text:
    Buckley v. Shuler.

      L. T. Sehlesinger, for plaintiff; A. Stewart, for defendant.
    June 19, 1929.
   Martin, P. J.,

The sheriff returned a writ of summons in assumpsit: “Served Frank J. Shuler, the within-named defendant, on Feb. 22, 1929, by handing a true and attested copy of the within writ at 1539 N. 59th St., in the City and County of Philadelphia, State of Pennsylvania, the place of business of said defendant, to Michael Manley, the person for the time being in charge thereof, being unable to ascertain the residence of said defendant within the County upon inquiry at said place of business.”

A statement of claim was filed and served at the same time and in the same way.

An appearance de bene esse was entered for defendant by counsel “for the purpose of objecting to the service of the writ.”

Defendant filed a petition, averring that he was a non-resident of the County of Philadelphia, residing in Norristown, Montgomery County, and that he never had a residence or place of business in the County of Philadelphia; that No. 1539 North 59th Street is not his place of business; that he was constructing a building at that location under contract with the owner and was simply the contractor for the construction, but had no title or interest in the building; that Michael Manley was not in charge of the premises at the time the copy of the writ was handed to him, but was a watchman employed to protect the property during its construction; that, under the statutes of Pennsylvania, a non-resident defendant, who has no place of business in the county where the writ of summons is issued against him, can be served therewith only by handing a true and attested copy thereof to him personally.

A rule was granted to show cause why the service of the writ of summons should not be set aside.

An answer to the petition was filed by plaintiff, averring that he is advised by counsel that the appearance for defendant de bene esse is in effect a general appearance and waiver of any defect in the service of the summons upon defendant, and that the question of jurisdiction can be raised by petition under the' Act of 1925 without the need of the entry of an appearance; that the petition should have been filed within fifteen days from the service of the summons and statement of claim; and that plaintiff is advised by counsel, and, therefore, avers, that the sheriff’s return, full and complete on its face, is conclusive upon the parties and cannot be set aside on petition.

It is further averred in the answer that plaintiff is advised that defendant has a place of business in the County of Philadelphia, in that he has a proprietary interest of some character in the premises No. 1539 North 59th Street, where he maintains an office as general contractor for the erection and construction of a rectory building for His Eminence, Dennis J., Cardinal Dougherty; and that No. 1539 North 59th Street is the present place of business of defendant in the County of Philadelphia, and that he maintains an office at that address' as a general contractor for and about the ereeti'on of said building. It is averred that a non-resident may be served in the manner provided in the Act of May 4, 1852, P. L. 574; that the sheriff’s return is full and complete, and, in the absence of fraud, which is not alleged in the petition, such return is conclusive upon the defendant and cannot be set aside on extrinsic evidence; and that defendant is barred by laches from maintaining his petition, since he has failed to file the petition within fifteen days of the service of the statement of claim, before the return-day of the summons and the entry of judgment and execution thereon.

Defendant replied to this answer that service of the writ may be attacked at any time before a general appearance, and averred that he was misled by the docket entries, which erroneously stated that the return-day of the writ was the fourth Monday of March, instead of the fourth Monday of February.

In his reply, defendant denied that he had any proprietary interest in the premises No. 1539 North 59th Street or that he maintained an office there; but averred that as the general contractor for the erection of the building he built a small shack for the protection of the ■watchman employed by him. He also denied that Michael Manley was the person in charge of defendant’s place of business at the time of service of the summons or at any other time.

A supplemental petition was filed by defendant, averring that the sheriff attempted to serve the writ of summons in this action under paragraph “e” of clause 1, of section 1, of the Act of July 9', 1901, P. L. 614; and that it does not apply to service made on a non-resident defendant, which is regulated by the provisions of section 1 of the Act of May 4, 1852, P. L. 574; and that the summons was not served in the manner prescribed by that act.

An answer was filed by plaintiff to this supplemental petition, in which it is averred that paragraph “e” of clause 1, of section 1, of the Act of July 9, 1901, P. L. 614, applied to service on defendant; that he had a place of business within the county and a proprietary interest of some character at the place of business, in that the building belonged to him until fully paid for and turned over to the owners of the land; that the appearance for defendant de bene esse was in effect a general appearance and waiver of any defect in the service of the summons touching the jurisdiction which had been raised by a petition subsequently filed under the Act of 1925, without the necessity for an appearance de bene esse; and that the petition to set aside the service should have been filed before the entry of judgment and execution thereon.

The deposition of defendant deposed that his residence is at Highland Avenue, Jeffersonville, West Norriton Township, County of Montgomery and State of Pennsylvania; that the writ was mailed by one of his employees in Philadelphia to his office in Norristown; that he is a general contractor and builder, and his place of business is on Washington Street, Norristown; that he never resided in Philadelphia or had a place of business there; that he had no place of business at No. 1539 North 59th Street on Feb. 22, 1929, when'the writ was served, but was merely a contractor for the construction of the building, had absolutely no proprietary interest of any character in the building, and did not even maintain an office at that place, and employed Michael Manley merely as a watchman.

In Selmer et al. v. Smith et al., 285 Pa. 67, it was held that, although, ordinarily, fifteen days after service will be deemed a sufficient allowance of time for moving to set aside, laches will not be imputed to a party when his delay has not resulted in injury to his adversary; and whether or not a party is chargeable with a want of due diligence in failing to institute or prosecute his proceedings must be determined from a consideration of the circumstances of the particular case.

In Miller Paper Co. v. Keystone C. & C. Co., 267 Pa. 180, it was held, in the absence of fraud, a sheriff’s return, full and complete on its face, is conclusive upon the parties and cannot be set aside on extrinsic evidence, but “where the return is defective or incomplete, it opens the door for extraneous evidence.”

The return in the present case was incomplete in failing to state that defendant was a non-resident of the County of Philadelphia.

It was said in Daly et al. v. Iselin, 10 Dist. R. 193: “While it is true, in general, that a sheriff’s return cannot be contradicted, the rule does not apply to everything contained in it. It is true only as to matters returned which the officer knows of his own knowledge, such as the time, place, manner of service and person upon whom made; but it does not apply to facts returned, the truth of which he could only know by hearsay, such as that defendant is a non-resident, doing business within the county, and that the person upon whom service is made is his agent. The return in this respect is not conclusive and may be contradicted.”

“In order to give a good service upon a non-resident . . . the return must show defendant is such non-resident, that he is engaged in business in this county, and that the person upon whom the writ was served was the clerk or agent of defendant, and that the service was made at the usual place of business or residence of such clerk or agent. . . . The testimony taken on the rule to set aside the services shows that the person on whom the service of process was made was in no sense the agent of defendants to receive such service; that he was here temporarily, merely engaged in a single transaction, and that the place of business referred to in the return was in no sense a usual place of business; that defendants were non-residents, with no place of business, within the meaning of the law, within this county. . . . The fact that defendants were temporarily engaged in a single business transaction here would not alter their status in this respect:” Von Moschzisker, J., in O’Brien v. Bartlett, Hayward & Co., 29 Pa. C. C. Reps. 124, 126.

In the present case defendant was a non-resident of the county, he was engaged in a single transaction, No. 1539 North 59th Street was not his usual place of business, and Manley, the watchman, was not the clerk or .agent of defendant.

The sheriff’s return should be set aside.

And now, to wit, June 19, 1929, the rule to show cause why service of the writ of summons in the above entitled action should not be set aside is made absolute.


source: Caselaw Access Project

author: Alessandroni, J.,

license: Public Domain

text:
    O’Neill, Trustee, v. Finnesey.

      Fox & Rothschild, for plaintiff; Lewis, Adler & Laws, for defendant.
    June 20, 1929.
   Alessandroni, J.,

Harry J. J. O’Neill, trustee in bankruptcy for the estate of Finnesey and Kobler, Inc., brought this bill in equity, alleging that the defendant, the controlling stockholder of the corporation until April, 1925, had improperly withdrawn moneys from the corporation and purchased certain real property with it. The bill prayed that the defendant be restrained from disposing of or encumbering the said real property and be ordered to convey them to the plaintiff, on the basis that he be declared the holder of the property in question as trustee for the plaintiff. After the trial, the presiding judge filed an adjudication stating his findings of fact and conclusions of law. The testimony showed that the defendant owned 998 shares of the 1000 shares of the capital stock of the corporation, one share was held by the defendant’s wife and the remaining share by William Sokalov, who acted as secretary, treasurer and director.of the corporation and who also kept the books. It thus appears that this was a one man corporation. The defendant remained in active control of the corporation from 1916 to 1922, when he gave Sokalov ninety-nine more shares. In April, 1925, on being told that the corporation was in financial difficulty, he gave $50,000' to the corporation. The money alleged to be wrongfully withdrawn was taken from the corporation on numerous occasions with the full knowledge and consent of Sokalov. It was understood that Finnesey was really the corporation, and withdrawals were made without any formal resolution at any time. Part of the money withdrawn was used in partial payment of the properties purchased, the balance being paid from Finnesey’s personal sources of capital. The money so withdrawn was charged to several special accounts and to expense accounts, although no intentional deception or fraudulent concealment was proven. The withdrawals all appeared in the books and were apparent to any book-keeper. After 1921 no regular books were kept, and there was no evidence of any wrongful withdrawals between 1922 and 1925, when the defendant withdrew from the corporation. Evidence of withdrawals by the defendant, subsequent to 1921, were not explained, and it cannot be determined whether they were wrongful. Up until 1921 the profits had always exceeded the expenses of the business, plus the withdrawals of the defendant, but in 1921 a loss of $8800 was shown. However, in the preceding five years, approximately $23,000 in net profits had been earned and not withdrawn. There was no evidence of the impairment of capital or that the corporation was insolvent at any time during which the withdrawals in question were made. The findings of fact of the chancellor were substantially to this effect, and the exceptions by the plaintiff are without foundation.

