author: Hassler, J.,

text:
    Serenado Manufacturing Co. v. Sensenig.

      Contract — Signing without reading — Oral inducement — Agency—Foreign contract.

    1. A party who signed a contract without reading it himself, but after requesting that it be read to him, cannot defend on the ground that his signature was fraudulently obtained, because certain paragraphs were not read and certain oral misrepresentations were made, where he does not allege that he was unable to read or prevented from reading it, and one of the paragraphs read to him stated that the instrument contained the entire agreement.

      Fictitious name — Foreign contracts — Act of June 28, 1917.

    2. A contract solicited by an agent in this State and requiring approval by his principal in Iowa to complete it, where the goods covered by it were shipped f. o. b.. does not constitute conducting business in this State within the Fictitious Name Act of June 28, 1917, P. L. 645.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Nov. T., 1920, No. 15.

      B. C. Atlee, for rule; Willis G. Kendig, contra.
    Jan. 15, 1921.
   Hassler, J.,

The plaintiff seeks to recover in this case the amount of five promissory notes, each for $55, given to it by the defendant on Feb. 25, 1920.

In his affidavit of defence the defendant admits giving the notes, but resists payment of them because, as he alleges, they were fraudulently obtained from him by an agent for the plaintiff. The facts upon which he relies to show this appearing in the affidavit of defence are as follows: On or about Feb. 25, 1920, H. M. Marx, an agent of plaintiff, called upon him, and stated that he had an interesting proposition in talking machines. “Defendant, being engaged at the time, asked the said H. M. Marx to read the contract which he, Marx, proposed the defendant should enter into with plaintiff’s company.” That the agent then read all the contract except paragraph 6 and paragraph 17, and told the defendant to sign the same. The five promissory notes were attached to it and signed at the same time. He also alleged “that the notes were signed without being dated, and at the time of the signing of the same said agent told the defendant that the said notes were not to be negotiated unless defendant failed to comply with his part of the contract.” The defendant admits the signing of the contract. The 16th paragraph of it is that “It is mutually agreed between the parties hereto that this instrument contains the entire agreement covering this transaction.” This was read to him, and he does not deny that he knew it was in the contract. By the terms of the contract the defendant was given one Serenado talking machine as a sample, with a number of disks, needles, supplies and advertising matter. He was to obtain advertising matter and help in selling the machines and additional talking machines at an agreed price, and he was to have certain other advantages. In paragraph 17 it is stated that the defendant agreed to pay the said five promissory notes given with the contract in consideration of what he received under the contract. In paragraph 6 it was agreed that the amount so paid was to he returned with interest if defendant in fifteen months had not sold twenty-six machines and returned the sample machine properly boxed and shipped in reasonably good condition.

The defendant does not allege that he was unable to read, or that he was prevented from reading the contract by any act of the plaintiff's agent. There are numerous cases that decide that where a party cannot read, or was prevented from reading a contract, he may show by parol evidence that it was not read to him, and that its contents were misrepresented to him by the other party at or before it was signed, when the defendant in this case, who does not allege that he cannot read, or that he was prevented from reading, signed this contract, it was his solemn agreement, and cannot, in the absence of fraud, accident or mistake, be changed or varied by anything that was said or done at or before its execution. He admits that the paragraph which says that the written contract contains the whole of the agreement between the parties to it was read to him, or at least does not deny that it was. So that he cannot avoid liability on the notes because of anything that the agent of the plaintiff said about their not being negotiated. He agreed in signing the contract that it contained the whole agreement between the plaintiff and himself, and permitted it to be sent to the plaintiff for approval on that condition. He does not even claim that this alleged promise of the agent was omitted from the contract by any fraud, accident or mistake.

We do not think that it makes any difference to the defendant in this proceeding that the two paragraphs referred to were not read to him, as there is nothing in them to show that the defendant was not to pay the notes when they came due. If they were omitted from the contract entirely, the defendant would not be relieved from paying them. He obtained property and advantages through the contract, and for the same gave the notes and must pay them,-in the absence of any condition in the contract that would produce that result. No such condition is in the contract with or without these two paragraphs, which he alleges were not read.

