituted trustee to fill the vacancy caused by the resignation of William H. Slingluff, under section 56 (a) of the Fiduciaries Act of 1917.

There are two adverse petitions before the court, one of William F. Sling-luff, the remaining and continuing trustee, joined in by Clara F. Fisher, the life tenant, for the appointment of Norristown-Penn Trust Company, and the other that of William H. Slingluff, the retiring trustee, who is also a contingent remainderman, joined in by a large majority of the contingent remaindermen.

The first consideration of the court in selecting a trustee where several are suggested is to choose “those who are in its judgment fairly competent to administer the trust:” McCaskey’s Estate, 293 Pa. 497. That is no guide in this case, because both suggested trustees are equally competent. That is apparent.

The appointee should be “not unfriendly to the life tenant,” yet faithful to its duty “to preserve the principal intact for the remaindermen,” and no one should be appointed “whom any of the parties in interest not unreasonably views with doubt and suspicion:” MeCaskey’s Estate, supra.

Again, these considerations do not help us, as no one doubts, the court least of all, that either of the proposed appointees would with equal fidelity protect and conserve the rights of the life tenant and remaindermen. Nor would any one make himself so ludicrous as to “view with doubt and suspicion” either of these proven and efficient suggested appointees.

The court is, therefore, reduced to the situation of determining in its discretion which of the two proposed appointees would most conveniently administer the trust in view of their respective relation to the parties. Said section 56fa) of the Fiduciaries Act requires that the selection by the court shall be “with the consent of the continuing trustee.” He, William F. Slingluff, consents to the appointment of Norristown-Penn Trust Company and indirectly dissents to the appointment of Montgomery Trust Company. Aside from this statutory requirement, we are of the opinion that if the appointee which the continuing trustee prefers were appointed, other considerations being equal, it would tend toward a more harmonious co-operation between the two trustees in their administration which would inure to the benefit of all the interested parties. The continuing trustee's preference is Norristown-Penn Trust Company, which will be appointed.

The court is not bound to state its reasons or “to place on record its reasons for accepting certain of the nominees appearing on the lists presented by the parties and rejecting others thereon:” McCaskey’s Estate, supra. However, we have chosen to set out our reasons upon which we have based our conclusion.

And now, March 14, 1930, Norristown-Penn Trust Company is appointed substituted trustee in the place and stead of William H. Slingluff, resigned, of the trust under the will of the said decedent, William H. Slingluff, deceased, for Clara S. Fisher, said trustee to enter its own bond in the sum of $46,000.

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


author: Stewart, P. J.,

text:
    Smith v. Smith.

      Herbert F. Laub, for plaintiff.

      Frank P. McCluslcey and Bachman & Flitter, for defendant.
    Feb. 10, 1930.
   Stewart, P. J.,

This is a demurrer to plaintiff’s statement. The statement alleged that on Nov. 21, 1924, the plaintiff and defendant were husband and wife; that on said day the defendant committed a violent assault and battery on the plaintiff, so that she was severely injured and suffered a permanent disability; that, subsequently, to wit, on Jan. 18, 1926, plaintiff was divprced from defendant on account of his cruel and barbarous treatment and the personal indignities he had committed against her.

The defendant filed a demurrer. The first cause is as follows: “The plaintiff’s statement does not disclose any claim against the defendant upon which a judgment could legally be rendered against the defendant in favor of the plaintiff.” The second cause is as follows: “The plaintiff has no legal right to maintain the above action.” The fourth cause is as follows: “That under the law of the Commonwealth of Pennsylvania husband and wife cannot sue each other in an action of trespass for anything said, done or committed during coverture.”

The questions raised do not seem to have been decided by either the Supreme or the Superior Court of this state, but they have been discussed at great length by the supreme courts of almost every other state, and decisions either one way or the other are to be found even as late as the last volume of the Decennial Digest. The best considered opinions show that the decision rests very largely on the wording of the statutes relating to the right of a wife to sue her husband in the different states. We must look at the Pennsylvania statutes. The following acts bear on the subject: The Act of June 8, 1893, § 3, P. L. 344, is as follows: “Hereafter a married woman may sue and be sued civilly in all respects and in any form of action and with the same effect and results and consequences as an unmarried person, but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect or recover her separate property whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her, nor may he sue her, except in a proceeding for divorce or in a proceeding to protect or recover his separate property whensoever she may have deserted him, or separated herself from him without sufficient cause, nor may she be arrested or imprisoned for her torts.”

The Act of March 27,1913, § 1, P. L. 14, is as follows: “Hereafter, a married woman may sue and be sued civilly in all respects and in any form of action and with the same effect and results and consequences, as an unmarried person, but she may not sue her husband except in proceedings for divorce or in proceedings to protect and recover her separate property; nor may he sue her except in proceedings for divorce or in proceedings to protect or recover his separate property; nor may she be arrested or imprisoned for her torts.”

The Act of May 1, 1913, § 1, P. L. 146, is as follows: “Be it enacted, etc., that from and after the passage of this act, any wife who has been deserted, abandoned or driven from her home by her husband, may sue her husband civilly, in any court of this commonwealth having jurisdiction, upon any cause of action now existing or hereafter accruing, with like effect as if such wife were a feme sole; and in such case, the wife shall be a competent witness against her husband; provided, however, that nothing in this act contained shall be deemed to destroy the right of survivorship in any land heretofore or hereafter conveyed to such wife and husband jointly.”

