author: Gummey, J.,

text:
    Krulik’s Estate.

      Wills — Gifts to charity — Attesting witnesses — Unattested paper directing distribution.

    Where a will containing a gift to a legatee in trust to be used by him in charity “as per verbal instructions” has been duly executed at least one calendar month before the testator’s decease, as required by the Act of April 26, 1855, P. L. 332 (now superseded by section 6 of the Wills Act of 1917), a written direction to the legatee describing the charitable uses to which the testator wished the fund to be applied, being merely explanatory of the parol trust created by the will, concerns only the question of distribution and need not be executed before two attesting' witnesses, as required by the statute.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 443.

      J. Joseph Stratton, for exceptions; D. H. Solis-Cohen, contra.
    May 26, 1922.
   Gummey, J.,

The testator bequeathed the residue of his estate in language following:

“All the rest and residue of my estate I give, devise and bequeath to my friend Hans Weniger or in case of his death to his son Wm. F. Weniger in trust to be used as per verbal instructions given to them.”

At the time the will was executed the testator explained that it was his desire that his estate should be used for the benefit of the widows and orphans of war sufferers in Austria, but that he hesitated to so state in his will, as in the event of Austria and the United States entering into a state of war (the will was executed Dec. 26, 1916), his estate might be confiscated; but upon it being suggested to him that Hans and William F. Weniger should have from him some written statement of his intention, the testator' signed the following typewritten statement:

“I direct that the balance of my estate shall be used to the benefit of widows and orphans of Austria Hungarian war victims, and the money shall be remitted for that purpose in manner selected by the trustee as best adapted to suit the purpose.

“Philadelphia, 26 December, 1916. ' Joseph Krulik.”

There were two subscribing witnesses to the will, but at the audit it was contended that they were not attesting witnesses as required by the Act of April 26, 1855, § 11, P. L. 332 (now superseded by section 6 of the Wills Act of 1917). The auditing judge, however, found as a fact that the execution of the will was properly attested, and an examination of the evidence shows that it supports this conclusion. For the rules relative to presumption in cases of this character reference may be made to Vernon v. Kirk, 30 Pa. 218, cited with approval in Kirk v. Carr, 54 Pa. 285, 290.

The typewritten direction above referred to was probated with the will, but was not attested by two witnesses, as required by the Act of 1855. What effect this omission might have upon the gift if the writing was to be considered as a codicil to the will is not before us, as the writing is in fact but explanatory of the purpose of the parol trust created by the will, and it is, therefore, a question of distribution. See Franken’s Estate, 15 W. N. C. 455; Bromley’s Estate, 26 Dist. R. 101; Fickes’s Estate, 59 Pa. Superior Ct. 535; Galli’s Estate, 250 Pa. 120.

Although we dismiss the exceptions, it is proper that the ultimate disposition of the trust fund should be made a matter of record, as we required should be done in Klein’s Estate, 26 Dist. R. 476; accordingly, the trustee, Hans Weniger, is directed, upon making distribution, to file in this court a statement setting forth the manner in which he has administered the trust and the person or persons to whom payment was made; or, if he so desires, he may petition the auditing judge for a decree of distribution.

The exceptions are dismissed.


source: Caselaw Access Project

author: Gawthrop, Dep. Att’y-Gen.,

license: Public Domain

text:
    Trust Funds.

      Banks and banking — Bank with special charter — Trustee — Deposit of trust funds — Police powers — Supervision by Banking Commissioner.

    Although a bank may, under a special charter, have had the right by an order of court, under special circumstances, to become its own depository of funds of which it is trustee, such right is superseded by the general banking regulations of the Commissioner of Banking, which require all banking institutions under his supervision to deposit in other institutions all uninvested trust funds held by them as trustees.
    Attorney-General’s Department. Opinion to Hon. P. O. Cameron, Second Deputy Commissioner of Banking.
    Jan. 5, 1922.
   Gawthrop, Dep. Att’y-Gen.,

I have your letter of the 22nd ultimo, asking to be advised whether a certain bank, incorporated by special act of assembly, acting in its capacity as trustee, has the right to deposit uninvested trust funds with itself.

It appears that this bank claims to be exempt from the regulations of the Banking Department requiring uninvested trust funds to be deposited in some other institution and properly ear-marked as trust funds, because of the special provisions of its charter, which, as renewed and now in force, authorizes it “to receive and become the depository of all trust funds and such other funds that may be paid into or be under the control of the several courts of this State and the laws of the same: Provided, that the said courts shall be satisfied of the security of the said depository.”

The answer to your inquiry depends upon the rights and powers granted to this bank by its charter as affected by and subject to such general regulations as from time to time may be made by the Commonwealth with a view to the protection and security of the public and other individuals. The rights insured to private corporations by special charters are subject, always, to the police powers of the State under which regulations which affect these rights may be changed from time to time as experience may demonstrate the necessity.

Says Judge Cooley in his chapter upon the Police Power of the State in Cooley’s Constitutional Limitations (7th ed.), 836: “Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once by force of the charter contract removed from the sphere of State regulation, and that the charter implies an undertaking on the part of the State that in the same way in which their exercise is permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far; but, on the contrary, the rights and privileges which come into existence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection and enjoyment.”

The limit to the exercise of the police power is that the regulations must have reference to the general welfare, and they must not, under pretence of regulation, take from the corporation any of the essential rights and privileges conferred by the charter.

The Act of May 21, 1919, P. L. 209, continuing the Banking Department, supersedes all other acts upon the same subject and repeals unconstitutional acts. Section 20 provides as follows: “Whenever it shall appear, to the Commissioner of Banking that any corporation or person under the supervision of the Banking Department has violated any provision of this act or any law regulating the business of such corporation or person, or is conducting business in an unauthorized or unsafe manner, or that any such corporation has an impairment of capital, the commissioner may issue an order, under his hand and seal of office, directing such corporation or person to discontinue such violation of law or such unauthorized or unsafe practices, or directing such corporation to make good any impairment or deficiency of capital, as the case may be, within a time, of not less than sixty days after notice, to be fixed by the commissioner.”

The power of the Banking Department to supervise and regulate the operation of banks, trust companies and others doing a banking business in Pennsylvania is beyond question. The Banking Commissioner may promulgate any reasonable rule and may enforce any reasonable regulation or order which in his judgment makes for greater safeguarding of depositors in banks, and for better protection of trusts administered by trust companies and banks exercising like power. Banks operating under charters granted by special act of assembly are subject to this regulatory power.

An examination of the act incorporating the bank in question does not disclose any specific grant of power to accept a trust and keep the uninvested portion of the fund on deposit in its own banking department. It is conceded by the solicitor of this bank that no such authority exists in relation to any such trust except in cases where the court has named the bank as depository. It is contended that, the following language of the act incorporating this bank gave it this special power: “To receive and become the depository of all trusts and such other funds that may be paid into, or be under the control of, the several courts of this State and the laws of the same: Provided, that the said courts shall be satisfied of the security of the said depository.”

Here we have a statute granting, first, the power to receive trusts under the order of the several courts; and, second, the power to become the depository of such trusts. To receive a trust is to become trustee. There is a clear line of demarcation between the powers and duties of the bank as a depository and its powers and duties as a trustee. In the former case it is subject to the control and order of the court, and in the latter it is subject to the supervision and regulation of the Banking Department. When the bank receives a deposit by order of the court, the deposit remains subject to the control and order of the court. But no order of court as to a deposit with a bank, trustee, which involves the violation of reasonable and duly promulgated regulations of the Commissioner of Banking upon the handling of trust funds by banks under the supervision of his department, can be sustained. When such a bank is appointed guardian or trustee, either by order of court or act of parties, its operations are under the supervision of the Banking Department, and it is subject to the rules of that department regulating uninvested trust funds. This bank may be made a depository by order of the court. It may be appointed trustee by the court. But legally it may not be appointed trustee and depository of the uninvested trust funds of the same trust. The special provisions of its charter do not specifically grant such right or power, and the powers which were vested in the bank are subject to the regulatory supervision of the Banking Commissioner, vested in him by the legislature under its police power.

You are advised, therefore, that this bank is subject to the regulations of your department which require all banking institutions under its supervision to deposit in other institutions all uninvested trust funds held by it as trustee.

From Guy H. Davies, Harrisburg, Pa.


author: Berger, J.,

text:
    Vasilko v. Bongiorno et al.

      Landlord and tenant — Time of payment of rent — Waiver — Judgment— Subletting.

    1. The right to forfeit a lease and to enter judgment under a warrant therein is waived where the lessor has for a long time accepted the rent at times other than those specified in the lease, without notice of the lessor’s intention to fail back upon the terms of the lease.
    2. Kent is not payable in advance unless it is so stipulated in the lease.
    3. A lease is to be construed in favor of the lessee, and it is only in case of doubt, or where there is some ambiguity in the contract, that the parties' own construction becomes important.
    4. A failure on the part of a tenant to observe the covenants of a lease as to subletting without the lessor’s consent in writing does not, ipso facto, void the lease, but such covenants, being for the lessor’s benefit, may be waived.
    Rule to open judgment. C. P. Schuylkill Co., Nov. T., 1921, No. 319.

      R. A. Freiler, for plaintiff; John F. Whalen, for defendants.
    Jan. 2, 1922.
   Berger, J.,

This is a rule to open a judgment in an amicable action of ejectment entered upon a warrant of attorney contained in a lease. The breaches of covenant alleged authorizing the entry of judgment are: (1) A failure to pay the rent semi-annually in advance, and (2) a subletting without the written consent of the lessor. The lease is dated March 24, 1919, and by it is demised and let by John Vasilko, the lessor, to Michael Bongiorno, the lessee, “a certain four story brick building, dwelling house and store-room, No. 114 W. Minersville St., Pottsville, Pa. To have and to hold the same unto the second party for the term of ten years, commencing the 1st day of April, A. D. one thousand nine hundred and nineteen. Yielding and paying therefor Thirty ($30) Dollars per month, payable semi-annually the 1st day of April and 1st day of Oct. each year.”

