author: Wickersham, J.,

text:
    Pennsylvania Ruggles Truck Sales, Inc., v. Bacastow.

      Charles C. Stroh, for plaintiff; Beidleman & Hull, for defendant.
    March 18, 1929.
   Wickersham, J.,

This was a motion filed by the defendant, praying for a rule upon the plaintiff to show cause why a judgment entered by it against the defendant, to the number and term above stated, should not be stricken from the record for the alleged reason that the certificate of the precise residence of the plaintiff did not comply with the requirements of the Act of March 31, 1915, P. L. 39, relative to the certificate of the creditor’s residence; whereupon a rule was granted.

The answer of the plaintiff alleges, inter alia, that the judgment was not entered by the Prothonotary of Dauphin County inadvertently and without warrant or justification in law, as alleged in. defendant’s petition, but that the said entry of judgment was made properly by the said prothonotary upon the certificate of residence signed by his duly authorized attorney, and that such certificate so signed correctly sets forth his precise residence address. Plaintiff further states that on Dec. 19, 1928, and for one and one-half years prior thereto, and continuously since that time, he has resided at No. 514 East Kearsley Street, Flint City, Genesee County, Michigan State, which is his legal residence address. The answer prays the court that authority be granted his attorney to endorse nunc pro tunc on the judgment entered in the above proceeding the enlarged or expanded address set forth in the preceding paragraph, should the court be of the opinion that the residence certificate now entered on said judgment should contain the street number.

The judgment in this case was entered upon a warrant of attorney contained in a bailment lease. On the back of the plaintiff’s statement upon which judgment was entered is stamped with a rubber stamp the following: “I hereby certify that the precise residence of the judgment creditor is,” and thereafter was written “Flint, Michigan, Dallas E. Winslow (Seal), judgment creditor, by Charles C. Stroh, Attorney.” The contention of the defendant is that this certificate does not comply with the Act of March 81, 1915, P. L. 39, which provides as follows:

“Section 1. Be it enacted, etc., that the prothonotary of each county is hereby directed not to enter any judgment unless the judgment creditor, or his duly authorized attorney or agent, produces to the prothonotary a certificate signed by the judgment creditor, or by his duly authorized attorney or agent, setting forth the precise residence address of the said creditor. The certificate shall be filed at the same number and term as the judgment.
“Section 2. The prothonotary shall monthly prepare and deliver to the county authorities who assess property for county tax purposes a list of all judgments entered during the preceding month, with the names and residence addresses of the respective judgment creditors and the amount of the respective judgments.
‘Section 3. All acts and parts of acts inconsistent with or supplied by this tct are repealed.”

This act was construed by the Supreme Court in the very recent case of Deibert v. Rhodes, 291 Pa. 550, from which we quote: “The essence of the thing to be accomplished by the Act of 1915 is the placing on record with a judgment the precise address of the plaintiff as notice to the taxing authorities, and this may be treated as mandatory; while the exact manner in which it will appear may be regarded as a matter of form and construed as directory.”

On page 556, we quote from the opinion of Mr. Justice Walling as follows: “. . . The Act of 1915 imposes no penalty for its violation, and we are not required to impose one so drastic, when there has been a substantial compliance therewith.”

It appears conclusively from the record, and is not here in controversy, that the plaintiff is not a resident of’ the Commonwealth of Pennsylvania. He is a resident of the State of Michigan and is not subject to the personal property tax imposed by the Act of June 17, 1913, P. L. 507, and its supplements. We are of the opinion, therefore, that the statement of his street address is not important; the essential information he gives is that he is a resident of the State of Michigan, and that, we think, under the circumstances of this case, is all the information that is necessary; it is a substantial compliance with the act of assembly. To hold otherwise would result in giving a narrow construction to the word “precise,” and thus allow a debtor who apparently has no defense to á judgment to evade its obligation: Beltonen v. Gruca and Cozel, 94 Pa. Superior Ct. 32.

We are of the opinion, for the reasons above given, that the endorsement on the back of this judgment is a substantial compliance with the said Act of 1915. The rule granted to show cause why the judgment in this case should not be stricken from the record is dissolved, and the motion of the defendant praying that the judgment be stricken from the record is overruled.

Prom Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: Dasr, P. J.,

license: Public Domain

text:
    McCalmont Township v. Carlson et al.

      Mwrgiotti, Gillespie & Pugliese, for rule; Wilson & Wilson, contra.
    April 29, 1929.
   Dasr, P. J.,

This comes before us on motion of defendants to strike off a tax lien, alleging that the lien fails to state certain requisites to a lawful imposition of the tax. The lien on its face conforms to the 10th section of the Act of May 16, 1923, P. L. 207, and no statutory requisite was omitted. Under these circumstances, we do not feel that we have authority to strike it off for the averred omissions. In Ligonier Borough v. Deeds, 7 D. & C. 598, it is said, on page 599: “The Act of May 16, 1923, § 10, P. L. 207, specifies what matters shall be set forth in a municipal lien or claim. In the instant case, the municipal claim filed lacks nothing required by the above statute. The court has no authority to add adcjitional requisites to such statutes: Philadelphia v. Richards, 124 Pa. 303.”

In the case cited in the foregoing opinion, it is said by Mr. Justice Mitchell (page 308): “The authority to do the work claimed for may be averred in general terms, though the plaintiff will be required at the trial to prove the specific authority conferred.”

While we cannot entertain the defendants’ motion to strike off this lien, we cannot fail to recognize force in their contention that the motion was rightly made as a matter of precaution lest failure to do so might be construed as a waiver of defendants’ right to raise these legal questions on the trial.

We must hold, however, that the mere averment in paragraph 4 that “the tax was duly levied by the Board of Supervisors of the said Township of MeCalmont,” and the further averment in paragraph 5 that “this claim is filed for taxes levied by the said township, in the manner provided by law, for the year 1927,” do not relieve the plaintiff from the burden of proving, on the trial, that every requirement of the law relative to levying and collecting taxes has been complied with and that nothing in the pleadings will relieve the plaintiff from the necessity of establishing a legal tax before recovery can be had.

And now, April 29,1929, this rule is discharged and the motion to strike off the tax lien is refused, without prejudice to the defendants to raise on the trial all or any of the legal questions advanced in the motion to strike off, and without in any way shifting the burden from the shoulders of the plaintiff of proving the legality and regularity of the tax for which the lien was filed. The defendants are hereby directed to file an affidavit of defense within fifteen days from this date.

Prom Raymond E. Brown, Brookville, Pa.


author: MacDade, J.,

text:
    Commonwealth v. Heffernan et al.

      W. J. MacCarter, Jr., and Louis A. Bloom, for Commonwealth.

      W. C. Alexander and J. E. McDonough, for defendants.
    Jan. 24, 1929.
   MacDade, J.,

These defendants were charged with and convicted of manufacturing and possessing intoxicating liquors for beverage purposes.

They were tried Jan. 8, 1929, in the said court (MacDade, J.) and duly sentenced eo die, each to pay a fine of $1000 and costs of prosecution and undergo imprisonment in the Delaware County Jail for a period of six months maximum and one and one-half months minimum.

Before sentence and judgment, counsel for the defendant, Mat Heffernan, moved, orally, the court for a new trial, assigning such reasons as will appear in the record and the testimony transcribed and filed therein. The court heard argument thereon and, after due consideration, dismissed the motion and sentenced the defendant, but, however, allowing the defendant an opportunity to put said oral motion for a new trial in writing, which the defendant did, and the court then made the following order:

“And now, January 8th, 1929, the herein Motion for a new trial is refused sec. reg. Opinion of Court to he filed later.
“By the Court: A. D. MacDade,
“Judge.”

It will be noted that the defendants were sentenced upon one count only, namely, manufacturing intoxicating liquor, and sentence was suspended on the count for possessing, &c., for which they were convicted also.

The reasons assigned for a new trial by the said defendant, Heffernan, are as follows:

“1. The learned court erred in permitting the district attorney to ask the witness, Edward Burk, called by the defendant, whether or not he had ever been charged with a crime, this against the objection of counsel for defendant.
“2. The learned court erred in admitting other testimony, as will be shown by the notes of testimony.
“3. The learned court erred in the charge to the jury, wherein the learned court charged that having found a still and liquor in the possession of defendant, the burden shifted to the defendant to show that he had the liquor prior to prohibition, and what the learned court said in this respect.
“4. The verdict was against the weight of the evidence.”

The defendants were incarcerated in the county jail aforesaid, whereupon the said Mat Heffernan appealed from the judgment of the court to the Superior Court of the Commonwealth of Pennsylvania and we allowed the appeal to act as a supersedeas; said defendant is now on bail to await the appeal.

The appellant above and the defendant herein was properly convicted after a fair and impartial trial and a charge by the court free from legal error, we believe, and in this counsel for this defendant has concurred.

The reason for this appeal is, we believe, that we did not permit this defendant to enter bail after his conviction to appear when required by the court, permitting, in the meanwhile, counsel to take four days in which to file a motion for a new trial in writing and assign reasons therefor, with the consequent delay in meting out punishment to the guilty. We thought, in the matter of a motion of this kind, when no substantial error was charged or committed by the court, it was our duty to expeditiously dispose of the motion upon argument then and there at bar and impose the sentence. We believe it fair to the defendant as well as the Commonwealth to dispose of all criminal matters promptly and without unnecessary delay, for, if a salutary lesson is to be administered to the convicted and the courts are to have the respeet of the citizens and society is to be protected, it is imperative that it should not brook delay by reason of unnecessary and dilatory pleadings, the purpose of which is to delay justice and to clutter and congest the records with motions which can with justice be disposed of immediately at bar. The people are clamoring for speedy justice, and how can such be obtained when the courts calmly defer to the tactics of lawyers who are prone to file motion upon motion to keep their clients from familiarizing themselves justly with “durance vile?”