We are not without light as to the way these statutes should be interpreted. In Ritter v. Ritter, 31 Pa. 396, the syllabus is: “A married woman cannot, by her next friend, maintain an action of debt against her husband on a contract made during coverture. Such action is not authorized by the Act of April 11, 1848, P. L. 536,or any of its supplements.” Mr. Justice Woodward, in passing on the Married Woman’s Act of April 11,1848, said, on page 398: “It is doubtless competent for the legislative power to change and modify the qualities of the marriage relation, perhaps to abolish it altogether; but if the history of the human race teaches any lesson whatever, it is that concubinage is the alternative of marriage. In just so far as you impair the one, you encourage the other. In just so far as you sever the material interests of husband and wife, you destroy the sympathies which constitute the oneness of the relation and degrade the divine institution to mere concubinage. Nothing could so complete that severance and degradation as to throw open litigation to the parties. The maddest advocate for woman’s rights and for the abolition on earth of all divine institutions could wish for no more decisive blow from the courts than this. The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond and bring on a new era indeed — an era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence, cruelty and murders. But will the courts expose this fundamental relation to the consequences of unbridled litigation? Never. If it is to be done, it must be by the legislature, and then by no indirection or inferential consequence, but by direct, plain, unmistakable English. We are asked to deduce the legislative intention to confer a right of action from the provisions of our several acts of assembly; but it is a sufficient answer that no one of those acts expresses that intention. If the legislature meant that such actions as the present should be sustained, they had command of a very copious language in which to express their will. They have not done it, and, until they do, we will not infer it. When it is done, the consequences must rest with those who do it.” In Small v. Small, 129 Pa. 366, the syllabus is: “A single sentence, even though it form a separate section of a statute, is not to be construed apart from the context or without regard to its subj'ectmatter and the general purpose sought to be accomplished. The Married Persons’ Property Act of June 3,1887, P. L. 332, does not authorize a wife to sue her husband directly and in her own name for the recovery of money received by him from her separate estate. The language of section 4 of the said act, taken by itself, is broad enough to include an action by one directly against the other, but the act as a whole cannot be construed as authorizing such an action. So great a change in the policy of the law, upon a subj'eet such as the marriage relation, should not rest on inference or implication from general words, but should appear by the explicit and unquestionable mandate of the legislature.” Mr. Justice Mitchell said, on page 373: “If we look not only at the general intent of the act, but more closely at the language used, we are led to the same result. The purpose is not only expressed broadly in apt language once, but is repeated and reiterated with superabundant caution. In this varied and detailed consideration, it is impossible to suppose that so important a branch of the subj’eet as the right of action between husband and wife should not have been thought of, or, being thought of, should not have been granted in unequivocal terms, if intended to be granted at all. To legislators, versed in the principles of the common law, it would immediately suggest itself as a distinct and momentous departure from the legal policy of centuries, which ordinary phraseology, however general, would not commonly be understood to intend, and it is inconceivable that, under such circumstances, it should be granted obscurely and by implication.” See, also, Haun v. Trainer, 190 Pa. 1. To the same effect is Bandfield v. Bandfield, 117 Mich. 80, 40 L. R. A. 757. Mr. Chief Justice Grant delivered the opinion. He quotes from 9 Bacon, Abr. title “Statutes” 1, page 245, as follows: “In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law farther, or otherwise, than the act expressly declares; therefore, in all general matters, the law presumes the act did not intend to make any alteration: for if the Parliament had that design, they would have expressed it in the act.” In Thompson v. Thompson, 218 U. S. 611, an action was brought by a wife against her husband to recover damages for an assault and battery. She based her action upon the code of the District of Columbia. Mr. Justice Day, in discussing the proper interpretation of that code, said: “It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the legislature to make this alteration in the law, if it saw fit to do so, nevertheless, such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness." It is, therefore, apparent that we must have in mind that at the common law no such suit as the present one could be brought, and that the burden is on the plaintiff to show that the legislature intended, by plain language, to change that law and to confer the right to sue her husband for a tort committed upon her while they were living together. We have referred above to the multiplicity of authority upon this subject. A leading case seems to be Abbott v. Abbott, 67 Maine, 304, 24 Am. Rep. 27. The syllabus is: “A wife cannot, after being divorced from her husband, maintain an action against him for an assault committed upon her during coverture; nor against persons who assisted him in making the assault.” Mr. Justice Peters said: “Precisely the same question was lately before the English court and the decision and the reasons on which the decision is grounded meet with our unqualified approval: Phillips v. Barnet, 1 Q. B. D. 436. It is there held that a wife, after being divorced from her husband, cannot sue him for an assault committed upon her during coverture. In the course of the discussion in that case, Lush, J., says: ‘Now, I cannot for a moment think that a divorce makes a marriage] void ab initio; it merely terminates the relation of husband and wife from the time of the divorce, and their future rights, with regard to property, are adjusted according to the decision of the court in each case;’ Field, J., says: ‘I now think it clear that the real substantial ground why the wife cannot sue her husband is not merely a difficulty in the procedure, but the general principle of the common law that husband and wife are one person;’ and Blackburn, J., states the objection to be ‘not the technical one of parties, but because, being one person, one cannot sue the other.’ The theory upon which the present action is sought to be maintained is, that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the proposition is the supposition that a cause of action, or a right of action, ever exists in such a case. There is not only no civil remedy, but there is no civil right during coverture to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before divorce. The legal character of an act of violence by husband upon wife, and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any.” The same doctrine was held in Libby v. Berry, 74 Maine, 286, 43 Am. Rep. 589. The syllabus is: “A divorced woman, who had been compelled by her husband to submit to an attempt by a third person to produce a miscarriage, cannot maintain an action against the third person therefor.” In Strom v. Strom, 98 Minn. 427, 107 N. W. Repr. 1047, the syllabus is: “A married woman cannot, either before or after a divorce, maintain a civil action against her husband for a personal tort committed by him against her during coverture.” To these authorities may be added a late discussion by the Supreme Court of Virginia in Keister’s Admin’r v. Keister’s Exec’rs, 96 S. E. Repr. 315, which contains an interpretation of the word “unmarried” in the Virginia statute. The court construed the word to mean not having a husband at the time the cause of action arose. Contrary views are well expressed in the exhaustive opinion of Mr. Justice Pound in Allen v. Allen, 246 N. Y. 571, and in the opinion of Mr, Chief Justice Clark in Crowell v. Crowell, 105 S. E. Repr. 206. The well considered dissenting opinion of Justices Walker and Hoke, however, must appeal more strongly to the legal profession than that of the majority. In Pennsylvania the general subject was discussed by President Judge Pearson in Miller v. Miller, 44 Pa. 170. The syllabus is: “An action of covenant by a wife, in the name of her next friend, against her husband, to recover damages for permitting waste and destruction of real estate which had been conveyed by her, without the intervention of a trustee, to him for life, by an antenuptial contract, is not within the 3rd section of the Act of April 11, 1856, although the husband had previously separated himself from his wife before suit brought. Unliquidated damages for breach of covenant are not ‘property’ within the meaning of the act of assembly.” Judge Pearson said: “Is this a suit to recover her property? That she has an interest in the land as a reversion is very clear; but is the unliquidated damages arising from permissive waste the kind of property referred to in the act of assembly? As we conceive, the statute was intended to enable her to sue for the recovery of her earnings and also for her effects, if carried off, either by her husband or others. She might have such a property in a bond or promissory note as would enable her to maintain an action; but unliquidated damages are not ‘property,’ either in common parlance or technical language. If the legislature had intended to give the wife a general power to sue as a feme sole, it would have said so. It can scarcely be pretended that she could recover damages from her husband on account of a battery to her person, under the provisions of this act, or that she could sue him for stoning her house or diverting a watercourse on her farm. The legislature has undertaken to enumerate the cases in which she may sue, and all others are omitted; expressio Urdus exelusio est alterius is a sound legal maxim.” The case was affirmed on his opinion. In Johnston v. Johnston, 7 Dist. R. 555, the whole scope of the Act of 1893 was discussed by President Judge Endlich from the point of view of a bill in equity to recover on a debt. It was also discussed by the late President Judge Albright in Mink v. Mink, 16 Pa. C. C. Reps. 189. That opinion was filed April 1, 1895, and discusses the meaning of the Act of 1893, supra. There the wife and husband were separated, not divorced. She charged that her husband had accused her of having committed adultery with various persons. The husband demurred to the complaint on the ground that his wife could not bring suit against him under the Act of 1893, and the court sustained the demurrer. In Smith v. Smith, 67 Pitts. L. J. 599, the consideration concerned the Act of 1893 and also the Acts of 1913. The syllabus is: “The intention of the legislature in passing the Married Women’s Acts of 1893 and 1913 was not to change the law governing the relations of husband and wife as between themselves, except as might be necessary for the protection of her separate property, so that a wife injured while riding in her husband’s automobile cannot maintain an action against him for personal injuries, and judgment entered on statutory demurrer.” Judge Ford said: “The term ‘property’ has been defined as the interest one can have in external things. ‘The separate property of a married woman is that which belongs to her over which her husband has no equity, and may consist of lands or chattels:’ Firemen’s Ins. Co. v. Bay, 4 Barb. (N. Y.) 407. In a number, perhaps in all, of the states statutes enlarging or conferring additional rights upon married women have been adopted. The statutes enlarge their powers over property and give remedies for its protection. In considering and in giving effect to the word ‘property,’ the courts are divided, but generally agree that the various enactments will not give a wife the right to sue her husband for a personal tort by implication, but this right must be expressly conferred: Strom v. Strom, 116 Am. S. R. 387. The term ‘property’ does not include a right of action in tort: Gibson v. Gibson, 43 Wis. 23. In Heyman v. Heyman, 19 Ga. App. 634, a wife entered an action against her husband to recover damages caused by the negligence of her husband, and it was held that the statute enlarging her rights did not confer the right to sue her husband for a tort. The rule, as stated in 21 Cyc. 1519, is that ‘neither under the rules which obtained at common law nor generally under the provisions of the various statutes can the wife maintain an action against her husband for his forts to her person or character. To the same effect is Schultz v. Schultz, 89 N. Y. 644; Main v. Main, 46 Ill. App. 106. Citing Peters v. Peters, 42 Iowa, 182, and other cases.” In McKinnon v. McKinnon, 70 Pitts. L. J. 619, also decided by Judge Ford, the syllabus is: “Under the Act of May 1, 1913, P. L. 146, a wife, deserted, abandoned or driven from her home by her husband, may sue her husband civilly in any court of competent jurisdiction upon any cause of action as if she was a feme sole.” That case, however, was a bill in equity under the above act, and while the syllabus is so broad, Judge Ford was careful to say in his opinion: “Plaintiff is not seeking to enforce a property or contractual right.” In Paskevich v. Paskevich, 5 Northumb. L. J. 266, the syllabus is: “A wife can sustain an action for damages against her husband for personal injuries inflicted upon her during coverture, where, immediately upon the inflicting of the injuries complained of, the wife withdrew from the habitation of the husband.” That case was one where the wife immediately withdrew from the habitation of her husband. If she had not done so, the opinion would have been the other way, for President Judge Cummings said: “Prior to the Act of May 1,1913, P. L. 146, a wife could not sustain an action for damages against her husband for personal injuries to her committed by her husband. Even since the passage of the act above referred to, we do not believe that a wife can sustain such action against her husband for personal injuries inflicted by the husband while they were living together.” In Cardamone v. Cardamone, 9 D. & C. 723, where a man injured a woman by the negligent operation of his automobile, and she sued him, and afterwards the man married the woman, but the suit went on, and the wife recovered a judgment against her husband, the court stayed the execution. In the opinion filed there is an exhaustive review of all the authorities, although in that case the cause of action did not arise during the marriage but before it.