The petition to open the judgment alleges that the requirement to pay the rent semi-annually in advance, as well as the provision against subletting without the consent in writing, were waived by the lessor. An examination of the depositions taken in support of the rule clearly establishes that the lessor, since Oct. 1, 1919, accepted the rent for the demised premises otherwise than semi-annually in advance, for on Oct. 27, 1919, he was paid to April 1, 1920; on April 26, 1920, to Oct. 1, 1920; on Nov. 1, 1920, to April 1, 1921, and on April 18, 1921, to Oct. 1, 1921. We also find that the lessee personally mailed to the lessor a check for $180, predated Oct. 24, 1921, for the six months’ rent to accrue from Oct. 1, 1921, to April 1, 1922, and though a return address was on the envelope, it was never returned. The letter was mailed in sufficient time to have reached the lessor before the amicable action in ejectment and judgment were entered on Oct. 18, 1921. The presumption, therefore, is that the letter was delivered to the addressee, and this presumption has not been overcome by the evidence, and is substantially admitted by the pleadings under our rules of court. No notice was ever given by the lessor to the lessee that he would fall back upon the specific terms of the lease and require payment of the rent strictly in advance. All the lessor did was to notify the lessee on Oct. 10, 1921, in the presence of Peter Sofsky, that he would take the leased premises from the lessee for non-payment of the rent on Oct. 1, 1921. It is well established that the right to forfeiture and to enter an amicable action in ejectment under a lease is waived where the lessor has for a long time accepted the rent at times other than those specified in the lease, without notice of the lessor’s intention to fall back upon the terms of the lease: Crisman v. O’Brien, 17 Dist. R. 443; Rea v. Eagle Transfer Co., 201 Pa. 273, 276; Thomas et al. v. Boyle, 265 Pa. 487, 490.

It must not be overlooked that the lease merely fixes April 1st and Oct. 1st as the days on which the rent is to be paid during the ten-year term, and does not by any express words either fix April 1, 1919, as the date of the first payment or that the rent shall be payable semi-annually in advance. Rent is not payable in advance unless it is so stipulated in the lease: King v. Bosserman, 13 Pa. Superior Ct. 480. And the parties to the lease, as has already been shown, did not act on the assumption that the rent was to be paid strictly in advance. Moreover, a lease is to be construed in favor of the lessee, and it is only in case of doubt, or where there is some ambiguity in the contract, that the parties’ own construction becomes important: Lenox Coal Co. v. Duncan-Spangler Coal Co., 265 Pa. 572, 575; Atchison et al. v. United Presbyterian Board of Publication, 266 Pa. 47, 51; American Dressler Tunnel Kilns, Inc., v. Holt, 269 Pa. 293, 297.

The lessee sublet the premises for one year on April 1, 1921, to one Tony Cuzzola, who is the present occupant. The lessor — who says his first knowledge of the subletting was on Oct. 3, 1921 — nevertheless, endeavored to collect his rent on Oct. 10, 1921, for the semi-annual period ending April 1, 1922. The lessee testified that the lessor gave his verbal consent to the subletting, and made no complaint when he first learned of it in the month of April, 1921. It is well established that a failure on the part of a tenant to keep the covenants of a lease does not, ipso facto, void the lease, but such covenants, being for the lessor’s benefit, may be waived. See Steele v. Maher, 38 Pa. Superior Ct. 183, 194; Bronisz v. Cienkowski, 68 Pa. Superior Ct. 524, 526; Fidelity Trust Co. v. Kohn, 27 Pa. Superior Ct. 374, 380. In this case the preponderance of the evidence is that the lessor waived the covenant requiring his written consent to the sublease to Cuzzola.

At the argument it was agreed that the amicable action in ejectment and the judgment entered thereon against Cuzzola was unauthorized, and that it should be stricken off. Therefore, we shall so direct. For the reasons herein-above stated, the rule to open the judgment as to Michael Bongiorno must also be made absolute.

And now, Jan. 2, 1922, amicable action in ejectment and judgment entered thereon against Tony Cuzzola is directed to be stricken from the record. The rule to open the judgment entered against Michael Bongiorno is hereby made absolute.

From M. M. Burke, Shenandoah, Pa.


author: Moser, J.,

text:
    Keiser v. Philadelphia & Reading Railway Company.

      Workmen’s compensation — Railroads—Interstate and intrastate commerce.

    Where a brakeman is injured while shifting a freight car, which is to be carried to another station by a local train, from which station it is to be loaded for an interstate shipment, the workman is engaged in interstate commerce and cannot recover compensation under the Pennsylvania act.
    Appeal from decision of the Workmen’s Compensation Board. C. P. Northumberland Co., Feb. T., 1921, No. 169.

      R. L. Belford, for plaintiff; Voris Auten, for defendant.
    Dec. 12, 1921.
   Moser, J.,

On Aug. 16, 1919, Willis F. Keiser was a brakeman on the defendant’s local freight train running between West Milton, Penna., and Tamaqua, Penna. According to the testimony, it was the duty of the crew to load and unload freight, do switching, place or pick up cars as the occasion required, between the points above mentioned. The witness, James Hoffman, on page nine of the notes, says the crew “did switching, picking up, setting out, transferred freight, loaded and unloaded.”

When the train reached Sunbury they were required, in the line of work of .this crew, to move an empty box-car from Sunbury to Thompson’s siding, about one and one-half miles south of Sunbury Station. This empty box-car was placed in front of the engine which was attached to the freight train and moved to the said siding. Upon reaching the siding it was discovered there was a “battleship” car standing thereon in such a position that the box-car could not be placed as desired. The train was left on the main track north of the switch and the empty box-car was placed on the same track south of the switch. The claimant, with other members of the crew, went into the siding with the engine for the purpose of bringing the battleship out so that it might be coupled to the empty box-car, and the box-car put into the siding to the rear of the battleship in the position desired for loading. In attempting to couple the engine to the battleship car, the claimant was injured. When the train left West Milton it was made up of twelve cars, two of which were loaded with freight being transported from Baltimore, Maryland, to points in Pennsylvania. One of these cars was dropped at Winfield, Penna., so that at the time of the accident there was one car in the train loaded with interstate freight.

The Workmen’s Compensation Board sustained the disallowance of the referee, who held as a legal conclusion that at the time of the accident claimant and defendant “were both engaged in one of the incidents of the interstate commerce,” and that the claim must be disallowed and claimant’s petition dismissed for want of jurisdiction. In the opinion filed the board held: “At the time of the claimant’s injury he was engaged in placing a car on a siding near Sunbury. This ear had been ordered from the defendant’s agent at Sun-bury by the Thompson Company, to be placed for loading for Toronto, Canada. This car was actually placed on the date of the accident and went forth to Toronto, Canada, on Aug. 21st. The train itself, upon which the employee was a brakeman, had been left upon the southbound main track while this switching was being done. There were interstate cars in this train. Under these circumstances, the work in which the claimant was engaged at the time of his accident was interstate. This case is ruled by New York Central R. R. Co. v. Carr, 238 U. S. 260.” The claimant in this proceeding was seriously injured, and to him the case is of vital importance. We have devoted much time to a review of the cases cited by counsel on both sides, as well as many other cases which we thought might throw some light upon the questions raised by the pleadings. Counsel for the defendant contends that the appeal must be dismissed: “First. On the ground that the train, which could not proceed to destination until the local work was done, was an interstate train. Second. Preparatory movements in aid of interstate commerce are part of such commerce.” As to the first proposition, the referee and board held that the Carr case was controlling, and found that the claimant was engaged in interstate commerce at the time of his injury.

We think the case at bar is distinguishable from the Carr case, where the cars that were being placed upon the siding were part of the interstate train, and, so far as the particular train was concerned, the cars were at the end of their journey. They were not to continue beyond this point as part of the train, so it became the duty of the members of the train crew to dispose of them in some way in order that the train might proceed to its' destination. The ease at bar resembles more the case of Murray v. Pittsburgh C. C. & St. Louis Ry. Co., 263 Pa. 398, where plaintiff’s contention that he was engaged in interstate commerce was based on proof submitted to the effect that three of the cars included in the train contained material from points without the State. In the opinion, the Supreme Court say: “The crew was occupied with the purely local act of shifting cars from one part of the yard to another as the owner might require in accordance with the customary duties it performed daily in the various yards along the road. The switching operation was not shown to be incidental to, or made for the purpose of, delivering interstate freight, nor was the crew at the time engaged mainly in the operation of an interstate train. Its primary duties were intrastate, and became interstate only as it was from time to time engaged in a delivery of through freight from other states, . . . for convenience the engine remained attached to the cars composing the train, which circumstances, in our opinion, neither in fact nor in law changed his employment.”

Under this decision, we would not hold in the case at bar that, simply because there was a car in the train loaded with freight consigned from without the State, the claimant was engaged in interstate commerce when the injury was sustained. A more serious question confronting the claimant in his endeavor to recover is the character of service for which the car he and his fellows were endeavoring to place at the time of the injury had been selected by those in authority. Mr. Buck, who was then the station agent at Sunbury, in his testimony says: “On the morning of Aug. 18th we received an order by telephone from Mr.' Thompson from his plant, asking us to place a ear for them to load with foundry facings for Toronto, Canada. We applied the ear in question.”