The purpose of this court is to administer justice swiftly in meting out punishment when deserved, not only as a deterrent to others but for the salutary effect upon the defendant. All the rights and privileges of this defendant were carefully conserved and protected, and it is evident he is but delaying the day when he must expiate his offense to society by serving the balance of his jail sentence.

There was no motion filed in writing or oral request made at bar that the oral motion for a new trial, and, subsequently, the motion for a new trial in writing, should be heard before the court “in banc,” and even if there had been, we do not understand the law to be that it was our duty as the trial judge to thus refer the same.

The argument for a new trial is correctly heard by the trial judge alone: Com. v. Toth, 145 Pa. 308; Com. v. Parker, 294 Pa. 144.

In the latter case, the point was directly raised in a homicide case in the Supreme Court, upon appeal, whether or not it was reversible error for the trial judge to hear defendant’s motion for a new trial, sitting alone, instead of convening with his colleagues as a court in banc.

The Supreme Court (Moschzisker, C. J.) there said: “Under Equity Rule 71, all motions for new trials must be heard by the court in banc: Stone v. New Schiller, etc., 293 Pa. 161, 168; Carney v. Penn Oil Co., 289 Pa. 588, 590, 591, and authorities there cited. In the case of Sterrett v. MacLean et al., 293 Pa. 557, 563, et seq., an appeal from a salary board to the Court of Common Pleas was required to be heard by the court in banc. ' In civil cases, the court hearing motions for a new trial must sit in banc: Zimmerman v. Pennsylvania R. R. Co., 293 Pa. 264, 266, 267; Gail v. Philadelphia, 273 Pa. 275, 279. There is no statutory requirement nor decision in Pennsylvania that a motion for a new trial in a homicide case must be heard in banc, yet this very proper practice prevails in the larger judicial districts of the State, and, had a request been made and refused that this course be pursued by the court below, we might have returned the record to give us the benefit of such a review; but, under the circumstances, and in view of the fact that the record before us suggests no doubt of the justice of the verdict, we shall not disturb the judgment entered thereon for any such purpose.”

One of the reasons assigned for a new trial is that the court erred in charging that the Commonwealth having found the still and intoxicating liquors, used for beverage purposes, in the possession of the defendant, the burden shifted to the defendant to show that he had the liquor prior to prohibition, etc.

Possession of such quantity of liquor unexplained justifies a conclusion that the sale was with his consent and shifted to defendant the burden of proving the contrary under section 116, Act of March 27, 1923, P. L. 39: Com. v. Ten Barrels of Wine, 92 Pa. Superior Ct. 59.

The prima facies being against the defendant at bar, he should have overcome it by competent proof. His failure to overcome the presumption against him, as required by the act, was fatal to his claim for the return of the goods: Com. v. Habib, 85 Pa. Superior Ct. 198, 201; Com. v. Liquors, 91 Pa. Superior Ct. 165; Com. v. Dombkoski, 86 Pa. Superior Ct. 468; Com. v. Fedulla, 89 Pa. Superior Ct. 244; Com. v. Mazarella, 86 Pa. Superior Ct. 382; Com. v. Croce, 89 Pa. Superior Ct. 249.

The Act of March 27, 1923, § 4, P. L. 35, under which the defendant was indicted, provides that “proof of the possession of such intoxicating liquor shall be prima fade evidence that the same was acquired, possessed and used in violation of this act,” and in section 13 provides: “In any prosecution under this act when proof has been given in evidence of the . . . possession ... of any intoxicating liquor, the same shall be prima fade evidence that the same was so . . . possessed . . . for beverage purposes:” Com. v. Barrels of Beer, 93 Pa. Superior Ct. 84.

The latter case flatly holds that the burden shifts to show liquor was lawfully acquired and possessed.

Under the Act of Assembly of March 27, 1923, P. L. 35, the burden is on defendant to prove that liquor found in his possession was not acquired in violation of statute: Com. v. Fritz, 40 Lane. Law Rev. 79; Com. v. Hastings, 94 Pa. Superior Ct. 389.

Any liquid which contains more than one-half of 1 per cent, alcohol is intoxicating according to the standards set by the Volstead Act (Section 2 of the Act of March 27, 1923, P. L. 35, commonly known as the Snyder Act). So we start out with the presumption that having a greater content of alcohol than is allowed by law, the liquor was intended for beverage purposes: See section 13 of the above act, which provides that the sale, possession, etc., of any intoxicating liquor shall be prima fade evidence that it was intended for beverage purposes, and the end of the section provides that “it shall be unnecessary, in any complaint, information, indictment or other pleadings, to negative any proviso or exception contained in this act.”

It is true that the presumption does not apply to liquors for medicinal and certain other purposes which are enumerated in said section or to liquor which is unfit for beverage purposes, but the burden is upon the defendant to show that he comes under one of the excepted classes. If the defendant in this case could have satisfied the jury that he did not possess the intoxicant for beverage purposes, he would have been entitled to an acquittal: Com. v. Berdenalla, 288 Pa. 510.

That this is the duty imposed upon the defendant when he seeks to show that he comes under the exceptions contained in the law appears in many cases, among them being Com. v. Clymer, 30 Pa. Superior Ct. 61; S. C., 217 Pa. 302; Com. v. Vigliotti, 75 Pa. Superior Ct. 366, 374; Com. v. Jobe, 91 Pa. Superior Ct. 110.

The above authorities and others which we might discuss certainly hold to the view that the burden is on the defendant to prove that liquor found in his possession was not acquired in violation of the statute.

Another reason assigned was our permitting the district attorney, under cross-examination of a witness by the name of Burk, in an attempt to discredit him, to prove his conviction of a similar offense (possession of intoxicating liquor), a record of which was produced from our Delaware County Court’s record, by asking him if he had not been so arrested for and convicted of such. Burk was much involved in the case at bar and really was the procuring agency of one of the defendants going bail for another offender in the same transaction. He owned a farm on which the still was found in operation, or the farm was close by and in the same township. He was a character witness, also, for Heffernan.

We admitted the evidence and the record because we thought it proper for the district attorney to impeach the credibility of the witness if he could: Com. v. Garanchowski, 251 Pa. 247; Com. v. Pava, 268 Pa. 520; Henry on Trial Evidence, 520; Com. v. Dorst, 285 Pa. 232.

“It is always permissible to cross-examine a witness concerning matters which tend to impeach his credibility . . . even though such questions may incidentally develop irrelevant facts prejudicial to the other party. The witness may also be questioned for the purpose of testing his knowledge and accuracy or the honesty and fairness, or to show motive. ... He may also be questioned concerning matters which tend to cast suspicion on the party’s case:” Henry on Trial Evidence, 535, 536; Com. v. Danarowicz, 294 Pa. 195, 196.

On cross-examination, a witness may be asked as to his conviction of such crime as affects his credibility: Com. v. Grill, 19 Berks Co. L. J. 555.

This question has been settled beyond the peradventure of doubt in Com. v. Arcurio, 92 Pa. Superior Ct. 404, which holds a witness for defendant in criminal case may be asked on cross-examination whether he had been convicted of a criminal offense.

It is well settled in this State that a witness in a criminal prosecution, not himself the defendant, may be asked on cross-examination, for the purpose of affecting his credibility, whether he has not been convicted of a felony or misdemeanor in the nature of “crimen falsi:” Com. v. Varano, 258 Pa. 442; Com. v. Robzin, 78 Pa. Superior Ct. 290, 292.

Holding to the above views and citing supporting authorities therefor, we see no good reasons why we should reverse our orders herein refusing new trials, and, therefore, make the following

Order.

And now, Jan. 24,1929, in pursuance to our order of Jan. 8,1929, as follows:

“And now, January 8th, 1929, the herein motion for a new trial is refused sec. reg. Opinion of Court to be filed later.
“By the Court: A. D. MacDabe,
“Judge.”

we have filed the above opinion, and, after due consideration by the court in banc of the several motions and reasons for a new trial, the court doth order and decree that any and all motions for a new trial entered herein be and are hereby dismissed and sentence and judgment upon the defendants affirmed sec. reg. Prom William R. Toal, Media, Pa.


author: Martin, P. J.,

text:
    Maser v. Royal Union Mutual Life Insurance Company.

      S. J. Gottesfeld, for plaintiff; J. E. Stevenson, for defendant.
    July 5, 1929.
   Martin, P. J.,

Suit was instituted on a policy of life insurance issued by the defendant on the life of plaintiff’s husband, dated Aug. 25, 1917, requiring the payment of an annual premium of $48.35, and providing, after the policy is in force one year, thirty-one days’ grace will be allowed for payment of premiums, with interest at 6 per cent. There is a provision that the policy contains the entire contract, and is not subject to variation or waiver except by the president or secretary of the company. Premiums are payable in exchange for receipts signed by the president or secretary. In the event of failure to pay premiums when due, the policy was to cease and determine, and, unless reinstated, all payments previously made remained the property of the company, subject to a provision contained in the policy for an automatic extension of certain term insurance upon non-payment of premium when the policy had been in force three years.

After default, the policy could be reinstated upon payment of all arrears, with 6 per cent, interest, and the presentation of evidence of insurability satisfactory to the company.