The gist of the plaintiff’s exceptions to the chancellor’s_ conclusions of law rests really on the basis that the withdrawals impaired the capital of the corporation and precipitated the insolvency of the company at the time of the withdrawals. All of plaintiff’s cases are to the effect that dividends cannot be paid out of capital. But no evidence was produced to prove an impairment of capital or the insolvency of the company. The plaintiff’s contentions that the withdrawals were not made from profits, and that they reduced this corporation to insolvency (so that the stockholders might be held accountable to subsequent creditors), are not upheld by the proofs. The evidence shows that, except for the year 1921, there was more than enough profit to cover all withdrawals, and, consequently, there could be no impairment of capital, and if there was no impairment of capital, insolvency could not be produced so as to give subsequent creditors a right of action. The mere fact that the money withdrawn was not paid out in formally declared dividends has no bearing and is admitted by the plaintiff.

The informality of the distribution of profits is immaterial if they were dividends in fact, and this being a one man corporation, there can be no question that such was the intention of the defendant and that it was acquiesced in by the two dummy directors.

The evidence shows that all the creditors existing at the time the defendant withdrew from the corporation and assigned his stock to Sokalov and his son and son-in-law have been paid, and that the only creditors of the bankrupt corporation are subsequent creditors. An attempt was made to show that income tax returns had been falsified and that the United States Government was also a creditor, but no evidence was introduced to. prove that the United States was making any claim. Inasmuch as the withdrawals were lawful and no attempt was made to defraud any one, the adjudication of the chancellor in favor of the defendant must be upheld. The law is indicated in Illoway v. Daly, 65 Pa. Superior Ct. 333 (1916) : “There can be no serious question concerning the receiver’s right to recover the value of the property transferred by the company if creditors existed at the time the transfer was made, or if it appeared that the property was transferred with the knowledge, either express or implied, that the company, through its then known business dealings, would become insolvent, or where stockholders would be prejudiced by such transfer. To sustain the receivers’ right to recover, it must appear that some right at law, known to exist at the time the bargain was made, was injuriously prejudiced by the purchase of the stock and the transfer of the property by this company. . . . Stockholders dealing in good faith without fraudulent motives need not offer corporate property at public sale to effect a distribution of a part or all of it among themselves, and where part is retained by the corporation and the business is still conducted in the absence of fraudulent motives, future creditors cannot complain.”

There being no evidence that the withdrawal of these dividends by the, defendant was wrongful or impaired the capital of the corporation, the exceptions filed by the plaintiff to the chancellor’s findings of fact and conclusions of law cannot be sustained. After 1921 the defendant was not even actively engaged in the business of the corporation, and when informed that the corporation was in bad shape in 1925, he contributed $50,000, so that when he withdrew from the corporation, its assets exceeded its liabilities by about $27,000. The oral argument and brief-of the plaintiff have failed to convince us that the chancellor’s findings of fact, conclusions of law and decree should be disturbed.

The following exceptions of the plaintiff to the findings of fact and conclusions of law are dismissed: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21.


author: Lewis, J.,

text:
    Gold v. Crown.

      Ladner & Ladner, for plaintiff; Barnett Cohen, for defendant.
    June 14, 1929.
   Lewis, J.,

This is an action of assumpsit for an amount which plaintiff “believes, and therefore avers, will exceed the sum of $2500, with interest thereon,” the exact amount, however, “to be determined by an account to be rendered as demanded in the statement of claim.” The plaintiff’s statement then sets forth that the parties were partners between Jan. 15, 1928, and Dec. 31, 1928, at which time the relationship was dissolved by mutual agreement; that the defendant has retained in his custody all of the papers, records, books of account, moneys and other assets of the partnership and has refused to give the plaintiff any statement from which plaintiff might determine the exact amount to which he is entitled. The affidavit of defense admits the partnership, states that certain of the papers, records and books of account have always been in the custody of the defendant, and that the plaintiff has always had access to them and may now have such access for the purpose of gaining whatever information he desires. The defendant further narrates in his affidavit of defense that some of the papers and records of the partnership are in the plaintiff’s possession, and that certain of the assets of the partnership, consisting of furniture, fixtures and two new Hupmobile automobiles, have, since the dissolution of the partnership, been in the possession of the plaintiff, who has converted them to his own use; that the defendant is not able to furnish plaintiff with a full, detailed and proper account, and, finally, that there is no balance due the plaintiff from him. A set-off and counter-claim is then pleaded, in which the defendant claims certain sums growing out of their dealings as partners and the employment of plaintiff by defendant in another business.

The plaintiff has filed a reply to the set-off and counter-claim, the general effect of which is to admit certain items, averring that defendant is entitled to a credit therefor against the amount which is due plaintiff in the distribution of the assets of the partnership.

The matter now comes before the court on a rule, granted upon petition of the plaintiff, to show cause why defendant should not be ordered to account.

It is manifest that the plaintiff is proceeding under section 11 of the Practice Act of 1915, which entitles a plaintiff, under certain circumstances, to ask for an account. There is some authority, however, for the proposition that an action in assumpsit, under this provision of the Practice Act, does not lie for the settlement of partnership accounts involving more than a single transaction (Backer v. Remov, 69 Pa. Superior Ct. 138; Duggan v. Duggan, 91 Pa. Superior Ct. 374, 379; Amram, Pennsylvania Practice Act of 1915, pages 82, 83), although some of the language used in Miller v. Belmont Packing and Rubber Co., 268 Pa. 51, casts doubt upon it. A discussion of these authorities is to be found in Fearon v. Meads, 3 D. & C. 243.

Under any circumstances, however, we find that section 19 of the Practice Act provides that: “When the plaintiff asks for an account, and moves for judgment for want of an affidavit of defense, or for want of a sufficient affidavit of defense, the court may enter an order for an account. . . .” In the opinion of Mr. Justice Simpson, when the case of Duggan v. Duggan, supra, was appealed to the Supreme Court (291 Pa. 556), it is said: “The general procedure in this class of actions is plain. If, as here, defendant admits his duty to account, and files what he alleges to be a true one, no order to account is necessary, and the issues actually raised are to be disposed of as in other cases of assumpsit. If defendant does not dispute plaintiff’s right to an account, but files none, or insufficiently denies the right, plaintiff may proceed under section 19 of the Act of 1915, P. L. 486; the court should order an account, and the suit will then proceed as in other’ cases. If defendant sufficiently denies the duty to account, the issues actually raised by the pleadings must first be tried: Miller v. Belmont Packing and Rubber Co., supra, pages 58, 59. If, as the result of the trial, it is determined that defendant is not required to account, the suit ends there; if it is decided he must account, the court so orders, and the suit thereafter proceeds as in other cases: Miller v. Belmont Packing and Rubber Co., supra, pages 63, 64.”

The theory of the plaintiff in this case is that the defendant has insufficiently denied the right of the plaintiff to an account. It would seem that he should have proceeded under section 19 of the Practice Act instead of by petition for the rule now before us.

The argument that the defendant has insufficiently denied the right to an account seems based upon the fact that the plaintiff has certain of the partnership books in his possession. As has been indicated above, however, this is not admitted to the extent necessary, before the court, on the bare pleadings, can direct defendant to file an account. In addition, we have the offer in the affidavit of defense to permit the plaintiff to have access to the books for such information as he desires. There is nothing before us to indicate that this is anything but a true and bona fide statement. In view of the retention by the plaintiff of certain of the partnership property, and the fact that admittedly the plaintiff owes the defendant certain sums of money as a result of their dealings, we cannot see our way clear to order an account at this point.

The rule is, accordingly, discharged.


author: Fleming, P. J.,

text:
    Commonwealth v. Nestor.

      John H. Maurer, Assistant District Attorney, for plaintiff.

      Samuel W. Salus, for defendant.
    June 28, 1929.
   Fleming, P. J.,

49th judicial district, specially presiding,

The matter is before the court on a writ of habeas corpus, whereby the defendant and relator seeks his discharge from arrest on a charge of larceny by bailee.

The relator is an officer of the Employment Bureau Corporation and was arrested on a warrant issued upon the information of one Bert Williams. Williams had sought employment through the Employment Bureau Corporation, and, pursuant to a written agreement, deposited certain personal property or effects with the Employment Bureau Corporation as security for the payment of certain charges, to wit, $4.65 for office fee, $6.93 for fare and for boarding at rate of $9.45 per week. The agreement in writing states in part: “I hereby acknowledge and agree that I am now indebted to the Employment Bureau Corporation, and that I have this day deposited with them my suitcase and other baggage and contents, and hereby agree that the said Employment Bureau Corporation shall not be liable in any manner for loss or damage to my said suitcase, baggage or other property while in their possession, no matter from what cause the said loss or damage may occur, and in the event the said suitcase, baggage or other property is not removed by me within thirty days from the date hereof, and all indebtedness paid, I agree to pay for the storage thereof at the rate of One Dollar ($1.00) per month, and in the event all sums due by me to the Employment Bureau Corporation and all storage on the said suitcase, baggage and other property is not paid within two months from the date hereof, I hereby authorize and empower the said Employment Bureau Corporation to sell the said suitcase, baggage and other property belonging to me in its possession at public sale, at any place within Philadelphia, upon ten days’ notice to me by letter mailed to my address as given below, and after advertisement once in one newspaper published in the City of Philadelphia at least five days prior to the time fixed for said sale, and after deducting all sums due the Employment Bureau Corporation and all costs of advertising and sale, to hold the proceeds for my account until demanded by me.” The date of such agreement is June 19, 1929, and it was testified at the hearing on the writ by an official of the State Department of Labor and Industry that the provisions of the agreement were approved by said department.