The referee found as a fact: “That empty box-car C. N. O. &. T. P., No. 17019, which claimant’s crew had picked up at Sunbury and placed in front of its engine, had been ordered by telephone that morning from the defendant’s station agent at Sunbury, Pa., for loading by Thompson’s company with foundry facings at Thompson’s siding, to be shipped to Toronto, Canada; that, after the accident, the crew, of which claimant was a member, took this car, together with its train and the claimant, back to Sunbury, where box-car C. N. O. & T. P., No. 17019, was left on the siding, and that it was later that day placed at the Thompson siding, loaded with foundry facings for Toronto, Canada, and taken out on Aug. 21, 1919, subsequent to the accident.” In the opinion filed, the board finds: “This car had been ordered from the defendant’s agent at Sunbury by the Thompson Company, to be placed for loading for Toronto, Canada. This car was actually placed on the date of the accident and went forth to Toronto, Canada, on Aug. 21st.” These findings, thus adopted by the board, are final and conclusive: Messinger v. Lehigh Valley R. R. Co., 261 Pa. 336.

The car having been selected for an interstate shipment, its removal from the Sunbury yards to the Thompson siding was a step in that direction, and this case comes squarely within the ruling in Christy v. Wabash R. Co., 191 S. W. Repr. 241, where the court says: “In this case deceased was engaged in switching a car to a place in defendant’s yards, where, it is true, it was to be placed in a local train and taken to a station a dozen miles away, but for the purpose of being loaded that day with an interstate shipment. No sound reason can be suggested why that was not interstate service. We think it was such service in a special and immediate sense. For the use to which the car was to be put was the already ascertained service of a specific shipment into another state; and that shipment was to be made on the day the car was being switched out of the yards for that use. The fact that it was taken out of the yards at Moberly, a few miles away, would not be different in effect from taking it from the yards at Sturgeon.” The fact that the car was not started on its way to Toronto until Aug. 21st has no bearing upon the application of the legal principles here involved whatever. Nor can the argument that the work in hand at the immediate time of the accident was the removal of the “battleship” car from the siding avail the claimant in the light of the rule adopted in Louisville & Nashville R. R. Co. v. Parker, 242 U. S. 13, where the Supreme Court say: “The business upon which the deceased was engaged at the moment was transferring an empty car from one switch track to another. This car was not moving in interstate commerce, and the fact was treated as conclusive by the Court of Appeals. In this the court was in error, for if, as there was strong evidence to show and as the court seemed to assume, this movement was simply for the purpose of reaching and moving an interstate car, the purpose would control and the business would be interstate. The difference is marked between a mere expectation that the act done would be followed by other work of a different character as in Illinois Central R. R. Co. v. Behrens, 233 U. S. 473, and doing the act for the purpose of furthering the latter work.”

As we stated above, the claimant was seriously injured and suffered a permanent partial disability that will inconvenience him or probably affect his earning power during the remainder of his life. We regret that he cannot legally recover compensation for his injury, but, after a most deliberate consideration of all questions raised, it is our firm opinion that under the decisions he cannot recover in this action.

The appeal is accordingly hereby dismissed, with an exception noted for the claimant.

From C. M. Clement, Sunbury, Pa.


author: Stewart, P. J.,

text:
    Eagle v. Armstrong et al.

      Practice Act, 1915 —. Statement — Evidence — Material allegations — Exhibits.

    1. The Practice Act of May 14, 1915, P. L. 483, requires the filing of copies of all notes, contracts or book entries when the same are a part of the cause of action. Whether the copies will become evidence in the case depends upon the subsequent developments.
    2. A statement of claim is defective that contains the evidence of a cause of action, and a rule to strike it off will be made absolute.
    3. The undisputed facts in the statement, affidavit of defence and plaintiff’s reply will be admitted in evidence, provided they are relevant to the issue raised thereby.
    4. Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, contains the rules that are to be followed with reference to admissions in the pleadings.
    5. Exhibits filed with the pleadings should not contain advertising matter, and the items should follow each other consecutively, to the end that the record of the exhibits may be as concise as other parts of the statement, and a statement will be stricken off that offends in this respect.
    6. The Practice Act of 1915 is mandatory, and the provisions of the 5th section thereof must be strictly followed. Evidential matters and irrelevant matters cannot be treated as mere surplusage.
    7. A material allegation in a pleading is one essential to the claim or defence which could not be stricken from the pleading without leaving it insufficient.

      Assumpsit. Rule to show cause why statement should not be stricken from the record. C. P. Northampton Co., June T., 1921, No. 129.

      Dallett H. Wilson, Edmund B. Castellucci and Charles C. Lark, of the Northumberland County Bar, for plaintiffs.

      Smith, Paff & Laub and Floyd B. McAlee, for defendants.
    Dec. 5, 1921.
   Stewart, P. J.,

On the application of the defendants, the court granted a rule to strike from the record the statement in this case “for the reason that it violates the Practice Act of May 14, 1915, P. L. 483, in that paragraphs 4th, 5th, 6th, 7th and 8th of the statement contain more than one material allegation, and also for the reason that the statement pleads evidence and is not confined to regular pleading.” This suit is based upon the paper referred to in paragraph 5th of the statement as Exhibit “A.” That exhibit is in the form of a letter under seal, and it would seem to us, although the matter was not argued by counsel, to be an original undertaking. See Carey v. Sheldon et al., 2 Pennypacker, 330; Woods v. Sherman et al., 71 Pa. 100; Ashton v. Bayard, 71 Pa. 139, and National Bank v. Thomas, 220 Pa. 360. At the close of the agreement it is provided as follows: “The intent hereof is that, in the event that said customer fails or omits to pay any bills as rendered to him by you, the undersigned shall, on demand, pay the same up to the amount of this guaranty.” The customer referred to therein was the Myera Silk Company, and the subject-matter of the agreement was purchases of merchandise by the Myera Silk Company from the plaintiffs in this suit, and the guaranty of the payment thereof, whether evidenced by book account, notes, drafts, debts and obligations of any kind. The cause of action, therefore, covers not only Exhibit “A,” but the establishment of the debt of the Myera Silk Company to the plaintiffs herein, and where that debt is evidenced by notes, contracts or book entries, copies of the same must be attached to the pleadings as provided by the 5th section of the Practice Act of 1915. That provision does not make the copies evidence. It makes them a necessary part of the statement. Whether they will become evidence in the case depends on subsequent development. The learned counsel for the defendant relies upon New York and Pennsylvania Co. v. New York Central R. R. Co., 267 Pa. 64, in support of his position. In that case it was held: “Where a statement of claim is defective in averring the evidence of a cause of action rather than the cause itself, defendant’s remedy is to move to strike it off under section 21 of the Practice Act of May 14, 1915, P. L. 483, and a failure so to do must be deemed a waiver of the defect and cannot be asserted after a trial of the case.” It had been previously held in Kress House Moving Co. v. George Hogg Co., 263 Pa. 191, that “the Practice Act of May 14, 1915, P. L. 483, does not require the details of matters intended to be proved, or the evidence relied upon, to be set forth in the pleadings. If a defendant desires greater particularity, he should move against plaintiff’s reply in the manner provided by the statute. ... A pleader is not obliged to aver his means of proof.” In Federal Sales Co. v. Farrell, 264 Pa. 149, it was held: “Under sections 6 and 16 of the Practice Act of May 14, 1915, P. L. 483, the undisputed facts appearing by the pleadings are admitted for all the purposes of the case with the same effect as if they were embodied in the statement of claim itself.” In Ruth-Hastings Glass Tube Co. v. Slattery, 266 Pa. 288, Mr. Justice Simpson said, on pages 290 and 291, as follows: “Section 16 of the Practice Act of May 14, 1915, P. L. 483, provides that ‘neither party shall be permitted at the trial to make any defence which is not set forth in the affidavit of defence or plaintiff’s reply, as the case may be,’ except where the action is trespass or the defendants are fiduciaries. This section has worked a wise and vital change in practice, though some of the profession do not seem to^appreciate it. Except where court rules provided' otherwise, the only purpose of an affidavit of defence under the prior law was to prevent summary judgment. Under this section, however, it is an essential part of the pleadings, and the court below should refuse to admit evidence upon any issue not raised thereby.” In Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, Mr. Chief Justice Moschzisker reviewed this whole matter of evidence, and has prepared a syllabus which must prove of great value to judges and lawyers in the trial of cases. After considering the matter carefully, so far as Exhibit “B” is concerned, the statement does not offend against the Practice Act. As a new statement will have to be filed, we take occasion to call attention to that exhibit. It consists of 112 separate sheets of paper, most of them lithographed headings, with a nicely executed picture of the plaintiffs’ works on the left hand, and an equally beautiful picture of their office building in New York on the right hand, and the printed matter contains the usual advertisement of the business and location. This advertising matter, by actual measurement, takes up more than one-third of the entire sheet, and in some instances the typewritten matter on a sheet takes but two lines. The rest is advertising matter and blank space. The result is that we have an unsightly mass of papers that are to be kept and preserved among the records of this county. We have a rule of court as to the quality of paper and the size of the sheets which the prothonotary is permitted to file, but it does not seem broad enough to cover the present case. If this case were an isolated one, we would say nothing about the matter, but the practice of preparing exhibits in this way seems to be on the increase, and as each court has power to prevent unnecessary padding of its files, we shall insist in this case and in subsequent cases that the copies shall be copies of books of original entry, and that they shall be written consecutively so as to reduce the size of the statement to reasonable limits.