The premiums which became due at the expiration of the period of grace on Sept. 25, 1918, and Oct. 7, 1918, were not paid. A letter was mailed to the insured, calling attention to the non-payment of the premiums and suggesting that an application for reinstatement be filled in by him and returned to the company with his cheek for $8.35, and a premium note, which was for his signature, enclosed, to extend the policy to Jan. 25, 1919.

The application for reinstatement was not filled in by the insured, but on Oct. 8, 1919, he sent defendant a check signed by “Sam Kline” for $48.35.

The insured died Oct. 17, 1918. On Oct. 23, 1918, the defendant sent a letter addressed to insured, requesting a health certificate to effect reinstatement of the policy, stating that the latest date the policy could be reinstated was Oct. 25, 1918. Defendant returned the check in a letter addressed to the insured, informing him that the check had been received after the policy lapsed.

On Nov. 2, 1918, the defendant refused to furnish the blanks for proof of death.

When these facts were proved at the trial, the court entered a non-suit.

In support of plaintiff’s motion to take off the non-suit, it was argued that the court erred in rejecting an offer to prove a custom in Pennsylvania for insurance companies to give notice to policy-holders that their premiums are about to become due. The witness called was not qualified to prove such a custom. He testified that he had been connected with the New York Life Insurance Company since the fall of 1924, and with other companies at various times since December, 1927, and that he was an instructor upon life insurance at the Temple University. Upon cross-examination, he admitted that he knew of only one case in which the defendant was involved, and that he knew “of the practice in other cases where notices were sent to people advising them that the premiums were about to become due,” but when asked if that was only hearsay and not direct knowledge, he answered, “That is quite correct.”

There was no evidence that the witness knew of a universal practice or custom in Pennsylvania to send notices. The offer was properly rejected. Authorities that a universal custom may be considered a part of the contract of insurance, or that the practice of an insurance company to send notices of maturing premiums may be considered part of the contract, are not applicable. The testimony was rejected because the witness failed to qualify as an expert possessing knowledge of the existence of such custom.

And now, to wit, July 5, 1929, the motion to strike off the compulsory non-suit entered in this case is refused.


author: Alessandroni, J.,

text:
    Solomon et al. v. Abbotts’ Alderney Dairies, Inc.

      N. S. Winnet, for plaintiffs.

      White, Parry, Schnader & Maris, for defendant.
    July 16, 1929.
   Alessandroni, J.,

This is an action in trespass to recover for injuries to the plaintiff’s child, who, at the time of the injury, was twenty months old. The evidence disclosed that several dairy companies, through their drivers, were in the habit of leaving cases containing empty milk bottles on the sidewalk of the southwest corner of 10th and Courtland Streets. This corner was unoccupied. Through some means, many of these bottles were broken, the fragments littering the pavement and creating a dangerous condition. On May 18, 1926, the child’s mother took him outside, and seeing the broken glass about six feet away, left the child on the step with instructions not to move while she went inside to procure a broom and dustpan. By the time she returned, the child had walked to where the broken glass was strewn, had fallen and cut his hand. As a result of the injury and subsequent infection, the child lost the free use of the little finger of the left hand. Defendant offered no evidence, and the presiding judge submitted to the jury the following questions: Was the baby’s mother guilty of contributory negligence? Was the defendant notified of this condition and was it guilty of negligence?

The verdict was for the defendant.

The plaintiffs move for a new trial, alleging that the verdict was against the evidence; that they were not permitted to prove the prior condition of the sidewalk; and that the court refused to permit them to prove that children had been breaking bottles left at the place of accident. These allegations of error will be considered separately and in order.

There are two plaintiffs in this case, the injured child and his father. The child’s father is not entitled to a new trial under the evidence of this case. The child’s mother testified that she left her child of twenty months outside, alone, in the face of a known dangerous condition. Such action clearly constitutes contributory negligence and precludes recovery on the part of the child’s father: Ward v. The Southern Pennsylvania Traction Co., 80 Pa. Superior Ct. 394.

The situation, however, is otherwise with respect to the right of Mayer Solomon, the child. The contributory negligence of the parent cannot be attributed to a child of tender years so as to bar recovery by the child: Smith v. O’Connor, 48 Pa. 218; Erie City Ry. Co. v. Schuster, 113 Pa. 412; Ward v. The Southern Pennsylvania Traction Co., supra.

The plaintiff’s case clearly showed that the defendant company and others had been using this particular corner for the storage of boxes containing empty milk bottles, which in some manner were continually being broken and causing the pavement to be strewn with broken glass. There was testimony to connect the defendant with the broken bottles. The defendant offered no tstimony. Under these circumstances, the case should be retried and the plaintiff given an opportunity to have his case submitted free of a consideration of the contributory negligence of his mother.

The plaintiffs have also assigned as error the fact that they were not allowed to prove the prior condition of the sidewalk. The basis for this contention is the trial judge’s rulings on the admissibility of certain evidence. One witness was asked:' “Do you know when those particular milk bottles that you saw piled on the sidewalk that day were left there?” The witness answered: “They were there for several days before that. I don’t know exactly when, but they were always there.” The defendant’s counsel moved to strike out the answer, and the motion was allowed. We find no error in this ruling, since the witness’s words, “I don’t know exactly when,” make the answer valueless. It is otherwise, however, in the following ruling. The witness was asked: “Are you familiar with the condition of that sidewalk before that time, before May 18th, for a period of three or four months?” An objection to the question was sustained and an exception granted to the plaintiff. We believe this question should have been allowed. There was sufficient evidence to prove that the defendant company had been making use of this corner for the storing of crates of empty milk bottles, and the prior condition of the sidewalk was material to charge them with knowledge of the condition that existed and a vital consideration in foisting negligence upon the defendant. The authorities indicate that no one has a right to obstruct the sidewalks or cause a condition which makes it dangerous or insecure. In the case of Brown v. White, 202 Pa. 297, the court said: “Obstructions on the foot-walks of the streets of a municipality, whether created by the accumulation of ice or otherwise, except such as are temporarily permitted for a lawful purpose, are a nuisance and the party responsible therefor is liable to the individuals injured by his illegal act. The public have a right to the use of the street in the condition in which the municipality has left it, and no person, whether an adjoining owner or not, is justified in placing or permitting an obstruction thereon which renders it dangerous or insecure.”

In Rachmel v. Clark, 205 Pa. 314, the court laid down the following principle: “The defendants had no right to use the pavement of the street as a storage ground for the material used in their factory. They could use it temporarily in conveying the material to the factory and in taking the manufactured articles from it. . . . The streets of a city are for the purpose of transit and, except for temporary use by abutting property owners recognized as lawful, it is illegal to obstruct them. . . . Children, wherever they go, must be expected to act upon childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this and take precaution accordingly.” It, therefore, was material to show whether the defendant had continually caused a condition which rendered the sidewalk dangerous and if this condition had existed for some time.

The plaintiff assigns as error the action of the court in refusing to allow them to prove that children had been breaking these bottles which were left there. In the case of Rachmel v. Clark, supra, the court, in considering a somewhat similar problem, stated: “Children, wherever they go, must be expected to act upon childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this and take precaution accordingly.”

The jury should have been allowed to consider this factor in determining whether the defendant company was chargeable with the injury the plaintiff suffered.

Inasmuch as there is reason to believe that the jury did not clearly differentiate between the right of action of Barny Solomon, the father of the injured child, and the right of action of the injured child, we feel that justice in this case requires the granting of a new trial to Mayer Solomon.

The motion for a new trial as to Barny Solomon is refused and an exception to this order granted to plaintiff. The motion for a new trial as to Mayer Solomon is granted.


author: Crumrine, P. J.,

text:
    Corrin’s Estate.

      George W. Scott, for accountants.
    March 12, 1929.
   Crumrine, P. J.,

During his lifetime the decedent was a member of the firm of Corrin & Penrod — the same being composed of James C. Corrin, the decedent, Harry R. Corrin and Charles E. Penrod, Sr. These three men purchased the property in which their business was conducted, taking title in the names of the three as tenants in common. To make up the necessary purchase money, they borrowed from Margaret F. Corrin, wife of James C. and now his widow, the sum of $2800, giving as security therefor a judgment note dated Jan. 1, 1928, and signed “Corrin & Penrod.” This note remains unpaid to the present time.

By the first item of his will the testator directs the payment of all his “just debts and funeral expenses.”

Items eighth and ninth of the will are as follows:

“Eighth. I will, give and bequeath unto Harry R. Corrin and Charles E. Penrod, Sr., all my undivided interest in the partnership heretofore existing between said Harry R. Corrin, Charles E. Penrod, Sr., and myself, trading under the name of Corrin and Penrod, in the grocery business at No. 238 West Main Street, Monongahela City, Pennsylvania, and in all the assets of said partnership.
“Ninth. I will, give and devise unto Harry R. Corrin and Charles E. Pen-rod, Sr., above named, all my undivided interest in the premises situate on the Southern side of West Main Street, Second Ward, Monongahela City, Washington County, Pennsylvania, bounded on the North by West Main Street, on the East by land of B. F. Forsythe and H. L. Mayne, on the South by Chess Street, and on the West by lands owned jointly by Samuel B. Robinson, Paul C. Robinson and Minnie Robinson, and lands of James H. Boyer, on the condition that the said Harry R. Corrin and Charles E. Penrod, Sr., shall pay to my wife, Margaret E. Corrin, the sum of Three Hundred ($300.00) Dollars each year, for and during the term of her natural life. And in the event that the said Harry R. Corrin and Charles E. Penrod, Sr., desire to sell and dispose of said real estate during the lifetime of my said wife, then, in such ease, a sufficient part of the purchase money received therefor to be invested in lawful securities to a sufficient amount that the interest, income and profit therefrom shall amount to Three Hundred ($300.00) Dollars per annum, which said interest, income and profit of Three Hundred ($300.00) Dollars to be paid by the said Harry R. Corrin and Charles E. Penrod, Sr., to my said wife during her natural life.”