Bert Williams, the prosecutor, had accepted the employment specified at the hands of the Employment Bureau Corporation, permitted it to expend money for his fare to the point where employment had been designated, accepted board at its hands for several days and then quit the job, returned to Philadelphia and demanded the return of his personal property or effects without tendering or paying the sums expended by the Employment Bureau Corporation on his behalf, as stated. Upon its refusal to return such personal property or effects, he caused the arrest of the relator on a charge of larceny by bailee.

We are firmly of the opinion that the facts fail to show the slightest trace of a criminal action and that the relator should be discharged.

This bailment was as a security for a debt unquestionably incurred by the bailor. It was redeemable on certain terms and contained an express power of sale on default. In the Roman law the name applicable to this kind of contract was pignus. Under our verbiage, it would be called a pawn as distinguished from an antichresis, the former being where a movable is pledged and the latter where an immovable constitutes the subject of the pledge. There is no question here as to the bailor’s authority to pledge, the delivery of the property, the default by the bailor in the terms thereof, nor as to any material fact. In short, the pledge was a valid pledge beyond question. “In the case of a valid pledge, the pledgee acquires a lien on the thing pledged to the extent of the indebtedness secured, which is usually held to continue as long as he retains possession thereof, either actual or symbolic, and the debt which it was pledged to secure remains unpaid:” 21 Ruling Case Law, 651, 652.

The existence of this valid lien on the part of the bailee negatives the existence of intent necessary to establish the refusal to return the pledged goods as a crime. The relator has not been shown to have converted the goods of the prosecutor. On the contrary, it was testified at the hearing that the goods were intact and would be returned to prosecutor upon his compliance with the terms of the pledge. That the prosecutor has not paid or tendered payment is frankly admitted.

If prosecutor has any remedy under existing facts, it is upon the civil side of the court and not here. No crime has been committed and relator is entitled to his discharge.


author: Knight, J.,

text:
    Commonwealth v. Haley.

      Samuel H. High, for plaintiff; Robert Potts, for defendant.
    Nov. 2, 1928.
   Knight, J.,

The prosecutrix, who resides in Montgomery

County, charges the defendant, her husband, who resides in Philadelphia County, with desertion and non-support.

At the hearing before this court, the defendant offered in evidence a certified copy of a record of the Municipal Court of Philadelphia, showing that the prosecutrix had the defendant before that court in April of this year on the same charge, and that, after a full hearing, the case had been dismissed.

The defendant now sets up the dismissal of the former prosecution as a bar to the present.

The Act of April 13, 1867, P. L. 78, provides as follows: “That, in addition to the remedies now provided by law, if any husband, or father, being within the limits of this Commonwealth, has, or hereafter shall, separate himself from his wife, or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain his wife or children, it shall be lawful for any alderman, justice of the peace or magistrate of this Commonwealth, upon information made before him under oath, or affirmation, by his wife or children, or either of them, or by any other person or persons, to issue his warrant to the sheriff, or to any constable, for the arrest of the person against whom the information shall be made, as aforesaid, and bind him over, with one sufficient surety, to appear at the next Court of Quarter Sessions, there to answer the said charge of desertion.”

In Com. v. Tragle, 4 Pa. Superior Ct. 159, the court, in construing this act, said: “Under its provisions, the Court of Quarter Sessions of any county where the complaint is made has jurisdiction of the proceedings, without regard to the residence or settlement of the defendant and without reference to where the original desertion took place.” See, also, Com. v. Brook, Jr., 93 Pa. Superior Ct. 282.

By the Act of July 12, 1913, P. L. 711, the Municipal Court of Philadelphia is given exclusive jurisdiction in that county in cases of desertion and non-support.

The Municipal Court, therefore, had jurisdiction over the defendant and the subject-matter, and as there is nothing in the record to show that the ease was dismissed by reason of any defect in the proceedings, or for want of jurisdiction, presumably and impliedly it was dismissed upon the merits.

What effect, then, has this former dismissal by a court of competent jurisdiction upon the present prosecution?

Proceedings under the Act of 1867, supra, are of a quasi-criminal and highly penal character (Demott v. Com., 64 Pa. 302), and it is one of the fundamental principles of our law that a defendant once fairly found not guilty before a court having jurisdiction to hear and determine the question of guilt of the accused may plead such acquittal in bar of any subsequent accusation for the same offense: 4 Blackstone’s Comm., 335.

The situation of the parties has not altered since the case was heard in Philadelphia in April of this year; there has been no change in condition, and the Municipal Court denied the prosecutrix an order for support upon the same facts that she now urges upon this court as a basis for a finding in her favor.

Under these circumstances, we are of the opinion that the adjudication of the Municipal Court of Philadelphia must be treated as conclusive against the present prosecution.

No case has been called to our attention which holds contrary to the above view; on the other hand, our opinion is supported by the following lower court cases: Com. v. Bowman, 6 Kulp 176 (1890), Rice, P. J.; Com. v. Cawley, 4 Dist. R. 69 (1894), Rice, P. J.; Com. v. Markley, 5 Dist. R. 134 (1893), Craig, P. J.; Com. v. Schench, 8 Kulp, 487 (1896), Bennett, J.; Com. v. Stuhlman, 11 Dist. R. 181 (1902), Beitler, J.; Com. v. Larkin, 15 Dist. R. 728 (1906), Stout, P. J.; Com. v. Kissinger, 22 York Leg. Record, 67 (1908), Wanner, J.

Since the hearing in this matter, the case of Com. v. Brook, 93 Pa. Superior Ct. 282, has been reported. In this case the defendant was arrested in Delaware County and the proceedings continued pending a settlement. With the record in this shape, the wife, prosecutrix, went into the Municipal Court of Philadelphia County and obtained an order on the defendant. This order was subsequently vacated and an order obtained under the original proceedings in Delaware County. It was urged that the proceedings in Philadelphia barred the prosecution in Delaware County. The court held to the contrary on the grounds that the jurisdiction of Delaware County had never been ousted and that the vacation of the order in Philadelphia did not constitute a bar to an order obtained on the prior proceedings in Delaware County. This case can be readily distinguished from the case at bar.

True, desertion is a continuing offense (Com. v. Hart, 12 Pa. Superior Ct. 605; Com. v. Smith, 6 D. & C. 378), and it is urged by counsel that the failure of the defendant to cohabit with and maintain his wife since the adjudication of the Municipal Court constitutes a new offense.

We cannot agree with this view. The adjudication of the Philadelphia court establishes the fact that there was no desertion or that it was justified. There cannot be continuation of something that did not exist, and nothing has occurred since the case was dismissed in Philadelphia to change the situation.

The prosecutrix sought relief in the Municipal Court of Philadelphia; if she was dissatisfied with the decision of the forum of her choice, she could have appealed to the Superior Court; she cannot shop around among the counties of the State until she finds a court which will decide in her favor. Although we. are of the opinion that the adjudication of the Municipal Court is a conclusive bar to the present prosecution, it may not be inappropriate to say a few words on the merits of the case.

The prosecutrix and the defendant have been separated for eight years, but it was not until April of this year that Mrs. Haley tried to get any support from her husband, although she knew where he resided and worked all through the separation.

The lapse of time will not defeat the right of the wife to support from the husband, but it is persuasive corroboration of the defendant’s positive statements made on the stand in the Municipal Court, and before us, that he is and always has been ready and willing to support his wife if she will come and live with him. He also testified without any denial by her that during the first year or so of the separation he requested his wife repeatedly to come back to him.

The reason given by the prosecutrix for her present refusal to live with the defendant is “because he ran around with another woman.” Be that as it may, were we deciding the case on its merits, we would be inclined to hold that the prosecutrix should give the defendant an opportunity to demonstrate the sincerity of his offer to rehabilitate the home.

And now, Nov. 2, 1928, the motion to dismiss the proceeding is allowed and the prosecution is dismissed.

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


author: Brownson, P. J.,

text:
    In re Johanna Kersling.

      Harry A. Jones, for accountant.

      Edward T. Petrello, Deputy Attorney-General, and Ralph W. Peacock, for Commonwealth.

      Byron E. Tombaugh, for administrator.
    Nov. 5, 1928.
   Brownson, P. J.,

The paper, marked “Exceptions to the Report of Guardian,” which has been filed by the Deputy Attorney-General, does not contain anything properly amounting to an exception to the guardian’s account. It does not seek to have the accountant charged with any asset not already accounted for, nor does it question the propriety of any disbursement for which the accountant has taken credit. -Its real nature is that it is the presentation against the estate of the weak-minded person of a claim, under the Act of June 1, 1915, P. L. 661, as amended by Act of May 10, 1921, P. L. 438, for the reimbursement of the Commonwealth for moneys which she has expended for the maintenance of the ward in the Dixmont Hospital. The account exhibits a balance in the accountant’s hands which is sufficient to pay it, being almost two and one-half times its amount. (The county appears to have been already paid its similar claim.) Proof of the amount due the Commonwealth has been made in the form and manner prescribed by the statute.

The ward died on Aug. 18, 1928, and after her death this account was filed as the guardian’s final account. The only question for determination is that raised by the claim which the administrator of the deceased has advanced, viz., whether the decree of distribution to be made upon this account should embrace an award to the Commonwealth of the amount of the claim presented or the whole of the balance in the accountant’s hands should be awarded to the administrator.

