author: Marx, P. J.,

text:
    Bucks’s Estate.

      George B. Balmer and T. I. Snyder, for petitioner.

      Ellis Brodstein, for respondent.
    March 31, 1928.
   Marx, P. J.,

Joshua N. Bucks died on Oct. 6, 1922, survived by his widow, Valeria Matilda Bucks, and one son, Calvin W. Bucks. By his last will and testament duly probated, he disposed of his estate in the following terms:

“Second: I give, devise and bequeath unto my beloved wife Valeria Matilda Bucks all my Estate, real, personal or mixed of whatever nature or kind, or wheresoever situate at the time of my decease for and during the term of her natural life and after her death to those legally entitled thereto. It is my will that my wife shall have the rents issues and profits of my entire estate during the full end and term of her natural life and that after her death my estate shall vest in those legally entitled thereto at that time the same as if I had died intestate at that time. She shall have the power to continue the partnership business that my son and I are engaged in and in all other things do with my estate as she thinks best during the term of her natural life.”

Calvin W. Bucks, the son, was adjudged a bankrupt, and, on June 20, 1927, George D. Snyder was elected trustee of his estate. On July 30, 1927, said trustee presented his petition asking that a citation issue to Valeria Matilda Bucks, executrix of the will of Joshua N. Bucks, deceased, for an account of her said trust. A citation issued, and on Sept. 10, 1927, the respondent filed her answer. On Jan. 13, 1928, she filed an amended answer, the matter came to argument, and thereafter, on Jan. 25, 1928, petitioner filed his amended petition, and, on Peb. 4, 1928, respondent her amended answer. The positions of petitioner and respondent are founded entirely upon the last amended petition and answer, and no attention, therefore, need be given to the prior pleadings.

The petition avers the death of Joshua N. Bucks, on Oct. 6, 1922, testate, and survived by his said widow and son. It avers the probate of his will and the granting of letters testamentary to the executrix therein named, this respondent: That testator “died possessed and seized of personalty in excess of $16,000 and realty in excess of $14,225 and the said Valeria M. Bucks became seized and possessed of the same as executrix of the estate of the said Joshua N. Bucks, as shown by the sworn petition of the said Valeria M. Bucks for the issuance of letters testamentary; . . .” that no account has been filed; that Calvin W. Bucks, son of the testator, was adjudged a bankrupt; that the petitioner was elected trustee of the bankrupt estate and that the trustee consequently succeeded to the rights of the bankrupt in testator’s estate, and to an accounting.

Respondent, by her answer, not denying, admits the relevant averments of the petition, but denies petitioner’s averred interest in the estate and his right to an account. She bases her position upon the following legal grounds:

“(a) That the said petition sets forth no facts, either in law or in equity, which would entitle the petitioner to the citation.

“(b) That the failure of the petitioner to allege fraud, waste, improvidence or mismanagement on the part of the life-tenant, Valeria M. Bucks, divests him of the legal right to obtain a citation for an accounting.

“(g) That the alleged remainderman, Calvin W. Bucks, from the petition and the will itself, possesses no legal interest in the estate of Joshua N. Bucks, deceased, whereby he could petition for a citation for an account as against Valeria M. Bucks.

“(d) That George D. Snyder, trustee, in bankruptcy of Calvin W. Bucks, became vested as such trustee with no greater rights in the estate of Joshua N. Bucks than were held at the time of adjudication in bankruptcy of Calvin W. Bucks.

“(e) That George D. Snyder, trustee aforesaid, is not properly or legally before the court as a party in interest in the estate of Joshua N. Bucks, deceased, because neither the petition nor anything contained in the record herein reveals the authorization, direction, order or decree of the bankruptcy court permitting or directing the said trustee to institute these proceedings for a citation to file an account.

“(f) That paragraph 3 of the petition fails to set forth that Valeria M. Bucks, as executrix, became seized and possessed of realty and personalty belonging to the estate of Joshua N. Bucks, inasmuch as the petition for letters testamentary does not show that Valeria M. Bucks became so seized and possessed.

“(g) That the petition fails to set forth that an inventory or appraisement of the estate of Joshua N. Bucks was ever filed.”

Objection “d” may be dismissed with the comment that neither does petitioner aver nor respondent admit any rights in the petitioner greater than those in the son immediately prior to his bankruptcy.

Objection “f” cannot be maintained. The petition expressly avers that the executrix became seized and possessed of the estate of the testator. Upon probate of the will and qualification of the fiduciary, title to the testator’s personal estate vests automatically in said fiduciary, regardless of the statements contained in a petition for letters testamentary.

Objection “a.” is of the nature of a general demurrer. Of the remaining objections, “e” and “g” deny the right of petitioner to a citation or an account because of failure to “allege fraud, waste, improvidence or mismanagement on the part of the life-tenant,” because petitioner acted without special authorization by the bankruptcy court and because petitioner fails to “set forth that an inventory or appraisement . . . was ever filed.”

Objection “c” denies any interest in either the petitioner or the bankrupt in the estate of Joshua N. Bucks, deceased.

Relative to objections and “g,” it must be noted that section 46 of the Fiduciaries Act of June 7, 1917, P. L. 447, 511, fixes the duty of an executor or administrator to file an account of administration at the expiration of six months from the time of administration granted, or when thereunto required by the Orphans’ Court. It further provides: “. . . and any executor or administrator may be cited to file his account, after the expiration of six months from the date of issuance of letters testamentary or of administration, on petition of any person having an interest, present or future, vested or contingent, in the estate of the decedent, or on petition of any creditor' of the decedent.”

This enactment takes the place of section 15 of the Act of March 15, 1832, P. L. 139, under which the account must be filed within one year, “or when thereunto legally required,” and of section 1 of the Act of April 17, 1869, P. L. 70, under which the right of citation to an accounting was expressly given to the owner of contingent interests in the personal estate of the decedent. The existing legislation is confirmatory of the law as it stood at the time of enactment and as developed under prior legislation. It grants power to cite to file an account, after the expiration of six months, “on petition of any person having an interest, present or future, vested or contingent, in the estate of the decedent or on the petition of any creditor of the decedent.” To those within these designations, the eitation„is of right. We have neither a right nor a desire to curtail or encumber this right. Under the law, it is the duty and should be a care of the fiduciary to account, and we know no reason why allegations of “fraud, waste, improvidence or mismanagement” or the prior filing of an inventory and appraisement should be made conditions precedent to the right of citation.

Objection “e” is based upon the failure of petitioner to show authority to petition. Under the assumption that, by virtue of the adjudication in bankruptcy, there vested in the trustee a right of property under the terms of the last will and testament of the decedent, we conceive it the duty of the trustee, under his appointment, to take possession of such property right and to realize upon the same by suit or by whatever other means may be necessary. The respondent denies the right of the petitioner to institute suit or action or to resort to legal recourse without'having first procured authorization thereto from the bankruptcy court. This position cannot be maintained.

“But the duties of a trustee in bankruptcy are fixed by statute. ‘They shall collect and reduce to money the property of estates for which they are trustees’ — words as fully warranting him to sue as an administrator, with the same power and duty. The fact that this is to be ‘under the direction of the court,’ no more requires a preliminary order to sue than it would necessitate a special order to authorize him to go in person and present a note and demand payment. The money, when collected, after suit or without suit and the use to be made thereof, was to be ‘under the direction of the court.’ But being bound1 to collect, he was not obliged to secure a special order to bring suit necessary to collect. As to actions by or against the bankrupt pending at the time of the adjudication, the act requires him to obtain instructions from the court before intervening. But the express requirement that he must obtain an order in such instances, while being silent as to the necessity therefor in cases like this, is conclusive that special permission was not necessary where he had to sue in order to collect a debt due the estate. The fact that the original Bankruptcy Act (Act of March 2, 1867, ch. 176, 14 Stat. at L. 517) required this action to be brought in a State court is here sufficient authority to begin this proceeding:” Traders’ Ins. Co. v. Mann, 11 Am. Bank. Reps. 269. See 2 Remington on Bankruptcy, § 1722, and cases there cited;

The Case of Carroll v. Hannan, 10 Am. Bank. Reps. (N. S.) 25, cited by respondent, was raised under the question of the right of a trustee to intervene in a suit brought against the bankrupt prior to adjudication and pending at the time of that adjudication. It is sufficient answer to say that the Bankruptcy Act distinguishes between the rights and duties of a trustee relative to actions pending at the time of adjudication'and those relative to rights as to which no actions are pending at the adjudication. The entire ground is covered in the above-cited case of - Traders’ Ins. Co. v. Mann, which clearly establishes not only the right but the duty of the trustee to proceed diligently and by suit, if necessary, in the collection of the assets of the estate.

This brings us to the consideration of the objection particularly urged by the respondent, “c:” “That the alleged remainderman, Calvin W. Bucks, from the petition and the will itself, possesses no legal interest in the estate of Joshua N. Bucks, deceased, whereby he could petition for a citation for an account as against Valeria M. Bucks.”

The question for determination is: Did the bankrupt, Calvin W. Bucks, at the time of the adjudication, possess such an interest in the estate of his deceased father as would pass to his trustee under the provisions of the Bankruptcy Act? The answer to this question involves the consideration of the second item of the last will and testament, hereinbefore recited.