Under this state of facts, the court is asked to say whether the testator’s proportionate share of this note is payable out of his estate as a part of his general indebtedness. I think not, for the reason that on its face the note imports a partnership indebtedness.

It was signed “Corrin & Penrod” — nothing more. Clearly, the intention was to bind the partnership as such. True, the money obtained on the note went to the purchase of property taken by the partners as tenants in common, but the destination of the funds obtained does not fix the character of the security given. That speaks for itself, and, prima, facie at least, fixes the status of the contracting parties.

On his death, the testator bequeaths his interest in the partnership in equal shares to the remaining partners. This interest, defined by the Uniform Partnership Act of March 26,1915, § 26, P. L. 18, was his “share of the profits and surplus;” that is, the net value of his interest over and above its indebtedness. And when the legatées accepted their legacy they impliedly agreed, as a continuing concern, to assume any burdens that may have attached to the share so received. The creditors of the old concern remain creditors of the new: Uniform Partnership Act of March 26, 1915, § 41 (1), P. L. 18.

This view is also in accord with the testator’s probable intention and the equities controlling the situation. The money obtained on the note was used to help pay for the building which housed the partnership business. He gave his interest in the business and the building to his two partners. Naturally, he would expect this bequest and devise to carry its own burden.

Had the partnership given a mortgage to Mrs. Corrin instead of a judgment note, the case -would have been squarely controlled by section 18 of the Fiduciaries Act of 1917, and there is no essential difference, at least to the layman.

True, the will contains the usual formal provisions for the payment of testator’s debts, but this was not his debt primarily, but an obligation of the partnership, and there is nothing to show that the clause was intended to be in relief of the partners.

It should be stated that the widow is not here claiming payment of her note. Certainly the individual partners are ultimately liable for partnership debts, and if she were seeking to hold this estate for the firm debt, her interests would be protected. But she is willing to look to the partnership for payment of the note, and the question is raised here by the partners, who are also the accountants. We shall, therefore, make no award to the widow on account of this note. It should be paid by the partnership.

A decree of distribution in accordance with the foregoing opinion is filed herewith.

From Harry D. Hamilton, Washington, Pa.


author: Darr, P. J.

text:
    Mayes et al. v. Warsaw Township School Directors.

      W. N. Conrad, for writ; Raymond E. Brown, contra.
   Darr, P. J.

The only matter requiring immediate consideration at this time is whether or not under the pleadings the petitioners are entitled to a peremptory mandamus. The facts necessary to be considered in disposing of this matter are, briefly stated, as follows:

On Sept. 28, 1927, a petition was presented by T. A. Mayes and J. Ivan Ross, praying that a rule be granted upon Amor J. Bullers, Alice Bullers, Frank E. Johnson, James Boggs and Benjamin Snyder, School Directors of Warsaw Township, Jefferson County, Pennsylvania, to appear and show cause why a mandamus should not be issued, commanding them to admit Bernice Ross and Robert Ross as pupils to the Bower School, a school within the said district. A rule was issued, returnable on Oct. 4, 1927, at 9 o’clock A. M., which was duly served. On Oct. 3, 1927, a demurrer was filed by counsel for defendants. On Oct. 4, 1927, counsel for petitioners asked for judgment “by default for want of a return to alternative writ of mandamus.” On the same day, defendant’s counsel asked the court to quash the writ and dismiss the petition.

The questions to be passed upon are: (1) Should the demurrer be sustained or overruled; (2) are the petitioners entitled to judgment by default for want of a return and should a peremptory mandamus issue; (3) should the petition be dismissed and the writ quashed.

1. A demurrer will not lie to the petition. The proper practice is to move to quash or to file a return: Plymouth Township Comm’rs v. Sweeney, 10 Dist. R. 617; Lehigh-Coplay Water Co. v. Coplay Borough, 11 Dist. R. 602; Com. v. State Treasurer, 29 Pa. C. C. Reps. 545; s. c., 13 Dist. R. 231; Com. v. Mathues, 210 Pa. 372.

2. Section 12 of the Act of June 8, 1893, P. L. 345, provides: “The defendant shall file in the office of the prothonotary of the court awarding the alternative writ a return thereto, verified by affidavit, within the time specified in the writ, and in default thereof judgment shall be given-against him with the same effect as if he had filed a return and such return had been adjudged insufficient.”

This section, standing alone, would entitle the petitioners to their judgment, since the'defendants did not file any return to the alternative writ. But the section just quoted must be read in connection with section 11 of the same act, which provides: “The defendant may move to supersede or quash said writ; if he fails, he shall be permitted to file his return as in this act mentioned and to proceed as if such motion had not been made.”

In Plymouth Township Comm’rs v. Sweeney et al., supra,, it is said, on page 619: “Defendant may move to supersede or quash the writ; if he fails, he shall be permitted to file his return.”

In the instant case, the defendants did move to quash the writ and dismiss the petition, and if this was in time, then it devolves upon the court either to quash the writ or, if the defendants have failed to set out sufficient grounds for so doing, then time shall be given them in which to make their return as provided by section 11 of the act.

If the motion toi quash was too late, then the only thing the court can do is to render judgment in favor of the petitioners and award a peremptory mandamus.

In disposing of this question, it is important to determine whether the defendants were actually in default at the time petitioners made their motion for judgment, and if so, was the default cured by their motion to quash made pending the disposition of petitioners’ motion and before the actual entry of judgment by the court. In this connection, we might say that perhaps, under the 12th section of the Act of 1893, the plaintiffs might have filed a praecipe for judgment in the prothonotary’s office as a matter of course instead of applying to the court. Be this as it may, the motion was made to the court, and while the matter was pending, the defendants made their motion to the court. In Patton’s Pennsylvania Common Pleas Practice, page 200, we find it stated that “The affidavit of defense (motion to quash) may be filed at any time before judgment is actually entered.”

In support of this principle the learned author cites Western National Bank v. Cotton, &c., Co., 35 Pa. Superior Ct. 47. Though this decision does not employ the exact language used by Mr. Patton, a careful reading of its ruling would lead to no other conclusion. In that case, the defendant had failed to file an affidavit of defense on the fifteenth day after service of the rule upon him. On the sixteenth day, he filed his affidavit of defense, but in the meantime, on the same day, plaintiff had taken judgment for want of such affidavit. The defendant then moved to strike off the judgment on the ground that the law allows no fraction of a day. The- court sustained the judgment, but the whole trend of the opinion clearly shows that if the affidavit of defense had been filed before entry of judgment, although after the time had expired for filing same, no judgment could have been taken by the plaintiff because the defendant was not then in default. The ease just noted was not a writ of alternative mandamus, but we think the principles relative to judgment by default are general and capable of almost universal application. We think the defendants’ motion to quash, prior to the actual entry of judgment by default in favor of petitioners, so far cures the defendants’ failure to make a return as to render it improper for the court to enter judgment in favor of petitioners at this time.

But was the court bound to enter judgment in favor of petitioners at the time their motion was made? It might be thought, upon first view, that the court was bound to grant the judgment because at the time the motion was made the defendants were in default, they neither having filed a return nor moved to quash the writ. But it is equally clear that if the defendants had filed their motion first, they would not have been in default when the petitioners filed their motion for judgment. The court takes judicial notice of the fact that both these motions were made on the first day of the regular argument court, to wit, Oct. 4, 1927. The fact is that the motions were contemporaneous and simultaneous. While counsel were arguing the demurrer, the attorney for the petitioners presented his motion for judgment, and counsel for defendants immediately replied that he would present his motion to quash, so that, in the opinion of the court, under these circumstances, the one would not have any precedence or priority over the other, but both should be treated as if made at the same time.

We are also of opinion that section 12 of the Mandamus Act must also be read in connection with section 14, which provides: “The court applied to for the writ shall allow the plaintiff and defendant, respectively, such convenient time to make return, plead, reply, rejoin or demur as shall be just and reasonable.”

This would seem to give much latitude to the court and to materially qualify the ironclad provisions of section 12.

In the case at bar, we feel that for the furtherance of justice and for the further reason that, “except in extreme cases, the courts have refused to control the discretion of those to whom has been committed the execution of the common school law of‘the Commonwealth” (Kell v. Rudy, 1 Pa. Superior Ct. 507), the plaintiff’s motion for judgment by default must be refused. We do not pass upon the merits of the controversy, as they are set forth in the able briefs of counsel, and it is our intention to make such order as will give to each of the parties full, fair and ample opportunity to present their several contentions and have the same passed upon after a careful review of all the issues, both of fact and law, that may be raised.

3. We do not think that the defendants’ motion to quash is sufficiently certain and definite to warrant us in granting the same, and, therefore, we refuse it. In accordance with this opinion, the following order is made:

And now, Dec. 5, 1927, it is ordered, adjudged and decreed that the demurrer filed in this case be overruled.

It is further ordered, adjudged and decreed that the motion for judgment by default for failure of defendants to make return to the alternative writ of mandamus be refused.