It is clear that the Court of Common Pleas should not, after the death of a lunatic or weak-minded person, undertake to make a distribution of the estate among next of kin or ordinary creditors of the deceased, but should turn it over to an administrator for distribution according to law under the direction of the Orphans’ Court: Frankenfield’s Appeal, 11 W. N. C. 373; Blake’s Estate, 4 Montg. Co. Law Repr. 147; though it seems to be clear, also, that any liability, in the form of administration expenses or otherwise, which the committee or guardian has, under authority from the Common Pleas, incurred during the administration of his trust, that court has the power to, and ordinarily should, cause to be paid out of the estate while still in its grasp. See Rutty’s Appeal, 84 Pa. 61, 65. In this case, as the record shows that the accountant was appointed as guardian merely to take care of the ward’s property, and the court appears never to have made an order directing the guardian to reimburse the Commonwealth and no claim appears to have been presented by the latter during the ward’s lifetime, the present claim would perhaps not come within the second category referred to in the preceding sentence. Judge Mellvaine made such a ruling in a similar, case, decided on April 10, 1916, Lunacy of John W. Elliott, No. 390, in Equity; and on that basis he in that case awarded the entire balance to the administrator, turning the Commonwealth over to the Orphans’ Court as the forum in which to assert the claim. We must, however, take into consideration some legislation on this subject, including some enacted since that decision. On May 10, 1921 (P. L. 438), section 4 of the Act of June 1, 1915, P. L. 661, was amended so as to provide that “the Court of Common Pleas shall, upon the application of the Attorney-General, make an order for the payment of maintenance to the Commonwealth upon the trustee, committee, guardian or other person who has charge of the estate of any such inmate.” Thereby a special statutory jurisdiction was conferred upon the Court of Common Pleas, the exercise of which is by the amendment made mandatory. This statutory grant of jurisdiction was not considered nor adverted to in the Elliott case, the opinion considering only the question of what jurisdiction would result to the court from the fact that by it lunacy had been adjudicated and the committee had been appointed, without making any mention of, or reference to, section 4 of this statute, then but recently enacted. But the jurisdiction granted by this statute does not depend upon whether the custodian of the fund does or does not hold it under an appointment made by that court: Walters’ Case, 278 Pa. 421; In re Theresa Spangler, 3 D. & C. 616; In re Alice Spangler, 39 York Leg. Record, 25. In those eases, it was held that the Common Pleas had jurisdiction to make an order upon a testamentary trustee holding for the lunatic under a spendthrift trust. Therefore, the circumstance that by the death of the lunatic the active functions or duties conferred upon the committee or guardian by his appointment may have terminated, save as to the doing of such things as are necessary to effect a settlement and distribution of the estate in his hands, would not necessarily take him out of the operation of this statute; after such death he holds the funds in his hands subject to a trust in favor of whoever has succeeded to the rights of the deceased, and he is a “trustee ... or other person who has charge of the estate.” In the case of In re Frank Hoffmann, 258 Pa. 343, 346, it was said that “the provisions of section 6 [of the Act of 1915] expressly contemplate the presenting of the Commonwealth’s claim [to the Common Pleas] in proceedings to distribute the estate of the person maintained.” This may be (as to a case like the present one) an obiter dictum, as it seems to be inferable from the report that the insane person was still alive. Erwin’s Estate, 11 D. & C. 20, however, involved the very question now for determination. The weak-minded person had died on Jan. 1, 1&27, and on Aug. 17, 1927, after the filing of the guardian’s final account, the Commonwealth petitioned the Common Pleas of York County for an order under the Act of 1915 and its amendment of 1921. The court made a decree distributing the balance shown by the account, less costs, to the Commonwealth and the county pro rata,, that balance being insufficient to reimburse both, in full, for what they had respectively paid for the ward’s maintenance in a State hospital.

We think it is clear that by the Acts of 1915 and 1921 a new and special jurisdiction has been conferred upon the Common Pleas and that under them the Commonwealth is entitled to receive from that court a distribution award upon its claim, when there are funds available, and is not bound to await the settlement of the decedent’s estate in the Orphans’ Court and then resort to that forum.

And now, Nov. 5,1928, the account of the guardian is finally confirmed, and it is ordered and decreed that the accountant do pay to the Commonwealth of Pennsylvania, as reimbursement for payments made on account of maintenance of the ward in the Dixmont Hospital, the sum of $953.14, and that the remainder of the balance exhibited by the account (less any unpaid taxed costs of the proceedings prior and subsequent to the filing of the account, which costs are to be paid out of said balance) shall be paid over by1 the accountant to George E. Adams, administrator of the estate of Johanna Kersling (alias Kerslin), deceased.

From Harry D. Hamilton, Washington, Pa.


text:
    Maryland Coal and Coke Co. v. Gonzales Coal Mining Co.

      J. K. Johnston, for rule; N. B.,Spangler and Ivan Walker, contra.
    Jan. 28, 1929.
   Fleming, P. J.,

The defendant has obtained a rule upon the plaintiff to show cause why the above judgment should not be opened and the defendant permitted to defend against the plaintiff’s demand.

The plaintiff is a corporation, and for a number of years prior to the happenings in this case had been quite extensively engaged in the bituminous coal fields of central Pennsylvania. At or about the time of the transactions upon which this suit is based, the plaintiff abandoned its activities in the central Pennsylvania field. The defendant is also a corporation, and has been, and still is, engaged in mining and shipping bituminous coal from its operations at or near Karthaus, Clearfield County, Pennsylvania.

In December, 1927, negotiations were had between the plaintiff, through its representative, Harry Gibson, and the defendant, through its president and general manager, O. J. Harm, and its secretary, Walter A. Harm, for the sale by the plaintiff to the defendant of a used mining-machine, known as a Jeffreys 35 B. This machine was at the mines in the Osceola District. The price to be paid was originally fixed at $2000, but subsequently, when the machine in question arrived at defendant’s mine, it was discovered that the truck was too high for defendant’s purposes, whereupon an adjustment was made by which defendant was to purchase such a truck as would be suited to its needs, at its own expense, in consideration of which the plaintiff would allow the defendant the sum of $300 therefor by way of a deduction from the agreed purchase price, making the same $1700 instead of $2000, as originally stated. Upon the basis of this adjustment, the defendant gave to the plaintiff its check for $200 and its note for $1500. This note was dated Dec. 10, 1927, and became due on March 1, 1928. The note was not paid at maturity, and on April 10, 1928, by virtue of the warrant of attorney and confession of judgment therein contained, judgment was entered on said note, to the above number and term, in the sum of $1650, being the face of the note, plus 10 per cent, attorney’s commission, according to the tenor of the said note, and with interest from Dec. 10, 1927.

The defendant avers in its petition that the plaintiff agreed that the machine in question would be delivered to the defendant at its operation near Karthaus, Pennsylvania, and that the machine was in “number one” condition and would do the necessary work by way of mining coal, and that it was suitable for cutting a thirty-one-inch vein of coal. The defendant further avers that it paid the cost of transporting the machine to its operations; that when the electric power was turned on the machine would not work and did not have power enough to pull its own weight; that the gearing was worn out and that it would require the expenditure of $256.88 for parts sufficient to put the machine in workable condition.

The plaintiff avers in its answer that it agreed to deliver the machine to defendant’s operations, but at the defendant’s expense; it denies that plaintiff stated anything in regard to the condition of the machine or that it would do any work other than what its condition, upon inspection, would disclose it to be capable of doing; that the machine was inspected prior to the purchase by Walter A. Harm, secretary of the defendant corporation. In general, plaintiff denies the allegations of defendant’s petition.

“An application to open a judgment entered upon a warrant of attorney or judgment note is an equitable proceeding addressed to the discretion of the court, and is to be disposed of in accordance with the principles of equity. ... It is difficult to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not so act unless there is more than an oath against oath is a familiar rule in chancery practice. Where there is more than this, and it comes to a question of the weight of the evidence, it is for him to decide on which side the scales incline. If he is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury. Subject to the foregoing, it is proper to say, that if the testimony taken on the rule would be sufficient to justify the submission of the question to a jury, the court may, in its discretion, make an order to open; but if, on the testimony so taken, the court would set aside a verdict for the defendant, the court should refuse to open. This rule provides a reasonable margin for the exercise of the discretion of the court below: . . .” Jenkintown National Bank’s Appeal, 124 Pa. 345.

The instant case is concerned with two questions, viz.: (1) Was a warranty given by the plaintiff, either express or implied, as to the condition of the machine in question and its ability to perform? (2) If such a warranty, either express or implied, is found to have existed, has the defendant waived his rights under such warranty by his subsequent course of dealing with the machine?

As to the giving of the warranty, the testimony is directly contradictory. As related by the defendant and its witnesses, Gibson, the plaintiff’s agent, approached Walter A. Harm, secretary of the defendant corporation, stating that the plaintiff was discontinuing operations in central Pennsylvania and that it had the machine in question for sale. Gibson was referred to O. J. Harm as the official having authority to make purchases for the defendant corporation. 0. J. Harm was then at his fishing camp and Gibson visited him there. The record fails to disclose any other person present there when the machine and its purchase was discussed. Harm says a warranty was made. Gibson denies the same. Thus far we have merely oath against oath, for the preliminary talk between Gibson and Walter A. Harm cannot be said to incline the scales in favor of the defendant, it being as corroborative of Gibson’s testimony — and iporc directly so — than it is of that of O. J. Harm.