Nor do we think the Act of June 28, 1917, P. L. 645, prevents the plaintiff from recovery. It provides that no individual or individuals shall carry on or conduct any business in this Commonwealth under an assumed name. The contract, which is made part of defendant’s affidavit of defence, shows that the plaintiff did not carry on or conduct business in the State of Pennsylvania under an assumed name. The contract was solicited by plaintiff’s agent in this State, and it was signed by the defendant here, but it was not to be a complete contract until the plaintiff approved it at the place where it was engaged in business, viz., Cedar Rapids, Iowa. It was sent there and approved there by the plaintiff. All machines and supplies, under the contract, were to be shipped to the defendant f. o. b. Cedar Rapids. That means they were delivered to the defendant at the freight station in that city. All business, therefore, which the plaintiff did, or was to do, under the contract was in, or was to be in, the State of Iowa. It did no business in this Commonwealth.

We, therefore, make absolute the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, and enter judgment for the plaintiff for the sum of $284.13.

From George Boss Bshleman, Lancaster, Pa.


source: Caselaw Access Project

author: Cummings, P. J.,

license: Public Domain

text:
    Lando v. Philadelphia and Reading Coal and Iron Co.

      Workmen’s compensation — Statute of limitations — Dependent child having dependent parent — Act of June 2,1915.

    A was killed in an industrial accident May 11, 1917, leaving a widow, B, and C, an illegitimate daughter of D, daughter of A and B. The grandchild was under sixteen and wholly dependent upon her grandparents with whom she lived. B, the widow, died Dec. 7, 1918, having received compensation at the rate of 40 per cent, of A’s wages for eighty-two and four-sixths weeks. On the death of B, C’s guardian filed a petition under section 307 of the Act of June 2, 1915, P. Li 736. The defendant contended that the claim was barred because the petition had not been presented within one year from decedent’s death. The board allowed compensation. On appeal to Common Pleas: Held, that A and B stood m loco parentis to C, and that C’s right to compensation in her individual capacity began on the death of B, and, having filed her claim petition within one year from that date, she was clearly within her rights, and the award was affirmed.
    Appeal from the decision of the Workmen’s Compensation Board. C. P. Northumberland Co., Dec. T., 1919, No. 60.

      Rogers Dever, for plaintiff; Voris Auten, for defendant.
    May 8, 1921.
   Cummings, P. J.,

Frank Lando, an employee of the Philadelphia & Reading Coal and Iron Company, died on May 11, 1917, having been instantly killed in an accident in the eourse of his employment for the defendant company at its Bear Valley Colliery, near Shamokin, this county. On June 19, 1917, Annie Lando, widow of Frank Lando, entered into a compensation agreement for the payment to her by the defendant of compensation for the death of her husband at the rate of 40 per cent, of the minimum of $10 per week, under section 307 of the Workmen’s Compensation Act of 1915, for the period of 300 weeks, payable semi-monthly, amounting to $1200; Annie Lando, widow of the said Frank Lando, died on Dec. 7, 1918, having been paid compensation by the defendant company at the rate 40 per cent, of $10, or $4 per week, from May 11, 1917, to Dec. 7, 1918, or eighty-two and four-sixths weeks, amounting to $328.67.

Laura Lando, claimant in this case, is an illegitimate daughter of Rosie Lando, a daughter of Frank and Annie Lando, and was bom at or near Boston, Mass., on March 18, 1907. She lived and was dependent upon her grandparents, Frank Lando and his wife, Annie Lando, from infancy, and was living in their home at the time of the accidental death of Frank Lando on May 11, 1917.