Under the provisions of section 70 of the Bankruptcy Act of July 1, 1898, 30 Stat. at L. 544, title to the bankrupt’s property vests in the trustee upon his appointment and qualification and reverts to the date of adjudication. Title vests, by operation of law, to all kinds of property that was capable of being levied on and sold by judicial process or of being transferred by any means at the time of the filing of the petition: Everett v. Judson, 228 U. S. 474. “If it was capable either of being transferred or of being levied upon, it will pass:” 1 Remington on Bankruptcy, § 964. The question then resolves itself to this: Was the bankrupt, at the time of the adjudication, seized of such an interest in the estate of his father as would pass by levy or transfer? An answer to this question does not necessitate the determination of whether the estate in the bankrupt was vested or contingent. In the consideration of this testamentary provision our first care must, of course, be to determine the actual intent of the testator. If the terms used make that reasonably clear, it is not necessary to resort to technical rules of construction: Packer's Estate, No. 2, 246 Pa. 116, 124, and cases there cited. We may be permitted to express here our view that the interest here given to the bankrupt is a contingent remainder; contingent as to the persons in whom it will vest. The will clearly gives a life estate to the widow and then directs that “after her death” it “shall vest in those legally entitled thereto at that time, the same as if I had died intestate at that time.” Testator fixes the time for the vesting of the estate at the death of the life-tenant, and designates, as the persons in whom the estate shall then vest, those who would have taken the estate if he had died intestate at the death of the life-tenant. By express direction, the time of vesting is postponed to the death of the life-tenant, and until that event happens it will be impossible to say in whom the estate shall vest. See Rudy’s Estate, 185 Pa. 359, 360. However, this fact is not determinative of the question before us.

Quoting from 14 Columbia Law Review, 66, the Supreme Court of Pennsylvania, in Packer’s Estate, No. 2, supra, at page 123, say with approval: “. . . ‘The Bankruptcy Act provides that all property which the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process against him shall pass to his trustee in bankruptcy. The first description practically includes the second, so that transferability is the broad test of the trustee’s title; and this, in turn, cannot be reduced to any uniform rule, since it depends upon the law of the jurisdiction in which the property is located.’ It is not necessary*to go into the question as to whether his estate was vested or contingent; ... as said by Chief Justice Gibson, in De Haas v. Bunn, 2 Pa. 335, ‘it is entirely certain that such an interest (an executory limitation not vested in interest at the time of sale) may be transferred by an assignment even at law, and, consequently, that it may be sold by execution. The only mere possibility that may not be so transferred is the bare hope of succession to the property of another, such as may be entertained by an heir apparent.’ ”

Whether the interest of the bankrupt was a vested remainder, subject to divestiture, as argued by the petitioner, or a contingent remainder, as argued by respondent, we are satisfied it was at least more than a bare hope of inheritance. It was a right contingent upon a single requirement, that the son survive the mother; it was transferable, and, consequently, vested in the trustee as of the date of the adjudication in bankruptcy.

In disposing of all other objections urged by the-respondent, we have disposed of all grounds upon which respondent based her argument in support of objection “a.” In accordance with the views expressed and for the reasons given, all objections of the respondent are dismissed, the citation is made absolute, and

Now, to wit, March 31, 1928, it is ordered and decreed that Valeria Matilda Bucks, executrix of the last will and testament of Joshua N. Bucks, deceased, file in the office of the Register of Wills in and for the County of Berks, State of Pennsylvania, within one month from this date, her account as executrix as aforesaid. It is further ordered and decreed that the costs of this proceeding be paid out of the estate of Joshua N. Bucks, deceased.

Prom Charles K. Derr, Reading-, Pa.


source: Caselaw Access Project

author: Groff, J.,

license: Public Domain

text:
    Flitter v. Hershey.

      Charles W. Baby and Frank S, Groff, for rule; Daniel B. Striekler, contra.
    June 23, 1928.
   Groff, J.,

This is an action of trespass brought by Israel Flitter against Jacob R. Hershey, on May 3, 1928, to recover for personal injuries to the plaintiff.

The plaintiff, on May 3, 1928, filed his statement of claim in the prothonotary’s office of Lancaster County, Pennsylvania, and that statement of claim was served on the defendant on May 4, 1928.

The defendant, on May 26, 1928, presented a motion to the court to strike off the statement for reason therein alleged, on which motion a rule was granted, returnable the third Monday in June, and which rule was afterward argued before the court in banc. This motion was filed under section 21 of the Act passed May 14,1915, P. L. 483, as amended by the Act passed May 23, 1923, P. L. 325, which reads as follows: “The court, upon motion, may strike from the record a pleading which does not conform to the provisions of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct: Provided, that such motion to strike from the record any such pleading shall be filed and a copy thereof served upon the party filing such pleading, or his attorney, within fifteen days after a copy of such pleading shall have been served upon the opposite party or his attorney.”

An examination of the statement leads us to believe that it is not such statement as is required by the Practice Act of 1915, in that it contains general averments of negligence, and is insufficient, in that it avers that the defendant’s car was operated in a “reckless, careless and negligent manner and at an illegal and improper rate of speed,” without specifying in what manner it was recklessly and negligently operated. But although we believe that the plaintiff’s statement is defective, a reading of the act of assembly above quoted convinces us that we are without authority or power to sustain the rule granted on defendant’s motion, for the reason that said motion to strike off from the record this pleading was not filed within fifteen days after a copy of it was served upon the defendant, and this view is sustained in the case of Cameron v. Fishman, 291 Pa. 12, in which case Judge Kephart, delivering the opinion of the court, at page 14, says: “However, a motion to strike from the record any pleading must be filed within fifteen days after a copy of such pleading has been served on the opposite party or counsel. When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice,” and then cites Harris v. Mercur, 202 Pa. 313; Singer v. D., L. & W. R. R. Co., 254 Pa. 502; Mindlin v. O’Boyle, 283 Pa. 352; and then adds: “The part of the Act of 1915 amended by the Act of 1923 is mandatory, and neither this (Supreme) court nor the court below can extend the time therein fixed by the legislature.”

It seems to us that there is nothing contained in this motion that could not be filed in an affidavit of defense raising a question of law under section 21 of the Practice Act. That section relates to pleadings that do not conform to the Practice Act, or one that is a violation of some rule therein governing pleadings. If such an affidavit is not filed, the plaintiff, without amending his statement, may find himself at a disadvantage in recovering on the merits of his case.

The motion not having been filed until twenty-two days had elapsed after service of the plaintiff’s statement on the defendant, we must, under the above act of assembly and under the decisions above quoted, discharge the rule granted on defendant’s motion. Rule discharged.

From George Ross Eshleman, Lancaster, Pa-


author: Gest, J.,

text:
    Adams’s Estate.

      Joseph G. Lester, for exceptants; Shipper Lewis, contra.
    March 1, 1929.
   Gest, J.,

The learned counsel for the exceptants argued that because the entire estate of the testatrix, who died without issue, was given by her to her nephew, James, and her niece, Catharine, there was no “residuary clause” within the meaning of section 15 (a) of the Wills Act of 1917, and, therefore, the testatrix died intestate with respect to the share of her nephew, James, who predeceased her without issue. This would be a very narrow and literal construction of the act, and tempts us to quote the maxim qui haeret ir litera haeret ir cortice, for the residue of a testator’s estate includes all that he has not otherwise effectively given, Willard’s Estate, 68 Pa. 327; Wood’s Estate, 13 Dist. R. 195, 209 Pa. 16, and if nothing else is given, the residue means the whole estate after the payment of debts and expenses.

It is conceded that if the testatrix had directed the payment of debts and funeral expenses, as appeared in Keyser’s Estate, 1 D. & C. 403, or if she had given even a dollar to some favored legatee, the gift in this will would be residuary, which distinction would result in a practical reductio ad absurdum, like the argument advanced in Flower’s Estate, 30 Dist. R. 967, that when a widow was given nothing in her husband’s will, the 23rd section of the Wills Act of 1917, relating to the time of an election by a surviving widow, did not apply» because, being given nothing by the will, she could not be required to elect against it within the prescribed time, Minnich’s Estate, 288 Pa. 354. As the Supreme Court said in Cunningham’s Estate, 137 Pa. 621, on the same subject, the law does not sanction such an illusory distinction.

This section of the Wills Act is distinctively remedial. Its purpose was to abolish that common-law rule as to lapse, which was criticised by the Supreme Court in Gray’s Estate, 147 Pa. 67, and thus prevent a lapse where it was apparent that the testatrix intended not to give the next of kin any interest in her estate. The statute should receive a liberal construction whenever the evil appears which it was obviously intended to prevent. The letter killeth, but the spirit giveth life.

The Auditing Judge, therefore, correctly awarded the entire balance for distribution to Catharine M. Kelly, the survivor of the two residuary legatees; the exceptions of the next of kin are dismissed, and the adjudication is confirmed absolutely.


author: KÓCH, P. J.,

text:
    Fidelity-Philadelphia Trust Co. v. Schuylkill Traction Co. et al.

      A. L. Shay, for petition; Ruby Vail, for objecting bondholders.

      M. A. Kieker, for Philadelphia-Equitable Trust Co.
    June 4, 1928.
   KÓCH, P. J.,

The receivers ask for authority to issue their certificates for $100,000, of which amount they desire to issue $60,100 to meet certain immediate requirements and the balance thereafter, from time to time, as the court may direct upon application of the receivers. The application is opposed- by counsel who claim to represent owners of bonds in the aggregate amounting to $317,600.

From the pleading and the evidence, I find the following

Facts.

1. The properties committed to the charge of the receivers consist of four street railways which have been operated as one system by the Schuylkill Railway Company. For the most part they lie within the County of Schuylkill and did afford a means of transportation between the towns of Saint Clair, Frackville, Gilberton, Mahanoy City, Shenandoah, Girardville, Ashland and other places.

2. Each of the original railway properties is heavily mortgaged and, in addition thereto, are certain general mortgages.

3. A financial statement of the Schuylkill Railway Company for the six months ending June 30, 1927, showed that it was not earning its operating expenses, and, when that fact became known to the Fidelity-Philadelphia Trust Company, the latter, as trustee for the holders of certain mortgage bonds, presented its bill in equity to this court, praying for the appointment of receivers, and, in due course, the present petitioning receivers were appointed on Sept. 26, 1-927, and promptly entered upon the discharge of their duties as such.