It is further ordered, adjudged and decreed that the defendants’ motion to quash the writ and dismiss the petition be refused. Leave is given to the defendants to file a return, verified by affidavit, in accordance with section 12 of the Act of June 8, 1893, within five days from the date hereof, otherwise judgment to be entered against them in favor of the petitioners and a peremptory mandamus issue commanding the defendants to admit Bernice Ross and Robert Ross as pupils to the Bower School.


author: Iobst, J.,

text:
    Keyser, Admin’x, v. Reading Company.

      Henninger & Snyder, for plaintiff; Butz, Rupp & Welty, for defendant.
    March 18, 1929.
   Iobst, J.,

Edwin E. Keyser, the original plaintiff in this cause, was a conductor in the employ of the Reading Company, a railroad carrier engaged in interstate commerce in Pennsylvania, New Jersey and Delaware. On March 3, 1926, Mr. Keyser was severely injured during a movement of an engine and cars at Kutztown, Pa. Suit on behalf of Keyser was instituted in this court, the action being brought under the Federal Employers’ Liability Act. During the pendency of this suit, and before trial, Keyser died. A suggestion of death was duly filed and it was suggested of record that Agnes Keyser, administratrix of the estate of Edwin E. Keyser, deceased, be the plaintiff in the place and stead of Edwin E. Keyser. When the case was called for trial counsel for plaintiff desired to prove the pecuniary loss to the widow as part of the damages occasioned by the death of Mr. Keyser, due to his injuries, but was met by an objection as to the admission of that testimony under the pleadings, which objection was sustained by the court. Whereupon counsel for plaintiff moved for the amendment of the statement of claim. The motion being allowed, counsel for the defendant company claimed suprise and the case was continued. Plaintiff then filed an amended statement of claim, which was met by an affidavit of defense raising questions of law. In the affidavit, defendant alleges that the plaintiff, in her amended statement of claim, has attempted to set up a cause of action different from that alleged in the original suit; and that the personal representative’s cause of action, if any, is independent of any cause of action which the decedent had, and that the plaintiff cannot, by amendment, add a new cause of action to the suit brought by the decedent in his lifetime.

When the Federal Employers’ Liability Act was enacted in 1908, there was no provision for a survival of the right of action of a person who had been injured. That defect in the original law was cured by the Act of April 5, 1910, which provided for a survival of the right of action of a person who has been injured. This act became part of the Federal Employers’ Liability Act and is now known as section 59 of chapter 2, “Liability for Injuries to Employees,” Title 45 — Railroads, United States Code Annotated. The language of section 59 is as follows: “59. .Survival of right of action of person injured. Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury:” Act of April 5, 1910, ch. 143, § 2, 36 Stat. at L. 291.

In construing this amendment, the United States Supreme Court, in the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U. S. 648, 657, 658, says: “. . . without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person ‘shall survive’ to his personal representatives ‘for the benefit of’ the same relatives in whose behalf the other right is given. Brought into the act by way of amendment, this provision expresses the deliberate will of Congress. Its terms are direct, evidently carefully chosen, and should be given effect accordingly. It does not mean that the injured person’s right shall survive to his personal representative and yet be unenforceable by the latter, or that the survival shall be for the benefit of the designated relatives, and yet be of no avail to them. On the contrary, it means that the right existing in the injured person at his death — a right covering his loss and suffering while he lived, but taking no account of his premature death or of what he would have earned or accomplished in the natural span of life — shall survive to his personal representative, to the end that it may be enforced and the proceeds paid to the relatives indicated. And when this provision and section 1 are read together the conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong.” The plaintiff here is seeking for one recovery; that of the loss and suffering of the deceased, and that of the loss of the next of kin. There is no conflict or incongruity in these claims. They supplement one another and are incidents of a wrong which finally terminated in death, as a result. The affidavit of defense must, therefore, be dismissed.

Decree of Court.

Now, March 18, 1929, the affidavit of defense raising questions of law is dismissed and stricken from the record. The defendant may file its affidavit of defense to plaintiff’s statement of claim within fifteen days from service hereof.

Prom Edwin L. Kohler, Allentown, Pa.


author: Fleming, P. J.,

text:
    Zelesnick v. Spring Township School District.

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

      John G. Love, Ellis L. Orvis, W. D. Zerby, A. C. Dale and John Blanchard, for defendant district.
    Jan. 8, 1929.
   Fleming, P. J.,

The plaintiff has filed exceptions, twenty-five in number, to the decree nisi entered in this case.

Exceptions 1 and 2 are wholly without merit, in that plaintiff complains that we did not find certain findings of fact, whereas we found in the exact words set forth in such exceptions.

Exceptions 3 to 16, inclusive, complain that we did not, in this case, reiterate verbatim certain findings of fact found by us in Beaver et al. v. these same defendants, to No. 1, September Term, 1926, in equity, and which we have incorporated, by reference, in the opinion filed in support of our decree nisi herein.

Exception 17 complains of our finding that there was no abuse of sound discretion by the defendants in selecting the land of the plaintiff for condemnation, and raises the question that such is a conclusion of law and not a finding of fact.

Exception 18 complains that the resolution adopted by the defendants on Sept. 8, 1926, set forth that the land of the. plaintiff was intended for a proposed “new school site,” which, plaintiff contends further in said exception, was, under all the evidence, the site intended to be used by the defendants in the erection of a school building from a proposed loan, which has been declared invalid in Beaver et al. v. these same defendants, and mentioned above.

Exception 19 complains of our failure to find that defendants, between Aug. 2, 1926, and Sept. 8, 1926, removed valuable timber from plaintiff’s land sought to be condemned, and also that defendants partially destroyed plaintiff’s crop.

Exception 20 complains of our failure to find as a fact that, by agreement of counsel of record, this case and that of Beaver et al. v. these same defendants, mentioned above, were tried by agreement together with the understanding that the evidence, so far as admissibility, was to apply in both cases.

Exception 21 complains that we have entirely ignored the 2nd, 3rd, 4th and 5th paragraphs of the prayer of the plaintiff’s bill.

Exception 22 raises the question as to the retroactive effect of the Act of May 11, 1927, P. L. 965, and assigns eight alleged reasons why such act cannot be retroactively applied in the present case.

Exception 23 complains that the decree as framed vests title in fee simple in the defendant school district.

Exceptions 24 and 25 complain of the imposition of the costs upon the plaintiff.

Let it be kept clearly in mind, in our consideration of these exceptions, that no requests for findings of fact or for conclusions of law were made by either of the parties to this case.

We shall first consider exception 22, for if such is to be sustained, consideration of the further exceptions will be to no purpose. Let us note the reasons given in support of this exception, as follows, to wit:

“Because the said court held as a matter of law that the Act of Assembly of May 11, 1927, P. L. 965, validated the resolution of the defendant school board, passed the 2nd day of August, 1926, for the following reasons:
“(a) Because said resolution did not divest the title of the plaintiff to the land described therein under the right of eminent domain.
“(b) Because, while retroactive acts of the legislature are permissible under certain facts, the act above referred to contains no language which would be sufficient to divest the title of plaintiff’s land and place it in the defendant school district.
“(c) Because the legislature cannot by an arbitrary edict take the property of the plaintiff and give it to the defendant, because the legislature is powerless to infuse life into a resolution such as adopted by defendants on Aug. 2, 1926, which was absolutely null and void.
“(d) Because the action in this case was brought on the 1st day of September, 1926, and said act of assembly was not passed until the 11th day of May, 1927, and could not in any manner affect the pending proceeding.
“(e) Because said curative Act of 1927, as applied to the defendants’ resolution, is a violation of the Constitution of Pennsylvania in attempting to take from the plaintiff her property without due process of law.
“(f) Because said act of assembly could not in any manner apply to the pending proceeding.
“(g) Because the resolution of the defendant school board, passed the 8th day of September, 1926, has no reference of any kind whatever to the instant case and does not show that it was passed as a substitute for the resolution of Aug. 2, 1926, and, so far as the present proceeding is concerned, it is null and void.
“(h) Because the resolution of the defendant school board, passed Sept. 8, 1926, sets forth that the plaintiff’s land is necessary for the proposed new school site in the School District of Spring Township. The evidence in the case shows that the new school-house, then contracted for and in connection with which the plaintiff’s land was to be used, was never built, and that the loan contemplated by the defendant school district to raise funds for said purpose was invalid.”

The defendant school district, on Aug. 2, 1926, passed a resolution, the content and purport of which was the exercise of the right of eminent domain vested in such school district by section 605 of the School Code. That such resolution was “passed” in the common and accepted sense of the word, that is to say, by a majority of the members voting, has not been denied. Nor has it been denied that all the members of the board were actually present and voting. Indeed, the minutes of the defendant school district plainly disclose this to be the fact. We are fully, therefore, entitled to conclude that three of the five members, at least, voted in the affirmative, and that the resolution was passed by a majority of all of the members of the board, as is required by sections 605, 608 and 609 of the School Code. No evidence has been adduced to controvert this fact. That the secretary of the defendant school district failed to record the vote, as stipulated in section 403 of the School Code, is not denied.

On May 11, 1927 (P. L. 965), an act of assembly was approved by the Governor of the Commonwealth, the title to which is as follows:

“An act validating actions of boards of school directors in certain cases where there was a failure to record the vote of members of the board.” The sole section of the act is as follows:
“Section 1. Be it enacted, etc., That whenever heretofore the school directors of any school district shall have taken any action, performed any duty or exercised any power which by law required the affirmative vote of a majority or greater proportion of all the members of the board of school directors, and which by law was required to be recorded so as to show how each member of the board voted thereon — if such action or vote was actually taken, or duty performed, or power exercised by the board as required by law, the same shall be deemed and is hereby made valid and legal to all intents and purposes, notwithstanding the fact that the secretary of the school board, or the board, did not actually record on the minutes of the board the vote showing how each member voted, as required by law.”

