author: Van Swearingen, P. J.,

text:
    Hunt v. Hunt.

      Will — Devise—Construction—Description of real estate — Declarations— Evidence.

    1. A testator was the owner of a lot extending from West Main Street to South Street, in Uniontown. On the West Main Street end of the lot he erected a building, two stories high in front and one story in height in the rear, which he occupied with his jewelry business for many years, and was so occupying it at the time of his death. On the South Street end of the lot he erected a three-story brick building, which thereafter was occupied by a tenant, who used the first floor and basement for the storage and sale of green vegetables and provisions, and sublet the second and third floors for residence flats, that property being known as Hagan’s Market, No. 9 South Street. The rear ends of the buildings came within nine or ten feet of each other, leaving an area-way between them, which was used in connection with the jewelry store. The two buildings were not in any way connected with each other or used for any common purpose. In his will testator provided as follows: “I give, devise and bequeath to my son, Isaac Hunt, all of the real estate which I own at No. 7 West Main Street,” in Uniontown, and after making disposition of his residence property and personal estate, he continued: “All the rest and residue of my property not hereinbefore specifically disposed of, of every kind and description, real, personal or mixed, wheresoever situate, I direct shall be equally divided among my eleven children, or their legal heirs,” naming them. Isaac Hunt took possession of the South Street property, as well as the jewelry store, claiming to have taken the whole under the will. In an action of ejectment by the other heirs for the property fronting on South Street, alleged by them to be a part of the testator’s residuary estate: Held, That the devise of the testator to Isaac Hunt carried with it only the land, and the building erected thereon, extending from West Main Street back to the rear wall of the three-story brick building fronting on South Street, known as No. 9 South Street, and did not include the latter building or the land on which it stood, but that the South Street property constituted a part of the residuary estate of the testator.
    2. The intention of a testator is to be determined from the words written in his will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing condition of that property, the result must be accepted. The question in expounding a will is not what the testator meant, but what is the meaning of his words.
    3. In such a case statements made by the testator in his lifetime as indicative of his intentions regarding the property are incompetent and irrelevant.
    Ejectment, tried by the court without a jury, in accordance with the provisions of the Act of April 22, 1874, P. L. 109. C. P. Fayette Co., Sept. T., 1919, No. 181.

      A. C. Hagan and Umbel, Robinson, McKean & Williams, for plaintiffs.

      Lee Smith and D. W. Henderson, for defendant.
    Aug. 16, 1921.
   Van Swearingen, P. J.,

The controversy in this case came into court in an action of ejectment for possession of the undivided nine-elevenths of a lot of ground, with the building thereon erected, situate in what formerly was the borough, now the city, of Uniontown. After the case was at issue, the parties, by agreement filed, dispensed with trial by jury, and submitted the decision of the case to the court, in accordance with the provisions of the Act of April 22, 1874, P. L. 109. The case was tried before the court without a jury, and on the pleadings and the evidence offered, and a personal inspection of the premises in company with counsel, we find the material facts to be as follows:

1. William Hunt, widower, died in Uniontown July 12, 1916, after having made his last will and testament, dated Dec. 30, 1909, duly probated after his death, leaving to survive him eleven children, to wit: Benjamin L. Hunt, Mary Frances Beeson, Ellen Hale, Margaret Murray, Sarah Flenniken, Lucy Hagan, Charlotte Marsteller, Elizabeth Scheiek, Eve Evans, Robert W. Hunt and Isaac Hunt.

2. The deceased in his lifetime and at the time of his death was the owner in fee of a lot of ground in Uniontown, a part of which is the subject of the present controversy, fronting approximately 21S feet on the south side of West Main Street, and extending back, practically the same width, 150 feet to the north side of South Street; bounded on the east by lot of Charles H. Gorley and on the west by lot of the heirs of John Gilmore, deceased. He became the owner of the lot by three separate purchases. By deed of April 1, 1871, Jabez Thorndell conveyed to him that portion of the lot beginning at West Main Street and extending back ^distance of 44 feet and 3 inches; by deed of May 24, 1890, E. E. Weniger conveyed to him a narrow strip across the lot of a depth of 1 foot and 9 inches; and by deed of April 2, 1900, E. E. Weniger conveyed to him the remainder of the lot, extending 104 feet to South Street.

3. Soon after his purchase of the front part of the lot, the deceased erected thereon a building, in which he thereafter until the time of his death conducted a jewelry store, the building fronting on West Main Street and extending back a distance of about 30 feet. In 1888 he built an addition to the jewelry store, in the rear, extending the building back 14 feet farther, covering practically all of his first purchase. In 1900, after having secured title to the remainder of the lot through to South Street, he extended the jewelry store back about 35 feet farther, which then covered his first and second and a part of his third purchases. When free mail delivery service went into effect in Uniontown, which was on Oct. 1, 1891, the Hunt jewelry store property was numbered, and ever since has been known as No. 7 West Main Street.

4. Between the Hunt lot and the Gilmore property, for many years, there had been a private alley, running from West Main Street to South Street, along the line dividing the properties and occupying a portion of each. In 1901, by agreement of Hunt and Gilmore, this private alley, from West Main Street back towards South Street for a distance of 77 feet, was closed, each of the parties thereafter occupying the portion of it belonging to him, and from that point on back to South Street that portion of the alley which was on the Gilmore land was closed and thereafter occupied by a building erected on the Gilmore property, but on the Hunt property, from that point on back to South Street, as provided by the agreement,, the alley, to a width of at least 3 feet, was to be kept open and unobstructed for the joint use of Hunt and Gilmore, their heirs and assigns, forever, or until such time as they should agree in writing to the contrary.

5. In 1902 the deceased erected a three-story brick building on the South Street end of the lot, fronting on South Street and extending back between the Gorley line and the line of the private alley toward the jewelry store a distance of about 62 feet, which reached within 9 or 10 feet of the rear end of the jewelry store building, leaving a vacant space or area-way of that depth for light and air across the entire lot between the building on the Gorley lot and the building on the Gilmore land, the private alley extending along next to the Gilmore line from South Street to the rear corner of the new building, and there disappearing by steps down into the area-way, it being at that point higher than the area-way. This three-story brick building fronting on South Street was rented by Hunt to Isaac N. Hagan, by written lease under date of Feb. 25, 1903, for a period of ten years, beginning April 1, 1903, together with the privilege of using the alley between it and the Gilmore property, although Hagan had occupied the new building from the time of its completion in the fall of 1902, using the first floor and basement for the storage and sale of green vegetables and provisions, and subletting the second and third floors for residence flats. The building was numbered and thereafter known as Hagan’s Market, No. 9 South Street. In a renewal lease of the property by Hunt to Hagan for a term of three years, executed by the parties in March, 1914, the property was designated as “All that three-story brick building fronting on South Street, and adjoining building of Charles H. Gorley on the east and lot of John Gilmore’s heirs on the west, and running back to the north line of said building, where it adjoins the remainder of said lot belonging to and now in occupancy of the said William Hunt, lessor, and being No. 9 on said South Street.”

6. The area-way mentioned was paved with cement. The first floor level of the three-story brick building fronting on South Street is nearly 3 feet higher than the first floor level of the jewelry store building fronting on West Main Street, the rear of the jewelry store building being but one story high, although the front of the building is two stories in height. When the last improvement and extension of the jewelry store was made, a steel beam was put across the rear of the building at the ceiling of the first story, and when the three-story brick building was erected, a steel beam was put across the rear of that building at the ceiling of the first story. The stories of the two buildings differ in height, and these steel beams are approximately on a level with each other. The basements are excavated under both buildings and under the area-way between them. The rear wall of the three-story brick building, next to the area-way, is a solid wall from the bottom of the basement up to the top of the three-story building, and extends entirely across the lot from the Gorley line to the line of the private alley next to the Gilmore property. There is no door or opening of any kind through the wall as a passageway from one basement to the other, or from one building to the other above the basements, although there are windows in the wall at the different stories for light and air, and the sewer-line runs from the basement under the jewelry store through under the three-story brick building to South Street, both buildings being drained into the same sewer, and the water and gas-lines run through from one basement to the other, the gas meters, one for the jewelry store and the other for the Hagan market, being in the Hagan basement, and the water meter for both buildings being under the jewelry store, all of which were so placed at the time of or prior to the erection of the three-story building. The basement under the area-way is connected with the basement under the jewelry store. There is a door from the first floor of the jewelry store out into the area-way, and there is a covered stairway next to the rear wall of the jewelry store building, leading from the area-way down into the basement.

7. From the time of the completion of the three-story brick building in the fall of 1902, when Isaac N. Hagan took possession of it as a tenant, Hunt never occupied it or used it for any purpose, and never exercised any act of control over it except to receive the rent from Hagan.

8. From 1900, which was before the three-story building was erected, down to the time of Hunt’s death, the entire property was carried on the assessment rolls in the office of the county commissioners as one property.

9. In addition to the property mentioned, Hunt, at the time of his death, owned his residence property on Church Street and a lot adjoining it, and two properties on Highland Avenue.