Laura Lando continued to live with, and was dependent upon, Annie Lando, widow of Frank Lando, until the death of Annie Lando on Dec. 7, 1918, since which time she has been living with, and dependent upon, an uncle by marriage, Stanley Velence; she is without means of support other than that which is given her by Stanley Velence. Her aunt, Mrs. Stanley Velence, died shortly after the death of her grandmother, Annie Lando. Stanley Velence has since married and has a family of his own to support; Rosie Lando, mother of claimant, has been unheard of for many years, having left home after bringing Laura Lando to her grandparents, and has never been heard from since.

Frank Lando, grandfather of the claimant, raised her from infancy, and at the time of his death stood in loco parentis to the claimant, Laura Lando, in whose home she was then living; after the death of Frank Lando, Laura Lando continued a member of the household of Annie Lando, widow, and was dependent upon her until the death of the said Annie Lando on Dec. 7, 1918.

Under the compensation agreement between the Philadelphia & Reading Coal and Iron Company and Annie Lando, widow, under date of June 19,1917, it does not appear that Laura Lando was a dependent of Frank Lando, the deceased employee.

The Compensation Board awarded to the guardian of Laura Lando, granddaughter of Frank Lando, a compensation from Dec. 7, 1918, to Feb. 9, 1923, or 218 weeks, at $2.50 per week, being 25 per cent, of the minimum of $10 per week, amounting to $545, and from Feb. 9, 1923, to March 18, 1923, when she arrives at the age of sixteen years, for five and one-third weeks, at 15 per cent, of $10, or $1.50 per week, amounting to $8, a total of $533, and costs of suit.

Two questions are raised by the appeal in this case:

1. That the claim was barred by the statute of limitations.

2. That the claimant, being an illegitimate grandchild of Frank Lando, the deceased employee, did not come within the provisions of the Workmen’s Compensation Act of 1915.

Section 315 of the Workmen’s Compensation Act provides as follows: “In case of personal injury all claims for compensation shall be forever barred unless, within one year after the accident, the parties shall have agreed upon the compensation agreed to be paid under this article, or unless, within one year after the accident, one of the parties shall have filed a petition as provided in article 4 hereof. In cases of death, all claims for compensation shall be forever barred unless, within one year after the death, the parties shall have agreed upon the compensation under this article, or unless, within one year after the death, one of the parties shall have filed a petition as provided in article 4 hereof. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of the making of the last payment.”

In the case of Hughes v. American International Shipbuilding Corporation et al., 270 Pa. 27, opinion by Mr. Justice Simpson, John A. Hughes, an employee of the American International Shipbuilding Corporation, having received in the course of his employment an injury which was then supposed to be trivial, with the consent of the Workmen’s Compensation Board, entered into a compensation agreement with his employer, by which it agreed to pay to him in full for the injuries sustained the sum of $10 per week for six weeks. Payments were made and receipted for up to May 13, 1918, at which time the ten weeks expired. It subsequently developed that the injury was serious, causing a total loss of the use of his left hand, whereupon, on Jan. 13, 1920, he filed a petition with the board, asking a review of the compensation agreement, and that an order be. made in his favor to cover the injury actually suffered. An answer was filed, testimony taken, the petition sustained, the agreement set aside, and an appropriate order made in accordance with the facts found. Exceptions thereto filed on appeal to the court below were overruled by it, and judgment entered for the plaintiff; whereupon the employer and its insurance carrier took an appeal to the Supreme Court.

In this case the court said: “The only question raised is whether the petition for review, which, as above shown, was filed more than one year after the last payment, was too late because of the limitation specified in the last sentence of section 315 of the Workmen’s Compensation Law as follows:

“ ‘In cases of personal injury all claims for compensation shall be forever barred unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this article, or unless, within one year after the accident, one of the parties shall have filed a petition as provided in article 4 hereof. In cases of death, all claims for compensation shall be forever barred unless, within one year after the death, the parties shall have agreed upon the compensation under this article, or unless, within one year after the death, one of the parties shall have filed a petition as provided in article 4 hereof. Where, however, payments of compensation have been made in any case, said limitation shall not take effect until the expiration of one year from the time of the making of the last payment.’