The other objection to the statement is that the 4th, 5th, 6th and 7th paragraphs offend, in that each one of them contains more than a single allegation. We examined this matter very carefully, and gave the result of our views in Vincent, Admin’x, v. Kuebler’s Sons, 29 Dist. R. 85. Since then we have examined a great many opinions of the lower courts and all that we could find handed down by the higher courts. We see no reason to depart from our prior opinion. The Practice Act has been held by all judges to be mandatory. In Fulton Farmers’ Ass’n v. Bomberger, 262 Pa. 43, Mr. Justice Simpson said, on page 46, as follows: “Defendant now avers that the statement of claim is insufficient because not a concise statement as required by the act of assembly. He fails to draw the distinction between conciseness and brevity. In the nature of the case, this statement could not be brief.” In Parry v. First National Bank of Lansford, 270 Pa. 556, Mr. Chief Justice Moschzisker has written another elaborate opinion, evidently for the general good. In fact he said: “This appeal involves some nice points of practice; therefore, we have gone into the several questions which present themselves more at length than is usual in affirming an order such as the one now before us.” That case was a rule for judgment for want of a sufficient affidavit of defence. The whole opinion should be studied. In the syllabus it was held: “To entitle one to judgment for want of a sufficient affidavit of defence, his statement of claim must aver in clear and concise terms all facts essential to support the judgment asked; it must be such that judgment may be taken and liquidated upon data which it furnishes. There is nothing in the Practice Act of May 14, 1915, P. L. 483, which requires a departure from this rule. . . . The filing of an affidavit of defence does not constitute a waiver of defendant’s right subsequently to rely upon the insufficiency of plaintiff’s statement of claim, when the latter asks for judgment on the pleadings. The Practice Act of May 14, 1915, P. L. 483, treats the affidavit of defence as a plea. In an action of assumpsit against a bank to recover a money judgment for certain stocks and bonds alleged to have been deposited with defendant, the statement is defective and requires no affidavit of defence, if it sets up a claim practically in tort for trover and conversion and does not sufficiently liquidate the damages to give the court a proper basis upon which to enter judgment.” An example of plaintiff’s defective allegations is given on page 561. The first clause of section 8 of the syllabus of that case bears on the present case. Some of the judges have treated immaterial matters in the statement as a mere surplusage even since the Act of 1915, but in view of this last decision of the Supreme Court, it will not do to hold any matters to be surplusage. They either are a part of the statement or not. The only qualification is that expressed by Mr. Justice Simpson, supra, when he refers to the statement being as brief as the nature of the case will permit. We shall apply the same rule that we applied in Vincent, Admin’x, v. Kuebler’s Sons, 29 Dist. R. 85, which was practically that relied on by the learned counsel for the plaintiffs here, citing Rosenblatt v. Weinman, 230 Pa. 536, which case, of course, was under the Act of May 25, 1887, P. L. 271. Does the 4th paragraph contain more than one “material fact” or “material allegation?” “A material allegation in a pleading is one essential to the claim or defence and which could not he stricken from the pleading without leaving it insufficient:” Tucker v. Parks, 7 Col. 62; Barret v. Godshaw, 12 Bush (Ky.), 592; Rhemke v. Clinton, 2 Utah, 230; Lusk v. Perkins, 48 Ark. 238. Tested by that definition, paragraphs 4, 5 and 6 are defective, as each contains more than a single material allegation. Simple statements that the Myera Silk Company purchased goods of the plaintiffs, and at the time the defendants guaranteed the payment of the same by executing Exhibit “A,” and that the silk company had not paid plaintiffs for the same, together with a corrected Exhibit “B” from plaintiff’s books of original entry, would seem to us to be all that these paragraphs 4, 5 and 6 should contain. They would then be in conformity with Rosenblatt v. Weinman, 230 Pa. 536, and would not offend against the Practice Act of 1915. Without particularizing all the defects, by way of illustration only, what bearing in an action of assumpsit does the desire of the Myera Silk Company to purchase goods and the plaintiff’s doubt of the silk company’s financial responsibility have on the defendants’ liability? What difference does it make that the defendants herein may have induced the plaintiffs to sell the silk company goods or assured them that they would protect the plaintiffs, except in so far as the defendants are bound by the written agreement Exhibit “A?” Why should there be more than a simple averment in paragraph 6 of the debt of the silk company to the plaintiffs? If this were an action of fraud or of deceit, some of the matters set forth in these paragraphs of the statement would be essential to the cause of action, but they are not essential in assumpsit. We sustain defendants’ contention as to the 4th, 5th and 6th paragraphs. The 7th and 8th paragraphs are unobjectionable. We make the same order that we have made in many cases.

And now, Dec. 5, 1921, rule is made absolute and statement stricken from the record. Leave is granted to file a new statement within fifteen days from this date.

From Henry D. Maxwell, Easton, Pa.


author: Fuller, P. J.

text:
    Abbott’s Nomination.

      Election law — Nomination papers — Amendment — Eligibility of candidate — Act of July 12, 1913.

      1. The courts cannot take into consideration the eligibility of a candidate for public office in a proceeding to set aside a nomination paper.
    2. Under the Act of July 12, 1913, P. L. 719, the court may, in its discretion, permit an amendment of the affidavit to a nomination paper.
    Application to set aside nomination paper. C. P. Luzerne Co., Oct. T., 1921, No. 752.
   Fuller, P. J.

This application, with commendable caution in order to prevent escape under any possible variation of name, attacks the nomination papers of “jud Abott,” “Judson H. Abbott” or “H. Judson Abbot,” although those papers clearly set forth only the name of “H. Judd Abbott,” which we believe to be the real name of the candidate.

The only ground of attack is that he holds office as deputy revenue collector under the United States, constituting alleged ineligibility for the office of county controller under the Act of June 27, 1895, P. L. 403, 404, which provides that “No person holding office under the United States shall be eligible to the office of county controller during his continuance as aforesaid nor until one year thereafter,” etc.

The fact of his being deputy revenue collector is disclosed on the face of the nomination papers themselves, as well as substantiated by evidence showing the character of the position. Those papers are also accompanied by his affidavit as candidate, setting forth, inter alia,, “To the best of my knowledge and belief, I am eligible for such office,” etc.

Two questions are presented, viz.: (1) Whether the candidate is in law ineligible; and (2) whether such ineligibility is a ground for setting aside the nomination papers.

1. On the first question opinions might and do differ. The judges who heard the case might agree or disagree among themselves or with other judges. Law is not an exact science and its interpreters are not infallible. The same question presented to different minds might lead in one to a positive conviction, in another to hesitating concurrence, and in a third to energetic dissent. Lower judges are often reversed by higher judges, who, in turn, may be reversed by those still higher. The entire right of appeal is predicated upon the possibility of error in respect to legal opinion. This being so, it would not be fair to a candidate, by judicial declaration, which might be erroneous, to stamp upon his candidacy, before election, the destructive mark of ineligibility, assuming that we entertain such a view.

2. The foregoing consideration furnishes one reason why, in answer to the second question, we should not regard ineligibility as ground for setting aside a nomination paper. But there is another reason. This proceeding is purely statutory, and our power to set aside a nomination paper is severely restricted to explicit statutory grounds, among which the only pertinent one is thus expressed in section 8 of the Act of July 12, 1913, P. L. 719, 730:

“(a) Material error or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits;” and it would seem that the “error or defect” here intended should be one susceptible of correction by amendment, for section 8 further expressly provides:

“If the matters objected to are such as are specified in sub-division (a) of this section, the court, upon hearing the case, may, in its discretion, permit amendments within such time and upon such terms as to payment of costs as the said court may specify.” For example, the candidate’s affidavit, as above quoted, discloses an amendable defect in averring eligibility “to the best of his knowledge and belief” instead of absolutely, as required by section 6 of the act; but ineligibility is plainly not an amendable matter, and, therefore, is not apparently included among the objections which create ground or confer jurisdiction for setting aside the nomination papers.

It may seem paradoxical not to prevent the candidacy of an ineligible person, but the law does not prescribe eligibility as a condition precedent to nomination. If a person, through patriotism or ambition, believing himself eligible, is willing to expend time and money in pursuing a political phantom, or if electors are willing to bestow vote and effort in aiding such pursuit, no legal obstacle prevents.

Accordingly, permission is granted to amend the candidate’s affidavit in the particular above mentioned, and thereupon the application to set aside will be dismissed.

From F. P. Slattery, Wilkes-Barre, Pa.


author: Fox, J.,

text:
    Bateson v. Bureau of Medical Education and Licensure, etc.

      Mandamus — Jurisdiction—Common Pleas of Dauphin County — License of physician — Medical Council of Pennsylvania — Board of Medical Education and Licensure — Act of June 19, 1913.

    1. The Act of June 19, 1913, P. L. 526, amending the Act of June 8, 1893, P. L. 346, relating to mandamus, does not confer upon the courts of Dauphin County jurisdiction to issue writs of mandamus to the Board of Medical Education and Licensure.
    2. The fact that such jurisdiction is conferred with reference to the “Medical Council of Pennsylvania and the several Boards of Medical Examiners, etc.," which council and boards had been superseded by the Board of Medical Education and Licensure, does not justify an interpretation of the plain words of the statute so as to include therein the board which was not mentioned.
    3. The Court of Common Pleas of Dauphin County does not have jurisdiction to issue mandamus to compel the Board of Medical Education and Licensure to annul its action in revoking the license of a physician.
    Mandamus, petition and return. C. P. Dauphin Co., Commonwealth Docket, 1921, No. 22.

      Milton V/. Lowry, of Scranton, for plaintiff.

      George E. Alter, Attorney-General, and Sterling G. McNees, Deputy Attorney-General, for defendant.
    Feb. 14, 1922.
   Fox, J.,

In this case an alternative writ of mandamus was issued on the petition of the plaintiff, wherein he prayed that the respondent be commanded and required to annul its action in revoking the license of the petitioner and depriving him of his right to practice medicine and surgery in this Commonwealth, and that it be compelled to restore to him all rights and privileges which he enjoyed as a practicing physician and surgeon prior to this action of the bureau.

To this writ the defendants, by Sterling G. McNees, Esq., Deputy Attorney-General of the Commonwealth, made a return, in which, amongst other matters, the question of jurisdiction is raised, and we are confronted at the threshold of the case by the question of the jurisdiction of this court.