4. At the time of the appointment of the receivers, the whole railway system, excepting a small portion, was in operating condition and was being operated, but after four days, to wit, on Oct. 1, 1927, all the motormen and conductors struck and the entire system has been idle ever since that date. Nor does the prospect of an early resumption of operation yet seem apparent.

5. When the said employees quit work on Oct. 1, 1927, the accumulated wages to that date, but not yet due, aggregated the sum of $6581.60. There was then also due to the Pennsylvania Light and Power Company the sum of $17,198.49 for electric current, and the Schuylkill Railway Company is further obligated to said power company at the rate of $2500 per month as a stand-by charge ever since Oct. 1, 1927. But the receivers would expect to have that stand-by charge abrogated if they were allowed to issue receivers’ certificates and to deposit $10,000 as security for the prompt payment of future monthly bills as they accrue for electric current and if they would agree to pay off said $17,198.49 in monthly instalments of $1500 each after the operation of the railways again begins.

6. Taxes which were claimed by the Commonwealth at the time of the appointment of the receivers and which have since then accrued, amount to $40,000, but the receivers contend that the actual amount is about $27,000. They aver that the delinquent taxes amount to $15,000.

7. There is also due for principal and interest the sum of $13,660 on a certain car trust lease, dated June 19, 1919, and the further sum of $11,-240 for principal and interest on a certain equipment trust lease agreement, dated June 1, 1924.

8. The premiums for insurance on the defendant’s insurable property amounted to $1796.30 on Peb. 2, 1928, and the money to pay the same was lent to the receivers by the Schuylkill Transportation Company, an unallied motor-bus corporation, which is mostly, if not entirely, owned and controlled by one Powell Evans, who is also the dominant factor in, and president of, the Schuylkill Railway Company. The Schuylkill Transportation Company has, since the said strike, served the public with motor-bus accommodations in the field theretofore served by said street railway system.

9. The Reading Railway Company applied for a charter to operate motorbusses in certain territory served by its railway system and the said Schuylkill Railway and said Schuylkill Transportation Companies opposed the granting of said charter, and in that behalf expended $2000 for legal expenses, etc., which sum was advanced by said Powell Evans in November and 'December, 1927. This amount is characterized as a loan to the receivers of the Schuylkill Railway.

10. Since the appointment of the receivers, they have paid out in salaries and wages and for workmen’s compensation about $9840.31, all of which has been advanced by the Schuylkill Transportation Company. Of the said salaries so paid, we note $718 per month to James D. Evans and $300 per month to Erwin Suransky, the former being the vice-president and the latter the auditor of the Schuylkill Railway Company. Said James D. Evans is also one of the said receivers.

11. During the last eight months and since the operation of the property has ceased, it has fallen into a bad state of repair and it has also been greatly injured by certain felons who cut out and removed much overhead trolley wire and some bonding. Subsidence of the surface, which was caused by mining, has suspended the railway tracks in the air at some places for a distance of as much as 100 to 150 feet, and it will require possibly $40,000 to put all of the system in a condition fit for safe and efficient operation.

12. The railway system is spoken of as composed of four divisions, two of which are unable to earn enough money to properly take care of themselves, and it is proposed to first prepare and put into operation the division which is most likely to earn more than operating expenses; then to follow that by preparing and putting into operation the next most promising division, and thereafter to treat the other divisions in the same manner. A few weeks’ time would be required for such treatment of each- division. The lengths of the divisions seem to vary. The estimated cost of putting the first division into repair is $10,000. Once that is repaired, the receivers think its income will furnish the means to put the next division in repair, and, with the receipts from these two divisions, they would expect to pay for putting the other two divisions in repair. But we have been furnished with no statement of the earnings and cost of operation of any of the divisions. It is, however, clearly evident that the Schuylkill Railway Company is hopelessly insolvent.

13. I find the receivers are correct in saying in their petition: “The financial structure of the property confided to our charge is, in our opinion, overburdened and unbalanced by the weight of interest charges not reasonably apportioned according to the ability of the respective mortgaged divisions of the system to earn and pay the interest with which they are respectively charged.” No way in which to reduce that burden and create a proper balancing of the several properties has been suggested by the receivers. Perhaps it could be accomplished by mutual agreement among all the parties in interest — an extremely problematical matter for any one to undertake. Otherwise, foreclosure proceedings remain as the only apparent means to bring about the final solution of the various questions which concern the rights and equities of all.

Discussion.

The evidence fails to pursuade us that this railway system can be operated at a profit at this time or within a reasonable time in the future. The use of privately-owned automobiles, if nothing else, makes it impossible to operate the system at a profit to the stockholders. It has never earned a dividend. There is no sign that it can earn even nearly enough to pay interest on the bonds for which the properties are mortgaged. Nor has it been shown that, if the receivers' certificates prayed for be issued, the lien of the certificates can be discharged within a reasonable time or that such lien can ever be discharged. This is not a present “going concern,” save in the sense that it is going downwards. It is apparently utterly and hopelessly insolvent. It now-serves no public purpose whatever. And there is no assurance that men can be obtained in the near future to operate the property peaceably and properly.

The receivers went on record when the testimony was being taken on this application that the certificates of public convenience, under which the Schuylkill Transportation Company is operating motor-busses in the territory of the Schuylkill Railway Company, will not be turned over to the Schuylkill Railway if this court makes an order for the issuance of receivers’ certificates. Why they should so emphatically stand for the interest of the man who virtually owns both the transportation company and the companies that the receivers represent, I do not know. Their attitude in the premises is not entirely clear. The defendants here now include all the companies whose railways compose the system operated by the Schuylkill Railway Company, and the parties therein interested may not wish to find complications in their way should they attempt to establish a motor-bus line to succeed their railway lines.

If there were indications sufficient to warrant the belief that this railway system could be operated so as to pay off within a reasonable time the certificates asked for, we would gladly take the responsibility of ordering the issuance thereof. But such are not the present indications, and we have no right to put in greater peril the interests of the bondholders'. We fear that a prior lien of $100,000 for such certificates would ultimately wipe out all the security of the bondholders. We feel that the bondholders, or their successors, should be put into control of the property as early as possible so that they may decide for themselves whether or not the property is worth rehabilitation and continued operation, or whether they should realize what they can by scrapping any or all of the property. Once they get the property into their own possession, they may scrap it and organize an autobus company for the territory now served by the railroads. Their application for certificates of public convenience would undoubtedly receive consideration by the Public Service Commission. To proceed further in experimenting with the present railway system under the ownership of the stockholders would, in my opinion, be futile and disastrous to the people who are now the real parties in interest, namely, the bondholders. If any of the present claims are prior in right to the lien of the mortgages, such priority may continue under the receivership and will be taken care of under foreclosure proceedings, and such as are not now prior in right should not be attempted to be made so by us, unless our duty is made to dearly appear. And until it is made clear, we shall let a higher court direct the allowance of the petitioners’ prayer, so that the responsibility for greater loss on the part of the bondholders will not rest with us. The future success of the railway system is so far from being assured that we feel that it is not only improbable, but that it is altogether impossible. And, so feeling, we would be guilty of a gross abuse of discretion were we to authorize the issuance of receivers’ certificates for all the purposes stated in the schedule to the petition.

The petition is dismissed, the petitioners are allowed an exception and bill is sealed.

From M. M. Burke, Shenandoah, Pa.


author: Patterson, P. J.,

text:
    The First National Bank of Everett v. Morris et al.

      Hicks & Owens, for plaintiff; John Woodcock, for defendants.
    July 26, 1928.
   Patterson, P. J.,

This is an action in trespass by The First National Bank of Everett, Pennsylvania, v. Aaron Morris et al., defendants, to recover damages for the cutting and removing of standing timber on a tract of land situate in Huston Township, Blair County, the title to which is claimed by both the plaintiff and the defendants. The defendants filed an affidavit of defense in the nature of a statutory demurrer, in which it is averred that the plaintiff’s title is null and void and that the defendants’ title is valid.

By an article of agreement dated June 20, 1925, A. J. Detwiler and wife sold to the Fry Lumber Company certain standing timber in the following language: “Do hereby sell, grant and convey to the grantee all the timber standing, down, manufactured into lumber products or otherwise on the following described tract of land situate in Huston Township, Blair County, Pennsylvania,” and further providing “grantee to have three years in which to remove said timber, etc., from said premises, using due diligence to remove the same in said three years and in case of depression in business or panic or labor shortage, two years’ additional time will be given to remove the same, which includes all timber as above set forth, regardless of size, and all manufactured products and structures on said premises.” On the same day, the said Fry Lumber Company, by H. J. Fry, manager, by contract in writing, conveyed to The First National Bank of Everett, Bedford County, plaintiff in the present action, all of said timber in the following language: “Party of the first part agrees to convey and by these presents does convey to party of the second part, all their right, title and interest to the timber in a certain tract of land, etc.,” and providing, further, “all the privileges for operation, rights-of-way and right of mill sets and water are included in this conveyance and party of the second part shall enjoy all the rights and privileges that were conveyed to party of the first part by A. J. Detwiler and Cenora B. Detwiler, his wife, under their agreement made the 20th day of June, 1925.”