10. In his will the testator provided as follows: “Second. I give, devise and bequeath to my son, Isaac Hunt, all of the real estate which I own at No. 7 West Main Street, in the Borough of Uniontown, Fayette County, Pennsylvania, adjoining lot of Charles Gorley on the east, and lot of the heirs of John Gilmore, deceased, on the west. Third. I bequeath my entire stock of goods on hand in my jewelry store at the time of my death, together with all furnishings and fixtures therein, as well as all tools, appliances and supplies for carrying on the jewelry business, to my three sons, Isaac Hunt, Robert W. Hunt and Benjamin L. Hunt, in the following proportions, viz.: To Isaac Hunt, sixty per cent, thereof; to Robert W. Hunt, twenty per cent, thereof; to Benjamin L. Hunt, twenty per cent, thereof.”

11. After disposing of his residence property, and everything contained therein at the time of his death, in a manner in no way affecting this case, the testator, in the sixth paragraph of his will, said: “All the rest and residue of my property not hereinbefore specifically disposed of, of every kind and description, real, personal or mixed, wheresoever situate, I direct shall be equally divided among my eleven children, or their legal heirs,” naming them.

12. One of the children, Robert W. Hunt, died Oct. 12, 1917, unmarried, leaving a will dated Jan. 7, 1910, duly probated after his death, wherein he devised and bequeathed all of his estate, real and personal, to his brother, Isaac Hunt.

13. The present action was instituted on June 30, 1919, against Isaac Hunt, by the other nine children of the testator living at that time, to recover possession of the undivided nine-elevenths of the three-story brick building fronting on South Street, and the land on which it stands, known as No. 9 South Street, it being alleged by the plaintiffs that said property constituted a part of the testator’s residuary estate. It was conceded by the plaintiffs that title to the undivided .two-elevenths of the property was in Isaac Hunt, who then was in actual possession of the entire property, claiming title to the whole thereof under the second paragraph of his father’s will.

14. On June 16,1921, Isaac Hunt, the original defendant, died, after having made his last will and testament under date of Feb. 8, 1919, duly probated since his death, wherein he provided as follows: “Third. I give, devise and bequeath unto my wife, Emma Hunt, all my real estate for and during her natural life, and at her death I give, devise and bequeath the same unto my niece, Charlotte Marsteller, provided that if my said niece, Charlotte Mars-teller, should die before reaching the age of twenty-one (21) years, then I give, devise and bequeath the said real estate as follows, unto my sister, Charlotte Marsteller, one-third (I) thereof, and the remaining two-thirds (I) thereof to be divided equally amongst my other brothers and sisters, share and share alike, the children of a deceásed brother or sister to take their parent’s share. Fourth. For the purposes named in this will, I appoint William W. Marsteller guardian of my niece, Charlotte Marsteller, in case my wife, Emma Hunt, shall die before my niece, said Charlotte Marsteller, arrives at the age of twenty-one (21) years.”

15. Thereafter Emma Hunt, the widow of Isaac Hunt, and his niece, Charlotte Marsteller, whose guardian is William W. Marsteller, by agreement of counsel were substituted as defendants in the action.

The only question in the case is as to the proper construction of that clause of the will of William Hunt which provides: “I give, devise and bequeath to my son, Isaac Hunt, all of the real estate which I own at No. 7 West Main Street, in the Borough of Uniontown, Fayette County, Pennsylvania, adjoining lot of Charles Gorley on the east, and lot of the heirs of John Gilmore, deceased, on the west.” Isaac Hunt in his lifetime claimed to have taken title thereunder to the whole of the property running through from West Main Street to South Street, the plaintiffs contending that he took thereunder only the jewelry store property, leaving the remainder of the property fronting on South Street as a part of the testator’s residuary estate.

It seems to us that the case is ruled by Myers v. Myers, 16 Pa. Superior Ct. 511. The testator there acquired title to an unimproved lot, extending through from North Queen Street to Market Street, in the City of Lancaster. He built a two-story dwelling-house fronting on North Queen Street, and upon the Market Street end of the lot he erected a two-story brick building to be used as a carpenter-shop. Upon the completion of the buildings, he occupied the dwelling as his residence and used the carpenter-shop as his place of business. The dwelling-house was numbered and known as No. 612 North Queen Street. After having used the building fronting on Market Street as a carpenter-shop for about eighteen months, the deceased remodeled that building, put in partitions and changed it into a dwelling-house, which was numbered and thereafter known as No. 611 North Market Street, and was rented to and occupied by tenants. Shortly after the North Market Street building was remodeled, the decedent caused' a substantial board fence to be constructed across the lot and the lot used in connection with the building fronting on North Queen Street, testator’s residence, thus was separated from that used in connection with the tenement-house, No. 611 North Market Street. There was no gate or opening through from one lot to the other. The two houses, with the lots respectively appurtenant, continued to be used in this manner until the owner died. The will of the testator was in these words: “I today will and bequeath unto my wife, Alvildia Myers, the property located on North Queen Street, in the City of Lancaster, Lancaster Co., Pa., numbered 612 North Queen Street, and also all the personal property contained therein, and the rest of my real and personal estate to be disposed of as the law directs.”

It was held by the lower court, in an action of ejectment against Alvildia Myers for possession of the property at No. 611 North Market Street, that only the property at No. 612 North Queen Street passed to her under the will, which decision, on appeal to the Superior Court, was affirmed. Judge Porter, of the Superior Court, in disposing of the case, after stating that there could be no question that oral evidence was admissible to identify the subject-matter of the devise, and that for that purpose it was competent to show what land had been included in the curtilage of the house at No. 612 North Queen Street, and what monuments had been established upon the ground by the decedent in his lifetime, said: “The intention of the testator is to be determined from the words written in the will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing condition of that property, the result must be accepted. It is not competent to show by declarations of the testator, made at the execution of his will or subsequently, that he intended a devise to include something that is excluded by the terms of the will as executed. When the subject-matter of this devise came to be ascertained, there was, under the existing conditions of the testator’s property and the boundaries marked upon the ground, no doubt or uncertainty calling for explanatory proof. The offer of the defendant to prove what the testator said at the execution of the will was properly excluded.”

If it be urged that the words “and also all the personal property contained therein,” used in connection with the devise, helped to identify the property in the Myers case, it may be noted in the present ease that immediately following the devise of his real estate “at No. 7 West Main Street,” which was the jewelry store property, came the bequest of the testator of his entire stock of goods on hand in his jewelry store at the time of his death, together with all furnishings and fixtures therein, as well as all tools, appliances and supplies for carrying on the jewelry business.

Substituting a solid brick wall, extending all the way across the lot and from the bottom of the basement to the top of the three-story building fronting on South Street, in this case, for the “substantial board fence” in the Myers case, the two cases cannot be distinguished in principle. It is true that in the present case the same sewer and the same water and gas-lines serve both buildings, but they were put there seven years before the testator made his will; and those facts, together with the fact that the entire lot and all the buildings thereon had been carried along as one property on the assessment rolls in the office of the county commissioners from as early as 1900, are not sufficient to overcome the other and more important facts in the case. The testator owned the entire property, and the mere fact that he permitted it to be assessed as one property, and that he permitted the same sewer and the same water and gas-lines to serve both buildings, did not change the character of the uses to which for his own purposes he had devoted it.

The two buildings were as separate, physically, as though they had been situate in different blocks of the city. They were separate and distinct in the uses to which they were put. Jewelry was sold on the main floor of one of them, and green vegetables and provisions were handled on the principal floor of the other. There was nothing to associate them together even in common thought, one of them being known as Hunt’s jewelry store, No. 7 West Main Street, and the other as Hagan’s Market, No. 9 South Street. The testator, for the fourteen years after the three-story brick building fronting on South Street was erected until the time of his death, exercised no act of control over the building except to receive the rent from the tenant. There was no way of reaching that building except from South Street. The area-way between the two buildings was connected with the jewelry store, but not with the South Street building. The first floor level of the South Street building was nearly 3 feet higher than the first floor level of the jewelry store. The rear of the West Main Street store was but one story in height, while the rear of the South Street property ran up three stories. To a person standing in the area-way between the two buildings, the South Street property presented a blank wall all the way to the top, except for windows for light and air. Into the West Main Street property from the area-way there was a door at floor level, and from the area-way leading down into the basement of that building there was an outside covered stairway.

As was said in Myers v. Myers, 16 Pa. Superior Ct. 511: “The intention of a testator is to be determined from the words written in his will. If his wishes with regard to the disposition of his property, as thus expressed, can be applied to the existing condition of that property, the result must be accepted.” The words of the will here are, “the real estate which I own at No. 7 West Main Street.” The words of the will there were, “the property located on North Queen Street numbered 612 North Queen Street.” The words of the will can be applied to the existing conditions of the property here as easily as they could be applied to the existing conditions of the property there. The testator was the absolute owner of the property, and he had a right to improve it and divide it as he pleased. He built the two separate buildings on the lot, one fronting on West Main Street and the other fronting on South Street, and devoted them to entirely different uses, which continued for years until the time of his death. He had a right to divide the property in his will, and by the terms of his will he clearly did so. “The question in expounding a ■will is not what the testator meant, but what is the meaning of his words:” Hancock’s Appeal, 112 Pa. 532; Glenn v. Stewart, 265 Pa. 208; O’Neill’s Estate, 266 Pa. 9; Ludwick’s Estate, 269 Pa. 365.

NOTE. — No exceptions were filed and the nisi decree was made absolute.