The Act of Assembly approved June 19, 1913, P. L. 526, which is an amendment to “An act relating to mandamus,” approved June 8, 1893, P. L. 346, provides: “That the several Courts of Common Pleas shall, within their respective counties, have the power to issue writs of mandamus to all officials and magistrates elected or appointed in or for their respective counties, or in or for any township, district or place within such county; . . . and the Court of Common Pleas in the county in which the seat of government is or may be located shall have the power and shall be required to issue a writ of mandamus to the Lieutenant-Governor, the Secretary of the Commonwealth, the Attorney-General, the Secretary of Internal Affairs, the Superintendent of Public Instruction, the State Treasurer, the Auditor General, the Insurance Commissioner and Commissioners of Sinking Fund, the Medical Council of Pennsylvania and the several boards of medical examiners, etc.” The act, as thus amended, has not been repealed or amended, and is still in force.

The defendant, the Bureau of Medical Education and Licensure, was created by the Act of Assembly approved June 3, 1911, P. L. 639, and was in force at the time of the passage of the amendment of the act relating to mandamus. The Act of 1911, creating the Bureau of Medical Education and Licensure, attached this bureau to the Department of Public Instruction, and provides, inter alia, that the said bureau shall consist of seven members, two of whom, the Superintendent of Public Instruction and the Commissioner of Health, shall be ex-officio members thereof, and the five remaining members shall be appointed by the Governor of the Commonwealth, etc., and repealed by section 14 thereof the act establishing a Medical Council and three State Boards of Medical Examiners. The Medical Council consisted of the Lieutenant-Governor, the Attorney-General, the Secretary of Internal Affairs, the Superintendent of Public Instruction and the president of the State Board of Health and Vital Statistics and the president of the three State Boards of Medical Examiners; and the Board of Medical Examiners consisted of one representative of the Medical Society of the State of Pennsylvania, one representative of the Homeopathic Medical Society of the State of Pennsylvania, one representative of the Eclectic Medical Society of the State of Pennsylvania. At the time of the passage of the Amendment of 1913, relating to mandamus, the Medical Council and the three State Boards of Medical Examiners were no longer in existence. The Bureau of Medical Education and Licensure is differently constituted and has greater powers and duties than the Medical Council of Pennsylvania and Boards of Examiners had.

The jurisdiction of the courts of Pennsylvania to issue writs of mandamus is statutory. Interesting historical sketches of this jurisdiction are found in the dissenting opinion of Mr. Justice Mestrezat in the case of Com. v. Barnett, 199 Pa. 161, and by Kunkel, J., in the case of Farnham v. Pennsylvania State Board of Examiners for Registration of Nurses of the State of Pennsylvania, 15 Dauphin Co. Reps. 38.

In the latter case this court said, inter alia: “The defendant board does not fall within the provisions of the Act of 1836, as amended by the Acts of 1881 and 1885, nor within the provisions of the Act of 1893, its Amendment of 1899, or its further Amendment of March 19, 1903, P. L. 32. It is not a local board, nor are its members officers elected or appointed in and for the respective county or any sub-division or place therein, nor is it, nor are they, a corporation having its chief place of business or doing business or having its property in whole or in part within the County of Dauphin. It was created by the Act of May 1, 1909, P. L. 321, after the enactment of the legislation in which are enumerated the various State officers and State boards with respect to which the special jurisdiction in mandamus was conferred upon this court, and, of course, it is not mentioned among them. The jurisdiction of the court being wholly statutory, and the statutes on the subject not including the defendant board, it follows that we are without jurisdiction in the premises against the objection of the defendant.” We think this case is applicable to the case now under consideration. The Amendment of June 19, 1913, P. L. 526, confers no authority upon us with respect to mandamus on the Bureau of Medical Education and Licensure. This bureau is not a local board, nor are its members or officers elected or appointed in and for this county or any sub-division or place therein, nor is it, nor are they, a corporation having its chief place of business or doing business or having its property in whole or in part within the County of Dauphin. It is not the same body as the Medical Council of Pennsylvania and the several Boards of Medical Examiners; it is differently constituted and has a greater scope of duties and powers, and, although having been created for the same general purposes, yet its entity and identity are different from those of the Medical Council and Boards of Medical Examiners. The language of the act is plain and admits of but one reference and meaning, and that is, to the Medical Council and Boards of Medical Examiners. We cannot change it; we cannot add to it; we cannot legislate. When the legislature, in the Amendment of 1913, included the Medical Council of Pennsylvania and the several Boards of Medical Examiners, it may have meant thereby the Bureau of Medical Education and Licensure, but we must take the act in its plain terms and not extend it to something not named in its terms.

In 25 Ruling Case Law, 961, it is said: “The intention and meaning of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. This principle is to be adhered to, notwithstanding the fact that the court may be convinced by extraneous circumstances that the legislature intended to enact something very different from that which it did enact. The current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.”

Endlich on the Interpretation of Statutes, page 6, says: “It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or whose grammatical construction is doubtful, that courts can exercise the power of controlling the language in order to give effect to what they suppose to have been the real intention of the law makers.”

The jurisdiction of the court being wholly statutory, and the defendant not being named or included in the statute, we, against the objection of the defendant, are without jurisdiction in the matter.

It is, therefore, unnecessary to consider the other matters in the case.

The proceeding is, therefore, dismissed, at the plaintiff’s cost.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Wagner, J.,

text:
    Satz v. Lamar.

      Practice, C. P. — Contract not to engage in same business — Breach—Measure of damages — Sufficiency of evidence.

    The measure of damages for the breach of a contract not to engage in a certain business in competition with plaintiff for a term of years is not what amount of business the defendant has done in violation of his contract, but how that has affected plaintiff’s business to his damage; and where the evidence is not of sufficient certainty and exactness to have enabled the jury to estimate the damages according to this standard, the verdict will be set aside and a new trial will be granted.
    Rule by defendant for new trial. C. P. Berks Co.; April T., 1920, No. 100.

      Robert G. Bushong, for defendant and rule.

      Wm. Kerper Stevens and George Eves, for plaintiff.
    Nov. 26, 1921.
   Wagner, J.,

On Aug. 5, 1919, the plaintiff, for the sum of $4000, purchased defendant’s business at No. 114 Madison Avenue, Reading, Pa., known as the Penn Auto Service. The defendant agreed that he would not “by himself, or by his servants or employees, engage in the business of furnishing automobiles for hire, for the carriage of passengers or freight, within the City of Reading,” for a period of five years from the date of the agreement.

In his statement plaintiff averred that the defendant had violated this provision of the agreement by engaging in the business of furnishing automobiles for hire, for the carriage of passengers and freight, in the City of Reading, and claimed that, because of this breach of contract, he has suffered damages for which suit was brought. The jury returned a -verdict for the plaintiff for $781.

There is no question whatever but that, if plaintiff’s witnesses were believed, there was by the defendant a breach of the contract as claimed by the plaintiff. The defendant does not base his reasons for a new trial upon the ground that there was not any evidence of a breach, but upon the ground that the evidence was not such as to enable the jury to base a verdict thereon for the amount rendered.

The question was not what amount of business the defendant had done in violation of his contract, but how. that had affected plaintiff’s business to his damage. “Upon the breach of a contract of a sale of the good-will of a business, the measure of damages is the loss suffered by the purchaser by reason of the wrongful acts of the seller, and not the profits realized by defendants as the result of his wrongful enterprise; and if plaintiff fails to furnish the data from which the court or jury can estimate his actual damages, his recovery will be restricted to nominal damages:” 20 Cyc., 1282. The only evidence that we have upon which to base damages is that of the plaintiff, where he testified that a customer had asked him to take him to Lancaster, and that the defendant, by underbidding him $3, had secured the job. The plaintiff also testified that when he purchased the business, the gross receipts were about $300 a week, and then, after the defendant went into business, they dropped to $50 or $60 and sometimes $75 a week. The total amount of decrease was not given, nor the manner in which it had decreased from $300 to $50, upon which in any way to base a verdict of $781.

Plaintiff’s counsel cited Brewing Co. v. McCann, 118 Pa. 314, in support of their contention that the evidence in this case was sufficient. An examination of that case shows that the jury had something definite upon which to base the verdict for the plaintiff for $391. McCann had leased from the brewing company a place in which to sell liquors. The brewing company had control over a room adjoining the one leased to McCann. At the time of the lease, the brewing company agreed with McCann that it would not permit liquor to be sold in this adjoining room during the time of McCann’s lease. This agreement of the brewing company with McCann was broken. Mr. Justice Williams (page 321) says: “The continuous sale of drink in the room between his own and the entrance to the theatre afforded one reason, and an adequate reason, for the falling off in his own business.” The plaintiff in that case testified “that his business during the last fifteen months of his lease fell below that of the preceding fifteen months by $4041.85, and that his profits, after deducting all expenses, would be one-half his gross sales.” In that case, therefore, we have first an- adequate reason for the falling off of plaintiff’s business, in that defendant permitted a similar business to be run in a room between plaintiff’s and the entrance to a theatre; and, second, we have data upon which to base an estimate of the damages; - that is, the total amount of the falling off of business for a period of fifteen months, together with what the profits thereon would have been. In this case we do not have any evidence of the total decrease of business or loss of profits. All we have is that it had been $300 a week and fell to $50 a week. In Hughes v. Ireland, 74 Pa. Superior Ct. 518, 522, we have: “ ‘If the plaintiff fails to furnish sufficient data to enable the jury, with a reasonable degree of certainty and exactness, to estimate the actual damages sustained by the purchaser, then his recovery will be restricted to nominal damages:’ Shaw v. Jones, Newton & Co., 66 S. E. Repr. 240 (Ga.); Breeding v. Tandy, 146 S. W. Repr. 742 (Ky.); Sessinghaus Milling Co. v. Hanebrink, 152 S. W. Repr. 354 (Mo.); Raymond v. Yarrington et al., 73 S. W. Repr. 800 (Tex.); 3 Sutherland on Damages (3rd ed.), § 658.”