It is to be noted that the Fry Lumber Company was the fictitious business name for Charlotte Fry, intermarried with one Harry J. Fry, who executed the agreement above mentioned as her duly authorized agent, signing the same “Fry Lumber Co., H. J. Fry, Mgr.,” and that the said H. J. Fry did not join as husband in the execution of said conveyance. On July 15, 1927, the said Charlotte Fry, individually, and trading as the Fry Lumber Company, was duly adjudicated a bankrupt by the District Court of the United States for the Western District of Pennsylvania, and thereafter her trustee in bankruptcy sold at public sale and conveyed the hereinbefore mentioned timber tract to the Morris Lumber Company, defendant in the present action. We have, therefore, under consideration two sales of the timber in question — ■ one by the Fry Lumber Company to The First National Bank of Everett, dated June 20, 1925, and at a later date a second sale of the same tract by trustee of the Fry Lumber'Company in bankruptcy to Aaron Morris et al., doing business under the firm name of Morris Lumber Company.

It is contended on the part of The First National Bank of Everett that the conveyance of the timber to said bank constituted a sale of personal property and the conveyance therefor, not being for real estate, did not require the joinder of the husband of the said Charlotte Fry. And on the other hand, the Morris Lumber Company contends that the sale to The First National Bank ivas null-and void, for the reason that the husband, H. J. Fry, did not join in the execution of the conveyance, and that the second conveyance by the trustee in bankruptcy is good and valid under the law.

It is a well-established rule of law in Pennsylvania and many other states that a sale of standing timber under a -written contract which provides for a limited time in which said timber is to be removed shall be considered personal property, and where it is provided that the timber shall be removed at the discretion of the purchaser without limit of time, the same is real estate.

The sale to The First National Bank of Everett, with the stipulation that the said timber shall be removed within three years, constitutes the transaction as a sale of personal property and not real estate, and such contract is binding upon the party of the first part, Charlotte Pry, a married woman, without the joinder of her husband.

The Supreme Court, in McClintock’s Appeal, 71 Pa. 365, decided in 1872, held:

“In agreements for the reservation or sale of growing timber, whether the timber is to be regarded as personal property or an interest in real estate depends upon the nature of the contract and the interest of the parties.

“If the agreement does not contemplate the immediate severance of the timber, it is a contract for the sale or reservation of an interest in land, and until actual severance the timber in such case passes to the heir and not to the personal representative. But when the agreement is made with a view to the immediate severance of the timber from the soil, it is regarded as personal property and passes to the executor and administrator and not to the heir.”

And in Robbins v. Farwell, 193 Pa. 37, opinion dated 1899, and construing similar agreements for the sale of timber dated in 1885, 1888 and in 1891, the Supreme Court says: “He did not pretend to have purchased the land; he did aver and prove that he had purchased the timber with a view to immediate severance, and commenced to cut and remove it. . . . We held, in Pattison’s Appeal, 61 Pa. 294, as follows: ‘We regard a contract for standing timber on a tract of land, to be taken off at discretion as to time, as an interest in land and within the statute of frauds and perjuries. But then, in McClintock’s Appeal, 71 Pa. 365, the distinction between a contract to take off the timber at discretion and one contemplating an immediate severance is . . . pointed out.’ ” And, further, on page 45: “In this contract it was intended by both parties that the timber should be immediately cut and removed; it was so cut and removed, and plaintiff, as to a considerable part, received his share of the proceeds; this was not a mere license to cut, revocable at pleasure of the grantor; it was the irrevocable sale of a chattel, in part delivered and in part actually paid for.”

It is forcibly argued on the part of the defendants that, prior to the passage of the Act of May 22, 1895, P. L. 113, the above-stated rule as laid down in McClintock’s Appeal, supra, and many other cases, determined what sales of standing timber were personal property and what were sales of an interest in land, governed by the statute of frauds and perjuries, as well as the married woman’s act requiring the joinder of the husband in conveyances of real estate.

The Act of May 22, 1895, § 1, P. L. 113, reads as follows: “That it shall be lawful for the owner or owners of land, timber or bark, or for any person or persons having an interest therein, to grant, bargain and sell, or contract to sell, by deed, conveyance or contract in writing, signed by the grantor or grantors therein, and proved or acknowledged by them, as now required by law of this Commonwealth for the signing and acknowledging of deeds, all or any right, title, claim or interest such grantor or grantors may have in or to any standing or growing timber, or the bark thereon, upon any lands in this Commonwealth; and any such deed, conveyance or contract shall be taken and deemed as a deed, conveyance or contract conveying and vesting an interest in land.”

The part of said section which reads “and any such deed, conveyance or contract shall be taken and deemed as a deed, conveyance or contract conveying and vesting an interest in land,” taken by itself, is probably misleading. However, read in connection with the other sections of said act, it will be understood to be a part of a recording act and was enacted by the legislature for the protection of. purchasers of land against unrecorded contracts for sale of standing timber. It requires the recording of all such contracts the same as if they were conveyances of an interest in land. Said act is indexed in the pamphlet laws for the year 1895 as follows: “Recording of deed, conveyance or contract for sale of timber or bark, provided for . . . page 113.”

It was evidently not the intention of the legislature to change the long-established rule in Pennsylvania which determined whether or not timber sales involved personal property or real estate. This conclusion is supported by a number of decisions of the appellate and other courts since the passage of the Act of 1895.

In the case of Mahan v. Clark, 219 Pa. 229, opinion by Mr. Justice Elkin, dated Jan. 6, 1908, it is held: “It has been uniformly held in this State that standing timber is real estate and that a conveyance thereof which does not contemplate an immediate severance is within the statute of frauds: Yeakle v. Jacob, 33 Pa. 376; Neumoyer v. Andreas, 57 Pa. 446; Pattison’s Appeal, 61 Pa. 294; Bowers v. Bowers, 95 Pa. 477; Miller v. Zufall, 113 Pa. 317.”

And in Bennett v. Vinton Lumber Co., 28 Pa. Superior Ct. 495, opinion by Judge Orlady, July 13, 1905, wherein the Act of 1895 is referred to in the following language (page 500) : “The contract by which Bennett sold to Barker Brothers and Barker Brothers to the defendant company the hemlock timber standing and lying on the land described, under the Act of May 22, 1895, P. L. 113, is to be taken and deemed a deed, conveyance or contract conveying and vesting an interest in land. The only question for our decision is the character of the estate created by the writing.”

And later, in the same opinion, it is said: “In White v. Foster, 102 Mass. 375, the court said: ‘An estate acquired by the grantee of standing timber, to be removed within three years, may be regarded either as giving full title to the trees, defeasible by failure to cut and remove the same within three years, together with such interest in the grantee’s other lands, by way of easement or incorporeal right, as is necessary to the enjoyment of the estate granted or as giving to the purchaser a leasehold in the premises for three years, with the right of appropriation to be exercised during the term; and that, in either aspect, there is a good defense against a subsequent purchaser of the land, without notice of the previous purchase of the trees, even although the deed was not regularly recorded.’ ” Citing again the rule laid . down in Pattison’s Appeal, supra, and McClintock’s Appeal, supra.

In Wilmore Coal Co, v. Holsopple, 68 Pa. Superior Ct. 290, opinion by Judge Trexler, July 13, 1917: “It has been held in a number of cases that a conveyance of timber that does not contemplate an immediate severance is within the statute of frauds;” citing Yeakle v. Jacobs, supra; Pattison’s Appeal, supra, and several other cases.

The Supreme Court, in Strause v. Berger, 220 Pa. 367, opinion March 2, 1908, held: “The timber is to be regarded as personal property and not as an interest in land because of the intention of the parties to the agreement that the cutting of it should commence at once and be completed within a reasonable length of time;” again citing McClintock’s Appeal, supra; Robbins v. Farwell, supra, and concluding: “But that where the agreement is made with a view to an immediate severance, the timber is to be regarded as personal property.”

In Edgcomb v. Clough, 275 Pa. 90, opinion by Mr. Justice Schaffer, the Supreme Court, on June 24, 1922, cites Pattison’s Appeal, supra; McClintock’s Appeal, supra, and Mahan v. Clark, supra. In Vogelbacher v. Walker, 7 D. & C. 661, opinion by Judge Searle, July 18, 1925, it is held that where standing timber is sold subject to removal -within a term of ten years, such timber is personal property; citing the cases hereinbefore referred to.

In Searle v. Aylesworth et al., 5 D. & C. 691, opinion by Judge Maxey, July 12, 1924, the Act of 1895 is quoted and fully discussed, and the rule as to personal and real estate in standing timber, as laid down in McClintock’s Appeal, supra, and other authorities hereinbefore referred to, is again held to be the law.

Decree.

Now, July 26, 1928, the demurrer is overruled and defendants given fifteen days in which to file a further affidavit of defense if they so desire.

From Robt. W. Smith, Hollidaysburg, Pa.


author: Mays, J.,

text:
    Commonwealth v. Brown.

      David F. Mauger, District Attorney, for Commonwealth.

      J. Howard Jacobs, for defendant.
    May 14, 1928.
   Mays, J.,

In the indictment in this ease the defendant is charged with fraudulently making, signing, uttering and publishing a promissory note (a copy of which is made a part of the indictment) to the prejudice of the Reading National Bank and with intent to defraud. The information upon which the charge is based is entered to No. 266, December Sessions, 1927. It charges the commission of the crime in like language and contains a copy of the note with the addition of the endorsement on the back thereof. The defendant filed a motion to quash, based on the following reasons:

1. The indictment sets forth an instrument which is not apparently capable of effecting a fraud, thus omitting entirely the third element of the crime of forgery, namely, the instrument must be apparently capable of effecting a fraud.

2. The instrument, namely, the promissory note set forth at length (by quoting in full) in said indictment, is not only apparently not capable of effecting a fraud, but on its face, that is, on the face of the indictment, is actually not capable of effecting a fraud.

3. The promissory note contained in the indictment shows that Myrtle Brown Lease is the maker thereof and that said note is drawn to the order of Robert P. Brown, payable at the Reading National Bank, and it shows that said promissory note was not endorsed by Robert P. Brown or any one else; and that, thus lacking any endorsement, it was impossible for the defendant, Robert P. Brown, thereby to prejudice the right of the Reading National Bank.