The presence of the word “heretofore” in the first line of this act indicates that it was the intent of the legislature, so far as in its power lay, to have the act cover all cases specifically mentioned therein which had occurred prior to the time of its passage. In our instant case there is no denial that the action was actually taken or the power of condemning the plaintiff’s land actually exercised. Thus far there is no doubt. It is, therefore, for us to consider the power of the legislative body to enact such legislation.

The great weight of authority supports the rule that when an enactment prejudicially affects vested rights, or the legal character of the past transaction, such enactment must be considered prospective and not retroactive: Bedford v. Shilling, 4 S. & R. 401. We find the further rule that such acts are, in a prima facie sense, prospective, and that rights are not to be affected or interfered with unless there are express words to that effect: Lefever v. Witmer, 10 Pa. 505. Let us consider, therefore, the following questions: (1) Is the plaintiff possessed of a vested right in the instant case? (2) If so, has such vested right been prejudicially affected by the act in question? (3) Has the legal character of a past transaction been affected in a manner prejudicial to the plaintiff? And (4) is the wording of the act sufficiently expressive to give a retroactive interpretation to such enactment? We must answer this last question in the affirmative for the reasons advanced in the .^preceding paragraph.

The learned counsel for the plaintiff has cited us a number of cases in support of plaintiff’s contentions, none of which appear to be parallel in any controlling degree, to the case at bar and all of which are clearly distinguishable therefrom.

The case of Waynesburg Borough v. Ray, 59 Pa. Superior Ct. 640, is a case wherein it was sought to collect on a municipal improvement which had been completed on Sept. 18, 1903, at a time when the Act of April 23, 1889, § 3, P. L. 44, was in force. The borough had not been diligent in pursuing the rights accorded it under such act and had allowed such rights to lapse, but sought, through the means of the alleged curative Act of April 15, 1907, P. L. 83, to file a lien, the right for which had been permitted to lapse as aforesaid. The Superior Court, in denying such right to the borough, said: “The land was discharged from the claim, not by any reason of defect in the law or of any slip or irregularity in the proceedings, but because the borough saw fit not to take advantage of the adequate statutory provision for perpetuating it. The borough’s action was as effectual to discharge the land as if it had formally released the land from the charge.” No such laches is charged in the instant case and the basis of plaintiff’s contentions is the “slip or irregularity in the proceedings” which the Superior Court so plainly excepts in the case cited.

In Lewis v. Pennsylvania R. R. Co., 220 Pa. 317, cited by the plaintiff, it appears that the Act of April 4, 1868, P. L. 58, declared that a person not in the employment of a railroad company, but using its facilities under a contract between the railroad company and his employer, which simply permitted his carriage for and in connection with the business of his employer, conducted upon the railroad, was not a passenger thereon, but a fellow-servant of the trainmen, and, if killed through negligence, his widow could not recover. Plaintiff’s husband had been killed under such circumstances before the repeal of the cited act by the passage of the Act of June 10, 19'07, P. L. 522, and the court therein held that the repealing act did not affect a cause of action which had accrued prior thereto, saying: “A legal exemption from a demand by another is a vested right which the legislature may not interfere with.” In the instant case, the plaintiff is not asserting, nor can she assert, a legal exemption as to the condemning of her lands for school purposes, nor are the defendants seeking more than that which is accorded them by the School Code, to wit, the right to acquire land for school purposes.

In Kay v. Pennsylvania R. R. Co., 65 Pa. 269, cited by the plaintiff, the injury upon which the suit was based occurred in 1864, at which time a right to recover full compensation rested in the plaintiff. Suit was begun in 1866. An act passed in 1868 limited recovery to $3000. A verdict was rendered for the plaintiff in the sum of $8000, which verdict was sustained, the court holding that the act limiting recovery was plainly an interference with an unquestioned vested right of recovery. In the instant case, the right of the plaintiff to recover full and adequate compensation for her land condemned by the defendant school district is in no manner affected by'the Act of May 11, 1927, P. L. 965.

In Menges v. Dentler, 33 Pa. 495, cited by the plaintiff, to have held that the act there in question was retroactive would have deprived the owner, one who had acquired title to lands by unquestioned and regularly recorded conveyances, of his ownership and would have vested the same in another by the arbitrary validation of an otherwise imperfect sheriff’s deed, leaving such recorded owner without redress or compensation of any kind. As we have shown above, the plaintiff in the instant case has a full and effectual right to recover adequate compensation for the land taken and is, by proper legislative enactment, given ample security for the payment of the same.

One of the marked distinguishing characteristics of the instant case is that it involves the right of the sovereign state to regulate the manner in which a subdivision of such sovereign state shall exercise a previous right, the power to grant which is unquestioned. In none of the cited cases, or in none which we have been able to find, with the exception of one to which reference will later be made, do we find this distinguishing characteristic to exist. These defendants have been charged with the duty of establishing and maintaining proper schools for their particular district. The sovereign state, the Commonwealth of Pennsylvania, of which the defendant school district, together with all other school districts within its borders, is a most essential subdivision or part, in order to assist in the accomplishment of the purposes of such sovereign state, in forming and creating such subdivisions, and to properly avoid the thwarting of such purposes by the ignorance or unreasonableness of any private individual, has seen fit by the enactment of section 605 of the School Code to vest in such school districts, or subdivisions of the sovereign state, the right of eminent domain, such section providing as fallows:

“Section 605. Whenever the board of school directors of any district eannot agree on the terms of its purchase with the owner or owners of any real estate that said board has selected for school purposes, such board of school directors, after having decided upon the amount and location thereof, may enter upon, take possession of and occupy such land as it may have selected for school purposes and designate and mark the boundary lines thereof, and thereafter may use the same for school purposes according to the provisions of the act.”

It has been decided in Lewisburg School District v. Harrison et al., 290 Pa. 258, that the order for procedure for condemnation of land for school purposes, under section 605 of the School Code, is (1) the selection of the site for a school; (2) disagreement with owners as to price; (3) decision on amount of land and location; (4) entry, taking possession and occupancy, being one and the same act, concurrently performed by going on the land; (5) designating and marking the boundary lines, after which steps may be taken to use the land for school purposes. The plaintiff, in the instant case, does not deny, or attempt to deny, that the defendant school district has acted in accordance with this mode of procedure.

To these steps the legislature, by section 403 of the School Code, has added the formal requirement, in regard to the performance of this and other acts, that “the affirmative vote of a majority of all the members of the board of school directors in every school district in this Commonwealth, duly recorded, showing how such members voted,” shall be required. This is but a direction as to procedure and cannot affect any right, vested or otherwise, accruing to the plaintiff or any individual land owner. The legislative body has the power to confer the right of eminent domain upon one of its most essential subdivisions, and it, in like manner, has the right to prescribe the manner in which it shall be exercised or to waive such requirements if deemed necessary. Endlieh on the Interpretation of Statutes, § 285, page 387, says: “No person has a vested right in any course of procedure nor in the power of delaying justice or in deriving benefit from technical and formal matters of pleading. ... If the time for pleading were shortened or new powers of amending were given, it would not be open to the parties to gainsay such a change; the only right thus interfered with being that of delaying or defeating justice; a right little worthy of respect.”

The legislature has well provided by sections 606, 609, 610, 611, 612, 613 and 614 of the School Code for compensation, full and adequate, for damages suffered by the taking of plaintiff’s land. The Act of May 11, 1927, P. L. 965, does not remove, hinder or abridge this right of recovery in any way. Were we to sustain plaintiff's contention that the Act of May 11, 1927, P. L. 965, is not retroactive and does not, therefore, cure the defect in the procedure taken at the meeting of Aug. 2, 1926, by waiving the formal requirement that the manner in which the several members voted be recorded in the records thereof, and, thus finding, make perpetual the injunction obtained herein, the plaintiff would but again be subjected to a like proceeding, with a properly recorded vote, and her remedy would be but by compensation to be received under sections 606, 609, 610, 611, 612, 613 and 614 of the School Code. Her only advantage, if such can be so called, would be in delaying justice and in hindering the defendants from the exercise of their duties as important public servants and in imposing the costs upon the school district, to be paid by the taxpayers generally. This would be, indeed, an accomplishment “little worthy of respect.” Again, this is a proceeding in equity and the established maxims of equity apply. Certainly, the plaintiff is not coming into equity with clean hands. Her further refusal to consider the suggestion of the solicitor for the defendants at the argument of these exceptions, whereby it was proposed that the defendant school district would pay the costs of this proceeding if the plaintiff would terminate further controversy and proceed with her right to recover compensation for her lands in the manner prescribed by the School Code, indicates conclusively, in the light of the certainty of the ultimate condemnation of her land, that the maxim providing that “he who seeks equity must do equity” has been transgressed herein.