It must be borne in mind that the present case is for unliquidated damages and not for recovery of property. Cases like Kennedy v. Knight, 174 Pa. 408, and Gillan v. West, 232 Pa. 74, have no application, and it also must be borne in mind that this is a suit at law and not in equity. In Heckman v. Heckman, 215 Pa. 203, Mr. Justice Mestrezat points out the distinction between actions at law and proceedings in equity, and he shows that equity has permitted a married woman in Pennsylvania to protect her separate estate and enforce her property rights in a suit against her husband. See, also, Dorsett v. Dorsett, 226 Pa. 334; Ireland v. Ireland, 244 Pa. 489; Schomaker v. Schomaker, 247 Pa. 444, and Morrish v. Morrish, 262 Pa. 192. It is not necessary to consider whether the statement is or is not defective. It sets out a cause of action which accrued on Nov. 21, 1924, when they were living together, and she could not have brought suit at that time, nor can she bring suit after her divorce on Jan. 18, 1926.

And now, Feb. 10, 1930, this cause came on to be heard upon defendant’s demurrer, and the eauses of demurrer above set out are sustained, and judgment is directed to be entered in favor of the defendant.

From Henry D. Maxwell, Easton, Pa.


author: Bkownson, P. J.,

text:
    Moninger’s Petition.

      Russell Z. Moninger and D. M. McCloskey, for petitioner.

      Adolph L. Zeman, contra.
    Feb. 3, 1930.
   Bkownson, P. J.,

Grant Moninger filed a petition, setting forth that he is the holder of a deed of the county treasurer, dated June 30, 1924, and duly recorded, conveying to him, in pursuance of a delinquent tax sale, certain real estate; that said property was not redeemed within the two-year redemption period allowed by law; that Mary Iacovitti is in possession of the property, and upon diligent inquiry, no claimant of any right, title, etc., other than her and her husband had been found; praying for a rule to show cause why petitioner’s title to said property should not be adjudicated and decreed to be valid and indefeasible. A rule upon Mrs. Iacovitti and her husband, and all other persons claiming title, etc., was thereupon awarded in the form provided for by section 1 of the Act of July 18, 1917, as amended by the Act of May 31, 1923, P. L. 477.

The rule having been served upon Mary Iacovitti and her husband, the former has presented preliminary objections to the proceeding for the purpose of raising, under the Act of March 5, 1925, P. L. 23, the question of the jurisdiction of the court to entertain Moninger’s petition for an adjudication against her upon the title. The ground of objection is that the petition, showing upon its face that she is in possession claiming title, Moninger’s remedy is to sue her in ejectment — the intent and effect of the statute under which his petition was filed being to give the remedy which it provides only to a purchaser who is in possession. The case is now before the court upon these preliminary objections.

The statute in question (Act of July 18, 1917, P. L. 1072, the 1st section of which was amended twice in 1923, the final amendment being on May 31, 1923, P. L. 477) is entitled “An act providing a method of establishing title to land acquired at a sale for unpaid taxes.” It provides that “in all eases” where land has been or shall be sold for taxes, the purchaser or his successor in title may petition for a rule to show cause why his title shall not be adjudicated and decreed valid and indefeasible as against all rights or claims whatsoever. There is nothing in the title or in the body of the act expressly limiting the operation of the phrase “in ail cases” to cases in which the purchaser has been yielded and is in possession of the land. It is contended that this is the general intent of the statute. But we do not find anything in it that affirmatively manifests an intention that the meaning and operation of the quoted phrase shall so be qualified and restrained, and we observe in it several features which tend to indicate that the words stating by whom and in what cases the remedy provided by the act may be petitioned for were intended to mean just what on their face they purport to say.

In the first place, the act provides for the granting of a rule upon “the persons named in the petition,” and all others having or claiming any right, title, etc., and the persons who are required to be named in the petition are “the former owners, reputed owners, persons in possession, or any other person having or claiming to have a right to, interest in or claim against said land, if any there be.” The “persons named in the petition,” who are to be made respondents in the rule, would, therefore, appear to be intended to embrace any person or persons in possession claiming a right, title or interest in the land adversely to the petitioner. The language used not onjly is consistent with the idea that a purchaser who has not yet obtained possession may be a petitioner, but seems to contain affirmative indications that this is the intent of the statute. Then, section 2 contains a provision that if any person or persons shall appear and answer the petition, the court shall order that such person or persons shall “begin proceedings” to establish his or their title or interest or claim within thirty days thereafter. If the intent of the act had been that the purchaser must be in possession, and those claiming adversely to him out of possession, the natural expression to use would have been “bring ejectment,” whereas it is the comprehensive phrase “begin proceedings” that is used, and this embraces every appropriate proceeding, whatever the facts as to possession may be. Thus, if the answering claimant be out of possession, he may, within the thirty days, begin an ejectment, while if he be in possession and there is a controversy as to the facts upon which the dispute as to title and right of possession turns, he may within the period begin a proceeding under the Act of June 10, 1893, P. L. 415, for the purpose of bringing on an issue wherein the disputed title may be determined and settled by a jury trial. This comprehensive form of words was apparently used intentionally, so that it would be applicable and would fit the case, whoever might be in possession.

That the Act of 1917 was intended neither to provide a remedy merely for cases as to which none already existed, nor to substitute a new remedy for any existing one, appears by section 4, which declares that the remedy provided for by it “is not intended as an exclusive method of establishing title to land acquired at a sale thereof for unpaid taxes.” The evident intention of the statute was, without interfering with any existing remedy of any party, to promote the salability of lands at tax sales by giving to the purchaser a new and additional remedy, whereby he could, in one proceeding, bring in all adverse claimants, and have the validity of the tax title adjudicated therein as against them all, or, should any of them advance claims of such nature as to necessitate a jury trial, could force all such claimants at once into the appropriate proceeding to bring on such trials.