4. The indictment on its face fails to charge the offense of forgery or any indictable offense.

5. The indictment is inconsistent with, and contradictory of, the information, in that the note in question, as set forth in the information, is a note upon which the payee has endorsed his name, whereas in the indictment an entirely different note is set forth, namely, without any endorsement.

The first, second and fourth reasons may properly be considered together. They are based on the ground that the indictment fails to allege facts sufficient to constitute all the elements of the crime of forgery. There is no need for the citation of authorities to support the contention of the Commonwealth that the instrument set out in the indictment, viz., a promissory note, is capable of working a legal injury.

The third reason is based on the fact that the indictment does not set out the reverse side of the note alleged to have been forged, and, hence, does not show any endorsement of the note by the payee, the defendant here. This reason is not well founded, because it is unnecessary in an indictment for forgery to set out a complete copy of the instrument involved, and, furthermore, because the offense of forgery can be completed to the prejudice of the prosecutor and a fraud effected, even if the instrument has not been in fact endorsed.

The Act of March 31, 1860, § 17, P. L. 427, provides that: “In any indictment for forgery, uttering, stealing, embezzling, destroying or concealing, or obtaining by false pretences any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same maj^ be usually known, or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof.” In construing this act, the courts have uniformly held that if the written instrument is described by the name or designation by which it is usually known, it fulfills the requirements of the statute. See Com. v. Beamish, 81 Pa. 389; Com. v. Luberg, 94 Pa. 85; Com. v. Meads, No. 2, 14 York Leg. Record, 132. In the last-cited case, an indictment charging forgery contained a copy of the check without the endorsement, and it was held that it was not necessary to describe the endorsement or to incorporate a copy thereof in the bill.

Section 11 of the Act of 1860, supra, provides that “every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment, if any,” etc. The accused has a right to be informed of the nature and character of the charge he is called upon to answer, to the end that he may properly prepare his defense. The#bill of indictment here in question substantially follows the act, indeed, does more than describe the instrument by name or designation, thereby giving the defendant all the needful information as to the nature and character of the charge he is called upon to answer.

In Com. v. Shanklin, 87 Pa. Superior Ct. 53, the defendant was indicted for forgery of a signature to the transfer and power of attorney on the back of a certificate of stock. The Superior Court said, at page 56: “It was not necessary to set forth in the indictment a copy or facsimile of the certificate of stock, on the back of which defendant was charged with having forged the signature of G. S. Humes to the transfer and power of attorney; it was sufficient to describe it by the name or designation by which it is usually known or designated, or by the purport thereof.”

The indictment in this case certainly describes the note involved sufficiently to enable the defendant to identify it; it clearly shows what note he is charged with having forged, and, as we see it, is sufficient, even though it does not contain a copy of the endorsement.

Equally unavailing is the defendant’s contention that he could not be held liable for uttering a forged note because he did not endorse it. As has been said by some courts in other jurisdictions, such a contention merits but little consideration.

In Lawless v. State, 114 Wis. 189, 89 N. W. Repr. 891, the defendant was charged with and convicted of forging a check by altering the amount, the check having been made payable to his order and having been cashed for him by one Kiefer. Quoting from the opinion of the Supreme Court: “The point that the accused could not be held liable for uttering the forged check because he did not endorse it merits but little consideration. Such title as the accused had therein was passed by the transfer, and Mr. Kiefer acquired the right to have the accused make the proper endorsement,” citing the Negotiable Instruments Law.

This case was followed, in the same court, by Norton v. State, 129 Wis. 659, 109 N. W. Repr. 531. There the defendant was charged with forging a cheek payable to the order of one John Walsh, and it was averred that forgery could not be predicated on the instrument because it had no legal efficacy in the hands of the defendant, whose name did not even appear upon the instrument. This contention was overruled in the following language: “The contention that the check was without value in the hands of the plaintiff in error without the endorsement of Walsh is refuted by the decision of this court to the effect that a negotiable paper payable to the order of the payee may be transferred without his endorsement.”

This rule, stated to be based upon the decisions of the Wisconsin court, is, of course, the same rule that is embodied in the Negotiable Instruments Law which has been adopted in Pennsylvania.

A similar case is Maloney v. State, 91 Ark. 485, 121 S. W. Repr. 728. Maloney was charged with forging a check payable to the order of one Collins, and here again defendant’s name did not appear on the check. The defendant filed a motion in arrest of judgment on the ground that the indictment did not allege facts sufficient to constitute an indictable offense. This was answered in the following language: “The instrument set out in the indictment was capable of working a legal injury. Although not endorsed by the alleged payee in the instrument, it had legal efficacy. The gravamen of the offense is the guilty intent which accompanies the attempt to defraud. ... If one with intent to defraud offers a forged instrument to another which is capable of injury, he has committed this offense, although the person to whom it is offered might not accept it without a written assignment. But in the instrument set out in the indictment one might obtain a right or an equitable title without a written assignment . . . and the check could be transferred without a written assignment thereof so as to make the transferee the true owner thereof.”

In Santolini v. State, 6 Wyo. 110, 42 Pac. Repr. 746, where the defendant was charged with the forgery of a cheek payable to the order of one Colbers, the defendant contended that the check described in the information was not of legal efficacy without an endorsement, and could not be passed without such an endorsement. It was held that: “In forgery, it was never necessary to set forth the endorsement of the forged paper in the indictment, as the endorsement is no part of the instrument. . . . The uttering of a forged instrument is complete when offered, and it makes no difference whether it was then endorsed by the payee or not.” The court further states that “According to Mr. Bishop, ‘forgery is the making of a false writing, which, if genuine, would apparently be of some legal efficacy.’ It does not seem from the authorities that it is necessary either in any indictment for forgery or for uttering forged paper, or for passing the same, to set out any endorsements thereon, to show the instrument to be of apparent legal efficacy. It is sufficient charge that it is a forged writing, was uttered or was passed with knowledge of the forgery and with intent to defraud.”

The Supreme Court of California, in People v. Ah Woo, 28 Cal. 205, holds that it is not necessary, in order to constitute an uttering within the meaning of the forgery statute, that there should have been a formal endorsement, and that the position taken by the defendant that, inasmuch as the person intended to be prejudiced is neither the drawee nor the payee mentioned in the order, and the order is not drawn payable “to order” or “bearer” and is not transferred by endorsement, the prosecutor could not have been defrauded, is untenable.

The fifth reason urges that because the information alleges an endorsement and the indictment does not, there is a variance. It is sufficient to say that all that is necessary in an information is that the same offense be alleged or set forth as that contained in the bill of indictment. In view of what we have said in disposing of the other reasons advanced, we must conclude that this is not a variance which could do any harm to the defendant; and, what is more, the information discloses what he complains the indictment fails to set forth.

And now, to wit, May 14, 1928, the motion to quash is overruled, and the defendant is required to plead to the indictment.

• Prom Charles K. Derr, Reading, Pa.


author: Kent, P. J.,

text:
    Commonwealth v. Kelly.

      C. Victor Johnson, for Commonwealth; Wesley B. Best, for defendant.
    July 18, 1928.
   Kent, P. J.,

This case comes before the court upon the petition of the defendant above named, Paul Kelly, which sets forth that he is a citizen of Crawford County, Pennsylvania, residing at Hartstown, in said county; that on July 2, 1928, a complaint was made against him before Ralph A. Schrubb, alderman in and for the 4th Ward of the City of Mead-ville, Pa., charging him with “unlawfully operating a motor-vehicle on a public highway in Crawford County, Pa., in a reckless manner, so as to endanger the life, limb and property of the other users of the highway, contrary to section 1001 (a), article 10, of the laws of the State of Pennsylvania,” and that the said case was so proceeded with by the said alderman that on July 10, 1928, petitioner was adjudged guilty by the said alderman of the offense charged, and sentenced to pay a fine of $25 and costs, or, upon non-payment thereof, to undergo imprisonment for ten days.

The reasons assigned for the allowance of the appeal from the summary conviction are:

“(a) That said judgment of conviction was unwarranted and contrary to law, and without proper weight of evidence to legally support it.

“(b) Your petitioner alleges that he did not and was not operating his car in a negligent manner, and avers that the preponderance and weight of the testimony given by disinterested witnesses shows that he was free from negligence and was operating his car in a lawful manner at the time he was charged with operating it recklessly.”

Section 1001 of the Act of May 11, 1927, P. L. 886, effective in this Commonwealth from and after Jan. 1, 1928, under title of “Reckless Driving,” provides: “(a) Any person who drives any vehicle upon a highway carelessly and wilfully or wantonly, disregarding the rights or safety of others, or in a manner so as to endanger any person or property, shall be guilty of reckless driving.”

Section 1203 of the same act, under title “Summary Offenses,” provides that

“Any person violating the provisions of any of the following sections or sub-sections of this act shall, upon summary conviction before a Mayor, Burgess, Magistrate, Alderman or Justice of the Peace, be sentenced to pay the • following fines and costs of prosecution, and, upon non-payment thereof, to undergo imprisonment in the County Jail for the terms indicated for each offense:

“(a) Violating the provisions of Section 1001, Twenty-five ($25.00) Dollars, or upon non-payment thereof to undergo imprisonment for not more than ten (10) days.”

Section 1208 of said act, under title “Appeals,” provides that “Any person convicted in any summary proceeding under this act shall have the right of appeal as in other cases of summary conviction.”

Under the provisions of this act, aldermen are empowered and have jurisdiction to hear and determine the guilt or innocence of all persons charged with reckless driving of vehicles upon the highways of the State in a summary proceeding, providing, also, that the person convicted in any such summary proceeding shall have the right of appeal as in other cases of sum-' mary conviction.