Our conclusions of law are:

1. That the testimony in the case as to statements made by the testator, William Hunt, in his lifetime, as indicative of his intentions regarding the property, was incompetent and irrelevant.

2. That the devise of the testator, William Hunt, to his son, Isaac Hunt, of “all of the real estate which I own at No. 7 West Main Street, in the Borough of Uniontown, Fayette County, Pennsylvania, adjoining lot of Charles Gorley on the east and lot of the heirs of John Gilmore, deceased, on the west,” carried with it only the land and the building erected thereon, extending from West Main Street back to the rear wall of the three-story brick building fronting on South Street, known as No. 9 South Street, and did not include the latter building or the land on which it stands.

3. That the three-story brick building fronting on South Street, known as No. 9 South Street, and the land on which it stands, constituted a part of the residuary estate of the testator, William Hunt.

4. That the plaintiffs are entitled to judgment in their favor for possession of the undivided nine-elevenths of the premises described in the writ.

And now, Aug. 16,1921, for the reasons stated in the opinion herewith filed, it is ordered and decreed, nisi, that judgment be entered in favor of the plaintiffs and against the defendants for possession of the undivided nine-elevenths of the .premises described in the writ.

Prom Luke H. Frasher, Uniontown, Pa.


source: Caselaw Access Project

author: Prather, P. J.,

license: Public Domain

text:
    Clark & Son v. Ley.

      Contract — Acceptance—Letters—Proviso as to acceptance — Construction —Ambiguity—Parol evidence — Evidence—Inspection of goods — Satisfaction of seller.

    1. When a written contract is not ambiguous in its terms, parol evidence of the interpretation put upon it by the parties themselves is irrelevant.
    2. Where an offer to buy lumber is made by letter, and the offeree accepts, "providing inspection is fair and satisfactory,” the proviso constitutes a new offer, which must be accepted by the original offerer before a complete contract becomes effective. The meaning of such a proviso is that the inspection is to be satisfactory to the party to be protected, i. e., in the case at bar, the seller.
    Rule for new trial and rule for judgment n. o. v. C. P. Crawford Co., Sept. T., 1920, No. 48.

      McClintock & McClintock, for plaintiffs.

      Frank J. Thomas and John A. Northam, for defendant.
    July 18, 1921.
   Prather, P. J.,

This action was brought to recover damages for the breach of an alleged contract concerning the purchase and sale of a quantity of lumber.

The contract relied upon and pleaded is confined to a written order or letter of plaintiff, addressed to defendant, containing an offer, and defendant's answer thereto, which are set forth as follows:

“Shipping Order
No. 291 Haniel Clark & Son,
Manufacturers-Wholesalers, Hardwood Lumber.
To John Ley, of Titusville, Pa.
Please ship to Haniel Clark & Son,
Destination to be furnished later,
Description.
All the 4/4 No. 1 Common and Better Chestnut piled or stocked at the siding at Fieldmore Springs station on the New York Central R. R. This stock is to include the few pieces of No. 2 Common or S. W. which might be included in the piles with the distinct understanding that there shall not be to exceed 5 per cent, of the total number of feet of the lower grade of No. 1 Common. It is estimated that there will be three carloads of this stock.
Prices No. 1 & No. 2 Common $32.00 per M’
FAS 42.00 ” ”
In case we decide to load the Common & F A S in separate cars we are to pay you 50c per M’ for F A S so loaded in addition to the prices given above.
Terms: 2 per cent, off 10 days from arrival.
We think we will be able to load this stock at your convenience within the next 2 or 3 weeks. Haniel Clark & Son
By-
Haniel Clark & Son, “Titusville, Pa., April 27, 1918.
Union City, Pa.
Dear Sirs: Your order for chestnut at Fieldmore Springs, Pa., received, and will load same for you providing inspection is fair and satisfactory.
Regarding the oak that you saw will let you have it at $26.00, $36.00 and $56.00 as talked if you want it within the next ten days. Chestnut and oak prices are F. O. B. cars Fieldmore Springs and Titusville, Pa.
Signed, J. D. Ley.”

Following the exchange of letters as set forth there was no other communication, oral or written, between the parties until the first week of July, 1918, when plaintiff called defendant on the 'phone and was informed by him that the lumber had been sold to another party.

Plaintiff, having thus discovered that it was now out of the power of defendant to furnish the particular lumber mentioned, opened up a correspondence with him, urging its right to have this lumber or its equivalent.

To these letters defendant replied, expressing his regret at his inability to comply with plaintiff’s request, and expressed his willingness or desire to go into the market and procure similar lumber to the satisfaction of plaintiff.

While this testimony was admitted, we do not regard it as relevant to the issue. At most, defendant’s declared willingness to do something he thought he was required to do, or ought to do, could impose no obligation upon him other than that required by the alleged contract: McClure v. Times Publishing Co., 169 Pa. 213.

It is only when a written contract is ambiguous that the interpretation placed upon it by the parties themselves becomes a relevant inquiry in its construction.

Where a contract is partly in writing and partly in parol, the rule of interpretation is stated in Schwab v. Ginkinger, 181 Pa. 8, as follows: “It is evident, therefore, that the whole of the actual contract between the parties, being partly in parol and partly in writing, must all be considered in order to determine what the contract really was. The principle that a contract which is partly in writing and partly in parol becomes all parol is too familiar to require the citation of authorities. But in this case the application of the written paper to the subject of contention requires the help of the parol testimony. . . . With this testimony before the jury the question would be, what was the contract between the parties?”

In the case before us, however, there is no parol contract to consider. Either plaintiff’s written offer under date of April 25, 1918, and defendant’s written answer dated April 27, 1918, constitute the contract or there is none. Does defendant’s letter in answer to plaintiff’s offer modify or qualify the offer? If so, it was not an acceptance.

If defendant’s answer, or acceptance, was conditioned upon some modification in the offer or specific addition thereto, then plaintiff was called upon to act or speak indicative of his assent to defendant’s counter-proposal. Plaintiff’s reply or conduct would be evidence of his mind. Plaintiff might by his conduct have brought himself within the principle recognized in Dougherty v. Briggs, 231 Pa. 68, 80, and have insisted that it was evidence of his acceptance of defendant’s terms.

But did plaintiff do anything to bring itself within this doctrine? It did nothing by conduct or answer between April 27th and July 3rd to inform defendant it was accepting his terms or relying upon taking the lumber mentioned.

If defendant still had the lumber on July 3rd and afterward, while the correspondence was being carried on, there would be some color to plaintiff’s position with reference to the evidential value of such correspondence, but under the undisputed facts we think these letters were incompetent for any purpose.

If we are correct in this conclusion, then the writings pleaded furnish the entire evidence of the alleged contract and must be interpreted in their own light.

In Dougherty v. Briggs, 231 Pa. 68, 75, the Supreme Court said: “When it is sought to establish a contract by letters which pass between the parties, containing proposals, answers and counter-proposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party. In other words, the minds of the parties must come together on all the essential terms of the alleged contract. This is the established doctrine, and is recognized in our cases: Slaymaker v. Irwin, 4 Whart. 369; Allen v. Kirwan, 159 Pa. 612. In the former case Mr. Justice Sergeant, delivering the opinion, quotes with approval the rule announced by Mr. Chitty in his General Practice as follows (page 380) : ‘The whole terms of the contract when in writing need not be expressed on the same paper or documents, but may be collected from several letters containing proposals and alternate agreements between the parties; but then the last communication must be a distinct and unqualified assent to an equally clear proposal; and if the last letter suggest any new or further proposition requiring the assent of the other party, or some communication from him to complete the transaction, then no contract or agreement is constituted:’ 1 Chitty, Gen. Pr., 118.”

In Joseph v. Richardson, 2 Pa. Superior Ct. 208, 212, the Superior Court, speaking through Rice, P. J., said: “To constitute a contract, the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that other person accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat or it is in effect a counter-proposal. This is elementary law.”

In Clements v. Bolster, 6 Pa. Superior Ct. 411, speaking through Smith, J., the Superior Court said: “According to all the authorities, a contract is not created by proposals and counter-proposals; it arises only from the acceptance of a proposal. And this acceptance must be in exact conformity with the proposal; the minds of the parties must meet on every point presented in the offer. An acceptance qualified in any manner, or accompanied by any reservation or new proposal, is not that union of minds in which the law recognizes a contract. An offer is not converted into a contract by a response proposing a deviation from its terms; it becomes a contract only when accepted in precise accordance with its terms.”

In Swing v. Walker, 27 Pa. Superior Ct. 366, 372, Henderson, J., speaking for the Superior Court, said: “To bind the parties, an acceptance must be in exact conformity with the proposal. A qualified acceptance does not constitute a contract.” See Ehrenstrom v. Hess, 262 Pa. 104.

We are, then, to inquire whether the proviso in defendant’s answer was a qualified acceptance or injected any modification into plaintiff’s offer.

The very purpose of introducing a proviso into any statement or proposition is to modify or qualify its ordinary and usual import. In legislation its purpose is to save some privilege or exemption to some person or institution affected thereby. In contracts it secures to the party interested some right or privilege that he otherwise would be deprived of.