We think the intent manifested by the act as a whole is that the remedy which it gives to the purchaser shall co-exist with all other remedies he may have for the purpose of establishing his title, and that the fact of its appearing in Moninger’s petition that Mrs. Iacovitti is now in possession, so that the petitioner could at this time bring ejectment against her, does not interfere with the jurisdiction of the court to entertain the petition.

It is argued that to give the statute this construction would render a possessor subject to being forced to litigate his title, with which he may be perfectly satisfied, at the beck and call of an outsider, and to being “constantly harassed by persons out of possession, who under one claim or another might force the owner to institute action to protect and maintain his title.” But this argument is inapplicable to this statute, for under it the petitioner has no standing whatsoever unless he is the holder of a tax-sale deed which upon its face appears to invest him with the ownership of the property. When he has thus presented to the court a prima facie case of title in himself, it is not unreasonable that the adverse claimant, although in possession, should be required by rule to come into court, to the end that the conflicting claims of title may lawfully be determined.

And now, Feb. 3, 1930, the question of the jurisdiction of the court, raised by the preliminary objections filed by Mary Iacovitti, is decided against her, and said preliminary objections are overruled, and leave is granted to her to answer to the merits of the petition within twenty days from this date.

Prom Harry D. Hamilton, Washington, Pa.


author: Mays, J.,

text:
    Koller v. Benecassa.

      George B. Balmer and Zieber & Snyder, for plaintiff.

      William A. Witman, Jr., for defendant.
    May 5, 1930.
   Mays, J.,

This is a sheriff’s interpleader. Claimant’s statement averred that he, the plaintiff, derived title to one Peerless coupé, 1924 model, manufacturer’s serial No. 300947, motor No. 61462, by purchase. On the trial, claimant offered to show the purchase of said automobile from one Catherine G. Bertolet, and the leasing of it to Peter Pettinato, the execution defendant. This was objected to “as not being included within the pleadings in the case.” The objection was overruled and the testimony admitted and an exception noted for the defendant. The other necessary elements were proven, and there being no evidence submitted on behalf of the defendant, the jury was directed to render a verdict in favor of the plaintiff. The defendant obtained a rule for judgment n. o. v., and in support of it has argued that the court erred in permitting the plaintiff to show from whom he purchased the automobile and the leasing thereof to Pettinato, the execution defendant.

It is sufficient to say that a ruling such as this did not deprive the defendant of his opportunity to move to strike out the testimony. Our answer to the defendant’s argument in support of his motion may be stated in the words of Judge von Moschzisker in Hoenigman v. Philadelphia R. T. Co., 16 Dist. R. 27, 28: “We see no error in this ruling. But be this as it may, the matter cannot avail the defendant on the rule now before the court.”

And now, to wit, May 5, 1930, the rule for judgment n. o. v. is discharged.

Prom Charles K. Derr, Reading, Pa-


author: Groff, J.,

text:
    Remick v. Mohler.

      K. L. Shirk, for plaintiff; Guy K. Bard, for defendant.
    April 19, 1930.
   Groff, J.,

This is a motion for judgment for want of a sufficient affidavit of defense.

Plaintiff brought suit against the defendant to recover one-half the value of two acres of tobacco which plaintiff says he orally agreed to cultivate on the farm of defendant in the year 1928, on what is known in this county as the halves or shares. The terms of the agreement are set out in plaintiff’s statement. Plaintiff alleges he entered upon the performance of his contract, and had his work “principally” completed when defendant ordered him from the place, and prevented him from harvesting the crop, etc., and that the said tobacco was afterwards prepared for market by defendant, and sold to one Louis A. Kramer, who¡ paid the sum of $689.20 for it, one-half of which belongs to him, the plaintiff.

Defendant filed his affidavit of defense, in which he admits that he entered into a verbal contract with the plaintiff, under which he agreed to give the plaintiff two acres of land on which to raise tobacco. Plaintiff was to furnish the plants, plant and cultivate said crop and harvest the same, for which services plaintiff was to have one-half the value when the tobacco was marketed. Defendant admits the plaintiff cultivated part of the crop one time, and hoed part of the tobacco on two occasions; that in the middle of July plaintiff came to him and said his wife had deserted him and he would be unable to care for the tobacco; that at that time plaintiff was, and is still, indebted to the defendant for house rent, potatoes and lard; that they agreed to settle and defendant paid plaintiff, or allowed him, a credit of $22.50 for work he had done in the tobacco, which plaintiff agreed to accept in full for his labor in cultivating the same; that after settling their account plaintiff still owed him a balance of $18; that subsequently thereto plaintiff paid him $3, leaving the amount of $15 due from plaintiff to defendant. Defendant then sets out in detail his counter-claim, showing plaintiff to be indebted to him in the sum of $15. To this set-off or counter-claim plaintiff has filed no reply.

The Practice Act of May 14, 1915, § 12, P. L. 483, as amended by the Acts of 1917 and 1921, provides that:

“The defendant shall file an affidavit of defense to the statement of claim within fifteen days from the day when the statement was served upon him. . . . Provided further, that no affidavit of defense shall be required to be filed under the provisions of this act in any case before the return day of the writ or summons.”

Section 14 of the same act provides that:

“In actions of assumpsit, a defendant may set off, or set up by way of counter-claim against the claim of the plaintiff, any right or claim for which an action of assumpsit would lie, and a verdict may be rendered in his favor for the amount found to be due and judgment entered thereon. If in any case in which the defendant sets up a counter-claim the action of the plaintiff is discontinued, dismissed or a voluntary non-suit suffered, the counter-claim nevertheless may be proceeded with.”