“It is admitted that if the last sentence does not cover a different class of cases than those specified in the preceding sentences, the judgment of the court below should be affirmed.

“Appellant’s argument turns exclusively on the use of the words ‘in any case,’ and it may be admitted that if this sentence stood aloné their contention would be sound. It does not stand alone, however, and we are of opinion that, taking the section in its entirety (noseitur a sooiis), those words refer to the ‘cases’ of personal injury and the ‘cases’ of death specified in the preceding parts of the section. It will be noticed, also, that when the legislature clearly intended to limit the time within which proceedings must be taken, it always stated its purpose affirmatively, whereas the sentence relied on by the appellants is negative in form, thereby showing a design not to express a further limitation, but an extension of the time referred to in the preceding sentences, if and when the circumstance detailed in the last sentence should be found to exist. This is made clear by the language used. The words ‘such limitations’ in the sentence under consideration can only refer to the limitations theretofore specified, and it is ‘such limitations’ which ‘shall not take effect’ until the expiration of the time provided, and not new ‘limitations’ which shall ‘take effect.’ It follows that the only point raised must be decided adversely to appellants.”

By section 307 of the Workmen’s Compensation Act compensation is to be paid in case of death as follows:

“1. To the child or children, if there be no widow or widower entitled to compensation, 30 per centum of wages of deceased, with 10 per centum additional for each child in excess of two, with a maximum of 60 per centum, to be paid to their guardian.

“2. To the widow or widower, if there be no children, 40 per centum of wages.

“3. To the widow or widower, if there be one child, 50 per centum of wages.”

By section 307 of the Workmen’s Compensation Act compensation is to be paid to the widow for 300 weeks, and in case of children entitled to compensation, the compensation is to continue to the child until the child is sixteen years of age.

Section 307 also provides: “If the compensation payable under this section to any person shall, for any cause, cease, the compensation to the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased.”

Under the above provisions of the act of assembly compensation for death is paid to the widow, if she shall survive her husband, in a graduating scale from 40 per cent, of wages to 50 per cent, of wages, depending on the survival of children under sixteen years of age, and she is paid this compensation for 300 weeks.

A child’s individual right to compensation only exists in the absence of a dependent parent, or in cases where a dependent parent remarries during the life of the compensation agreement.

Laura Lando, being under sixteen years of age, was not entitled to sue for compensation while she had a dependent parent living, and her right in her individual capacity to sue in this case started from the death of her grandmother, and she, having filed her claim petition within one year from that date, is clearly within her rights.

As to the second question raised, Workmen’s Compensation Act, par. 7 of section 307 provides: “The term ‘child’ and ‘children’ shall include stepchildren and adopted children to whom he stood in loco parentis, if members of decedent’s household at the time of his death, and shall include posthumous children.”

The referee found as a fact that Laura Lando was raised from her infancy by Frank Lando, and at the time of his death he stood in loco parentis to Laura Lando, in whose home she was living, and at such time Laura Lando was a member of the household of Frank Lando.

In 4 Words and Phrases, 3477, the definition of when a person is “in loco parentis” towards a child is as follows: “The proper definition of a ‘person in loco parentis’ to a child is a person who means to put himself in the situation of a lawful father to the child with reference to the office and duty of making provision for the child.”

In 29 Cyc., 1670: “ A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption. The assumption of the relation is a question of intention.”

In Zumac et al. v. P. T. R. R. and Coke Co., 3 Dept. Reps. 2986: “A child who was a cousin of the deceased was considered by the deceased as his own child, and it was, therefore, entitled to compensation.”

We believe that the referee was correct in holding that Frank Lando stood “in loco parentis” to Laura Lando, and that her claim is not barred by the statute of limitations.

And now, to wit, May 8, 1921, the appeal is dismissed, and judgment is hereby directed to be entered in favor of the guardian of Laura Lando and against the Philadelphia & Reading Coal and Iron Company in the sum of $553 and costs of suit.