From Wellington M. Bertolet, Reading, Pa.


author: Van Swearingen, P. J.,

text:
    Commonwealth v. Derencin.

      Criminal law — Banks and banking — Embezzlement—National banks — Acts of March 31, 1860, and May 18, 1917.

    1. A state has the legitimate power to define and punish crimes by general laws applicable to all persons within its jurisdiction, and it may declare by special laws certain acts to be criminal offences when committed by officers or agents of its own banks and institutions, but it is without lawful power to make such special laws applicable to banks organized and operated under the laws of the United States.
    2. An indictment of an employee and agent of a national bank for fraudulent conversion and embezzlement under the Act of May 18, 1917, P. L. 241, and section 114 of the Crimes Act of March 81, 1860, P. L. 382, will be quashed.
    Motion to quash indictment. Q. S. Fayette Co., Dec. Sess., 1921, No. 166.

      William A. Miller, District Attorney, and Sterling, Higbee & Matthews, for Commonwealth.

      John Duggan, Jr., for defendant.
    Dec. 19, 1921.
   Van Swearingen, P. J.,

The defendant, M. Derencin, was the manager of the foreign department of the First National Bank of Connellsville, and was indicted on two counts: (1) Por the fraudulent conversion to his own use of the sum of $30 deposited in and belonging to the bank, but actually received by and in the possession of the defendant, in alleged violation of the Act of May 18, 1917, P. L. 241, which makes it a misdemeanor by “any person, having received or having possession, in any capacity or by any means or manner whatever, of any money or property of any kind whatsoever, of or belonging to any other person, firm or corporation, or which any other person, firm or corporation is entitled to receive and have, who fraudulently withholds, converts or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person;” and (2) for the embezzlement and fraudulent appropriation to his own use of the sum of $30, in alleged violation of section 114 of the Crimes Act of March 31, 1860, P. L. 382, 410, which makes it a misdemeanor if “any person, being a banker, broker, attorney, merchant or agent, and being entrusted for safe custody with the property of any other person, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use, or the use of any other person, such property or any part thereof.”

There is before us a motion to quash the indictment on the ground that neither of the statutes mentioned applies to national banks. One of the acts makes no direct reference to banks of any kind, and the other mentions only “any person being a banker.”

In Com. v. Ketner, 92 Pa. 372, where the defendant was indicted as cashier of a national bank with embezzling the funds of the bank, and was discharged on habeas corpus for the reason that the offence was not indictable at common law, and that our statutes defining and punishing such offences did not apply to national banks, our Supreme Court, in an opinion by Mr. Justice Paxson, after discussing section 116 of the Crimes Act of March 31, 1860, P. L. 382, as amended by the Act of June 12, 1878, P. L. 196, and the supplemental Act of May 1, 1861, P. L. 603, relative to embezzlement by officers and employees of banks and other corporations, said: “We are spared further comment upon these acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume that when the legislature used the words ‘any bank,’ it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty. They were created, and are now regulated, by the Acts of Congress. When our Acts of 1860 and 1861 were passed, there were no national banks, nor even a law to authorize their creation. When the Act of 1878 was passed, Congress had already defined and punished the offence of embezzlement by the officers of such banks. There was, therefore, no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punishment, an enormity which no court would permit, if it had the power to prevent it. An act of assembly prescribing the manner in which the business of all banks shall be conducted, or limiting the number of the directors thereof, could not by implication be extended to national banks, for the reason that the officers of such banks are exclusively under the control of Congress. Much less, can we, by mere implication, extend penal statutes like those of 1861 and 1878 to such institutions. The offence for which the relator is held is not indictable either at common law or under the statutes of Pennsylvania. We, therefore, order him to be discharged.”

In Allen’s Appeal, 119 Pa. 192, where it was held that section 64 of the Crimes Act of March 31, 1860, P. L. 382, 399, which provides that it shall be a misdemeanor for the cashier of any bank of this Commonwealth to engage in any other profession, occupation or calling, is not applicable to cashiers of national banks organized under the Acts of Congress, it was said by Mr. Justice Paxson: “The National Banking Act, and its supplements, create a complete system for the government of those institutions. Conceding the power of Congress to create this system, I am unable to see how it can be regulated or interfered with by State legislation. The Act of 1860, if applied to national banks, imposes a disqualification upon cashiers of such institutions where none has been imposed by Act of Congress. If the State may impose one qualification upon the cashiers, why not another? If upon the cashier, why not upon the president or other officer? Nay, further, suppose the legislature should declare that no person should be a bank director unless he has arrived at fifty years of age, or should be the owner of one hundred shares of stock, could we apply such an act to national banks? If so, such institutions would have a precarious existence. They would be liable to be interfered with at every step, and it might not be long before the whole national banking system would have to be thrown aside as so much worthless lumber.” In Columbia National Bank v. Powell, 265 Pa. 85, it was held that the Escheat Act of June 7, 1915, P. L. 878, which requires an annual report of deposits to be made to the Auditor General by “every person, bank, safe deposit company, trust company and corporation organized or doing business under the laws of this Commonwealth,” does not apply to national banks doing business in Pennsylvania, citing Com. v. Ketner, 92 Pa. 372, and Allen’s Appeal, 119 Pa. 192.

In Easton v. Iowa, 188 U. S. 220, James H. Easton, President of the First National Bank of Decorah, had been indicted, convicted and sentenced under a statute of Iowa which prohibited any bank or banking house from receiving deposits when insolvent, and making it a felony for any officer thereof to receive deposits knowing of such insolvency. The statute made no reference to national banks or banking associations. The Iowa Supreme Court affirmed the judgment of the lower court, holding that the statute was applicable to all banks, whether organized under the laws of the state or the Acts of Congress, and on writ of error the Supreme Court of the United States accepted as correct the construction placed upon the statute by the highest court of Iowa, and, in reversing the Iowa courts, confined its consideration to the question whether, as so construed, the act was within the jurisdiction of the state. In delivering the opinion of the court, Mr. Justice Shiras cited and quoted, inter alia, those portions of the opinions of Mr. Justice Paxson, of the Supreme Court of Pennsylvania, in Com. v. Ketner, 92 Pa. 372, and Allen’s Appeal, 119 Pa. 192, above quoted, and reached the following conclusion, as stated in the last paragraph of his opinion: “Undoubtedly a state has the legitimate power to define and punish crimes by general laws applicable to all persons within its jurisdiction. So, likewise, it may declare by special laws certain acts to be criminal offences when committed by officers or agents of its own banks and institutions. But it is without lawful power to make such special laws applicable to banks organized and operating under the laws of the United States.”

Under the authority, therefore, not only of the Supreme Court of Pennsylvania, but also of the Supreme Court of the United States, we are of opinion that the motion to quash the indictment must be sustained.

And now, Dec. 19, 1921, the indictment is quashed.

From Luke H. Frasher, Uniontown, Pa.


author: Heck, P. J.,

text:
    Quick v. Swanson.

      Practice, G. P. — Trespass—Set-off or counter-claim — Practice Act of 1815.

    In an action of trespass the defendant cannot plead a set-off or counter-claim. The Practice Act of May 14, 1915, P. L. 483, has not changed the law as to a counter-claim in an action of trespass.
    Statutory demurrer to affidavit of defence. C. P. Potter Co., Sept. T., 1921, No. 106.

      Archibald F. Jones and Robert R. Lewis, for plaintiff.

      W. K. Swetland, for defendant.
    Feb. 27, 1922.
   Heck, P. J.,

The plaintiff, Dallas Quick, has brought an action of trespass against the defendant, Jake Swanson, to recover damages to his automobile which it is alleged was caused by the negligent act of the defendant.

An answer has been filed by the defendant, denying liability to the plaintiff and, in addition, alleging injury to his automobile by the negligent act of the plaintiff, and by counter-claim demanding damages of him.

The plaintiff has filed a statutory demurrer under the Practice Act of May 14, 1915, P. L. 483, denying the right of the defendant to set up a counter-claim in such an action as brought here. This is the sole question for our disposition.

We agree with Judge Gillan that “The law as to a counter-claim in an action of trespass has not been affected by our Practice Act of 1915. On that subject the law is the same since the Practice Act as before:” Shoemaker v. Myers, 30 Dist. R. 240; s. c., 49 Pa. C. C. Reps. 312.

We have examined carefully the authorities cited by counsel, and have come to the conclusion that in this State the law permitting a counter-claim to be set off by a defendant does not apply to actions of trespass: Heck v. Shener, 4 S. & R. 249.

It seems that the doctrine of our courts is that in an action of assumpsit a defence is permitted which goes to the consideration or the gist of the action, even though it be of a tortious nature, and even in actions of trespass matters growing out of the same transaction may be set up as an equitable defence: Heck v. Shener, 4 S. & R. 249; Lehr v. Taylor, 90 Pa. 381.

But farther than this the authorities do not seem to go, and none of our appellate courts in any wise recognize the principle that a counter-claim can be asserted in an action of trespass. A contrary conclusion is reached by Judge Gillan in the case of Shoemaker v. Myers, 30 Dist. R. 240, but with due respect for his opinion we cannot agree with his conclusion.

And now, Feb. 27, 1922, on the plaintiff’s statement raising a question of law judgment is hereby entered in favor of the plaintiff and against the defendant, in so far as the defendant seeks to avail himself of a counterclaim against the plaintiff in the action brought.


author: Ryan, P. J.,

text:
    Commonwealth v. Brown.