The mere introduction of a provisionary clause into a contract by a party thereto is significantly expressive of his dissent from the contract as written, and that he assents to it only upon condition that, provided that the other contracting party concedes to him the specific guaranty not mentioned or sufficiently provided in the contract as originally written or proposed.

It may be argued that the law presumes the inspection will be fair, but even so, it does not presume that it will be satisfactory.

Satisfactory to whom? Satisfactory to the person it was intended to protect. It might not have suited plaintiff company to bind itself to make an inspection satisfactory to defendant. It was called upon to make a counter-proposal, either rejecting or accepting the condition imposed. Plaintiff’s silence left the transaction unfinished. It is a well known fact that the inspection of lumber is not reduced to an exact science. Consequently, inspectors, in their classification or grading of lumber, may be liberal to their immediate employer, the buyer, and, therefore, severe to the seller.

Under the clause providing for a satisfactory inspection, defendant was the one to be satisfied, and if he should object to an inspection when had, on the ground that it was not satisfactory, and do so in good faith, whether the inspection was or was not fair, his objection would prevail: Singerly v. Thayer, 108 Pa. 291; Thaler Bros. v. Greisser Construction Co., 229 Pa. 512; Stuart & Peterson Co. v. Newton, 52 Pa. Superior Ct. 158, 163.

Defendant did not accept plaintiff’s offer.

It follows that plaintiff company was called upon to accept the condition defendant injected into its offer before there could be a meeting of the minds of the contracting parties. This could not be a tacit, subjective acceptance; it must have been given expression in conduct or words. There is no evidence of such acceptance. Consequently, the construction of the contract was solely a matter of law for the court.

The same conclusion would have been reached upon demurrer by affidavit in the way of a defence, but the question is still an open one.

It follows that defendant’s request for binding instructions should have been affirmed.

Now, July 18, 1921, rule for judgment n. o. v. absolute, and upon the question reserved judgment is directed to be entered for defendant upon payment of the required jury fee.

Prom Otto Kohler, Meadville, Pa.


author: Altee, Att’y-Gen.,

text:
    Vacancy in Office of Magistrate.

      Public officers — Magistrates — Vacancy in office — Conviction of crime— Involuntary manslaughter not an infamous crime.

    Conviction of a magistrate of involuntary manslaughter and of driving his motor-car while intoxicated does not create a vacancy in his office under art. vi, § 4, of the Constitution, since the conviction is not of an infamous crime.
    Attorney-General’s Department. Opinion to Hon. William C. Sproul, Governor of Pennsylvania.
    March 8, 1921.
   Altee, Att’y-Gen.,

I have your request for an opinion whether a vacancy exists in the office of magistrate in Philadelphia, owing to the incumbent being convicted of involuntary manslaughter and also of driving a motor-car while intoxicated.

Article vi, § 4, of the Constitution, provides as follows: “All officers shall hold their offices on the condition that they behave themselves well while in offiee, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. All officers elected by the people, except Governor, Lieutenant-Governor, members of the general assembly and judges of the courts of record learned in the law, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.”

It is not necessary to decide whether the first sentence of this section contemplates an automatic removal or a removal in the manner provided in the last sentence, unless the present conviction is for misbehavior in office or of an infamous crime.

Of course, it is apparent that the conviction is not of misbehavior in office, as it related to no official act. It seems, also, that the conviction does not involve what the law classes as an “infamous crime.”

The Supreme Court has said that “involuntary manslaughter is where it plainly appears that neither death nor great bodily harm was intended, but death is accidentally caused by some unlawful act, not amounting to felony; or by an act not strictly unlawful in itself, but done in an unlawful manner and without due caution:” Com. v. Gable, 7 S. & R. 423, 428.

In Schuylkill County v. Copley, 67 Pa. 386, 390, Mr. Justice Agnew said: “Infamous crimes are treason, felony and any species of the crimen falsi.”

This-rule is also announced in other cases. A different rule seems to prevail in the United States courts, but with that we are not concerned. The rule in Pennsylvania appears to be clear. As involuntary manslaughter is a misdemeanor, not a felony nor any species of the crimen falsi in which are classed such offences as forgery and perjury, it does not come within the definition of an “infamous crime.”

Consequently, the case would seem to fall within the last provision of the section, authorizing the Governor to remove upon reasonable cause, after hearing, upon the address of two-thirds of the Senate.

You are advised, therefore, that nothing is required upon your part in this case at this time. Prom Guy H. Davies, Harrisburg, Pa.


author: Fox, J.,

text:
    Commonwealth v. Patler.

      Grand jury — Imposition of costs — Relief from payment of costs — Power of court.

    1. Before the court can set aside the imposition of costs by the grand jury, if at all, it must be supplied with the evidence submitted to the grand jury.
    2. The presumption is that the grand jury, which had full information, was justified in its action relative to costs.
    Rule to show cause why prosecutor should not be relieved from payment of costs imposed by grand jury. Q. S. Dauphin Co., June Sess., 1921, No. 59.

      James G. Hatz, for rule; Philip S. Moyer, District Attorney, contra.
    Jan. 25, 1922.
   Fox, J.,

Upon petition, a rule was granted “upon the County of Dauphin to show cause why the said petitioner, the prosecutor in the above stated case, should not be relieved from the payment of the costs as above set forth” (to wit, in the petition), to which an answer was filed by the district attorney.

We think there is no merit in the petition. The indictment charged the defendant with larceny of a key; the grand jury heard the witnesses, four in number, ignored the bill and placed the costs upon the prosecutor, Howard R. Kleinfelter. This is a power reposed in the grand jury under the Act of May 25, 1897, P. L. 89.

The power of setting aside the decision of the grand jury should not be exercised by the court without full knowledge of all of the evidence submitted to the grand jury. We are unable, without this knowledge, to pass upon the merit of the conclusion and finding of the grand jury. It heard all of the witnesses — four in number. We do not know what testimony these witnesses gave to the grand jury. It is to be presumed that the evidence submitted to and heard by it was fully and carefully considered, and that it acted correctly. We have nothing before us except the petition of the prosecutor, which sets forth alleged facts, but does not state what evidence was submitted to the grand jury, and before the court can correct an error made by the grand jury, if at all, it must be supplied with the evidence submitted to the grand jury.

If we were to make this rule absolute, it would amount to a declaration that the court, which has not heard the evidence, is better able to determine what disposition should be made of the costs than the grand jury, which did hear the evidence. The presumption is that the grand jury, which had the full information, was justified in its action.

For these reasons, we think it would be unfair and improper for the court to interfere with the finding and return of the grand jury, and we discharge the rule, at the cost of the petitioner.

From George R. Barnett, Harrisburg, Pa.


author: GuMmey, J.,

text:
    Krischker’s Estate.

      Decedents’ estates — Claim of State hospital for maintenance of decedent’s daughter — Act of June 1,1915.

    The direction of section 4 of the Act of June 1, 1915, P. L. 661, imposing liability upon certain relatives for the maintenance of inmates in State institutions, that the order made by the court shall be in such amount as the court in its discretion shall deem proper, taking into consideration the ability of the relative to pay for the inmate’s maintenance, applies where the application is made to the Court of Common Pleas; but not where it is made to the Orphans’ Court upon the audit of the account of the executor or administrator of a deceased relative.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 164.
    The facts appear from the following extract from the adjudication of the auditing judge, Lamorelle, P. J.:
    “The Commonwealth of Pennsylvania presents a claim in the sum of $962.78, evidenced by the affidavit of the steward of the State Hospital for the Insane. This claim against the decedent is for the support and maintenance of Louise Krischker [decedent’s daughter] from July 4, 1914, to April 2, 1921.
    “Mr. Archbald, on behalf of the estate, while admitting the amount claimed, contends that, under the statute, the decedent was liable for such amount only as the auditing judge and this court feels should justly be paid. At the time of the audit, the auditing judge ruled that both he and this court were without jurisdiction to decrease the amount so claimed, meaning thereby that no power was so conferred. Upon an examination of the act relied upon by Mr. Archbald, to wit, that of June 1, 1916, P. L. 661, the auditing judge sees no reason to change the ruling then made.
    “Section 3 provides, among other things, that the father of any person who is an inmate of any institution maintained in whole or in part by the Commonwealth, and who is legally able so to do, shall be liable to pay for the maintenance of any such person as thereinafter in such act provided. And section 4 vests exclusive jurisdiction in the Court of Common Pleas of the county of the residence of any inmate so mentioned as aforesaid to make an order against the father in such amount as the court, in its discretion, deems proper, taking into consideration his ability to pay. Section 5 provides that the sworn statement of the superintendent shall be received as prima facie evidence; and section 8, that the act is intended to apply to the collection of claims due the Commonwealth at the time of its passage, as well as those to become due thereafter.
    “Mr. Archbald offered considerable testimony showing the resources of the decedent’s surviving spouse, all of which the auditing judge ignores, in that he considers such testimony as irrelevant.
    “Suffice it to say that the decedent left an estate amounting to $9364.56, and that, after payment of debts, costs of administration, etc., there is a balance principal of some $6500.
    “It may be remarked, in passing, that testator directed the payment of his just debts, and that the auditing judge is not prepared to say that amounts varying from $2 to $5 a week for the support and maintenance of a child who is non compos is not a just debt.
    “Mr. Archbald, at the conclusion of the trial, stated to the court that he is informed that, shortly before Otto Krischker died, a demand was made by the Commonwealth for the payment- of this claim, and that Krischker pleaded poverty. It is possible, therefore, that some adjustment may be made, but, as the auditing judge understands the law, the Orphans’ Court is without jurisdiction to make any adjustment other than an allowance or a rejection of the claim, and there is no evidence in this case which justifies a rejection.
    “That the Orphans’ Court is authorized to allow claims of this nature against a father after his death is shown by the Estate of Frederick Schmidt, January Term, 1918, No. 391. See, also, Roberts’s Estate, 21 Montg. Co. Law Repr. 19; Ward’s Estate, 22 Dist. R. 564.”