Section 15 of the same act provides that:

“When the defendant in his affidavit of defense sets up a set-off or a counter-claim against the plaintiff, the plaintiff, within fifteen days from the day of service of the affidavit of defense upon him, shall file an answer, under oath, which shall be called ‘plaintiff’s reply,’ which shall be served upon the defendant, or his attorney, at the address for the service of papers indorsed on the affidavit of defense. In such cases the affidavit of defense shall be indorsed as follows, etc.”

We do not find among the papers filed a reply, and the docket entries do not show that such a reply was filed. We, therefore, find that the plaintiff who made the motion for judgment for want of a sufficient affidavit of defense is in the position where a judgment might be taken against him for the amount of set-off or counter-claim claimed in the affidavit of defense.

In so deciding, we are not unmindful of the decision in Federal Sales Co. of Philadelphia v. Farrell, 264 Pa. 149, where it was held that: “Plaintiff may enter a rule for judgment for want of a sufficient affidavit of defense even though he has filed a reply to defendant’s claim of set-off.”

We are taking into consideration here the fact that the plaintiff has not filed his reply, and thereby admits the allegations in the defendant’s affidavit of defense as completely as defendant would have admitted the allegations in the plaintiff’s statement had he not filed an affidavit of defense.

In the case of the Delmont Gas Coal Co. v. Diamond Alkali Co., 275 Pa. 535, it was held that:

“Where suit is brought for balance of purchase price of coal sold and delivered, and defendant sets up in his affidavit of defense a counter-claim for shortages in deliveries, showing the proper measure of damages, and plaintiff in his reply fails to deny the shortages, the counter-claim and the affidavit of defense, when offered at the trial, established a prima facie case for defendant.”

Where the plaintiff does not file a reply to a set-off or counter-claim properly pleaded within the time specified in the act of assembly, he thereby admits the amount claimed is due, and when that amount is, as in this case, in excess of the amount claimed by the defendant, a judgment taken therefor would be an end to the suit, and until plaintiff’s reply is filed the court will assume that the facts alleged in the affidavit of defense, concerning the set-off, are true, and will not enter a judgment in favor of the plaintiff of the kind asked for in this case.

However, in the matter before us, and independent of defendant’s set-off, the affidavit of defense sets up a good and sufficient defense, if true, to the plaintiff’s claim, and raises such an issue of fact as should be tried by a jury. There is, in our opinion, no virtue in the reasons assigned for the entering of a judgment for want of a sufficient affidavit of defense, and the rule granted to show cause why judgment should not be entered for want of a sufficient affidavit of defense is discharged.

Rule discharged. From George Ross Eshleman, Lancaster, Pa.


author: Smith, J.,

text:
    Knickerbocker Lime Company, to use, v. Philadelphia.

      Levinthal & Kraus and John C. Bell, for plaintiff.
    A. T. Ashton and James Francis Ryan, for defendant.
    Oct. 16, 1930.
   Smith, J.,

The City of Philadelphia, by an ordinance dated Oct. 15, 1928, condemned land along the east bank of the Schuylkill River from the preexisting line of Fairmount Park to Callowhill Street bridge as an addition to the Parkway. After condemnation this property was conveyed to George D. Van Sciver and J. B. Van Sciver. An award was made by the board of viewers, from which the plaintiff appealed. The case was then tried by a court and jury and a verdict found for the plaintiff in the sum of $1,430,-842.20.

From this verdict the plaintiff has filed exceptions asking for a new trial. Outside of the customary reasons, the following reasons were assigned:

“1. The trial court erred when it permitted plaintiff’s witness, Eden S. Tomlinson, to be cross-examined as to prices of sales in the vicinity.

“2. The trial court erred when it permitted defendant’s witness, James F. Dempsey, to testify as to sales which took place after the date of the taking and the prices paid therefor.

“3. The trial court erred when it refused to allow the defendant’s witness, James F. Dempsey, under cross-examination, to testify to the usual custom in real estate transactions relative to carrying charges.

“4. The trial court erred in admitting into evidence the photostatic copy of the Pennsylvania capital stock tax return for 1928 of the Knickerbocker Lime Company.

“9. The learned trial judge erred in his charge to the jury in that the said charge unduly stressed the contentions of the defendant and the evidence of the defendant’s witnesses, and the general effect of the charge was to give to the jurors a misleading impression as to the material issues involved.”

Taking up the exceptions in the order of their importance: did the trial judge err when he permitted one of the plaintiff’s real estate experts to be cross-examined as to the prices of sales in the vicinity? The real test is whether the admission of testimony under cross-examination was calculated to mislead the jury so as to make its verdict be the result of inaccurate and irrelevant evidence. Generally, the prices paid for other tracts in the same neighborhood would be no criteria of the value of the land in question, as the jury could not be in the position of knowing the terms, conditions or collateral facts attending the sales of such other tracts. In Roberts v. Philadelphia, 239 Pa. 339, Mr. Justice Stewart (at page 342) said:

“It is admissible on cross-examination of a witness to inquire whether he knew of certain sales made of properties in the neighborhood only because the value of the opinion he has expressed depends in a large degree upon his familiarity with ruling prices. Except as he have such knowledge he is not qualified to testify; the greater that knowledge the better is he qualified to speak and the greater the weight of his opinion. To introduce the prices, however, at which the properties sold is to suggest to the jury a comparison which they are unable to make in order to determine what credit they are to give the witness.”