The right of appeal from summary convictions and the procedure for the granting of same is a constitutional provision, with acts of assembly passed designed to give effect to this constitutional right. Article v, section 14, of the Constitution of 1874 declares: “In all cases of summary conviction in this Commonwealth, or of judgment in suit for a penalty before a magistrate or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court, or judge thereof, upon cause shown.”

The Act of April 17, 1876, P. L. 29, as amended by the Act of July 11, 1917, P. L. 771, designed to give effect to the section of the Constitution cited, provides that: “In all cases of summary convictions in this Commonwealth before a magistrate or court not of record, either party may, within five days after such conviction, appeal to the Court of Quarter Sessions of the county in which such magistrate shall reside, or court not of record shall be held, upon allowance of the said Court of Quarter Sessions, or any judge thereof, upon cause shown.”

It is, therefore, clearly established that the right to allow or reject an appeal from the summary conviction is vested in the appellate court or a judge thereof, and based entirely upon reasons assigned in the petition asking for such appeal.

In the instant case we have no transcript of the magistrate’s record, or of the testimony produced before him, in the absence of which we presume, and counsel admit upon the argument of this case, that an opportunity to fully and fairly present his case before the magistrate was afforded petitioner; and while the court has the right to look at the evidence offered before the magistrate in behalf of the Commonwealth and the defendant, such is impossible in this case. We are confined to the contents of the petition in our determination of the matter and questions involved. Our courts hold that, ordinarily, an appeal shall not be permitted if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved or there is something to indicate oppression or disregard of the law on the part of the magistrate, or after-discovered evidence which would justify a new trial under well-known rules regulating new trials: Thompson v. Preston, 5 Pa. Superior Ct. 154; Com. v. Hendley, 7 Pa. Superior Ct. 356; Com. v. Yocum, 29 Pa. Superior Ct. 428; Com. v. Ralston, 29 Pa. Superior Ct. 426.

We are of the opinion that an appeal should not be allowed unless the party desiring it did not have an opportunity to fully and fairly present his case before the magistrate, or unless a doubtful legal question is involved, or there is something to indicate oppression or disregard of the law on the part of the magistrate, or an allegation of after-discovered evidence, with such reasons clearly assigned as would justify the court in granting a new trial, that the case be tried de novo.

The Superior Court, in an opinion by Wickham, J., in the case of Thompson v. Preston, 5 Pa. Superior Ct. 154, says:

“An appeal from the judgment of a magistrate for a penalty, or in a summary conviction, should not be allowed save for cause shown: McGuire v. Shenandoah, 109 Pa. 613; Com. v. Eichenberg, 140 Pa. 158. To ascertain the cause alleged, reference must be had to the petition presented to the court below: Com. v. Manjou, 174 Pa. 25; and we cannot go outside the petition and deal with the case as though it had originated on a certiorari to the magistrate. Ordinarily, appeals should not be permitted if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppression, corruption or disregard of law on the part of the magistrate, or after-discovered evidence which would justify a new trial under the well-known rules relating to new trials for that cause.

“Neither article V, section 14, of the Constitution, nor the Act of 1876, which was passed to carry it into effect, contemplates that an appeal should be allowed merely because the party desiring it is dissatisfied with the result of the trial before the magistrate, as is the case with most defeated litigants, and cheers himself with hopes of better success in the next encounter.”

In the case of Com. v. Blank, 22 Pa. C. C. Reps. 378, Judge Scott holds: “Appeals from summary convictions are not allowed for reconsideration of a case upon the merits ‘if the party has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppressive corruption or disregard of law on the part of the magistrate, or after-discovered evidence:’ Thompson v. Preston, 5 Pa. Superior Ct. 157. The law has committed the decision of the case to the justice, and unless the above conditions exist, the judge exercises no power over it, even if he might conceive the evidence would support a different conclusion. Judgments in summary convictions are in a class quite distinct from those of justices in ordinary cases where appeals are a matter of right.”

From argument of counsel in the instant case, it appears that a defense was duly presented before the alderman, and he, doubtless, from a consideration of the evidence offered on both sides, was satisfied of the defendant’s guilt of the offense charged, and, therefore, found against him. The petition alleges that the conviction was “unwarranted and contrary to law, without proper weight of evidence to legally support it;” In our opinion, there is no allegation in the petition, and nothing upon the record showing that the conviction in this case was contrary to law, or that there is a doubtful legal question involved; in fact, there is no allegation of oppression, corruption or disregard of the law on the part of the magistrate, or of after-discovered evidence.

In the absence of anything in the petition pointing out or alleging whereby the conviction was unwarranted and contrary to law, and without proper weight of evidence to legally support it, we are of the opinion that the petitioner has not assigned any sufficient reason to warrant the court in allowing the appeal prayed for.

Order. — And now, July 18, 1928, the prayer of the petition requesting allowance of an appeal from the summary conviction of the magistrate is hereby refused. Prom J. Perry Eckels, Meadville, Pa.


author: Evans, P. J.,

text:
    Sprague Sells Corporation v. Garrahan Canning Company.

      George M. Tustin, for rule; R. S. Hemingway, contra.
    Dec. 3, 1928.
   Evans, P. J.,

This proceeding comes before the court on petition of W. J. Phillips for a rule to show cause why the writ of replevin issued in this case should not be quashed and the plaintiff’s answer to said petition, challenging and denying the petitioner’s right to have the writ, quashed.

July 25, 1925, the plaintiff issued the writ to recover from the Garrahan Canning Company, the defendant, certain machinery installed in defendant’s buildings in the town of Bloomsburg. At the time of filing the prsecipe for the writ and the affidavit of value, the plaintiff also filed a replevin bond with surety in the sum of $18,625.08, double the value of the machinery sought to be replevied, conditioned as required by section 1 of the Act of April 19, 1901, P. L. 88.

Feb. 6, 1928, W. J. Phillips, owner, petitioned the court to quash the writ, averring, inter alia, therein that, before the writ of repelvin issued, the plaintiff did not execute and file with the prothonotary a valid enforceable bond or obligation, such as is required by section 1 of the Act of April 19, 1901, in that the bond was not properly executed by the plaintiff corporation nor by the surety named therein.

Aug. 18, 1928, the Sprague Sells Corporation, plaintiff, with leave of court, filed in the prothonotary’s office a “Plaintiff’s Bond in Replevin,” with surety, in lieu of the original bond filed in the case July 25, 1925. The new bond was approved by the prothonotary the same day and is drawn in the penal sum of $18,625.08, conditioned that if the plaintiff, Sprague Sells Corporation, shall fail to maintain its title to said goods and chattels, and shall not pay to the party thereunto entitled the value of said goods and chattels and all legal costs, fees and damages which the defendant or other persons to whom such goods and chattels so replevied belong may sustain by reason of the issuance of such writ of replevin, then this bond to remain in full force and virtue, otherwise to be void and of no effect.

The new or substituted bond amply protects the rights of the petitioner, W. J. Phillips, who, at most, may become an intervening party under section 3 of the act, but for the present is not a party to the record and has no standing to file this petition.

Section 8 of the Replevin Act of April 19, 1901, authorized the court to revise the action of the prothonotary with respect to fixing the amount of the bond and the approval or rejecting the security offered, or may permit the substitution of bail for that already given.

And now, Dec. 3, 1928, the rule to show cause why the writ should not be quashed is, therefore, discharged.

Prom R. S. Hemingway, Bloomsburg, Pa.


author: O’Haka, Dep. Att’y-Gen.,

text:
    Student Patrols.
    Jan. 9, 1929.
   O’Haka, Dep. Att’y-Gen.,

We have your request to be advised to what extent, if any, a board of education is responsible in case of an accident to one of the school pupils who has been appointed a patrol while in the performance of his duties.

In answer to our question: “What are the duties of a student patrol?” your department has submitted the following letter, received from one of the school districts of the Commonwealth:

“The board of education are considering establishing student patrols, to afford the school pupils of the lower grades better protection at various street intersections which we consider dangerous, also to patrol at various points along the main streets at the time schools are dismissed, and possibly during the time pupils are going to school, but before taking definite action, the board are anxious to determine if the board of education is responsible in any manner in case any of those children that have been appointed patrols are injured while performing the duties assigned to them.

' “We have several very dangerous street intersections, over which a large number of pupils must pass, and in order to afford them all the protection possible, we contemplate establishing student patrols. If it can be legally done, we expect to have the children who are appointed to these positions given power to make arrests when their orders are not respected, but in case this cannot be done, we shall work very close with the borough police officers.”

The purpose for which the public schools are organized and maintained is the education and improvement of children in learning. A board of education has the power to make suitable rules, regulations, by-laws or ordinances for its own government and the government of those over whom it may have jurisdiction or control. Such rules, regulations, etc., must be made for the government, good order and safety of our schools, and must be suitably adapted to the purposes for which the school districts are created, and cannot be either inconsistent with the general law or the act creating such school districts or unreasonable or oppressive. Such rules, regulations, etc., may govern the conduct of the pupils, not only while they are upon the school premises, but also from the time they leave their homes to go to school until they return to their homes from school.

The regulation of the general public upon our streets and highways by law or ordinance, and the enforcement of such regulation by the State and various municipalities therein, is an exercise of the police power inherent in the State or delegated to those municipal divisions: 3 Dillon on Municipal Corporations, 2066, § 1273.

The municipalities of the State derive such power from constitutional, statutory or charter provisions. Strictly speaking, a municipality has no original or inherent power to control or regulate the use of its streets, and may only exercise such power when it is granted in express words or when it is necessarily or fairly implied in or incident to those powers expressly granted or to those powers which are indispensable to the accomplishment of the declared objects and purposes of a municipality: Easttown Township v. Merion, etc., Co., 18 Dist. R. 400; Millerstown v. Bell, 123 Pa. 151; Pennsylvania R. R. Co. v. Montgomery County, 167 Pa. 62, 71.