      R. W. Archbald, Jr., for exceptions; William A. Wiedersheim, 2nd, contra.
    April 21, 1922.
   GuMmey, J.,

These exceptions relate to the action of the auditing judge in allowing the claim of the Commonwealth in the sum of $962.78 for the support and maintenance of the decedent’s daughter, who was an inmate of the State Hospital for the Insane. We agree with the conclusions of the auditing judge, for the reasons which he gives, and accordingly the exceptions are dismissed.


author: LamoRELLE, P. J.,

text:
    Tyson’s Estate.

      Executors and administrators — Duty to convert assets — Surcharge.
    An administrator who retains the assets of the estate in kind on a falling market and sells them at private sale will he surcharged with the difference between the price obtained and the appraised value.
    Exceptions to adjudication. 0. C. Phila. Co., Oct. T., 1921, No. 521.

      Howard B. Wilson and Thomas F. Gain, for exceptant.
    April 21, 1922.
   LamoRELLE, P. J.,

The exceptions are filed by accountant and involve the propriety of a surcharge for depreciation in value of jewelry to the extent of $1489.

There are but two distributees, a brother, Edward T. Tyson, Jr., and a sister, Ella T. Dewees. The estate is that of their mother, Emma G. Tyson. She died in February, 1920. The brother is also the administrator. Outside of cash on deposit, a note of $500 owing by the son, household goods $60, clothing $5, the estate consisted of certain articles of jewelry, aggregating in value $3414. This jewelry comprised earrings worth $1800, a brooch worth $1300, bar-pin worth $270, and some minor pieces valued at $44. In using the word worth, we accept the valuation placed thereon by an importer and cutter of precious and semi-precious stones, who made an appraisement at the request of the administrator in February, 1920. A dispute arose between brother and sister as to the proper division of these articles; each wanted the earrings at the appraised value; neither would give in; the brother insisted that he would retain them himself, and a deadlock ensued. This conference took place in June, 1920. This would have been a matter of no moment were it not that the brother was administrator of the estate. Because of this fact, he owed a duty to his sister, the distributee. When unable to agree as to price, and thus blocking an amicable distribution, he should have had a public sale, with proper advertisement and due and ample notice to the sister. One of the duties of an administrator is to convert the estate forthwith, especially where a distribution in kind cannot be effected. Instead, he waited for another year and then sold the jewelry to the one who made appraisement thereof at the loss above noted. This was improper.

The account should have been filed at the expiration of six months, and, from an examination of the credit items, all payments had been made within such time with the exception of a small item of $12.60. Had the administrator ignored the fact that he was as well a distributee, and had an eye single to the purposes of his appointment, in all probability no loss would have ensued; had he sold at public sale when he saw that no distribution could be made, he would have been exonerated from liability in event of loss caused by depreciation. As a fiduciary, he was entitled to the advice and services of counsel at the expense of the estate. He employed an attorney and the fee asked for has been allowed. We find no excuse for his method of settling the estate, especially as the testimony shows that he was cognizant of his sister’s attitude from and after June, 1920. Not only did he not sell the jewelry at public sale, but he neglected to file an account until Dec. 21, 1921, fifteen months after the time fixed by law, and then only under stress of citation.

We are of opinion that the facts found by the auditing judge, which we have summarized as above, are warranted by the testimony, that his rulings and conclusions are correct, and that he was justified in surcharging for the loss incurred by the sale of the jewelry.

All exceptions are accordingly dismissed and the adjudication is confirmed absolutely.


author: Henderson, J.,

text:
    Massey’s Estate.

      Wills — Construction—Accrued shares — Perpetually revolving trust.

    Testator created trusts for the respective lives of his two daughters, M. and H., with remainder, upon the death of a daughter without issue, to testator’s other children, “the share coming to any daughter to he held by my Executors upon the trusts above mentioned.” Testator had three children, the daughters above mentioned, and a son. Both daughters died without issue: Held, upon the death of the surviving daughter H., that her original share, and as well the share which had accrued to her upon the death of the daughter M., passed one-half to the son absolutely, and one-half to the daughter M.’s trust, not for any distribution to her, but for distribution to those named in remainder; and likewise, when distribution was there made, one-half must be returned to H.’s trust for the purpose of again complying with the terms of the will, and so on ad 'infinitum, a perpetually revolving trust, which gave the son one-half of what remainded each time the terms of the trusts were complied with, and as a mathematical proposition the whole.
    Adjudication of second account of Philadelphia Trust Company, substituted trustee for Helen F. Massey. O. C. Phila. Co., Jan. T., 1892, No. 578.

      Eli Kirk Price, for accountant and for Philadelphia Trust Company, executor of the will of Helen F. Massey, deceased.

      Thomas Stokes (of Henry, Pepper, Bodine & Stokes), for Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, residuary legatee under the will of Helen F. Massey, deceased.

      John Blakeley, for Harriet M. F. Massey, widow of Walter S. Massey.

      Charles S. Schofield, for Commonwealth of Pennsylvania, claiming inheritance tax.
    July 11, 1921.
   Henderson, J.,

William Massey died Feb. 16, 1891, leaving a will, by the seventh clause of which he provided as follows:

“Subject to the above life estate of Income to my wife Fanny M. Massey, I do give, devise and bequeath one-third of all the residue and remainder of my estate, real and personal, unto my son Walter S. Massey, his heirs and assigns. The remaining two-thirds of my estate (subject to the said life estate of Income to my said wife) I give, devise and bequeath unto my Executors hereinafter mentioned and their heirs in Trust to pay the net income thereof equally to my two daughters Margaret R. Massey and Helen F. Massey for their sole and separate use respectively for their respective lives, so that the same shall not be liable for their debts and contracts or for the debts or contracts of any husband that they may take, and from and after their respective decease upon the further trust to assign their respective shares of said residuary estate to and among their respective child or children or their issue for such share, interest or estate as my said respective daughters, whether married or single, may respectively by will or writing in the nature thereof direct, limit or appoint to and among their children, and in default of such appointment upon the further trust to assign and convey the shares of my said daughters respectively to their respective child or children equally. But if my said daughters shall die without leaving any child or children living at the time of their respective decease, or if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my Executors upon the trusts above mentioned. I do direct that my daughter Helen F. Massey and my son Walter S. Massey shall have the special care and personal charge of their sister Margaret R. Massey, and I direct my Executors to pay to them the Income of her share of my estate and their or either of their receipts therefor shall be a sufficient discharge for such payments from her trust estate.”

The testator left to survive him a widow, Fanny M. Massey, and three children, Walter S. Massey, Margaret K. Massey and Helen F. Massey.

The widow elected to take against the will and died Dec. 20, 1903. Walter S. died May 29, 1909, leaving a widow, Harriet M. F. Massey, but no issue surviving him. By his will he gave his entire estate to his sister, Helen F. He married after the execution of his will and his widow claimed her statutory interest.

Margaret R. died July 13, 1910, intestate, unmarried and without issue, leaving Helen F., her sister, as her only next of kin.

Upon the adjudication of the trustee’s account after the death of Margaret, one-half of the fund held in trust for her was awarded to the estate of Walter S., notwithstanding he had predeceased her. This award was confirmed by the court in bane, and affirmed by the Supreme Court, reported in Massey’s Estate, 235 Pa. 289.

Helen F., the last of the children, died Feb. 15, 1921, without issue, and the account of her trust fund is now before me for distribution. The corpus consists of the original fund and one-half of the fund held in trust for Margaret. Who is entitled to this fund in remainder? The will directs, in the event of no issue surviving the daughters, “then the share . . . shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, . . . the share coming to any daughter to be held by my executors upon the trusts above mentioned. . . .”

The first question which arises in interpreting this language is as to whether the accrued share passes as the original?

In 2 Jarman (6th ed.), 2115, I find the rule stated that the mere use of the word “share” does not carry the accruing share. There must be something further in the context before the accrued share may be sent down the same line as the original share. In the language now before me for construction I find that the testator directs that the “share of such so respectively dying shall accrue” which is sufficient to add the accrued share to the original and dispose of it as the original share is disposed of.

NOTE 1 — Exceptions to this adjudication were filed, and subsequently withdrawn.

NOTE 2 — Syllabus by the Court.

To whom, then, is this estate to be awarded? Counsel for the executor of the will of Helen F. Massey argues that there is either an out-and-out gift of the accrued shares to the respective daughters or there is an intestacy.

The title to the accrued shares is certainly not in the daughters respectively, because the will directs that they shall be held subject to the trust. This contention might have succeeded if the gift had simply been “in trust,” without defining it in the way in which it is defined in this will — “upon the trusts above mentioned.”