Further, the requirement that a record be made showing how each member voted can have no other purpose than to perpetuate proof that the corporate act of the school district in condemning a particular piece of land was regularly and properly done by an affirmative vote of a majority of all the members of the school board, which fact is not denied in the instant case. In Journeay v. Gibson, 56 Pa. 57, 60, it is held that statutes retrospectively validating defective acknowledgments of deeds are sustainable because they operate, not upon the deed or contract, changing it, but upon the mode of proof. Such acts seem to have been quite uniformly sustained: Mercer v. Watson, 1 Watts, 330; Tate v. Stooltzfoos, 16 S. & R. 35. See, also, dictum in Menges v. Dentler, 33 Pa. 499. By analogous reasoning, the Act of May 11, 1927, P. L. 965, does not act upon the action of the board condemning plaintiff’s land, changing it, but solely upon the mode of proving that the resolution of Aug. 2,1926, was passed by a majority of all the members of the school board.

Counsel for the plaintiff further contends that Grim v. Weissenberg School District, 57 Pa. 433, is authority only upon the specific facts therein contained. We feel that, to the contrary, such case controls to a large measure the instant case. It is, in fact, the only case in point which we have found which includes the sovereign power of the State and rules accordingly. The analogy between such case and the instant case, supported by the stronger facts of the instant case, makes the words of Chief Justice Sharswood particularly applicable herein. In the cited case the plaintiff had paid, under protest, an additional tax levied under the provisions of the Act of March 25, 1864, § 7, P. L. 88. Such payment had been made by the plaintiff therein between Aug. 10, 1864, and Aug. 15, 1864, and on Aug. 20, 1864, he brought suit before a justice of the peace to recover back the amount paid beyond the first levy. On Aug. 25, 1864, an act of assembly was passed (P. L. 1027) reciting the assessment of March 28, 1864, being the assessment to which plaintiff objected, and stating that its validity was doubted and enacting “That the taxes imposed by the authorities of said Township of Weissenberg, in relation to the payment of bounties, are hereby legalized and made valid.” On Oet. 13, 1864, the justice of the peace gave judgment for plaintiff. The defendants appealed and it was held on appeal that if the legislature had antecedent power to authorize a tax, it could cure, by a retroactive law, an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested. In the cited case it was the sovereign power of the State, through its legislature, conferring upon a subdivision the right to levy, assess and collect from an individual a certain tax. In the instant case, it is again the sovereign State, through its legislature, extending its right of eminent domain to a subdivision and conferring upon the defendant school district the right to condemn, take and use the land of the plaintiff. In both the cited case and the instant ease, the validity of the manner in which the subdivision of the sovereign State exercised the power conferred became in controversy. In the cited case, a right of action accrued to the plaintiff from a defect in exercising the power conferred. In the instant case, the bill of the plaintiff is based, at least in part, on a like cause. In the cited case, Chief Justice Sharswood said: “The power of taxation is a necessary and indispensable incident of government. It also has limits, but they are broadly marked and well defined.” It cannot be denied that the power of eminent domain is another indispensable incident of government, especially when exercised for the advancement of education. Its limits are also broadly marked and well defined. Further, Chief Justice Sharswood says: “The taxation impeached in the case now before us was clearly within the limit thus prescribed. It was for a public purpose and to subserve an end eminently advantageous to the community upon which it was levied. It has not been pretended, and could not be, that the legislature had not the antecedent power to authorize it. If so, they could cure any irregularity or want of authority in levying it by a retroactive law, even though thereby a right of action which had been vested in an individual should be divested. It is within the principles of all the decisions of admitted authority. If the legislature can cure an irregularity in a judgment or other legal proceedings, or defective deeds, mortgages or other assurances, by retroactive laws, thereby destroying existing legal claims or defenses, or practically transferring legal vested titles, a fortiori, may they make valid the acts of public officers in the bona fide performance of public duties, such as that of levying and collecting taxes imposed for an admitted public good and whose justice and equality are not impugned.” The act of the defendant school district on Aug. 2, 1926, was likewise for a public purpose and to subserve an end likewise eminently advantageous to the community in which the plaintiff resides. Nor could it be contended here, nor is it, that the legislature could not confer upon the defendant school district the right of condemning the plaintiff’s land and of taking it for public use. Having the antecedent power to authorize such taking, the legislature can cure any defect or irregularity in exercising it by a retroactive law, even though the plaintiff’s right of action be thereby divested.

The Act of May 11, 1927, P. L. 965, is, therefore, plainly retroactive, and the 22nd exception of the plaintiff must be dismissed.

We do not feel that the plaintiff seriously presses the sundry other exceptions filed, but it is our duty to dispose of them and we shall proceed to do so.

Exceptions 3 to 16, inclusive, complain, as we have stated above, that we did not again, in this case, reiterate verbatim certain findings of fact relative to the bond issue which was contemplated by the defendant school district at the time plaintiff’s land was condemned by the resolution of Aug. 2, 1926, found by us, supra, to have been validated by the Act of May 11, 1927, P. L. 965. A careful reading of our opinion filed in support of our decree nisi in this case will show that such findings were embodied therein by reference to the action of Beaver et al. v. these same defendants, being an action to No. 1, September Term, 1926, in Equity. We know of no good purpose which would be served by repeating these findings verbatim in the instant case. The case of Beaver et al. v. these same defendants was to a number antecedent to the instant case and was considered under strict compliance with the Equity Rules. Such case involved the validity of the same identical bond issue complained of by the present plaintiff and our decree therein gave the identical relief sought by this plaintiff in the 2nd, 3rd, 4th and 5th paragraphs of the prayer of her bill. Such question having been properly adjudicated and no exceptions having been filed, plaintiff’s counsel herein, also representing Beaver et al., plaintiffs, and the findings, conclusions and decree being embodied by reference herein, there is no need of again disposing of the matter'here. Plaintiff contends that because the defendant school district was, at the time of the condemnation of her lands, endeavoring to increase its indebtedness for the purpose of building a new school building, which increase has been held invalid, that such invalidity thereof would affect the validity of the condemnation proceedings, but we cannot agree with such contention. We .quote from our opinion filed in support of our decree nisi, which we reiterate and affirm, as follows: •

“Stress has been placed upon the fact that plaintiff’s land was to have been taken to provide a site upon which was to have been erected and equipped a school-house from funds to have been raised by an increase of indebtedness which has been declared invalid. None could successfully maintain that every condemnation proceeding must be preceded by a provision for funds with which to pay damages caused by taking the land. Section 606 pledges the funds which may be raised by taxation, and makes them security to the owner for the land taken. The condemnation proceeding had in the instant ease is entirely separate and apart from the proceeding to increase the debt, and the latter cannot be considered in disposing of this case.”

Exceptions 3 to 16, inclusive, are, therefore, accordingly dismissed.

Exception 17 complains of our finding that there was no abuse of sound discretion by the defendants in selecting the land of the plaintiff for condemnation, and urges-that such is a conclusion of law rather than a finding of fact. We may have erred in form, but not in substance. The plaintiff has failed to show abuse of sound discretion on the part of the defendant school district, and the burden was on her to do so. The question of the necessity for a new school building, its location and the purchase of a site are matters within the sound discretion of the school board, and courts will interfere with the decision of the board only where there is an abuse of discretion. The decision of the school directors is final, notwithstanding the fact that the board has submitted the matter to a vote of the people, and the decision of the board is different from that indicated by the people: Bard v. Leacock Township School District, 17 Del. Co. Reps. 191.

Exception 17 is, therefore, accordingly dismissed.

Exception 18 again raises the question of site and its connection with the bond issue declared to have been invalid. We have spoken of this and need not reiterate such here. The exception is accordingly dismissed.

Exception 19 complains of our failure to find that the defendants, between Aug. 2,1926, and Sept. 8, 1926, removed valuable timber from plaintiff’s land and partially destroyed her crops. We have shown that the resolution of Aug. 2, 1926, was cured of the only existing defect, to wit, the failure to record the vote, by the Act of May 11, 1927, P. L. 965. The condemnation was, therefore, complete, and such facts as are averred in this exception are material only upon the determination of plaintiff’s damages in the manner prescribed by the School Code. The exception is accordingly dismissed.

Exception 20 complains that we did not find as a fact that, by agreement of counsel of record, this case and that of Beaver et al. v. these same defendants were tried together, with the understanding that the evidence, so far as it was admissible, was to apply in both cases. The Chancellor sitting at the time of the taking of testimony so regarded the agreement, our immediate predecessor likewise so recognized the agreement, and in our disposition of the case we had but the one record from which to adduce our findings and conclusions thereon. In fact,- it was a procedure had for the convenience of court, counsel and litigants, and we can see no merit in the exception. It is, therefore, accordingly dismissed.

Exception 21 has already been covered in this opinion in our remarks relative to exceptions 3 to 16, inclusive. For reasons therein stated, the exception is dismissed.

Exception 23 complains that the decree as framed vests title in fee simple in the defendant school district. We find no error in this, as section 607 of the School Code specifically provides as follows:

“Section 607. The title to all real estate acquired by any school district in this Commonwealth by condemnation proceedings, as herein provided for, shall be vested in such school district in fee simple.”

Exception 23 is, therefore, accordingly dismissed.

Exceptions 24 and 25 complain of the imposition of the costs upon the plaintiff. We commiserate with any one compelled to pay, but we have no right to relieve this plaintiff under the present record. We fully appreciate statements of her counsel as to her thrift and industry in clearing her land of stones and bruph and in changing it from a barren and ugly tract to a fruitful and comely little home in the hills, but the power of the sovereign state surmounts sentiment and places necessity as paramount. Landmarks of much more ancient origin than the lands of the plaintiff have fallen before the needs of the Commonwealth. The doors of our courts are open to provide for proper compensation for her loss and to protect her in securing payment of the same. She must get in step with modern progress and leave behind her any mediseval tendencies which may linger from beyond the seas. She undertook to' establish a case, not for the public good, but contra thereto. Had she been successful, none would have benefited but herself. She has entailed upon the taxpayers of the defendant school district much expense and annoyance. She has failed to maintain that which she asserted. She has not met the burden which she assumed. Exceptions 24 and 25 are accordingly dismissed.