The defendant then sent to plaintiff’s operations for the machine and transported it to its own operations. This is denied by defendant, but again we find but oath against oath as to who delivered the machine. According to the testimony of Walter A. Harm, the machine was at defendant’s mine for about a week before settlement was made. He further testified that he was present when Gibson requested settlement, and that the machine had not been inspected, but that the check and note were given on Gibson’s statement that the machine was in “A number one condition and would cut the coal.” This is in corroboration in a small degree of defendant’s contention as to a warranty, but not sufficient, in the light of the interest of the witness, to incline the scales toward the defendant. It must be borne in mind that at the time of settlement, according to defendant’s testimony, not the slightest effort had been made to inspect the machine. Later and after settlement, defendant testifies, the electric current was applied and the machine would not move, and it was hauled into the shop by mule power, and there it was discovered that the gears were worn out and that the machine was generally in bad shape. It may be true that the machine could not be taken into the mine until the lower truck had been obtained, and that, therefore, it could not be tested as to its coal-cutting ability, but as to these other alleged defects, inspection could have been had before settlement as well as afterward.

It is further testified by O. J. Harm that such a machine was not an immediate necessity at the time it was purchased. “I stated that we would be in the market for one in about three months; that we were now driving centers and would be ready at that time.” (Notes of Testimony, page 5.) Mr. Harm, as testified by him, has been in the coal mining business for eighteen years, and is known to the court as one of the most successful and efficient operators in central Pennsylvania. We cannot reconcile, therefore, his failure to inspect, at least superficially, for such an examination should have then revealed the alleged defects now averred in support of this rule, this machine, which he did not need for three months; nor can we understand why he parted with the present use of $200 of the defendant’s money as a down-payment and obligated the payment of a further sum and interest by way of a solemn instrument under seal. Such a course, in the light of his recognized business sagacity, indicates more strongly to the mind of the court a desire to take the machine “as is” rather than a desire to accommodate a corporation, such as the plaintiff, by handing it an obligation and to rely on a warranty to protect his company.

The cost of a new machine of the make and type of the one in question, according to Mr. Askins, the defendant’s witness, was, on Dec. 10, 1927, the sum of $3750. The defendant agreed to pay $1700 for this one. Mr. Askins further testified that if the machine in question was put in proper condition, it would be worth from $2200 to $2500. Mr. Harm testified that he has procured the necessary parts at an expense of $434.71 (parts, $409.74; freight, $24.97). This expense added to the $1700 purchase price makes $2134.71, allowing the defendant a margin of $65.29 on Mr. Askins’s minimum estimate of value and $365.29 on his maximum estimate of value to apply on the cost of labor in installing the parts. We are not concerned with adequacy of consideration other than as such affects the equitable principles to be applied here.

The testimony of Gibson and other witnesses for the plaintiff is in direct contradiction of defendant’s theory. Taken all in all, considering the interest of the several witnesses on both sides, we cannot, in conscience, see more than oath against oath in this case.

But let us suppose, for the purpose of further consideration, that a breach of promise or warranty existed and instead of the doctrine of caveat emptor applying here that the doctrine of caveat venditor applies. Has the defendant met the obligation imposed upon it by law? This machine was delivered to the defendant. There is no denial of that. A week elapsed before the giving of the check and note. Some time afterward, the testimony of the defendant fails to show exactly when, the machine was inspected and is alleged to have been found to be defective.

Section 47, paragraph 1, of the Sales Act of May 19, 1915, P. L. 543, 556, provides: “Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.” The want of conformity in the instant case was that the machine was not in first class condition.

But even if this alleged lack of conformity to the contract actually existed, defendant has not shown that, upon discovery, it promptly tendered a delivery back or that it gave notice within a reasonable time. This is essential to avoid liability: American W. T. Co. v. Reed Manuf. Co., 18 Pa. Superior Ct. 24. An averment of notice is contained in the petition, but the date of such notice is not given, nor is there any proof adduced to show us that defendant fulfilled its obligations in this respect within a reasonable time.

Section 48 of the Sales Act of May 19, 1915, P. L. 543, 555, provides as follows: “The buyer is deemed to have accepted the goods . . . when the goods have been delivered to him, ... or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.” There has been no proof adduced here that within a reasonable time the defendant intimated to the plaintiff that it had rejected the machine. The omission of such proof cannot be supplied by possible inferences from the stated facts: Wright v. General Carbonic Co., 271 Pa. 332. Under such circumstances as exist here, where no proof of notice of rejection has been adduced, the question as to a reasonable time is a question of law for the court: Wright v. General Carbonic Co., 271 Pa. 332. With the record wholly silent and the burden to show compliance with the statute upon the defendant, we cannot but find adversely to it.

Section 49 of the Sales Act of May 19, 1915, P. L. 543, 557, provides: “But if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty, within a reasonable time after the buyer knows or ought to-know of such breach, the seller shall not be liable therefor.”

It is quite evident, in the light of defendant’s complete failure to show compliance with the statute, that even if it be true, as contended by defendant, that a warranty was given by the plaintiff to the defendant, the defendant has estopped itself from using such warranty to evade payment in this case.

And now, Jan. 28, 1929, the rule to show cause why judgment should not be opened and the defendant let into a defense is discharged.

From S. D. Gettig*, Bellefonte, Pa.


author: Landis, P. J.,

text:
    Miller v. Desher.

      George T. Hambright and John E. Malone, for rule.

      S. V. Hosterman, contra.
    Sept. 29, 1928.
   Landis, P. J.,

On Aug. 6, 1928, the defendant presented his petition, setting forth that, on Aug. 1, 1928, the plaintiff caused to be entered against him a judgment for the sum of $40 on a warrant of attorney contained in a lease dated Jan. 6, 1928; that the plaintiff made an affidavit as to the correctness of said lease. The lease and affidavit were duly filed in the prothonotary’s office. On Aug. 1, 1928, a writ of fi. fa. was issued on said judgment, and in pursuance thereof the defendant’s household goods were levied upon and offered for sale. The warrant of attorney contained in the lease read as follows: “And for the further securing of said rent, the said lessee hereby authorize and empower any attorney of any court of record of Pennsylvania or elsewhere to appear for and to enter judgment against me for the entire rent reserved for the whole of said term, with or without declaration, with costs of suit, release of errors, without stay of execution, and with ten per cent, added for collecting fees. . . .” It is claimed that the judgment was irregularly entered, in that there was no appearance entered for the defendant and there was no formal confession of judgment entered on the lease.

By the Act of Feb. 24, 1806, § 28, P. L. 334, it was enacted “that it shall be the duty of the prothonotary of any court of record within this Commonwealth, on the application of any person being the original holder ... of a note, bond or other instrument of writing in which judgment is confessed, or containing a warrant for an attorney-at-law or other person to confess judgment, to enter judgment against the person or persons who executed the same for the amount which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed . . . particularly entering on his docket the date and tenor of the instrument or writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney or judgment obtained in open court and in term time. . . .”

In Helvete v. Rapp, 7 S. & R. 306, it was held that under this act an entry by the prothonotary on his docket that a judgment bond had been filed of record, with the particulars and the date of entry, was a good entry of judgment; and in St. Bartholomew’s Church v. Wood, 61 Pa. 96, it was said that “a judgment entered by the prothonotary under a power contained in the instrument is a judicial act, and, by the words of the Act of 1806, has the same force and effect as a judgment confessed by an attorney or given in open court in term time.” See, also, Kostenbader v. Kuebler, 199 Pa. 246; Cooper v. Shaver, 101 Pa. 547.

The entry of judgment for $40, being the amount of rent due to the plaintiff, instead of for $560, the whole amount of the rent reserved by the lease, cannot affect the defendant’s rights. The plaintiff could not collect more than was due him under the lease, and if he had attempted to do so, he would have been met with an objection to his claim on that account. It is a rather curious defense that the plaintiff is not asking enough.

We are of the opinion that this rule should be discharged.

Rule discharged. From George Boss Eshleman, Lancaster, Pa. '


author: Reno, P. J.,

text:
    Tatasciore v. Tatasciore.

      Linn H. Schantz, for libellant; J. Cullen Ganey, for respondent.
    March 18, 1929.
   Reno, P. J.,

The argument developed as the controlling factor the effect to be given to the circumstance that libellant paid for the support of his wife during a part of the period of the separation. The respondent contends that these payments amounted to consent by libellant to the separation. The libellant contends that, although the payments were not made in pursuance of a court order, they were, nevertheless, involuntarily made because libellant had been arrested for non-support and had agreed to make the payments in the office of the alderman who had issued the warrant. Unfortunately, the testimony upon this point is extremely meager.

There is evidence of the payments and a stipulation between counsel that the payments were made in pursuance of the agreement entered into before the alderman. This is not sufficient. Olson v. Olson, 27 Pa. Superior Ct. 128, is instructive upon this point, and before we can pass upon the question we must be supplied with evidence, inter alia, “that would repel any inference of consent on the libellant’s part to the continuation of the separation.”

Now, March 18, 1929, the case is recommitted to the master for the purpose of taking such further testimony as the parties shall offer, whereupon the master shall report findings of fact upon the question hereinbefore referred to. From Edwin L. Kohler, Allentown, Pa.


author: Martin, P. J.,

text:
    National Decorating Company v. The Scull Company.

      Carr & Krauss, for plaintiff.