Likewise, I cannot adopt the theory of intestacy, because there is undoubtedly a gift of half of this fund in remainder to Walter. The fund must pass to Margaret’s estate, not for any distribution to her, as she is dead, but for distribution to those named in remainder; and likewise, when we have there made distribution, one-half must be returned to Helen’s trust for the purpose of again complying with the terms of this will, under which Walter’s estate will again take one-half, and so on ad infinitum. In other words, each time the terms of these trusts are complied with, it results in giving Walter (or rather Walter’s estate) one-half of what remains.

In Atkinson v. Jones, 1 Johnson’s Chancery Reps. 246, we have a trust very similar to the one now being interpreted, and therein Vice-Chancellor Wood said: “Treating it as a mathematical proposition, I find, upon this construction, a full moiety of the residue effectually given by each daughter; and, treating it simply as a practical question, the law would say that, if a moiety is given down to a farthing, it is given altogether.”

I, therefore, conclude that the whole fund now before me for distribution must be awarded to Walter’s estate, and as it has long since been settled, one-half, less collateral tax, will be awarded to Helen’s estate and the remaining half to Harriet M. F. Massey, Walter’s widow.

There was no objection to the account, which shows a balance of principal of $1,034,618.42, from which deduct cost of certified copy of adjudication, $3.50; balance $1,034,614.92, of which composed, as indicated in the account, one-half, less inheritance tax, is awarded to the Philadelphia Trust Company, executor of the will of Helen F. Massey, and one-half to Harriet M. F. Massey. ...

And now, July 11, 1921, the account is confirmed nisi.


author: Hull, Dep. Att’y-Gen.,

text:
    Animal Industry.

      Animals — Killing of cow — Rabies—Liability of Bureau of Animal Industry — Act of July ZZ, ISIS.

    1. Tinder the Act of July 22, 1913, P. L. 928, the Bureau of Animal Industry is not liable for the value of a cow killed while suffering from rabies in quarantine, where the cow was killed for humanitarian reasons, and not to prevent the spread of disease.
    2. Not decided, whether the county commissioners are liable under the provisions of the Act of July 11, 1917, §§ 25, 28, P. L. 818, 825.
    Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.
    Dec. 23, 1921.
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your communication stating the following facts:

On May 24, 1921, five cattle owned by a farmer resident in Allegheny County were bitten by a dog. The dog was killed, and a subsequent examination of its brain in the laboratory of the Bureau of Animal Industry disclosed that the dog had rabies. Upon this discovery the five cattle were placed under quarantine. Twenty-eight days later, one of these developed marked symptoms of rabies, and was killed at the direction of a practicing veterinarian, who had been employed by the owner, and who had been previously instructed by an agent of the Bureau of Animal Industry to kill any of the animals which developed such symptoms, it does not appear that the animal was killed without the consent or direction of the owner. The instruction to kill the animals under such circumstances was not made for the purpose of preventing the spread of the disease, but solely to prevent unnecessary suffering. A cow developing such violent symptoms cannot be cured, and cannot live more than a few days. On Sept. 1, 1921, another cow developed symptoms of rabies and was killed at the direction of an agent of the bureau.

The owner of the cattle made claim upon the County Commissioners of Allegheny County for the payment of damages under the provisions of sections 25-28 of the Act of July 11, 1917, P. L. 818. The county commissioners, acting under advice of counsel, have declined to pay the damages thus claimed on the ground that indemnity should be paid to the owner by the Bureau of Animal Industry of the Department of Agriculture under the provisions of section 21 of the Act of July 22, 1913, P. L. 928. You inquire whether this bureau should pay the indemnity.

The Act of July 22, 1913, P. L. 928, provided that in order to prevent, control and eradicate transmissible diseases, of animals and poultry, the State Livestock Sanitary Board (now the Bureau of Animal Industry) may establish quarantines, and may destroy animals, poultry and personal property. Either or both of these remedies may be applied by the bureau to effect the purposes of the act. When the existence of a transmissible disease is discovered, the establishment of a quarantine may be deemed by the bureau a sufficient precaution against the spread of the disease. Or, on the other hand, such precaution may not be sufficient, and resort to the killing of the animals affected may be necessary or advantageous to carry out the purposes of the act. It thus appears that the fact that an animal is killed after it has been placed in quarantine does not necessarily indicate that such action was necessary in order to prevent the spread of disease.

Section 21 of the act cited provides in part as follows: “Whenever, to prevent the spread of disease, it shall be deemed necessary by any member, officer or agent of the State Livestock Sanitary Board to cause any domestic animal to be killed, the State Veterinarian may cause to be paid to the owner of such animal two-thirds of the fair market value thereof. . . .”

Under these provisions, the obligation to pay the indemnity referred to is imposed only in cases where the destruction of the domestic animal is deemed necessary for the prevention of the spread of disease. The mere fact that the animal at the time of its destruction is under quarantine imposes no liability upon the bureau. Unless it appears that the animal was killed at the direction of the Bureau of Animal Industry for the purpose of preventing the spread of disease, the bureau is not liable for the payment of indemnity under the act. In the case before you I understand that the purpose of killing the animal was not to prevent the spread of disease, but was purely for humanitarian reasons, and was done for these reasons with the acquiescence and consent of the owner. Inevitable death was thus hastened, but the cause of the death was the bite of the dog, not the enforcement of the law. It follows that the Bureau of Animal Industry is not liable for the payment of the indemnity referred to in the Act of 1913.

It is beyond the province of this department to express any opinion as to whether the County Commissioners of Allegheny County may be liable under the provisions of sections 25-28 of the Act of July 11, 1917, P. L. 818. Any opinion from this department upon that subject would not bind the commissioners, nor would it protect them in case they acted in accordance therewith. For this reason, we decline to express any opinion upon that question.

I, therefore, specifically advise you that, under the circumstances set forth in your letter, the Bureau of Animal Industry is not liable for the payment of any indemnity under the Act of July 22, 1913, P. L. 928.

From Guy H. Davies, Harrisburg, Pa.


author: Ray, P. J.,

text:
    Commonwealth v. Tilton.

      Sunday laws — Sale of gasoline — Summary conviction — Appeal—Jurisdiction, C. P. and Q. S. — Acts of April 22,179&, and July 11,1917.

    1. The judgment of a justice of the peace against defendant for selling gasoline on Sunday in violation of the Act of April 22, 1794, 3 Sm. Laws, 177, is a summary conviction, and an appeal from such judgment lies, under the Act of July 11, 1917, P. L. 771, to the Quarter Sessions, and not to the Common Pleas.
    2. When a proceeding is begun by information, warrant and arrest, and is carried to conviction before a justice of the peace, it is a case of summary conviction.
    3. Notice of the presentation of an appeal from a summary conviction should be given to the district attorney if he is not present.
    Appeal from judgment of justice of the peace. 1. Motion to dismiss proceedings or grant a retrial. 2. Motion to quash appeal. C. P. Greene Co., Sept. T., 1920, No. 94.

      O. R. Hughes, for Commonwealth.

      James J. Pwrman arid A. H. Sayers, for defendant.
    Aug. 22, 1921.
   Ray, P. J.,

A complaint under oath was made before a justice of the peace Aug. 16, 1920, charging the defendant with having sold and exposed for sale gasoline on the preceding day, the same being Sunday, to divers persons applying therefor, in violation and contrary to the Act of Assembly of April 22, 1794, 3 Sm. Laws, 177, and-particularly to section 1 of the said act, which reads, in part, as follows: “If any person shall do or perform any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday (works of necessity and charity only excepted), . . . and be convicted thereof, every such person so offending shall, for every such offence, forfeit and pay four dollars,” etc.

On this complaint a warrant was forthwith issued, the defendant arrested and a hearing had Aug. 17, 1920. At the hearing the Commonwealth was represented by the district attorney, and the defendant was present with his counsel. Four witnesses were called and examined on behalf of the Commonwealth, and the defendant called and examined one witness, James Allison, the prosecutor. After the hearing the justice of the peace entered the following judgment: “Therefore, it manifestly appearing to me, upon careful examination of the truth of the charges contained in the said complaint, that Irvin Tilton is guilty of offence charged against him in said complaint, I, the aforesaid and subscribing justice, do judge the said Irvin Tilton to forfeit the sum of four dollars and costs of prosecution, and in default of immediate payment of the same, or of production of goods and chattels whereon to levy the same, or the giving of bail for an appeal in due form of law, then the said Irvin Tilton to be committed to the Greene County jail for the period of six days, there to be fed, kept and in all respects treated as in said act provided.”

The defendant forthwith appealed from the judgment of the justice to the Court of Common Pleas of Greene County, Pennsylvania, entering the required bail for that purpose. Aug. 19, 1920, the defendant presented his petition to the said court and the appeal was allowed, and on Sept. 2, 1920, he moved the court to dismiss and set aside the proceeding had against him before the justice, and in support of the motion filed therewith a number of reasons. June 20, 1921, the Commonwealth, by the district attorney, filed a motion to quash the appeal, together with reasons in support of the same. Among the reasons so filed are: (1) That an appeal from a summary conviction before a justice of the peace (which the district attorney claims this is) does not lie to the Court of Common Pleas; (2) that no notice was given to the private prosecutor, or to the district attorney who appeared before the justice for the prosecution, of the presentation of the petition for the allocatur; (3) that the appeal was improvidently granted, no sufiieient cause having been shown therefor.