A school district may not lawfully exercise such power in the absence of express legislative authority, or unless the power is necessarily implied in or incident to those expressly granted to it, or those indispensable to the declared objects and purposes of a school district: Pennsylvania R. R. Co.’s Case, 213 Pa. 373, 376.

We have looked in vain for a constitutional or statutory provision which expressly delegates police powers to a school district extending over the streets and highways of the Commonwealth, and, in our opinion, such power is not implied in, or incident to, the powers expressly granted and is not indispensable to the accomplishment of the declared objects and purposes of the school district.

A doubt as to corporate power is resolved against its existence, and this is no less true of a school district than of a private corporation, for the source of power in each is the same: Pennsylvania R. R. Co.’s Case, 213 Pa. 373, 377.

Attendance at school by children in this Commonwealth is compulsory. The danger to which children lawfully upon the streets and highways are exposed by traffic movement is common knowledge, but the duty to so regulate the use of the streets and highways, and to so enforce such regulations as to promote the safety of the children upon them, rests upon the State or its several municipal divisions to which it has delegated the power to control the streets and highways after they have been opened and to prescribe particular regulations governing their use: Easttown Township v. Merion, etc., Co., supra; Ellwood Lumber Co. v. Pittsburgh, 269 Pa. 94, 95; McHale v. Transit Co., 169 Pa. 416, 424; Pennsylvania R. R. Co. v. Montgomery, 167 Pa. 62, 70; the General Borough Act of 1927; the Vehicle Code of 1927.

The school district may, by reasonable rules and regulations for the conduct of the pupils, safeguard the children when going to and from the school to their homes. Rules having this purpose as their object have been sustained as a reasonable and valid exercise of the board’s authority, i. e., a rule requiring children to go directly from school to their homes; a rule prohibiting children from fighting en route. Having in mind modern traffic conditions, a rule requiring children to cross streets or highways at certain guarded points would be a reasonable and valid exercise of its authority over its pupils. Such a rule is self-regulation. It acts directly upon the pupil in restraint or constraint of his conduct and does not directly aifect the general public. The regulation of the general public upon the streets and highways and the creation and direction of the agencies necessary to enforce such regulation is not inherent in a school district, nor is it delegated to it by statute. It is not implied in, or incident to, its powers, and, in our opinion, it is not essential to accomplish its declared objects and purposes.

We are of the opinion, and so advise, that a board of education may safeguard its pupils on-the streets and highways by establishing reasonable rules for their conduct while passing through the streets and highways going to and from their homes to school, but it is without authority to otherwise regulate the use of public streets and highways by the general public or to enforce regulations for traffic movement through student patrol.

There being no power in the board to impose upon the student the responsibility of patroling the streets and highways, if a board of education undertakes by rule or regulation to direct a pupil to act as a student patrol, and he is thereby exposed to danger, and is injured while performing such duty, the school district is not liable in damages, not only because a school district is but an agent of the Commonwealth, for the sole purpose of administering the Commonwealth’s system of public education, and, therefore, not liable for the negligence, trespass or tort of its directors or employees (School District v. Fuess, 98 Pa. 600; Ford v. School District, 121 Pa. 543), but also because the exercise of such power is ultra vires: Betham v. Philadelphia, 196 Pa. 303, 310.

We express at this time no opinion as to the liability, if any, which may rest upon the individual or individuals who require or direct the student to perform such service: School District v. Fuess, 98 Pa. 600.

If injury to persons or damage to property results to others than the student patrol by reason of the exercise of police powers by the student, the rule of non-liability applies to the ultra vires acts because the district cannot confer upon its agents lawful authority to represent it beyond the constitutional or statutory powers, and, again, we express no opinion as to the liability, if any, which may rest upon the individual who performs the service or the individual or individuals who require or direct the student to perform such service.

From C. P. Addams, Harrisburg-, Pa.


author: Thompson, J.,

text:
    Dayen’s Estate.

      Robert Levin, for exceptant; Moore, Gossling & Panfil, contra.
    March 8, 1929.
   Thompson, J.,

The decedent died Dec. 24, 1927, intestate, leaving as her next of kin her husband, Harry Dayen, and her father, Labe Batkin, and no children. At the audit of the administrator’s account in December, 1928, the husband of the decedent claimed as his individual property certain assets which stood in the name of the decedent at the time of her death and more particularly hereinafter described. The Auditing Judge rejected said claim, and claimant has filed exceptions thereto.

We have read the testimony taken before the Auditing Judge with care, and from the same it appears that the claimant was a baker and a member of a labor union named “Consumer’s Baking Company Union, Local No. 201.” In December, 1924, this union was on a strike and there was litigation pending in the courts between the employers and the union. In that month the claimant had on deposit to his credit with the Philadelphia Saving Fund Society of this city the sum of $5451.75 and a mortgage of $4000 in his name, both of which he transferred to his wife, the decedent. This mortgage was subsequently collected and forms part of the assets in the hands of the administrator. About two years later a mortgage of $1000 was taken in the name of the decedent, which claimant alleges represents his money and that it belonged to him.

The claimant was disturbed about the above litigation, evidently having in mind the case of Lawlor v. Loewe, known as the Danbury Hatter’s Case, 235 U. S. 522 (January, 1915), in which the members of a labor union were held personally responsible in damages for losses sustained by the employers by reason of the unlawful acts, of the officers of the union committed with the knowledge and consent of its members. While there is no direct evidence that claimant knew of the Danbury Hatter’s Case, yet there is evidence that when the claimant and his wife went to the saving fund society in December, 1924, to transfer the savings account from his name to his wife’s name they met another member of the union named Walman, with his wife, Bella, and in the conversation that ensued Bella Walman told the decedent that her husband was doing the same thing that Mr. Dayen was doing, that is, putting the account in her name, thus showing that members of the union_ discussed the possible result of the litigation in question and were transferring their assets to their wives’ names. In addition to this, the claimant consulted a real estate broker named Pollock, who testified that he advised claimant as follows: “I do not think it is that terrible, but if you want to be 100 per cent, safe, if you can trust your wife, you can assign the mortgage and the bank account to her and she can hold it for you until this trouble will be over.”

It thus clearly appears that claimant was transferring his property to his wife’s name to avoid the possible disastrous result of a certain pending litigation in which he might be liable.

It is argued on behalf of the claimant that as there were no judgments against him and he was not at the moment indebted, the transaction was not fraudulent, but with this contention we cannot agree. The transfers were made in anticipation of a future specific liability and claimant can get no relief in the courts when he attempts to do a fraudulent act. He does not come into court with clean hands, and the law will leave him just where he has placed himself and not lend its aid to recover back property transferred in fraud of creditors, even though it should subsequently appear that he had made settlements with his creditors. In the present case, counsel stated at the argument that the litigation above referred to, the nature of which the evidence does not disclose, was still undetermined of record.

In Buckwalter Stove Co. v. Edmonds, 283 Pa. 236, 239, it was held: “Where, as here, a solvent husband buys land and takes title thereto in the name of his wife, it is presumed to be a gift from him to her (Gassner v. Gassner, 280 Pa. 313; Guarantee Building and Loan Ass’n v. Thomas, 207 Pa. 513; Earnest’s Appeal, 106 Pa. 310; Bowser v. Bowser, 82 Pa. 57; Townsend v. Maynard, 45 Pa. 198; and see Thompson v. Allen, 103 Pa. 44; Thompson v. Thompson, 82 Pa. 378; Nippes’s Appeal, 75 Pa. 472), and vests in her both the legal and equitable title. In other words, a husband’s post-nuptial settlement of property upon his wife is valid except as to existing or contemplated creditors: Best v. Smith, 193 Pa. 89.”

And in Best v. Smith, 193 Pa. 89, 92, it was said: “But long before the Act of 1848, as well as since, it has been repeatedly held by this court that a post-nuptial settlement on a wife by a husband, not indebted at that time, is good against subsequent creditors if not made with a fraudulent intent as to them. The very purpose of an honest voluntary settlement on a wife is to secure a provision for her against contingencies as to which every honest business man is subject; not to secure her against particular debts which he intends to contract or against disasters in a hazardous business which he proposed to engage in, for in either case such settlement would be fraudulent, but against those misfortunes in business which are remote and cannot with certainty be anticipated.”

In Westmoreland Guarantee Building and Loan Ass’n v. Thomas, 207 Pa. 513, it was held that a husband who is not in debt and is not contemplating entering into a hazardous business may convey his property to his wife, and subsequent creditors have no grounds for complaining of such conveyance. The court said (page 517) : “Nor is there a particle of evidence . . . that at that time Thomas anticipated either becoming indebted to these parties or entering into any business, hazardous or otherwise.”

In Buckley v. Duff & Sons, 114 Pa. 596, 603, it is said: “If the transaction is not fraudulent as to existing creditors, and in this case, as we have said, there were none, subsequent creditors can avoid the sale only under special circumstances, as, for instance, by showing that it was made with a view to incurring liability or to provide against the contingencies of a hazardous business which gave rise to their debts; and cases of this character are ordinarily under proper instructions for the determination of a jury. Such is the doctrine of Snyder v. Christ, 39 Pa. 499; Monroe v. Smith, 79 Pa. 459; Harlan v. Maglaughlin, 90 Pa. 293. Although the cases cited relate to transfer of real estate, the rule is alike applicable on questions affecting the sales of personal property.”

“Where a conveyance is made with a view to entering into some new and hazardous business, the risk of which the grantor intended should be cast upon the parties having dealings with him in the new business, it is fraudulent as to subsequent creditors:” 27 Corpus Juris, 522, § 200 c.