      Justice of the peace — Assault and battery — Costs—Constitutional law — Act of May 27, 1919 — Summary conviction — Appeals.
    1. The Act of May 27, 1919, P. L. 306, which provides that a justice of the peace may determine by whom the costs shall be paid in a prosecution for assault and battery where the defendant is discharged, is not in contravention of sections 1 and 9 of art. i of the Constitution.
    2. Where a defendant is discharged for want of sufficient evidence in a prosecution for assault and battery before a justice of the peace, the justice may impose the costs upon him.
    3. In case of such an imposition of costs, the defendant will be allowed an appeal under the provisions of art. v, § 14, of the Constitution, and the Act of April 17, 1876, P. L. 29.
    Appeal from summary conviction. Q. S. Bucks Co.

      Hiram H. Keller, District Attorney, for Commonwealth.

      William H. Satterthwaite, for defendant.
    Jan. 2, 1922.
   Ryan, P. J.,

The defendant, a teacher in a public school and the principal thereof, was arrested for assault and battery, which was alleged to have been committed by him in inflicting excessive corporal punishment upon a pupil. After hearing, the justice discharged the defendant, but 'imposed the payment of costs upon him, under the provisions of the 2nd section of the Act of May 27, 1919, P. L. 306, which is as follows: “In all such cases, when the evidence does not show that the prosecution is well founded, the alderman, justice of the peace or magistrate shall discharge the defendant and determine by whom the costs shall be paid. In assessing the costs, he may order that the prosecutor or defendant pay all or any part thereof, or he may assess the costs on the county. In default of payment of any costs so imposed on the prosecutor or defendant, the person so defaulting shall be committed to the county jail, one day for each dollar of such costs, or until such costs are paid, or until such person is discharged according to law, and in such cases the costs shall be paid by the county.” The defendant then secured the allowance of this appeal. He contends that the section above cited is in contravention of sections 1 and 9 of art. I of the Constitution of the Commonwealth, and therefore void. Section 1 of the article provides that “trial by jury shall be as heretofore and the right thereof remain inviolate.” This provision verbatim, was contained in the Constitutions of 1838 and 1790. That of 1776 contained the following provisions relating to the same subject: “That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred:” Chap. 1, § 11; and “Trials shall be by jury as heretofore, and it is recommended to the Legislature of .the State to provide by law against every corruption or partiality in the choice, return or appointment of juries:” Chap. 11, § 25. As applicable to summary convictions, therefore, this provision in the present Constitution has been construed to mean that a man is entitled to a trial by a jury of twelve men in every case involving his interests, provided he would have been so entitled prior to 1776, and not otherwise: White on the Constitution of Pennsylvania, page 67, § 3. At common law, a defendant, though acquitted, always paid costs, and that continued to be so until the Act of March 20, 1797, 3 Sm. Laws, 281, by which it was provided that upon the acquittal of a defendant of an indictable offence, the costs should be paid out of the county stock by the county: Com. v. Tilghman, 4 S. & R. 127. The defendant, therefore, in the instant case is not deprived of any right to a trial by jury that he would have enjoyed at common law. The other contention, that the Act of 1919 is in conflict with the provision of section 9 of art. I, that the accused in a criminal prosecution cannot “be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land,” is equally without foundation for the same reason. We are not convinced, therefore, that section 2 of the Act of May 27, 1919, P. L. 306, is unconstitutional, and must, therefore, hold the contrary. The next question presented is whether the court has power to review the justice’s action in imposing the costs upon the defendant and dispose of the appeal. It was allowed under the provisions of art. v, § 14, of the Constitution, and the Act of April 17, 1876, P. L. 29. They do not give the defendant the right to have such an appeal tried by a jury. The court must, therefore, hear and determine it. Testimony was heard at the bar of the court. The evidence showed that the defendant whipped the son of the prosecutor with a wooden ruler, and that the boy was guilty of such conduct as justified the defendant’s act. There was no evidence that justified the conclusion that he inflicted such punishment as amounted to an assault and battery. The justice was clearly right in discharging the defendant, but we cannot concur in his conclusion that the latter should pay the costs. What he did was in discharge of his duty and the exercise of his authority as a teacher. Nothing was disclosed to the court that warranted the imposition of the costs upon him. Accordingly, the judgment of the justice in this particular must be set aside.

NOTE. — See Com. v. Berella, 9 Westmoreland L. J. 165; contra, Com. v. Bossier, 29 Dist. B. 171.

And now, to wit, Jan. 2, 1922, the judgment of the justice as to the costs is reversed and the defendant is discharged.

From Calvin S. Boyer, Doylestown, Pa.


author: Henderson, J.,

text:
    Paucker’s Estate.

      Separate-use trust — Divorce and second marriage of beneficiary before testatrix’s death.

    Where testatrix creates a separate-use trust for her daughter, described as the wife of a particular man, and the daughter, before testatrix’s death, obtains a divorce and marries another man, the second marriage not being the marriage contemplated, the trust is inapplicable, and the daughter will be entitled to her share of the estate absolutely.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1922, No. 622.

      James B. Anderson, Jr., and George J. Edwards, Jr., for exceptions.
    May 26, 1922.
   Henderson, J.,

The testatrix gave one-half of her estate in trust, “to pay the net income thereof to my daughter Bertha Roesler (wife of Richard E. Roesler) for her sole and separate use for the term of her natural life or until she shall become discovert. Immediately upon the said Bertha Roesler becoming discovert, then I direct my said trustee to pay over to her absolutely all of the personal property included in this trust . . . and direct him to convey to her in fee any and all real estate forming part of this trust. Should the said Bertha Roesler die during coverture, then I give, devise and bequeath the corpus of this trust ... to my daughter Jennie Paucker absolutely.”

Upon the day of the execution of the will Bertha Roesler was the wife of Richard E. Roesler. She divorced him on Nov. 22, 1920, and on Dec. 3, 1920, in the lifetime of the testatrix, was married to William J. Shields, with whom she now lives. Bertha Shields excepts to the refusal of the auditing judge to terminate the trust, and in this position Jennie Paucker concurs.

While a separate-use trust will always be upheld when created within the limits allowed by law, it is, nevertheless^-the policy of the law to unfetter estates: Murray v. Lowrie, 208 Pa. 1. The law leans against the extension of such trusts by inference: MacConnell v. Wright, 150 Pa. 275. A separate-use trust must be declared in unequivocal language for a married woman or for a feme sole in immediate contemplation of marriage: Wells v. McCall, 64 Pa. 207. The marriage contemplated must be the marriage consummated; a marriage other than that contemplated will not support the trust: Hamersley v. Smith, 4 Wharton, 126. The marriage must exist or be in immediate contemplation at the date of the execution of the will: Quin’s Estate, 144 Pa. 444; Neale’s Appeal, 104 Pa. 214. Upon diseoverture, either by death or divorce, the separate-use trust terminates: Williams’s Appeals, 83 Pa. 377; and a second marriage does not revive it: Hamersley v. Smith, 4 Wharton, 126; Carman v. Bumpus, 244 Pa. 136.

With these principles in mind, we shall examine the language of this will. It provides for a separate-use trust for Bertha Roesler, wife of Richard E. Roesler, until she should become discovert. Bertha became discovert by divorce. Thereby the trust was not effective. Her marriage to Shields would not revive it. The trust for her as the wife of Roesler was for her protection from him, not from Shields. It did not revive on the second marriage by implication. A marriage with Shields was not in contemplation on the day the will was made. Non constat, but the testatrix would not have thought such protection necessary with Shields as the husband.

The exceptions are sustained, and the award in favor of Bertha Shields will be paid to her absolutely.


author: Gest, J.,

text:
    Dutilh’s Estate.

      Wills — Construction—Words purporting death — Survivorship.
    Where a testator directs the income of a trust fund to be paid to his three daughters for their respective lives, and to the "survivors and survivor of them” in case of the death of any without leaving children or issue of a deceased child living at her death, with gifts over of the income of her share, until the death of the last surviving daughter, to the children of any daughter who may die leaving children or issue, the words of survivorship refer to the deaths of the daughters, and, on the death of one of them without issue, the income of the fund held in trust for her is payable to the surviving daughter to the exclusion of the children of a deceased daughter.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1885, No. 323.

      Clement B. Wood, for exceptants; Charles F. Da Costa, contra.
    May 26, 1922.
   Gest, J.,

The testator bequeathed $350,000 in trust to pay the income to his wife (who survived him) for her life, and after her death (which event since occurred) to pay the income to “my daughters, Mary D. Bell, Emily Dutilh and Catharine M. D. Grugan, and the survivors and survivor of them, in case of the death of either without leaving any child or issue of any deceased child living at the time of her death, share and share alike, for and during the full term of their respective lives, for their sole and separate use. But if either of my said daughters shall die leaving a child, children or issue of any deceased child living at the time of her death, the share of income of such deceased daughter shall be paid over and appropriated to the support, maintenance and education of such child, children or issue of deceased children, share and share alike, such issue, however, taking or receiving only the parent’s share till the time for distribution of said Trust Fund, namely, the death of the survivor of my said daughters.”

Of these three daughters, Mrs. Grugan died in 1917, leaving two children, Charles D. Grugan and Emily D. Agnew, and Emily Dutilh died in 1921, unmarried and without issue. The question before the auditing judge, as stated by him, arose as to the disposition to be made of the share of income, one-third, which Emily Dutilh received in her lifetime. Is it payable to Mrs. Bell, or is it payable one-half to Mrs. Bell and one-half to those taking through Mrs. Grugan? The auditing judge awarded the entire one-third of the income to Mrs. Bell, so that she will receive two-thirds of the income of the whole estate, and these exceptions were filed to this award.