We shall consider first the motion to quash and set aside the appeal. Should it be sustained, it will render unnecessary the consideration of the several other questions raised on the record. The Constitution of Pennsylvania, art. v, § 10, provides: “The judges of the Courts of Common Pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace and other inferior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done.”

By section 14 of the same article of the Constitution it is provided: “In all cases of summary conviction in this Commonwealth, or of judgment in suit for a penalty before a magistrate or court not of record, either party may appeal to such court as may be prescribed by law, upon allowance of the appellate court or judge thereof upon cause shown.”

In pursuance of said section 14, art. v, of the Constitution, and to give effect thereto, the Act of April 17,1876, P. L. 29, entitled “An act relating to appeal in summary conviction,” was passed. Subsequently, by the Act of July 11, 1917, P. L. 771, the said Act of 1876 was amended, and, as so amended, reads: “That in all cases of summary conviction in this Commonwealth before a magistrate or court not of record, either party may, with five days after such conviction, appeal to the Court of Quarter Sessions of the county in which such magistrate shall reside or court not of record shall be held, upon allowance of the said Court of Quarter Sessions, or any judge thereof, upon cause shown; and either party may also appeal from the judgment of a magistrate or a court not of record, in a suit for a penalty, to the Court of Common Pleas of the county in which said judgment shall be rendered, upon allowance of said court, or any judge thereof, upon cause shown.”

We see little or no room for contention as to the meaning of this statute. It provides, as we understand it, that in all cases of summary conviction before a justice of the peace or court not of record, the appeal shall be to the Court of Quarter Sessions, and that the appeal from the judgment of a justice of the peace or court not of record, in a suit for a penalty, shall be to the Court of Common Pleas. Is the appeal in the ease at bar an appeal from a summary conviction? We think it is. A summary conviction has been defined as a conviction which takes place before an authorized magistrate without the intervention of a jury: Bouvier’s Law Dictionary (15th ed.), 400. In 13 Corpus Juris, 909, it is defined thus: “In its most restricted sense, the term is a record of the summary proceedings on any penal statute, before one or more justices of the peace, or other person duly authorized, in a case where the offender has been convicted and sentenced; this has usually been termed a summary conviction, and is defined as a judgment pronounced by one or more justices of the peace or other magistrate under the authority of a statute giving them criminal or penal jurisdiction, as in cases of assault.”

When a proceeding is begun by information, warrant and arrest, and is carried to conviction before a justice of the peace, as was done in the case at bar, it is a case of summary conviction: Johnstown v. Rose, 13 Dist. R. 26; Com. v. Messinger, 13 Dist. R. 621; Com. v. Rosenthal, 3 Pa. C. C. Reps. 26.

If the conclusion reached be correct that the appeal under consideration is from a summary conviction, then the Court of Common Pleas in which the appeal is pending has no jurisdiction to pass upon it. The Act of April 17, 1876, P. L. 29, as amended by the Act of July 11, 1917, P. L. 771, heretofore quoted, is decisive of the question. It directs that an appeal in such case must be taken to the Court of Quarter Sessions, and the weight of judicial decision is in harmony therewith. In Johnstown v. Rose, 13 Dist. R. 26, it is held: “Where proceedings are begun by information, warrant and arrest, or by arrest upon view, and carried to a conviction before a mayor or justice of the peace, the appeal lies to the Quarter Sessions and not to the Common Pleas.” In Com. v. Rosenthal, 3 Pa. C. C. Reps. 26, it is said: “The act of pursuing a worldly employment on the Sabbath day is in the nature of a criminal offence, and prosecution thereof under the Acts of April 22, 1794, and April 17, 1876, is a summary conviction. The Court of Common Pleas has no jurisdiction of an appeal from such proceeding.”

In City of Scranton v. Frothingham, 5 Dist. R. 639, Gunster, J., holds: “Under the provisions of the Act of April 17, 1876, P. L. 29, appeals in cases of summary conviction are allowed only to the Quarter Sessions, and appeals in suits for penalties are allowed only to the Common Pleas, and in neither case can an appeal be taken unless the same be allowed by the proper court, or a judge thereof, and upon cause shown.”

Broomall, J., in Com. v. Mitchell, 23 Dist. R. 496, holds: “An appeal from a summary conviction must be taken to the Court of Quarter Sessions, and that from a suit for a penalty must be to the Common Pleas. Whether an action is a summary conviction or a suit for a penalty must be determined by the proceedings.”

In Com. v. Fasnacht, 12 Dist. R. 327, it is held: “An appeal from a conviction for profane swearing, under the Act of April 22, 1794, § 2, 3 Sm. Laws, 177, lies to the Court of Quarter Sessions who try the appeal without a jury, and not to the Court of Common Pleas, such case being a summary conviction and not a judgment for a penalty.”

It is held by Johnson, P. J., in Yeadon Borough v. Kelly, 5 Pa. Justices’ Law Repr. 13, that in ease of a summary conviction the petition for leave to appeal must be addressed to the Court of Quarter Sessions, and that if addressed to the Common Pleas, it will be dismissed and an amendment refused. For other authorities on this question see 4 Purdon’s Digest (13th ed.), 4479, note v.

No notice was given to the district attorney of the presentation of the petition for appeal, and he was not present. Such notice, we think, should have been given: Com. v. Johnston, 16 W. N. C. 349; Com. v. Kent, 5 Pa. Justices’ Law Repr. 1; Com. v. Blank, 22 Pa. C. C. Reps. 378; Thompson v. Preston, 5 Pa. Superior Ct. 154.

The proceedings before the justice of the peace appearing to have been regular and conformable to law, the motion of the appellant to dismiss the same or grant a rehearing will be refused.

And now, Aug. 22, 1921, after argument of counsel and upon due consideration, the motion of the appellant to dismiss the proceedings or grant a rehearing is overruled and refused, and the motion of the district attorney to quash the appeal is sustained and the appeal is quashed and set aside, at the costs of the appellant.

Prom S. M. 'Williamson, Waynesburg, Pa.


author: Gillan, P. J.,

text:
    Shaffer v. Hoke, Executor, et al.

      Equity — Jurisdiction—Legal remedy inadequate and inconvenient — Certificate of deposit — Gift.
    Plaintiff claimed deceased in his lifetime had given him a registered certificate of deposit on a trust company. The certificate was payable to bearer or the registered holder thereof. Deceased was the registered holder. No transfer of the certificate was made to the plaintiff on the books of the company. The executor of deceased told the trust company not to pay the coupons or principal to plaintiff, claimed no valid gift was made and that the certificate was still part of the estate. Plaintiff brought bill in equity to restrain executor from interfering with him in collecting the coupons and principal when due, for an order adjudging plaintiff to be the owner, and for an order on the company to pay him principal and interest when due. Defendants demurred on the ground that equity had no jurisdiction: Eeld, overruling the demurrer, (1) that legal remedies were not convenient or adequate; (2) plaintiff could not at law sue the trust company in his own name or force the executor to sue for him.
    Demurrer to bill. C. P. Franklin Co., in Equity.

      William S. Hoerner, for demurrer.

      J. B. Ruthrauff (of Ruthrauff & Nicklas), contra.
    Sept. 27, 1921.
   Gillan, P. J.,

The plaintiff having filed his bill, the defendant, John W. Hoke, executor demurs. The Chambersburg Trust Company answers, admitting the essential allegations of the bill. They admit that they have in hand $1000, with interest from Aug. 1, 1919, at 4 per cent., as stated in Exhibit “A,” and are ready to pay the same to those entitled thereto. The respondent, John W. Hoke, executor, demurs. The first cause of demurrer is that the bill is defective in form; “The name of the defendant is Samuel Stinger, not Samuel Stenger.” This ground of demurrer is overruled. It is not material, the executor of Samuel Stinger having appeared generally. If it were material, it can at any step of the proceedings be amended to correspond with the facts. The second ground of demurrer is want of jurisdiction in a court of equity. The matter has been argued before us with great ability. Not since we have been in our present position has any better brief been presented to us than the brief presented on either side in this case.

The only question we are called upon to decide is the question of jurisdiction. The plaintiff, by his bill, alleges that Samuel Stenger deposited in the Chambersburg Trust Company the sum of $1000; that the said trust company issued to him a certificate, of which the following is a copy:

“1000 No. 1333 1000
CHAMBERSBURG TRUST COMPANY Chambersburg, Pa.
This is to certify that the sum of One Thousand Dollars has been deposited with the Chambersburg Trust Company payable to the bearer hereof, or, if registered, to the registered holder hereof upon surrender of this Certificate on February 1st, 1924, with interest at the rate of Four per cent, per annum, payable quarterly upon the surrender of the annexed coupons therefor. The holder hereof can obtain payment before maturity by giving sixty days’ notice in writing prior to any February interest period.
Chambersburg, Pa., Nov. 25,1918.
Chambersburg Trust Company,
By Frank A. Zimmerman,
Treasurer.”

Attached to the certificate were eighteen coupons, as follows:

“$10 Chambersburg Trust Company will pay to the bearer at its office in Chambersburg, Pa., Ten Dollars, on the first day of Aug., 1919, being three months’ interest on its certificate of deposit No. 1333.
Frank A. Zimmerman,
Treasurer.”