      James F. McMullan and F. C. Clark, for defendant.
    April 15, 1929.
   Martin, P. J.,

On Nov. 9, 1928, judgment was entered in favor of Charles M. Keegan, trading as National Decorating Company, against The Scull Company, a corporation, in Magistrate’s Court No. 10. On Nov. 16, 1928, a certiorari was issued to the return made by the magistrate certifying that on Oct. 31, 1928, a writ of summons was served by a constable, by leaving a true and attested copy with Mr. L. Gabriel, a person in charge of defendant’s place of business, and informing him of the contents. On Dec. 17, 1928, exceptions were filed because the record failed to show that a proper legal service was made on defendant; the record does not afiirmatively show jurisdiction of the person of the defendant; the service was defective in returning that the defendant was served by leaving a true and attested copy of the original summons with Mr. L. Gabriel, the person in charge of the within-named defendant’s place of business, without stating that an attempt was made to serve an officer, director, chief clerk or agent of the defendant, or that the constable was unable, upon inquiry, to ascertain the residence of any such officer, director, chief clerk or agent of the defendant within the county, in accordance with the requirements of the act of assembly in such case made and provided; the service was defective in attempting to state that the defendant was served by leaving a true and attested copy of the original summons with Mr. L. Gabriel, the person in charge of the within-named defendant’s place of business, and the return shows on its face that the person upon whom the service was made is not in charge of defendant’s place of business within the jurisdiction; there is no return by the constable sworn to on the record or any part thereof, and it is averred that the record is false in stating that James F. McMullan appeared as attorney for defendant on Nov. 9, 1928.

The deposition of James F. McMullan was taken, in which he testifies that he did not appear for the defendant in the proceeding before the magistrate. If the record of the justice showed no irregularity, this deposition would not be admissible; but the return is irregular on its face, and it was proper to show that an appearance was not made generally for the defendant.

The return made by the constable to the summons issued by the magistrate shows on its face that service was not made in accordance with the requirement of law; that there was no inquiry made as to the residence of one of the officers of the defendant within the county or attempt to serve the writ at the residence of the president, secretary, treasurer, cashier, chief clerk or other executive officer.

To make the service of a writ upon an agent of a corporation legal, the sheriff or constable must first, upon inquiry at the office or place of business, be unable to ascertain the residence of one of the officers of the corporation within the county. A return that does not show such inquiry is defective: Hoefling v. Pelican Mutual Life Ins. Co., 23 Dist. R. 117.

The deposition proved that no appearance for the defendant was entered in the magistrate’s court. Where there is no appearance, to make the service of a summons valid, there must be either an oath administered and certified by the magistrate on the back of the summons, or the constable must be sworn and his testimony made a part of the r.ecord: Byerly v. Consolidated Real Estate Co., 13 Dist. R. 746; Streuber v. McPayden, 14 Dist. R. 242; Lybarger v. Haupt, 10 D. & C. 728.

And now, to wit, April 15, 1929, the exceptions filed on behalf of defendant are sustained and the judgment before the magistrate reversed.


text:
    Owens v. Congo.

      George S. Wolbert, for plaintiff; B. D. Oliensis, for defendant.
    July 29, 1929.
   Alessandroni, J.,

The plaintiff filed a bill in equity praying for specific performance of a contract to convey the premises situate at No. 812 South 15th Street, Philadelphia, and averring complete performance of all the covenants in the agreement on the part of the plaintiff. It was also averred that the defendant had breached the covenants of the agreement by failing to deliver possession of the premises by an assignment of the leases and had refused to execute and deliver the deed. The defendant filed an answer denying compliance by the plaintiff with the covenants of the agreement, and averring a willingness and readiness at the time fixed for settlement on the part of the defendant to comply with the agreement. The case proceeded to trial and the Chancellor found that on Aug. 10, 1926, the defendant, through her agent, agreed to sell the plaintiff, through his agent, the premises located at No. 812 South 15th Street, Philadelphia, for the price of $10,500; $500 to be paid on the signing of the agreement and the balance to be paid in cash at the time of settlement, which was to be on or before Nov. 10, 1926. Time was to be of the essence of the contract. Formal tender of deed and tender of money was waived. The agreement provided that the premises were to be delivered by an assignment of the leases or a delivery of the key. On Nov. 9, 1926, the parties met at the Real Estate Title and Trust Company for settlement, and the settlement sheet was approved by the parties, showing a balance of $4635.83 due the defendant. The plaintiff had obtained a loan from a building and loan association, which was deposited with the Real Estate Title and Trust Company as part of the purchase price, together with the plaintiff’s check for $3466.09, which sum, together with the deposit money, constituted the full purchase price. There was contradicting testimony as to whether a delivery of the leases was made, and the Chancellor found that no such delivery had been made. There was ample evidence to support this finding of fact. There was also a question as to whether the plaintiff’s cheek was good — -it appearing that suificient funds were on deposit, but that some of the items were uncollected. When the settlement clerk called the plaintiff’s bank, he was informed that the check would not be honored until Nov. 13th or 15th. The plaintiff’s check was honored on Nov. 13th. In the meantime, the defendant, having failed to produce the leases, demanded the return of her deed when she found that she could not procure the money. She received her deed on Nov. 13th. The plaintiff made demands for performance, the purchase money still being in the hands of the settlement company, but the defendant refused to convey. The Chancellor found that the plaintiff was ready and willing to perform, but the- defendant was guilty of a breach of contract by failing to deliver possession of the property by an assignment of the leases or the delivery of the key.

The defendant filed exceptions to the Chancellor’s findings of fact and conclusions of law. These exceptions, however, raise only one question: 'Was the plaintiff guilty of a breach of contract because the check which he deposited with the settlement company was not collectible until Nov. 13th, which is three days later than the time limit fixed in the agreement of sale? Defendant contends that, because of this fact, the plaintiff was not ready and willing to perform on or before Nov. 10, 1926, and, therefore, is precluded from securing specific performance. The Chancellor properly found as a finding of fact that the defendant was guilty of a breach of contract by failing to deliver possession by an assignment of the leases or by a delivery of the key. Even conceding that the plaintiff was in default because his check was not collectible until Nov. 13th, it clearly appears that the defendant was also in default by not being ready to deliver possession in accordance with the terms of the agreement. As stated in Paralka v. Grummel, 282 Pa. 235: “Conceding plaintiffs were in default in not procuring their mortgage in time, there was also default on part of defendants in not arranging to secure possession of the property from the tenant that delivery of the premises might be made at the time fixed for settlement. This brings the case within the rule that a party cannot insist upon specific performance at the time stipulated if he has been the cause of the delay, or is himself in default, and if a tender of performance is made by the other party within a reasonable time, specific performance will be decreed: Irvin v. Bleakley, 67 Pa. 24, 28; Vankirk v. Patterson, 2,01 Pa. 90, 95; Loughney v. Quigley, 279 Pa. 396, 400, 401, and cases cited.”

The rule as here stated clearly applies to the facts in the case at bar. The defendant was in default and a tender of performance was made by the plaintiff within a reasonable time. In fact, three days after the time stipulated. Specific performance, therefore, was rightly decreed.

A decree of specific performance is not a matter of course, but rests in the sound discretion of the chancellor: Ginsburg v. Collins, 84 Pa. Superior Ct. 221. As stated in Pringle v. Smith, 289 Pa. 356: “The complaint of delay is without merit; much of it was caused by defendant’s own default.”

Under the rules established by these eases, the plaintiff was entitled to specific performance. We find no error in law in the Chancellor’s adjudication.

And now, to wit, July 29, 1929, all of the fourteen exceptions of defendant to Chancellor’s adjudication are dismissed, and counsel is directed to prepare and submit a form of final decree.


author: Shanaman, J.,

text:
    Reading National Bank v. Sacks et al.

      George Eves and Max Fisher, for plaintiff.

      ■Emanuel Weiss, for defendant (Berkowitz).
    Jan. 21, 1929.
   Shanaman, J.,

This is a suit in trespass brought by a mortgagee against three individual defendants, and alleging conspiracy to despoil, and an actual waste of the mortgaged premises. One of the defendants has filed an affidavit of defense raising questions of law, and reciting sundry defects in the statement. Argument was had thereon, after which plaintiff obtained leave to amend, and has filed an amended statement.

Defendant contends:

1. That the statement fails to set forth that plaintiff is the owner or entitled to the right of immediate possession of the things removed. ■ Since plaintiff’s claim is not necessarily based on ownership or right to immediate possession of them, the objection is not well taken.

2. That it fails to set forth that plaintiff made demand upon the defendants for the return of the goods and chattels, and that the defendants refused to surrender the same.

The objection is not well taken. A mortgagee damaged by a waste of the mortgaged premises is not required to demand the return of the things eloigned. The eloignment completes the cause of action.

8. That the statement fails to set forth that the goods and chattels eloigned are, by agreement or otherwise, fixtures, part of the real estate, and bound by the lien of plaintiff’s mortgage.

We think the statement is sufficient in this regard.

4. It is objected that the effect of the sheriff’s sale in the foreclosure proceeding was to vest all the right, title and interest in and to the eloigned goods in the purchaser at the sheriffs’ sale, who is, therefore, the proper party to sue for their conversion, and that plaintiff no longer has any right to damages.

We are not impressed by this objection. The Sheriff of Berks County could not place his strong, levying hand on articles eloigned and removed to a factory in North Carolina. He could not obtain or deliver possession of them, could not subject them to the grasp of a sheriff’s levy, and did not in fact do so. He sold that on which he levied, and did not sell the things on which he did not levy. “A mortgagee may maintain an action for damages against the mortgagor or his grantee for acts of waste or spoliation committed upon the mortgaged premises which have resulted in impairing the security of the mortgage or which have so impaired the value of the property that it does not realize enough on foreclosure to satisfy the mortgage:” 41 Corpus Juris, 648. “The mortgagee also has a right of action against a stranger for any act done upon the mortgaged premises which destroys or impairs the value of his security:” 41 Corpus Juris, 652. We have been shown no Pennsylvania cases which contravene these principles or which hold that the mortgagee, by a foreclosure and by a judicial sale of the mortgaged premises, is deemed to have lost his right to recover damages for the tort committed against him.