We are of opinion that the award made by the auditing judge is correct. The direction is to pay over the income of the trust fund to the three daughters nominatim, and the survivors and survivor of them for their respective lives, and this can have no other meaning, in the absence of some further direction, than to give the income to the three daughters as joint tenants. The will, it should be observed, does not merely speak of the “survivors of his children,” but the “survivors and survivor” of them, the use of the word “survivor” in the singular number showing clearly that the testator contemplated the event of there being a single surviving daughter, and pointing definitely to the death of each daughter as determining the period of survivorship. The testator, indeed, confines this meaning to the event of the death of a daughter without leaving children or issue living at the time of her death, and proceeds in the next paragraph to provide that, in case a daughter leaves issue living at the time of her death, the deceased daughter’s share of the income shall be used for the support and maintenance of her issue until the period of distribution of the capital of the fund; that is, the death of the survivor of the three daughters. The words of survivorship cannot, as is argued by the learned counsel of the exceptants, be referred to the death of the testator or to that of his widow; they refer to the death of any of the daughters. Whatever in any contingency is given to Mrs. Grugan is for her life only, and there is nothing in the will to show that the testator intended to give any greater income to her children than that which she enjoyed during her own lifetime. So when Mrs. Grugan died, her children came into the enjoyment of her share; but Emily Dutilh left no children, and the surviving daughter becomes, in our opinion, entitled to her share.

There is nothing unusual or unnatural in such a provision. As we said in Craig’s Estate, 24 Dist. R. 851, which case, as the auditing judge justly said, has some points of similarity to the present, the will seems to show the testator’s desire to make his own children as recipients of the income the primary objects of his bounty until the death of the survivor of them in preference to grandchildren or remoter issue.

The cases relied upon by the learned counsel of the exceptants do not, in our opinion, affect the present question, which concerns only the distribution of income. As to this we think the language of the will is sufficiently clear, irrespective of authority, but we may refer to Cranswick v. Pearson, 31 Beavan, 624, and Begley v. Cook, 3 Drewry, 662, as possessing some similar features.

The learned counsel of the exceptants argued that this construction of the will as to the income now before the court would logically lead, on the death of Mrs. Bell, to an unequal and unjust distribution of the principal, as it might result in her children or issue receiving two-thirds of the fund, while Mrs. Grugan’s children would receive but one-third, the will providing as to this distribution that “upon the death of the survivor of my said daughters, I will and direct that the said Trust Fund shall be distributed to and among the children and issue of any deceased child then living, of my said respective daughters, in such manner and proportions as she shall have directed in any last will, testament or appointment in the nature thereof, duly made and executed by her in respect to the share or portion, the income of which was paid to her as aforesaid. And in default of such last will, testament or appointment, to and among such children and issue of deceased children then living, share and share alike, such issue, however, taking only the parent’s share. And in default of such last will, testament or appointment and of children or issue of deceased children then living, then in Trust for such persons as would be entitled thereto under the intestate laws of Pennsylvania, if she had died possessed thereof single and unmarried freed from all trusts whatever.”

It is perhaps sufficient to say that this question does not arise at the present time, and its solution cannot now be determined: Willard’s Appeal, 65 Pa. 265; a rule that has always been followed in this court: Hano’s Estate, 8 Dist. R. 353; Glanding’s Estate, 15 Dist. R. 985; Wears’s Estate, 25 Dist. R. 30. While we, therefore, refrain from even any discussion of the question, we may observe that the interpretation of the will as to the distribution of the principal is very susceptible of argument, and when this question comes before us in due time, it will be approached with an open mind.

The exceptions are dismissed and the adjudication is confirmed absolutely-


author: Henry, P. J.,

text:
    Millar v. Grieb & Thomas, Inc.

      Corporations — By-laws—Contracts for service in violation of by-laws.

    Persons dealing with a corporation are hound by the restrictions imposed by the by-laws upon its officers. Hence, where a by-law provides that no contract of employment for services to be rendered to the company shall be of greater duration than two weeks unless in writing, signed by the officers of the company and approved by the board of directors, there can be no recovery by a former employee of a balance due under an alleged oral contract for his services for a term of three years made by the president and treasurer, although acquiesced in by the directors as individuals.
    Motion for judgment n. o. v. C. P. No. 5, Phila. Co., June T., 1921, No. 1745.

      Breitinger & Millar, for plaintiff; J. N. Ewing, for defendant.
    May 19, 1922.
   Henry, P. J.,

52nd judicial district, specially presiding,

The plaintiff in this suit sought to recover a balance due under an alleged three-year contract for his services. The three-year contract was denied, the defendant contending that there was no specified time for the employment. The defendant is a corporation and the contract was claimed to have been made with the president and treasurer and acquiesced in by the remaining directors. The stock of the corporation was largely held by the directors, but some was held by others than the officials. A by-law of the company provided as follows: “No contract of employment for services to be rendered to the company shall be of longer duration than two weeks, unless said contract of employment is in writing, signed by the officers of the company and approved by the board of directors.” The alleged contract was not in writing, was not signed by the officers of the company and was not approved by the board of directors as such.

The jury returned a verdict in favor of the plaintiff for $4174.70, and the defendant has moved for judgment non obstante veredicto upon the whole record and for a new trial. The persuasive reason assigned in support of the motion for judgment non obstante veredicto is that the contract sued upon is in direct violation of the said by-law of the company.

In Putnam v. Ensign Oil Co., 272 Pa. 301, Mr. Justice Kephart lays down the rule with respect to the effect of a by-law restriction as follows: “Pennsylvania has adhered to the rule that the by-laws of a corporation are written into the charter, defining and limiting the rights, duties and powers of its officers, and placing persons dealing with the corporation on notice as to the extent of the officers' powers, actual knowledge of the existence of the by-laws being immaterial.” The court then gave the exceptions to the rule that obtained with respect to commercial paper, and it might well be that an exception might be noted to the extent to which a corporation has benefited by an unauthorized contract by its officers or where there is an acquiescence or ratification by all of the stockholders for whose benefit such restrictive by-laws are made, but we know of no other exception to the rule that parties dealing with a corporation are bound by the by-law restrictions upon its officers. The contract in question was clearly in violation of this by-law of the company; it is not within the recognized exceptions, and the plaintiff, having been paid for the services he rendered to the company, cannot recover for the remaining portion of his arrangement made with the officers. Judgment must, therefore, be entered upon the whole record for the defendant, notwithstanding the verdict.

And now, to wit, May 19, 1922, judgment non obstante veredicto upon the whole reeord is hereby directed to be entered in favor of the defendant. An exception to this action of the court is hereby noted for the plaintiff.


author: Wanner, P. J.,

text:
    Franklin Sugar Refining Co. v. Fulton, Mehring & Hauser Co.

      Practice, C. P.- — Pleading — Statement of claim — Contracts — Writings— Oral contract — Act of May H-, 1915.

    1. Under the Act of May 14, 1915, P. L. 483, plaintiff’s statement must set forth whether the contracts involved in the suit were written or oral.
    2. If they were written, copies thereof should he attached to the statement, omitting copies of letters, memoranda of sales, etc., which are not parts of the contracts, but merely instruments of evidence for the proof of other facts.
    3. If the contracts are oral or partly oral and partly written, they belong to the class of parol contracts and should be so declared upon, and their terms and conditions should be accurately and specifically averred in the statement.
    4. The defendant is entitled to full and specific information as to all the details of the alleged contracts, the breach of the same and the damages claimed, so that he may determine whether to admit or deny them in whole or in part, and thereby avoid trial entirely or reduce its trouble and expense.
    Motion to strike off statement of claim. C. P. York Co., Aug. T., 1921, No. 152.

      James G. Glessner, for motion.

      Harvey A. Gross and Henry S. Drinker, Jr., contra.
    Oct. 24, 1921.
   Wanner, P. J.,

The statement is open to the objection that it does not specifically state whether the eight contracts in suit are written or verbal, as required by section 9 of the “Practice Act, 1915,” P. L. 483: International Clay Machine Co. v. Keystone Clay Co., 29 Dist. R. 753; Gilmer Brothers v. Walker, 29 Dist. R. 510; Philadelphia Gear Co. v. Climax Machine Co., 29 Dist. R. 493.

If they were in writing, the statement should set them forth in full with an affidavit of the correctness of the copies thereof, as required by the rules of this court. In that case, copies of letters, memoranda of sales, &c., which are not parts of the contracts themselves, but merely instruments of evidence for the proof of other facts, should be omitted from the statement as provided in section 5 of the “Practice Act, 1915:” New York & Penna. Co. v. New York Central R. R. Co., 267 Pa. 64.

If the contracts in suit were verbal, or partly verbal and partly written, they belong to the class of parol contracts and should be so declared upon, and .their terms and conditions should be accurately and specifically averred in the statement, omitting, as before, copies of all writings which are not a part of the contract itself, but mere instruments of evidence for the proof of extrinsic facts: Robert Grace Contracting Co. v. Norfolk & Western Ry. Co., 259 Pa. 241-248.

The defendant is entitled to full and specific information as to all the details of the alleged contracts in suit, the breach of the same and the damages claimed, in order that he may determine whether to admit or to deny them in whole or in part, and thereby avoid trial entirely, or reduce its trouble and expense by clearly defining and limiting the issues of facts to be determined.

In this case, though the statement is lengthy and sets forth numerous written instruments of evidence, it lacks clear and accurate disclosure of the precise terms of the contracts in suit, if they included anything verbal, which they apparently did from some of the allegations in the statement. What the defendant’s obligations were seems to be partly a matter of inference from the former course of dealing between the parties and the customs observed between the sugar broker and the plaintiff, as influenced by conditions in the trade.

It is objected by the defendant that the correctness of the copies of the written instruments contained in the statement are not sworn to as required by the rules of this court, but we are of the opinion that the general affidavit of the truth óf the facts alleged in the statement, which is attached thereto, is a sufficient compliance with the rules in question.

Now, to wit, Oct. 24, 1921, the plaintiff’s statement is stricken off for noncompliance with the provisions of section 9 of the “Practice Act, 1915,” P. L. 483, with leave to file a new statement within fifteen days after the filing of this opinion.

From Richard E. Cochran, York, Pa.