That the above-described certificate was registered on the books of the said trust company in the name of Samuel Stenger. That the said Samuel Stenger died on June 6, 1919. That from about March 1, 1919, until the time of his death he resided with the complainant in his house. “That a few days before his death, after having been advised by his physician that he could only live a short time, Samuel Stenger took from a package of papers which he kept in a bureau drawer in the room he occupied, the certificate of deposit, described in paragraph 3 above, which he handed to the plaintiff stating it was for him; which certificate of deposit plaintiff then and there took into his possession, and put it away in a chest in another room, where it remained in his exclusive possession and control until after the death of said decedent.” That the said Samuel Stenger left a last will and testament, of which he appointed John W. Hoke, one of the respondents, executor. That letters testamentary were issued to the said Hoke. That the complainant has demanded of the respondent, the Chambersburg Trust Company, payment of the coupons due. That the respondent, John W. Hoke, has notified said trust company not to pay complainant any of the coupons which have matured or which may hereafter mature, nor principal when due. That the said trust company fias refused to pay any of the coupons, and has refused to recognize in any way the complainant as the owner of said certificate or the coupons attached thereto.

In support of the proposition that jurisdiction in equity cannot be maintained, respondent cites Saving Fund Society v. Clark, 11 W. N. C. 118. A very cursory examination of the report of that case will show that it will not sustain the proposition. He further cites Merritt v. Penna. Trust Co., 50 Pitts. L. J. 301. In that case William Partridge had on deposit in his own name a sum of money in a bank. After his death another claimed that the money was hers, and filed a bill in equity to compel the administrator to pay the money to her. The court, Frazer, P. J., very properly held that Partridge being a bailee, the proper remedy was by assumpsit or trover, and dismissed the bill. It is alleged that, as the executor here is under the control and subject to the jurisdiction of the Orphans’ Court, the acts of omission or commission of John W. Hoke, executor, sought to be controlled, are exclusively in the Orphans’ Court and within its jurisdiction. If this certificate of deposit was not, at the time of his death, the property of Samuel Stenger, then his executor has nothing to do with it. The complainant is not subject to the jurisdiction of the Orphans’ Court, as far as asserting the ownership of this certificate is concerned. The certificate was in his possession at the time of Stenger’s death. The question to be determined, as between Hoke and Shaffer, is whose property is it. The determination of this question is not within the jurisdiction of the Orphans’ Court: Cutler’s Estate, 225 Pa. 167. While this question was raised in the demurrer, respondent did not insist on it in his brief. The respondent insists, however, that the complainant has an adequate remedy at law. It must be kept in mind that the actor is the alleged donee of the gift; that he is attempting to establish the validity of the gift and his ownership of the property in dispute. He might possibly by some means establish his rights at law. He cannot in his own name maintain an action against the trust company. The obligation is not due. There is nothing on the books of the trust company to show that he has any claim against them. He cannot, without the consent of the executor, use his name in bringing the action. We know of no remedy at law by which he can compel the executor to transfer to him this certificate.

“To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor must be an adequate and complete one. And when from the nature and complications of a given case its justice can best be reached by means of the flexible machinery of a court of equity; in short, where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice:” Pennsylvania R. R. Co. v. Bogert, 209 Pa. 589. “Jurisdiction in equity depends not so much on the want of a common law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court; in other words, the court may take upon itself to say whether the common law remedy is, under all the circumstances and in view of the conduct of the parties, sufficient for the purposes of complete justice, or whether the intervention of chancery may not for that purpose be required and beneficially applied: Bisph. Eq., § 484;” Bierbower’s Appeal, 107 Pa. 14. “To oust the jurisdiction of equity it is not enough that there is a remedy at law. It must be plain and adequate; in other words, as practical and efficient to the ends of justice and its complete and prompt administration as the remedy in equity: Boyce v. Grundy, 3 Peters, 210; New London Bank v. Lee, 11 Conn. Reps. 112:” Bank of Kentucky v. Schuylkill Bank, 1 Parsons Select Equity Cases, 180. A bill in equity may be sustained solely on the ground that it is the most convenient remedy: Appeal of the Brush Electric Co. et al., 114 Pa. 574. Jurisdiction in equity is often assumed upon the ground that relief by bill is the most convenient, although there be remedy at law: Howell’s Estate, 224 Pa. 415. To the same effect is Kerin v. Mercantile Trust Co., 226 Pa. 557. “The mere fact that a remedy at law exists is not sufficient to oust equitable jurisdiction; the question is whether the remedy is adequate or complete: Bierbower’s Appeal, 107 Pa. 14; Pennsylvania R. R. Co. v. Bogert, 209 Pa. 589. And a bill may be sustained solely bn the ground that it furnishes the most convenient remedy: Appeal of the Brush Electric Co. et al., 114 Pa. 574. In Independent B. & L. Ass’n v. Real Estate Title Co., 156 Pa. 181, it was said: ‘Although an action of assumpsit might have been brought, yet relief in a clear subject of equity jurisdiction is not barred by the existence of a remedy at law, even if that remedy could be considered adequate.’ To the same effect is Gray v. Citizens’ Gas Co. of Port Allegany, 206 Pa. 303:” Edison Illuminating Co. v. Eastern Penna. Power Co., 253 Pa. 465.

Respondent further insists that this bill should be dismissed, not only for lack of jurisdiction, but for lack of substance in the bill. He insists that the title to the certificate, or the money it represents, could not, and did not, pass, because there was no assignment or endorsement of the certificate. That it was a non-negotiable instrument, and that an assignment or endorsement was essential to a valid gift of the deposit. That matter will be considered on the trial of the ease, if it proceeds to a trial. That is the very question which it will be necessary to inquire into at the hearing. We will not now decide it in this summary manner. We have said enough to show that equity has jurisdiction.

Now, therefore, Sept. 27, 1921, the demurrer is overruled, and the respondent, John W. Hoke, executor, will file his answer in accordance with the rules of equity practice.

Prom King Alexander, Chambersburg, Pa.


author: Maxwell, P. J.,

text:
    Commonwealth v. Travis.

      Indictment — District attorney’s bill — Fugitive from justice — Defendant under bail.

    1. An order to lay a bill of indictment before the grand jury, where there has been no previous binding over or commitment, should not be allowed without the presentation of a petition for its necessity, requiring the extraordinary exercise of power on the part of the district attorney.
    2. Where a defendant is under bail conditioned for her appearance in another case at the next term of Quarter Sessions, which term has not yet arrived, and her recognizance Is still in force and has not been forfeited, she cannot be legally a fugitive from justice at any time while the recognizance is in force, and, therefore, an indictment found under such circumstances will be quashed.
    3. An officer cannot make a legal return to his warrant that the defendant is a fugitive from justice when he has actual or constructive knowledge that she has entered into a recognizance in another case, and the officer had a personal interview with her while he actually had the warrant in his possession.
    Motion to quash indictment. Q. S. Bradford Co., Dec. Sess., 1921, No. 23.
    Defendant moved to quash the indictment for the following reasons:
    “1. The indictment was found without a previous binding over or commitment.
    “2. The indictment was found without the presentation of any petition for its necessity, requiring the extraordinary exercise of power on the part of the district attorney.

      “3. The indictment was found upon the mere suggestion of the district attorney that the defendant was ‘a fugitive from the laws and justice of the Commonwealth of Pennsylvania,’ which said suggestion was not true in fact, and said district attorney had actual or constructive knowledge that the said defendant since Sept. 23, 1921, had been under bail in the sum of $500, conditioned for her appearance in another case, No. 1, December Term, 1921, Court of Quarter Sessions of Bradford County, and which recognizance is still in force and has not been forfeited.
    “4. That, hence, it was impossible for said defendant to have been legally a fugitive from justice on Nov. 22, 1921, nor any time prior, nor since up to the present time, in the absence of any competent and true testimony that she had become a fugitive since Sept. 23, 1921.
    “5. That the return of deputy sheriff to the warrant which he had held continuously from Sept. 3, 1921, until Nov. 17, 1921, was not a true one in stating the defendant was ‘hiding in the State of New York, being a fugitive from justice,’ because said officer had actual or constructive knowledge of defendant’s giving bail Sept. 23, 1921, for her appearance at December Sessions, 1921, and also from the additional fact that on or about Oct. 17, 1921, the said defendant had a personal interview with said officer in the Borough of Athens, County of Bradford and State of Pennsylvania, at his residence, in the presence of Orrin Merritt.”

      R. A. Mercv/r, for motion; W. G. Schrier, District Attorney, contra.
    Dec. 5, 1921.
   Maxwell, P. J.,

And now, to wit, Dec. 5, 1921, it appearing to the court that the indictment in this case was found without a previous binding over or commitment, and also without the presentation of any petition for its necessity, and it also appearing to the court that the defendant was not legally a fugitive from justice on Nov. 22, 1891, being at the time under bail, conditioned for her appearance in another case in Court of Quarter Sessions of Bradford County, and which recognizance is still in force and has not been forfeited, and on motion of R. A. Mercur, Esq., counsel for the defendant, the motion to quash the indictment filed in this case is allowed for the reasons filed, and the indictment directed to be quashed accordingly.