Defendant’s next objection is that the statement of claim does not set forth that the defendants are joint tortfeasors, nor does it allege whether the defendants are being sued in individual, joint or representative capacity as employees or agents of the corporation. We are not impressed by this objection.

Defendant further objects that the statement of claim is vague and uncertain and does not set forth whether the basis of the claim is a conspiracy to eloign or the eloignment itself, so that the defendant is unable to ascertain which tort he will be called upon to defend. The statement of claim narrates the history of a trespass and in so doing avers the mortgage, the things mortgaged, the concerted design of the defendants to lay waste the security, their acts of spoliation in pursuance thereof and the resultant damage to the plaintiff. The time and place of the eloignment are averred. “Where the action is brought against two or more, as concerned in the wrong done, it is necessary, in order to recover against all of them, to prove a combination or joint act of all. For this purpose it may be important to establish the allegation of a conspiracy. But if it turn out on the trial that only one was concerned, the plaintiff may still recover, the same as if such one had been sued alone. The conspiracy or combination is nothing, so far as sustaining the action goes, the foundation of it being the actual damage done to the party:” Laverty v. Vanarsdale, 65 Pa. 507, 509. “In an action against two or more, in case in the nature of a conspiracy, if the tort be actionable whether committed by one or more, recovery may be had against but one; but if the tort be actionable only when committed under an unlawful conspiracy of two or more, recovery may not be had unless the unlawful conspiracy be established: ” Rundell v. Kalbfus, 125 Pa. 123, 131. In the instant case, the gravamen is not the conspiracy, but the waste, injurious to plaintiff. We think the allegations sufficient.

Defendant further objects that no demand has been made upon the defendants for the payment of money. One injured by a tortfeasor need not demand payment of damages before instituting suit. If demand were necessary, suit is demand.

Defendant finally contends that the statement contains no allegation of any loss suffered by the plaintiff. We think the amended statement is sufficient in that regard.

As was said by Judge Ross, in the case of Reichard v. Windsor Cigar Co. et al., 39 York Leg. Record, 77, 79: “To state the facts in writing upon which it is necessary to base proof at the trial, the plaintiff must be allowed a much wider latitude than is required in stating the facts in an accident case, and we apprehend that the same drastic application of the requirements of the Practice Act of 1915 should not be used upon a trespass case for conspiracy as have been applied by our courts- in negligence cases.”

And now, to wit, Jan. 21, 1929, defendant’s ■ affidavit of defense raising points of law is overruled and dismissed.

Prom Charles K. Derr, Reading, Pa.


text:
    Zook v. Shirk.

      Bernard 3. Myers, of Zimmerman, Myers & Kready, for C. A. B. Zook.

      George Ross Eshleman and David H. Kinley, for Stanley M. Brown.
    Jan. 19, 1929.
   Landis, P. J.,

The facts which arise in the above controversy are not in dispute. The legal question presented is whether C. A. B. Zook or Stanley M. Brown is entitled to receive the proceeds of a sheriff’s sale produced by the sale of the right, title and interest of Milton E. Shirk in certain real estate.

It appears that Milton E. Shirk was possessed of considerable real estate. On June 8, 19-25, he and his wife conveyed a house and lot of ground, situated in the village of Stevens, West Coealico Township, Lancaster County, Pennsylvania, containing 124 perches, to his son, Samuel M. Shirk. This deed was recorded in the recorder’s office on Oct. 25, 1926. On Feb. 15, 1926, they conveyed to their son, Mark M. Shirk, a tract or plantation, also situated in said West Cocalico Township, containing 70 acres and 157 perches. On the same day they also conveyed to Jacob W. Fasnaeht two small tracts containing, together, 81 perches, situated in said village of Stevens. On the same day they conveyed to their son, Samuel M. Shirk, a messuage or tract of land, also situated in said township, containing 72 acres and 38 perches. These deeds were duly recorded on Feb. 23, 1926. On June 8, 1925, they conveyed to said Samuel M. Shirk a house and lot of ground, situated in the said village of Stevens, which lot contained 124 perches. On April 1, 1926, they conveyed to the same grantee a lot of ground, situated in the said village of Stevens, containing 22 perches. On the same date they conveyed to the same grantee a lot of ground, situated in said village of Stevens, containing 32 perches. On the same date they conveyed to the same grantee four lots of ground, situated on Grant Street, in the Borough of Ephrata, containing 31 2/10 perches. All of these four last-mentioned deeds were recorded on Oct. 25, 1926.

On March 18,1925, E. H. Martin gave a note to C. A. B. Zook, payable sixty days after date at the Lancaster Trust Company, for the sum of $50,000. This note was endorsed by John B. Graybill, Calvin F. Herr and Milton E. Shirk. Subsequently, Zook received on account the sum of $25,000.

On April 18, 1927, Zook brought suit against Shirk, to May Term, 1927, No. 34, to recover the balance due upon the said note, and on June 6, 1927, judgment was entered in favor of plaintiff and against defendant for the sum of $27,380. On Aug. 11, 1927, a writ of fieri facias, to November Term, 1927, No. 4, was issued upon this judgment, and by virtue of the said writ, the sheriff levied upon the above-mentioned real estate, and on inquisition duly had, it was ascertained that the same was not “of a clear yearly value beyond all reprises sufficient within the space of seven years to satisfy the debt and damages in said writ mentioned.” On March 30, 1928, a writ of venditioni exponas was duly issued, and under it the sheriff sold the right, title and interest of the said Milton E. Shirk in the said real estate to C. A. B. Zook,, for the sum of $7000.

On Jan. 17, 1927, the Pennsylvania Soap Company, by E. H. Martin, President, and J. William Brown, Treasurer, made a note “to the order of ourselves,” payable thirty days after date at the Lancaster Trust Company, for $3500. This note was endorsed by the Pennsylvania Soap Company, E. H. Martin, President; J. William Brown, Treasurer; E. H. Martin, Milton E. Shirk, Calvin F. Herr and Stanley M. Brown.

On Feb. 15, 1927, the Pennsylvania Soap Company, by E. H. Martin, President, and J. William Brown, Treasurer, made a note, payable thirty days after date, “to the order of ourselves,” at the Lancaster Trust Company, for the sum of $2500. This note contained the endorsements of the Pennsylvania Soap Company, E. H. Martin, President; J. William Brown, Treasurer; E. H. Martin, Milton E. Shirk, Calvin F. Herr and Stanley M. Brown.

On May 6, 1927, Stanley M. Brown, being the holder of said two last-mentioned notes, brought suit, to May Term, 1927, No. 73, as^unst the said Milton E. Shirk, and on May 24, 1927, judgment was entered in favor of the plaintiff and against the defendant for want of an affidavit of defense for $8095.25.

It was claimed that the judgment of C. A. B. Zook was on a note for which Milton E. Shirk was liable, given prior to the time when the said Shirk and his wife conveyed the said real estate, and that the said conveyances were without consideration, and, therefore, fraudulent as to the prior existing creditor. It was admitted that the liability to Brown did not arise until some time after the said conveyances were made, and it was shown, and not denied, that when the conveyances were made Shirk was not only not indebted to Brown, but did not know him; that he did not get the proceeds of the notes signed by the Pennsylvania Soap Company; that the conveyances were not made with the idea that he was afterwards going to give a note to Stanley M. Brown; and that he did not convey his real estate in contemplation of giving anybody any note in the future that would not be good.

The said Stanley M. Brown now claims that, as his judgment was entered prior in time to that of C. A. B. Zook’s, he is entitled to the money realized by the sheriff’s sale to the extent of his judgment; and C. A. B. Zook claims that, as the real estate was conveyed by Milton E. Shirk in fraud of him as an existing creditor, and the sale was produced by an execution issued by him for a debt which was due before the conveyances were made, the said proceeds should be paid by the sheriff to him on account of his judgment.

Section 4 of the Uniform Fraudulent Conveyance Act of May 21, 1921, P. L. 1045, provides that “every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.” It, therefore, follows that, if Milton E. Shirk conveyed his real estate to his sons and others without consideration and thereby rendered himself insolvent, such conveyances were void as to Zook, who was then one of his existing creditors, without regard to his intention.

What, then, was the proper procedure in such a case? The 9th section of the Act of 1921 declares that “where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person, except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such a purchaser: (a,) have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim; or (b) disregard the conveyance and attach or levy execution upon the property conveyed.” In this case the creditor chose the latter remedy, and, after obtaining judgment, levied upon the land conveyed in the hands of the respective grantees of the debtor, and, having sold the same at sheriff’s sale, purchased the right, title and interest of his debtor therein. He is now in a position to bring his action of ejectment and test the question whether his debtor has, as to him, fraudulently conveyed this real estate. See Stewart v. Coder, 11 Pa. 90.