An exception is noted and bill sealed for the defendant.

Prom C. M. Clement, Sunbury, Pa.


author: Carpenter, J.,

text:
    Alexander v. Alexander.

      Husband and wife — Divorce—Affidavit to libel — Affidavit must show that it was taken in the proper county — Act of June 1, 1915.

    Under the Act of March 13, 1815, P. L. 150, which, as amended by the Act of June 1, 1915, P. L. 674, requires the libellant to make affidavit to the libel before a judge or justice of the peace, or any person authorized to take acknowledgments, in the county where the injured party resides, the affidavit to the libel must show affirmatively that it was taken in the proper county.
    Divorce. C. P. Allegheny Co., April T., 1920, No. 1311.

      James H. Gray, for libellant.
    Jan. 13, 1921.
   Carpenter, J.,

It is unnecessary to discuss the evidence, as this cause is not properly before the court. The Act of March 13, 1815, P. L. 150, relating to divorces, requires the libellant to make oath before a judge or justice of the peace of the proper county; that is, the county where the injured party resides, etc. This act was amended by the Act of June 1, 1915, P. L. 674, and the affidavit to the libel may now be made before “any person in the county legally authorized to take acknowledgments.”

In Helt v. Helt, 7 Dist. R. 746, the affidavit was made before an alderman at New Castle, Pa., and it was held by Judge McClung that: “Assuming that he (the alderman) is ex officio a justice of the peace, he is not a justice of the peace of the proper county.”

It has been held repeatedly that the affidavit to a libel in divorce cannot be made outside the State.

In the case at bar there is nothing to indicate that the affidavit was taken in this county or in the State. True, it says “Allegheny — ss.,” but we cannot infer that “Allegheny” means the County of Allegheny, State of Pennsylvania.

Whether this defect is amendable we do not now decide. The question may be raised by petition for leave to amend. As the record now stands, we cannot decree a divorce. From Edwin L. Mattern. Pittsburgh, Pa.


author: Berkey, P. J.,

text:
    Eisele v. Lambert.

      Replevin — Stolen automobile — Affidavit of defence — Sufficiency thereof.

    Where the statement of claim in an action in replevin sets forth in detail facts showing a theft of the plaintiit's automobile and the present possession of it by the defendant, an affidavit of defence is insufficient to prevent judgment for the damages claimed which admits possession of the automobile but does not deny plaintiff’s title to it, or the loss of her possession of it in the manner alleged in her statement, or the damages she sets up therein.
    Motion for judgment for want of sufficient affidavit of defence. C. P. Somerset Co., May T., 1921, No. 101.

      Ross R. Scott, for plaintiff; H. F. Yost, for defendant.
    April 9, 1921.
   Berkey, P. J.,

The plaintiff, Marie J. Eisele, on March 29, 1921, instituted an action in replevin against the defendant to recover a Buick, 1917, automobile, Model D-45, engine No. 266403, factory No. 268974, transmission No. 273062, starter No. 541497, rear axle No. 266828, body No. 62607, alleging that on Aug. 13, 1917, said automobile was stolen from her in the City of Indianapolis, Indiana, and taken by the thieves to Detroit, Michigan, where it was sold to one Charles Green, a colored man; that on Feb. 16, 1920, it was registered in Pennsylvania by Bonner Lambert, of Stoyestown, under State Highway License No. 271287, averring that the said Bonner Lambert unlawfully detains the same in his possession, while no person except the plaintiff has any right, title or interest in said automobile. The plaintiff claims that she is damaged in the sum of $800, and to recover said sum she brings this suit.

The defendant, Bonner Lambert, April 9, 1921, filed his affidavit of defence, in which he admits that he is in possession of said automobile, having come in possession of the same by purchase from one Foster Zeigler, but does not deny either of the following facts, to wit, that the title to said automobile is in the plaintiff and that she lost possession in the manner which she sets forth in her statement, nor does he deny the damages she alleges to have sustained. Therefore, the court is of opinion that the affidavit is insufficient.