In McSorley v. Avalon Borough School District, 291 Pa. 252, Mr. Justice Simpson (at pages 255 and 256) said:

“After an expert witness has been examined and cross-examined as to his competency and has, in addition, been so interrogated as to show fully the extent of his knowledge regarding the value of the property taken, in order that the jury may be able to determine what weight shall be given to his testimony, the only other questions in chief should be as to his opinion of the value of the property, in its entirety, before and after the taking. The cross-examination may, of course, cover a wider field. Tn fact, any and every pertinent question may be put to him on cross-examination whieh will enable the jury to place a fair estimate upon his testimony as to the damages sustained by the plaintiff:’ Davis v. Pennsylvania R. R. Co., 215 Pa. 581, 585; Rea v. Pittsburgh, etc., R. R. Co., 229 Pa. 106, 115; Stone v. Delaware, etc., R. R. Co., 257 Pa. 456, 464. This includes the right to inquire ‘of a witness . . . whether he knew of certain sales made of properties in the neighborhood, . , . [but not] to introduce the prices, however; at which the properties sold, . . . [for this] is to suggest to the jury a comparison which they are unable to make in order to determine what credit they are to give the witness. . . .’ An exception to this rule appears if the examination in chief shows that the ‘witness considered — in the sense that, in his estimate of value, he was aided by or relied on — prices paid for properties similarly situated, [in which event] he may be cross-examined as to the prices paid for such other similar properties, as testing his good faith, credibility, accuracy and extent of knowledge’ (Pennsylvania Co. for Ins. on Lives, etc., v. Philadelphia, 268 Pa. 559, 563) ; but only if it further appears that such properties ‘are in the same neighborhood and similarly situated.’ ”

In Serals v. West Chester Borough School District, 292 Pa. 134, Mr. Justice Frazer (at page 136) said:

“It is not proper under the guise of cross-examination to develop as affirmative evidence of value facts that neither party could have shown in chief (Schonhardt v. Pennsylvania R. R. Co., 216 Pa. 224);” and (at page 137) “Where an expert states he bases his estimate of the value of the property affected upon prices obtained on sales of similarly located land in the same neighborhood, he may be cross-examined to test his good faith and the accuracy and extent of his knowledge as to all the conditions of these sales, including the prices; but, generally speaking, even on cross-examination, such witness cannot in the first instance be interrogated concerning the prices brought at sales not relied on by him in making his original estimate of value, although if he has relied on sales in the neighborhood he may be asked, without mention of prices, if he knew of other sales of properties similarly located, and whether he had considered them, and if not, why not: Girard Trust Co. v. Philadelphia, 248 Pa. 179.”

Eden S. Tomlinson, the witness in question, after being examined as to his qualifications as a real estate expert, was examined in chief as follows:

“Q. Will you give us your value of the ground, buildings and machinery immediately before the taking and immediately thereafter and what damage, in your opinion, has been suffered by the plaintiffs in this case by reason of the taking? A. I valued the land, buildings and machinery at $2,370,378 and afterwards I valued the machinery left at $2042, making a damage of $2,368,336. Q. Will you describe the property that you have just appraised? A. This property contains 102,722 square feet of ground. In the right of way of the Schuylkill River East Side Railroad was 8600 square feet, which I have deducted, leaving 94,122 square feet of ground. I valued this ground at $20 a square foot or $1,882,400, the buildings I value at $439,225, and the machinery, according to the testimony of Mr. Davis, at $47,753, which makes the entire value $2,370,378. Q. That was your value before the taking and the after value was the value of the machinery which you have testified to? A. Yes, sir, according to the testimony of Mr. Davis. I accepted that appraisal. Q. And that makes your total how much? A. $2,368,336.

In the cross-examination he was asked questions concerning the prices at which other properties sold in the neighborhood. The evidence shows the following cross-examination:

“Q. Do you know at what price per square foot the property was purchased by Greenberg? A. I heard what it was. Q. How much? (Objected to. Objection overruled. Exception to plaintiff.) A. I understood it sold for $9 a square foot at the time Greenberg purchased that property.”

Mr. Justice Simpson well said in the McSorley case, supra (page 254) :

“No other evidence is as unsatisfactory as that necessarily received in this class of cases. Courts and juries are given, by the witnesses, matters of opinion only, the accuracy of which is far more difficult to test than are disputed questions of fact. An endeavor to minimize this uncertainty may excuse the error which appears in the ruling now complained of and in the single ease supposed to sustain it, but it is error notwithstanding.”

We shall abide by that ruling.

The second exception was that Dempsey, a real estate expert for the City, was permitted to testify to the selling price of other properties along the river front after the date of the taking of plaintiff’s property. Mr. Dempsey said (page 190, notes of testimony) :

“In arriving at that value I have taken into consideration all of the sales immediately around this property and also all of the river-front sales extending from South Street up to Callowhill Street directly opposite this property. There hasn’t been a sale along the whole river front that ever sold beyond $10 a square foot.”

To this there was no exception taken. This witness was exhausively cross-examined as to the various appraisals of the square-foot price of other properties adjacent to the plaintiffs’ property. He was cross-examined as to other locations, areas comparable to that of plaintiffs; the appraisals he gave in condemnations of other adjacent properties; the price for which another property in the neighborhood was purchased by an individual and the price for which a part of it was sold. On re-direct examination this witness was asked about the sale price of properties between Chestnut and Walnut Streets fronting on 80th Street, running back to the Schuylkill River and having the same characteristics as the property of the plaintiff. As to the date of the sales, the witness testified: “A. The negotiations have been going on for the past two years. There is no particular date on which they ever made settlement. Q. You cannot give any date for these sales? A. No, sir, but we have been watching — have been working on them for the last two years. Mr. Kraus: These are not sales. I am asking for dates of sales and they have no sales, but state they have been working at them for two years, and I move to strike out any testimony as to these sales. (Motion overruled. Exception for plaintiff.) By Mr. Ryan: Q. Within what period were these made? A. In the last three years, in the improvements that were to be made on the west bank of the Schuylkill River negotiations have been going on. The Morris Wheeler was the first settlement that was made, but I haven’t the date of that. By Mr. Kraus: Q. Was that after the date of the taking? A. Before and after. Mr. Kraus: I object to any sale after the date of the taking. (Objection overruled. Exception for plaintiff.)”