We hope, for the sake of the plaintiff, that the generous spirit shown by the defendant school district at the time of the argument of these exceptions, relative to the costs, still exists. To play our part in giving the plaintiff every chance to accept the generosity of the defendant school district, we shall not frame the final decree at this time, but will invoke the provisions of Rule 73 of the Equity Rules, and impose that burden upon the solicitor for the defendant school district, subject to compliance with the requirements of said rule, in the hope that some plan may arise, solely as of grace, whereby this plaintiff may be relieved from the burden of costs, which as of right we have been compelled to impose upon her. It is, therefore, accordingly ordered:

And now, Jan. 8, 1929, it is ordered that final decree herein shall be drawn by the solicitor for the defendant school district, the School District of the Township of Spring, and that a copy thereof shall be served, when drawn, upon the solicitor for the plaintiff, Annie Zelesnick, who shall be accorded a period of three days from the time of such service, unless extended by further order of the court, for the filing of exceptions thereto, at the expiration of which said period of three days or extension thereof, if allowed, the said draft, as prepared by the solicitor for the said defendant school district, together with such exceptions as may be filed, if any, shall be presented to the court, whereupon such decree will be entered as justice and equity require.

From S. D. G&ttig, Bellefonte, Pa.


author: Galbreath, P. J.,

text:
    Sones’s Case.

      John B. Greer, for petitioner; James W. Hutchison, for Butler County.
    Feb. 9, 1929.
   Galbreath, P. J.,

The salary board of the county, consisting of the county commissioners and the county treasurer, at their meeting on Jan. 8, 1929, fixed the salary of the said deputy prothonotary at $125 per month. From the action of the salary board, the prothonotary, H. N. Moon, appeals to the court, alleging that the salary so fixed is inadequate in amount. To the petition of the prothonotary to have the amount increased, the county commissioners and county treasurer make answer, setting forth that the salary fixed for the said deputy is as large, with one single exception, as that fixed for the deputies of any other of the officers of the county; that amount is as large as is being paid by business men and corporations for like services; that the receipts of the office of prothonotary were not sufficient during the year 1928 to pay the salaries of the office and the expenses, showing a deficit for said year of $169.09; that in practically every other county of the sixth class the receipts of the office of prothonotary pay all salaries of the office and show a balance in favor of the counties.

The office of prothonotary, like the other county offices, was created for the purpose of performing certain functions intended to secure social order and the welfare of the people of the county. We may assume that the primary purpose of the creation of the office of prothonotary, as also in the case of the other county offices, was to have the work committed to that particular office well done. If the performance of these duties in this manner, and as an incident to their performance, was more than self-sustaining, the additional income should go into the county treasury. The primary purpose, however, was not to make the office a source of income to the county treasury.

The salaries of the prothonotaries in counties of the class to which Butler County belongs prior to 1923 were paid out of the fees of the office, salaries so fixed being $2000, with 50 per cent, of the additional fees received over and above that amount after deducting the expenses of the office, the additional 50 per cent, going into the county treasury. This system did not work well, for the reason that in some cases the number of clerks and deputies and the salaries paid were so manipulated as to virtually consume all the income. For this reason, no doubt, the fixing of salaries was placed in the hands of a salary board, consisting of the county commissioners and the county treasurer, with the right of appeal from their decision in any particular case.

The position of deputy prothonotary approximates more nearly the position of deputy register and recorder than any other deputy in any county office in point of importance and necessary efficiency on the part of the person filling that position. If possible, the duties of the deputy prothonotary are more varied than those of the deputy in the office of the register and recorder. The prothonotary’s office has to do with the indexing of judgments and liens upon real estate in the county, which in turn affects the question of title, which in many instances grows out of liens entered in that office. The varied character of the business carried on in the prothonotary’s office requires a multiplicity of indices to be kept in proper order and accurate entries to be made daily. Failure in this respect not only involves the prothonotary in pecuniary liability, but may very seriously affect the rights of others in a variety of ways. Inasmuch as the prothonotary cannot in person perform all these duties, it is highly important that his deputy should be competent and experienced in order to insure their rightful performance. The deputy prothonotary acts in more than a clerical capacity. In all ministerial matters affecting the office, the act of the deputy is the act of the prothonotary. In addition to this, under the Act of May 26, 1897, P. L. 100, the deputy prothonotary acts in the place, name and stead of the prothonotary in all matters relating to the performance of duties of* such prothonotary in case of his sickness, absence or other temporary disability.

It is evident in consideration of these things that the deputy prothonotary acts in a more than clerical capacity. Salaries paid to clerks in the business world can hardly be taken as a criterion by which to judge the value of the services of an efficient deputy prothonotary. The ability and capacity of a deputy prothonotary are very largely different from those of one employed as clerk in a commercial capacity. The duties of the deputy are peculiar to the office, thus taking away any basis of comparison.

In the present instance, the deputy, Jean MeCandless Sones, has been acting as such in the Prothonotary’s Office of Butler County for a period of almost six years. Her efficiency and faithfulness are evident to all those having business relations with the office. The petition for appeal sets forth that the income of the office, over and above office expenses for the year 1928, was about $700. The answer thereto alleges that there was a deficit of $169.09. This difference, we assume, grows out of the fact that the expenses of purchasing dockets, filing cases, etc., for the year are counted office expenses by the salary board. If, however, the salary of the deputy is to be affected by the necessary expenditures of the office for any particular year, it would scarcely be equitable to charge up against that particular year those expenditures for dockets, filing cases, furniture, etc., which are permanent acquisitions on the part of the county and will serve the purpose, not only of the prothonotary then in office but his successors, it may be, for many years to come. However this may be, as already stated, the primary question is not one of income through the prothonotary’s. office to the county treasury, but rather the question of having the work done well. The testimony on the part of members of the bar, who have almost daily business to transact in and with the prothonotary’s office, is to the effect that the salary of $125 per month is not an adequate salary for the duties performed and that a reasonable salary would be $150 per month. This testimony is of the highest importance, for the reason that it is based upon actual observation of the work being done by the present deputy and not upon any theory of comparison with other offices or other counties.

In conformity with these views, the appeal of the prothonotary is sustained and the salary of Jean McCandless Sones as deputy prothonotary is fixed at $150 per month, and a bill of exceptions is sealed for respondent.

From Thomas H. Greer, Butler, Pa.


author: Landis, P. J.,

text:
    Trilling & Montague v. Keystone Furniture Co., Inc.

      Geisenberger & Geisenberger, for rule; F. Lyman Windolph, contra.
    Jan. 19, 1929.
   Landis, P. J.,

The action in this case is based on a trade acceptance drawn by the plaintiifs on Jan. 16, 1928, and on the same day accepted by the defendant. It was made payable on April 20, 1928. On that day, it was presented for payment at the place where it was made payable, but payment was refused. It is alleged that it was given for one Zenith radio set, with a set of tubes for same, purchased by the defendant from the plaintiffs on Nov. 9, 1927; that the price of the set was $172.25, but when the invoice was past due, the defendant tendered the trade acceptance in full payment of the bill.

The defendant filed an affidavit of defense and a supplemental affidavit. In the affidavit of defense it was alleged that the Zenith radio set was sold under an express warranty that it would give satisfactory results in every respect, and that shortly after April 20, 1928, the defendant notified the plaintiifs that the set was not satisfactory and returned it to the plaintiffs. The supplemental affidavit of defense averred that, prior to Nov. 9, 1927, the plaintiffs requested permission from Miles F. Goodman to demonstrate a Zenith radio, which they were trying to introduce; that the set was placed in Mr. Goodman’s home, and it was then stated that, if it was purchased, the plaintiffs would warrant it to give satisfaction in every respect; that it was tried by Mr. Goodman, and, proving unsatisfactory, under instructions from the plaintiffs, it was stored in the storeroom of the Keystone Furniture Company, there to remain until after the Christmas rush; that while there, a customer purchased it under the same warranty, and the plaintiffs were duly notified of the sale; that it did not give satisfactory results, whereupon the plaintiffs, on Jan. 18, 1928, agreed to replace the chassis with a new one and with a similar warranty; that, in consideration of this promise, the defendant executed the trade acceptance; that the plaintiffs did replace the chassis with a different one, but the radio did not even then give satisfactory results, and on April 20, 1928, the plaintiffs were so notified and the set was returned to them.

I am of the opinion that, under the facts alleged by the defendant, the case should go to a jury. If the radio set was returned, and presumably was accepted by the plaintiffs, they cannot maintain this action for its price. If it was sold under an express warranty that it was to prove satisfactory, the purchase price cannot be recovered if it proved unsatisfactory, and this is what is alleged in the affidavit of defense. In Pictorial Review v. Blakeman, 40 Lanc. Law Rev. 552, 10 D. & C. 80, this court held that where it was averred that the goods purchased were returned and received by the plaintiff, a question of fact is raised to be passed upon by a jury. It must be remembered that here the controversy is between the original parties and the rights of third parties are not at issue. Especially is this so, as the radio set was, under the allegations set forth, returned in a reasonable time.

The rule for judgment for want of a sufficient affidavit of defense is, therefore, discharged. Rule discharged.

From George Ross Esbleman, Lancaster, Pa.