And now, April 9, 1921, for the reasons above stated, judgment is hereby directed to be entered in favor of Marie J. Eisele, the plaintiff, and against Bonner Lambert, the defendant, for the sum of $800, with interest thereon from March 29, 1921, and costs of suit.


author: Martin, P. J.,

text:
    Smedley v. Trumbauer.

      Landlord and tenant — Representations of the condition of property — Premises unfit for habitation — Failwre of lessee to inspect premises — Affidavit of defence — Surrender of lease.

    1. In a suit for rent of a dwelling-house, the affidavit of defence averred that plaintiff expressly represented that the property was in good order and repair, and defendant signed the lease, relying on this representation, and that defendant did not know that the house and garage were uninhabitable, but it did not state why defendant failed to inspect the premises. The affidavit also averred that the range had been taken down or had fallen down and was unfit for use, but did not aver that it could not be put in place and made available; also that the heating apparatus was inadequate and unfit for use, but did not state how much it would cost to put it in condition; also that portions of the plumbing and the lighting fixtures had been removed and would have to be replaced, but did not describe them; that there had been a fire in the garage and portions of the ceiling and woodwork had been torn down and certain heating- apparatus had been removed, but the affidavit did not state the expense of installing new apparatus: Meld, the lessee’s eyes were her bargain, representations of the condition of the property, as distinguished from a warranty, could not affect the terms of the lease and the affidavit was insufficient.
    2. Where the lease reserved to the lessor the right to sell the premises during the term, lessor’s efforts to sell will not constitute an acceptance of surrender.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. No. 5, Phila. Co., Dec. T., 1920, No. 7724.

      F. T. Pusey, for plaintiff; J. P. Connelly, for defendant.
    July 25, 1921.
   Martin, P. J.,

Suit was instituted to recover rent for a dwelling-house owned by plaintiff and leased by her to defendant. The lease is for the term of one year from Sept. 1, 1919, at the rental of $3500, payable in instalments of $300 monthly.

The lessee covenanted to keep the premises in good order and repair during the term. The lessor reserved the right to erect “a for sale sign” upon the premises; and it was stipulated that the lessee should show the property during the continuance of the lease, and deliver possession at any time after June 1, 1920, upon receiving sixty days’ notice that it had been sold.

Attached to the statement of claim is a copy of the lease. Defendant refused to occupy the property or pay the rent.