The trial took place on May 19, 1930. The ordinance condemning the property of the plaintiffs was Oct. 15, 1928. There was not sufficient evidence of variance in time as to make the admission of the testimony error.

The ninth assignment of error is without merit. The trial judge said nothing which in any way would tend to mislead the jury. The charge was a fair and impartial one and placed the issues clearly to the jury.

The exception taken to the admissibility of evidence given by Tomlinson under cross-examination is sufficient for the granting of a new trial. The motion for a new trial is, therefore, granted.


author: Henry, P. J.,

text:
    Brown v. Posternock’s Beauty Parlor.

      J. Gross, for plaintiff; H. Arronson, for defendant.
    Oct. 2, 1930.
   Henry, P. J.,

52nd judicial district, specially presiding, The plaintiff and defendant entered into an agreement by which the defendant was to give the plaintiff a course of instruction in hair dressing for a consideration of $125, which was admittedly paid. The course of instruction was to cover about two months. After five or six weeks the plaintiff voluntarily quit the employment or work, and her testimony was that her only instruction in the work during the five or six weeks she was there was in hair washing, and that she only stopped the employment after giving notice to the defendant to give her further instruction or return her money.

The witnesses for the defendant testified that besides hair washing plaintiff had received instruction in shampooing (which might be included in the term head washing), in manicuring, scalp treatment and permanent waving.

The jury returned a verdict in favor of plaintiff for $125.

The defendant has moved for judgment non obstante veredicto and taken a rule for a new trial.

In support of this motion and rule it is contended that since the defendant admittedly instructed the plaintiff in hair washing, the contract was partially performed and that plaintiff could only recover, if at all, upon a qucmtum meruit, and since the suit was for the return of the whole of the amount paid by plaintiff, her action cannot be sustained.

In a contract of this character the plaintiff may ask for a substantial performance in giving the instruction as agreed, before she is obliged to pay, and, conversely, the defendant cannot ask or retain payment until it substantially performs its contract. If the plaintiff’s testimony is true, and this is for the jury, the only instruction given her was with respect to hair washing. The period to be covered by the instruction had almost expired when the plaintiff claims to have demanded the further instruction agreed upon, and in effect gave notice of a rescission upon nonperformance by the defendant. Under these facts the plaintiff could sue for the return of the full amount paid to the defendant, and the jury has determined the facts in her favor.

And now, to wit, Oct. 2, 1930, the motion of the defendant for judgment non obstante veredicto is overruled. An exception to this action of the court is hereby noted for the defendant. The rule for a new trial is discharged, and judgment directed to be entered upon the verdict on payment of the jury fee.


author: Gordon, Jr., J.,

text:
    In re David Serber.

      David Serber, pro se.

    Jan. 5, 1931.
   Gordon, Jr., J.,

This is a rule for discipline of an attorney. On Dec. 12th of last year Mr. Serber, the respondent, instituted an action in ejectment in the case of the New Era Building and Loan Association v. Union Bank & Trust Company of Philadelphia, which, under Rule 1 of the Rules of Court, was assigned, by being put through the prothonotary’s wheel, to Court of Common Pleas No. 1. On Dec. 15th, or three days later, Mr. Serber filed with the prothonotary a prseeipe for a writ in ejectment in the same case, which was assigned by lot under Rule 1 to this court. The two suits upon the same cause of action having thus been begun in different courts, nothing further was done in the case in the Court of Common Pleas No. 1; but in that assigned to this court, a declaration in ejectment was filed on Dec. 17th. Upon discovery of these facts by the prothonotary who called them to our attention, we entered against the respondent the rule for discipline now before us, in' which we set forth the facts and stated, as our reason for entering the rule, that “It would appear from the aforesaid facts and circumstances that the institution by the said attorney of the subsequent proceedings in this court was in violation of Rule 1 of the Rules of Court and constituted an attempt to evade the requirement of said rule that cases be assigned to the various courts by lot.” To this rule the respondent made answer, admitting the facts recited, and candidly stating that his purpose in instituting the second proceeding was to avoid having his case heard by the Court of Common Pleas No. 1, since that court had previously decided the fundamental and controlling question involved in the case adversely to the interests of the plaintiff, while other courts of this county have decided the question in his client’s favor. He frankly acknowledges his error, and it is only fair to state in his favor that he has not disingenuously endeavored to shield himself behind the transparently false excuse of the mistaken issuance of two writs by a subordinate which has been so frequently advanced by certain other attorneys in similar cases. His answer, however, amounts to a confession that he was deliberately seeking to circumvent the requirements of the rule and to control the selection of the court in which his suit should be heard. For an officer of a court to endeavor, by such stratagem, to obstruct and prevent the operation of a rule of his court and by artful practices to secure for himself or his client a preferential treatment of his case is a want of fidelity to the court so clear as to need no demonstration. Nevertheless, an apparent attitude of hostility to this rule for the assignment of cases by lot has been displayed among some members of the bar, which makes it necessary for us to indicate our strong disapproval of all attempts to evade its mandate. Numerous cases of this character have arisen since Rule 1 was promulgated, and the quiet and kindly admonition of the offending attorneys in chambers does not seem to have been effective to put a stop to the practice. More vigorous measures, therefore, seem to be necessary to secure obedience to this rule as well as all rules of court by some attorneys. However, in view of the comparatively short time in which the present practice of assigning of cases has been in force, we are not disposed to do more in the case before us than to reprimand the respondent and to state that, should the occasion arise hereafter, more drastic means will be adopted to compel complete and absolute obedience to this rule.

The rule for discipline of the respondent is, therefore, discharged.