In Appeal of the Girard Bank, 13 W. N. C. 101, which was prior to the passage of the above act, a similar case arose concerning the relief which the debtor could command at the hands of the courts. The Girard National Bank, on Sept. 6, 1878, discounted for the account of Patrick McEntee a note of Patrick Tieman, endorsed by Patrick McEntee, for $2500. The note was unpaid and duly protested, and judgment was obtained against McEntee on Dec. 8, 1878. On Nov. 19, 1878, McEntee conveyed to his daughter, Emma J. Maguire, certain real estate in the City of Philadelphia. A ft. fa. was issued on the said judgmerft, a levy was made upon the land and it was duly condemned. A bill in equity was then filed against Emma J. Maguire and her husband to prevent their conveying the said real estate to third parties, alleging that the conveyance was void as to the bank. It was held that “where a judgment creditor desires to avoid an alleged fraudulent and voluntary conveyance of land by his debtor, his proper course is to levy on the land, buy in the same at sheriff’s sale, and bring an action of ejectment;” but that “he is not entitled to relief in equity.” See Sauber v. Nouskajian, 286 Pa. 449. This rule in its full force seems to be somewhat modified by the Act of 1921. Judge Thayer, in an opinion which was affirmed by the Supreme Court, said: “Nor does the plaintiff stand in need of any injunction, for . . . having levied upon and condemned the land, it could not be conveyed or encumbered to his prejudice.” See Hyde v. Baker, 212 Pa. 224. He also added: “The plaintiff has acquired a lien upon the land by his execution which cannot be displaced.” See, also, Brackin v. Welton Engineering Co., 283 Pa. 91.

In Handel and Hayden Building and Loan Ass’n v. Elleford, 258 Pa. 143, it was held that “where a sale is made to delay, hinder and defraud creditors, the proper manner to test the validity of the transaction is not by scire facias, but by a judicial sale at the suit of the judgment creditor; and where the judgment debtor has made a fraudulent transfer of property which otherwise would be-subject to the lien of the judgment, and the creditor, for some valid reason, cannot for the time being lawfully proceed to immediate execution and sale, or for any other cause the latter has no full and adequate remedy at law, his remedy is by bill in equity.” In American Trust Co. v. Kaufman, 287 Pa. 461, the same principle is discussed, but it was not decided what effect, if any, section 9 of the Act of 1921 had as to the remedy in such cases.

It can be considered as established that the debt of Shirk to Stanley M. Brown was not in existence when the conveyances were made by Shirk, nor was Shirk then contemplating the incurring of that indebtedness, nor was he about to engage in a business or transaction for which the property remaining in his hands was unreasonably small. Therefore, if, when Brown obtained his judgment, he had levied upon and sold this real estate, he would have taken nothing. But, nevertheless, as we have said, he contends that if the conveyance was void as to creditors, it was void as to creditors generally, and he, being first in order (having obtained his judgment before that of Zook), was entitled to receive the amount of the same out of the purchase money, though he did nothing and could do nothing to realize the fund.

I know of no case exactly like this determined by the courts of this State and none has been referred to by counsel; but by analogy I think it has been settled. Thus, in Shulze’s Appeal, 1 Pa. 251, it was held that “no one can have advantage from a judgment, who would not have been prejudiced by it; and where one lien creditor of a fund in court for distribution, had singly petitioned for an issue to try the alleged fraudulency of a conflicting encumbrance, which was found for him . . . the verdict could not be used by the other encumbrancers who had remained quiescent.” In Schick’s Appeal, 49 Pa. 380, Woodward, C. J., said: “Ever since Shulze’s Appeal, 1 Barr 251, it has been considered that in questions of distribution, those creditors only who unite in asking for an issue to contest an older lien can derive any benefit from a successful contest of such lien.” Also, in Schick v. Pharo, 49 Pa. 384, it was decided that in a feigned issue to ascertain the validity of a judgment as against creditors, the verdict and decree thereon inure only to the benefit of the contesting creditor. See, also, Tomb’s Appeal, 9 Pa. 61. In Fowler’s Appeal, 87 Pa. 449, it was said that “the deed in controversy is void only as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding. . . The case of Cram v. Cram, 160 N. E. Repr. 337, is not in point. In that case, a bill in equity was filed by a husband against a wife to reach land which he alleged was his, but was in her name and in the possession of others. The rights of creditors were not in question.

I am of the opinion that the rule to show cause why the sheriff should not pay over the money in his hands to C. A. B. Zook should be made absolute, and that the rule to show cause why he should not pay over the same to Stanley M. Brown to the extent of his judgment should be discharged, and this is accordingly done.


text:
    Citizens Trust Company, Executor, v. Mauser.
    For collateral cases in same matter, see 11 Lehigh Co. L. J. 271 and 418.

      Dallas Dillinger, Jr., Fred B. Gernerd, Morton Z. Paul and Francis Shunk Brown, for plaintiff and motions.

      Butz, Rupp & Welty and Owen J. Roberts, for defendants.
    Jan. 7, 1929.
   Reno, P. J.,

The Mauser Mill Company was incorporated in 1902 with an authorized capital stock of $200,000, divided into 4000 shares of common stock of the par value of $50 each, all of which was issued. On Jan. 2, 1917, J. Mark Mauser owned 1340 shares, George B. Mauser owned 1190 shares and Harry J. Lerch owned 1190 shares. On that date they entered into a written contract, wherein they agreed that “upon the death of either, the survivors shall and will . . . purchase the shares owned by the other at the time of his decease ... at the price of $100 per share.” Subsequently, the capital stock was increased: first, by issuing $100,000 of preferred stock; and, second, by issuing $200,000 of common stock. The preferred stock was sold for cash and the common stock was distributed as a stock dividend. Thus, prior to the death of J. Mark Mauser, the total authorized and issued capital stock was $500,000, of which $100,000 was represented by preferred stock and $400,000 was in common stock.

J. Mark Mauser died Aug. 3, 1924, owning 2420 shares of stock. Upon his widow’s petition, the Orphans’ Court of Lehigh County directed his executors to tender to Harry J. Lerch and George B. Mauser the 2420 shares at the agreed price of $100 per share. The tender was made, and upon the refusal of Lerch and Mauser to purchase, this suit was instituted. The trial resulted in a verdict for defendant, and there are before us plaintiff’s motions for a new trial and for judgment n. o. v.

It will not be necessary to vindicate our views upon the main questions here involved. These views have been expressed in the opinion of the Orphans’ Court, already referred to, and in the charge to the jury. We have heretofore held, and now hold, that unless the written contract was expressly canceled or rescinded or abandoned during J. Mark Mauser’s life, or impliedly by an act or acts in which he participated, it remained in force and furnished a basis of recovery in an action by his estate against Harry J. Lerch and George B. Mauser. Upon this theory the case was tried and submitted to the jury, and upon this theory it is now adjudicated herein. If the theory is erroneous, it has at least been adhered to consistently. But we do not mean to say that defendants, who have the verdict, have submitted to this ruling. They contended in the Orphans’ Court, in the trial and in the Common Pleas, and on the motions for a new trial and for judgment n. o. v., that the change in the financial structure of the Mauser Milling Company during the life of J. Mark Mauser, with his active participation as an officer thereof, by itself and without anything more, avoided and abrogated the contract. We confess that in the prolonged consideration which we have given to the case this theory has seemed to possess attractions as an equitable and conscionable solution of the problem, but since it has not had appellate sanction in Pennsylvania, and inasmuch as the ease was tried and submitted upon the theory of an actual, consensual and either express or implied cancellation, rescission or abandonment of the contract, the motions now before us are determined upon that basis.

So consistently was this theory adhered to in the trial that the rulings of the trial judge upon questions of evidence are invariably reflections of it. That is to say, that if, in the opinion of the trial judge, proffered evidence proved, or tended to prove, a cancellation, a rescission or an abandonment of the contract, it was received, and if it failed to throw light upon that question, it was rejected. For that reason, defendant was permitted to show circumstances from which such cancellation might be inferred, including the stock dividend, taxation reports over the signature of J. Mark Mauser, showing the value of the stock, and the prices at which stock was sold. All this, and more of kindred nature, bore upon the question as to whether it was likely that J. Mark Mauser had expressly in his lifetime canceled the contract. However, when it was proposed by plaintiffs to show dividends, profits, sales of goods, salaries, surplus, undivided profits and other factors from which the jury might infer or fix the value of the stock, independently of the value placed upon it by J. Mark Mauser in his lifetime and by his will, it was rejected. The question trying was not the value of the stock in the eyes of the jury, but the value placed upon it by J. Mark Mauser. His estimate of its value was important, for his estimate shed light upon the question of his possible or probable cancellation of the contract. The estimate of the jury, drawn from the factors of value which plaintiff sought to show, was of no importance and shed no light upon that question. This general statement fully explains our rulings upon many objections raised in the trial and which have been renewed in the reasons for a new trial.

Plaintiff undertook to show as a part of its ease the tender of the stock and defendants’ refusal to accept. On cross-examination, defendants showed that the refusal to accept was in writing, and, over plaintiff’s objection, we permitted defendants to read the written refusal in evidence. The refusal set forth the reasons for defendants’ refusal and, of course, to that extent was a self-serving declaration. In addition to this, so plaintiff argues, defendants, who, because of J. Mark Mauser’s death, were incompetent witnesses, were permitted thus indirectly to testify to matters occurring in decedent’s lifetime. These contentions overlook the fact that the court expressly admitted the writing “for the limited purpose of showing the answer of defendants to the tender and for no other purpose.'” We believe that defendants were entitled to show that when the tender was made they did not stand mute and offered no explanation of their refusal to take the stock. Plaintiff having shown a part of an occurrence, defendants were entitled to put in the remainder in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance: 4 Wigmore on Evidence, § 2113. The fact that part of the completed utterance was incompetent need not concern us if it was part of the res gestee: Koch v. Howell, 6 W. & S. 350. As to the admissibility of declarations of parties, incompetent as witnesses, made at the time of a tender, see 3 Wigmore, § 1777.

There are a number of other questions raised by the motions, but they do not seem to require discussion. The rulings of the trial judge usually explain the reason for the ruling or they require no statement in their justification.

Now, Jan. 7,1929, the motions for new trial and judgment n. o. v. are overruled and discharged.

From Edwin L. Kohler, Allentown, Pa.