In Sager v. Mead, 171 Pa. 349, the second paragraph of the syllabus is as follows: “An Orphans’ Court sale for the payment of debts will not be set aside where the family entered into an agreement that the land should be sold and bought in by them, and where the plaintiff was a party to all the proceedings sought to be invalidated, and where she still continues to hold all the benefits which came to her out of the proceedings. She will be bound by the proceedings if they were bona fide, and she will not be permitted to assert her own fraud to attack them if they were fraudulent.”

In Matlack v. Bank, 180 Pa. 360, 379, it was said: “And in addition to all this, it is a rule that a chancellor will not assist a party to obtain any benefit arising from a fraud. He must come into a court of equity with clean hands. It would be a singular exercise of equity which would assist a party, who had paid money to enable him to perpetrate a fraud, to recover his money just when the chancellor was engaged in thrusting out of the way of his doing equity to the injured party the very instrument of the fraud. He who does iniquity shall not have equity: Hershey v. Weiting, 50 Pa. 244.”

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Iobst, J.,

text:
    Householder v. Householder.

      Orrin E. Boyle, for libellant; Dallas S. Gang ewer, for respondent.
    June 11, 1928.
   Iobst, J.,

The Act of May 25, 1878, § 1, P. L. 156, provides as follows: “In any suit or action in divorce, now pending or that shall hereafter be brought, it shall and may be lawful for the respondent, at any time after the return of the subpoena, to enter a rule upon the libellant to furnish a bill of particulars of the cause of action as set forth in the libellant’s petition filed, and if the same be not furnished by the libellant within thirty days after service of notice of rule entered, it shall be the duty of the court to enter a judgment of non pros.: Provided, that the court may, upon cause shown, extend the time in which to file the bill of particulars.”

In this case respondent entered a rule upon libellant to furnish a bill of particulars of the cause of action. Libellant failed to furnish same within thirty days, as required by the act. For some reason, not of record, the respondent failed to follow up her advantage by the prayer for the entry of a judgment of non pros. Preliminary to the taking of testimony before the master, counsel for the respondent moved for the dismissal of the libel for want of a bill of particulars, and, being overruled by the master, again raises the same question in the exceptions to the master’s report. We feel that the master rightfully disallowed the motion for the dismissal of the libel, for that power was not in him. When this question was raised before the master, he should have returned the matter to the court in an interlocutory report before proceeding with the taking of testimony. Upon the record before us, this case was not ready for submission to a master. A rule granted out of this court still remains undisposed of. The rule for a bill of particulars remains unanswered and the libellant cannot proceed any further until said rule is answered or otherwise disposed of in accordance with the provisions of the act above quoted. All proceedings subsequent to entry of the rule are stricken from the record. The libellant is hereby granted leave to answer the rule within fifteen days after notice hereof; otherwise, the prothonotary is directed to enter a judgment of non pros, against the libellant.

From Edwin L. Kohler, Allentown, Pa.


author: Landis, P. J.,

text:
    Groy v. Sinclair Refining Company.

      William C. Rehm, for plaintiff.

      Harris C. Arnold, K. L. Shirk and John A. Coyle, for defendant.
    July 7, 1928.
   Landis, P. J.,

The plaintiff lived in Elizabethtown, this county, and in August, 1924, entered into the employ of the Sinclair Refining Company as its agent at that place. His contract with the company was in writing, and none of the provisions contained in the writing were questioned on this trial. He remained with the defendant company until Nov. 8, 1926, when he gave notice that he did not wish to continue "with it any longer. Thereupon an auditor of the company came to Elizabethtown and audited his books. This auditor found that there was a balance due Groy of $378.47, and he took possession of all the books and papers which were then in Groy’s custody. On Jan. 3, 1927, he mailed a memorandum of the commissions payable, according to the balance as ascertained to be due. All of these facts were admitted in the affidavit of defense. It was also testified that the auditor told Groy that he would receive a check for the said amount. No part of the money was ever paid by the company to Groy, and, hence, the present suit.

The defendant alleged that certain accounts — one due by A. M. Brinser for $293.9'5, and another by J. H. Barto for $54 — should, under the contract between Groy and the company, be deducted from the said balance found to be due to Groy, and that, therefore, the actual sum due to him was only $31.22 and interest. One of the provisions of the contract was that “the agent shall not extend credit to any customer without first securing permission in writing from the company so to do, and shall withdraw any credit so extended when so directed by the company. The agent shall be liable to the company for any loss sustained through violations bf these provisions. The company is authorized, at its option, to charge the agent with the invoice value to customers of products delivered in violation of such provisions, and shall have the right to deduct and retain for its own use said invoice value from any moneys that may then be due or which thereafter may become due the agent.” It was claimed on the trial that the affidavit of defense having averred that the plaintiff extended credit to the two customers above mentioned in the amounts specified, against the express orders of the defendant not to do so, this was a violation of the agency agreement, and the company had the right to deduct the amounts of these bills from Groy’s balance; that this was new matter, and as it was not replied to by the plaintiff, the allegation was to be taken as conclusive against the plaintiff.

Under the Act of March 30, 1925, P. L. 84, the 6th section of the Practice Act of 1915 is amended so as to read: “Every allegation of fact in the plaintiff’s statement of claim, or in the defendant’s set-off or counter-claim, or new matter, if not denied specifically or by necessary implication in the affidavit of defense, or plaintiff’s reply, as the case may be, or if no affidavit of defense or plaintiff’s reply be filed, shall be taken to be admitted, except as against an infant, a person of unsound mind, or one sued in a representative capacity.

The written agreement was not attached to the plaintiff’s statement, but it was therein averred that the plaintiff had been employed by the defendant. The affidavit of defense set forth the provisions of the written agreement as we have quoted them above. It was also stated therein that “the plaintiff extended credit to two customers, namely, J. H. Berton and A. M. Brinser . . . against the express orders of the plaintiff not to do so;” that “this was in violation of the agency agreement between the parties.” J. J. Barto was the name of the person meant, instead of J. H. Berton, and the defendant evidently meant to say that this was against the orders of the defendant instead of the plaintiff. It was also asserted that the company charged the plaintiff with the invoice value of the products delivered in violation of the agreement and assigned to the plaintiff both of these accounts. The agreement, under such circumstances, did authorize the company to charge the accounts against the plaintiff, and the jury were so instructed; but there is no provision for an assignment of any such accounts, and that action on the part of the defendant’s company was of no effect. We do not think that these allegations can be considered as new matter. They were a matter of defense under the agreement, so far as these credits were concerned, and the truth of their allegation was an issue of fact to be determined by the jury, even though the plaintiff had not filed a reply. We believe that the act of assembly did not cover a proposition like this and take away from the jury the determination of these facts.

It has been urged by counsel that the interpretation of the written agreement was submitted by the trial judge to the jury, and that, as the interpretation of a written instrument is for the court and not for the jury, this was error. We submit that the interpretation of any of the writings was not involved in this case. The agreement was plain and conclusive, as was stated in the charge, upon the parties; but it was a vital point in the case whether certain persons who had given directions to Groy as to these particular claims were properly to be considered as the agents for the company, with authority to perform such acts. It was not denied that W. F. Dinkins was manager of what was called the eastern district of the company’s business. On Feb. 16, 1926, he wrote a letter to Groy, at the top of which is: “Subject: J. H. Barto.” Then follows: “Please be advised that approval of installation and credit have both been passed and it will be in order for you to install this equipment as soon as you are in a position to do so.” On March 11, 1925, he also wrote to Groy: “With our form letter of Feb. 16th, we forwarded to you equipment rental agreement favoring the above subject account. Immediately installation has been completed, incorporate therein serial numbers of equipment installed, secure signatures of customer and property owner,- have same properly witnessed and return both copies of the agreement to this office for further handling.” On Jan. 30, 1926, A. C. Carr, who, it was admitted, was assistant district manager of the company, wrote to Groy, on a letterhead at the top of which were the words: “Subject: R. M. Breuser (Brinser), Route No. 1, Middletown, Pa.” The letter read: “Please be advised that approval of installations and credit have both been passed and it will be in order for you to install this equipment as soon as you are in a position to do so.” At the bottom of the letter is the following: “cc Mr. R. E. Spooner, Dist. Supt. Our credit department has placed a COD pending completion of investigation on the above account. Be sure this is thoroughly understood by the customer before making installation.”

It was not denied that the equipment was installed or that numerous .delivery receipts were forwarded to the company after that date. A number of letters were produced to show that Dinkins and Carr were acting in their respective offices for the company in making similar contracts. The fact that Thomas M. Demarest, who was called as a witness and who said he was an assistant manager of the credit department, testified on the trial that these parties had no authority in the matter was not conclusive on that point. All of the above letters and papers were for the jury and were properly, we think, submitted to them to ascertain whether Dinkins and Carr were such agents of the company as were referred to in the written agreement, and whether or not the company was bound by their action in its dealings with Groy. The jury were not permitted to construe the agreement, but they had a right to ascertain whether or not the credits were established in writing with the permission of the company so to do.

In the case of Brinser’s account, it was also shown, and not contradicted, that he had paid everything that was due by him from time to time to the company. The jury, having found for the plaintiff, may be assumed to have ascertained this testimony to be true. As the plaintiff under the written agreement, even if he had extended credit without first securing permission in writing, was liable to the company only for the loss sustained by it by virtue of the violation of these provisions, if the company received the money due upon the account, then it follows that there was no loss for which the plaintiff could be held accountable.

We are of the opinion that this case was properly submitted to the jury and that the verdict was well warranted by the testimony that had been presented.

The motion for judgment non obstante veredicto is now overruled and the rule for a new trial is discharged. Motion overruled and rule discharged.

Prom George Ross Bshleman, Lancaster, Pa.