The affidavit of defence admits the execution of the lease and abandonment of the property, but it alleges that plaintiff made no effort to obtain another tenant, and that defendant, at the time she signed the lease, owing to representations and statements made to her by the plaintiff as to the condition of the property, “did not know that neither the house nor the garage were habitable nor suitable for occupancy;” that the plaintiff expressly represented to the defendant that the property was in good order and repair and habitable and suitable for occupancy, and relying on these representations, and as the inducing cause for defendant entering into the said lease, the defendant, on Aug. 25, 1919, signed the lease. The affidavit is signed by the husband of defendant, who states that he is informed, believes, and on such information avers, “that, before the execution of said lease, defendant stated to the plaintiff that it was necessary for her to have a house for immediate occupancy, and that the said house should be in good order and condition, habitable and suitable for occupancy, and the defendant, relying on the promises of the plaintiff and as the inducing cause for the execution of the lease, entered into the lease as aforesaid. After defendant had entered into said lease and relying on the express promises and inducements of the plaintiff as to the condition of the house, defendant found, on examination, that it would require three months or more to make the necessary repairs to the said house in order to make the same suitable for occupancy; that, notwithstanding the representations made to her by the plaintiff that the house was in good order and condition and suitable for occupancy, the range had been taken down, or had fallen down, and was lying on the kitchen floor in a dangerous condition and unfit for use; that the heating apparatus was out of repair, unfit for use, and inadequate to heat the house and would require a large sum of money to put the same in proper condition; the plumbing throughout the entire house was in need of repair, and certain portions of the plumbing had been removed from the building and would have to be replaced in order to make the house suitable for occupancy and habitable, and of this the plaintiff had full knowledge and notice at the time she made the representations or statements to the defendant that the house was in good order and repair; that some of the lighting fixtures had been removed and the house could not be properly lighted, and the wiring was dangling from the outlets and was in a dangerous and unsafe condition, of which condition the plaintiff had full notice and knowledge, and had at the time that she stated to the defendant that the. house was- in good order and condition. Deponent avers that as soon as his wife, Sara T. W. Trumbauer, the defendant herein, found the condition in which the house was, she returned the lease which she had signed to the said plaintiff, owing to the unfit condition of the house and the representations and statements of the plaintiff as to the condition of the house, and which were the inducing and contributing cause of the defendant’s entering into the aforesaid lease. Deponent is further informed, believes, and on such information avers, that there had been a fire in the garage and the woodwork and the ceiling and some other portions of the same had been torn down and were lying on the floor, of which the plaintiff, at the time she made the representations to the defendant and which was the inducing cause for the defendant entering into said lease, had full knowledge and notice; certain heating apparatus had been removed from the building, and there was no way of heating the premises unless a new and expensive system was installed, of which the plaintiff had full notice and knowledge; that the house could not be heated, was not tenantable and was not suitable for the purposes of the defendant, and it was only relying on the statements and representations of the plaintiff as to the condition of the house, its use and occupancy and its habitable condition, that the defendant, as aforesaid, signed the said lease, and the deponent believes and avers that defendant will be able to prove, on the trial of this case, all of the specific averments of fact as hereinbefore set forth as to the condition in which the house was, and that the defendant aforesaid signed the lease by reason of the representations, and avers that fraud was practiced on her in procuring her signature to the said lease, in view of the conditions pertaining to the said house. Deponent is informed, believes, and on such information avers, that the plaintiff specifically stated to the defendant that the house was in first-class order and condition, was habitable and suitable for occupancy by the defendant; but deponent avers that the improvements necessary to put the house in a tenantable condition were of a permanent kind and character and would require the expenditure of a very large sum of money. Deponent avers further that, relying upon the representations and statements made to defendant by the plaintiff at and before the execution of the written contract upon which suit is now brought, and the inducing cause of its execution by the defendant, defendant duly signed the said lease without having made an examination of the said property, and deponent avers, believes, and expects to be able to prove on the trial of this case, that a fraud has been practiced on defendant in procuring her signature to the said lease, in view of the representations and statements made by the plaintiff, which statements and representations were false and untrue.”

Efforts by the lessor to sell the property did not constitute an acceptance of surrender. The right to sell was reserved in the lease.

Defendant fails to state what the “representations and statements made to her by the plaintiff as to the condition of the property” were, and does not state why there was no inspection of the premises by her. Although three months or more is stated in the affidavit as the period required to make “the necessary repairs,” defendant fails to state of what those repairs consist, or the price for which they could be furnished. Although the range is said to have fallen down and to be in a dangerous condition and unfit for use itself, it is not alleged that it could not be put in place and made available; nor is it stated in what respect the heating apparatus is out of repair, unfit for use and inadequate to heat the house, and there is no statement of the amount of money required to put it in condition. There is no description of the plumbing needed, nor of what portions have been removed from the building, and nothing to indicate the lighting fixtures that had been removed. It is not alleged that the woodwork of the ceiling of the garage that was damaged by fire has not been repaired, or that the heating apparatus had been removed, and no statement of the expense of installing a new system, and there is no averment as to when the alleged misrepresentations were made.

The defendant covenanted to keep the premises in good repair. The lessee’s eyes were her bargain. Representations of the condition of the property, as distinguished from a warranty, cannot affect the terms of the lease. The affidavit of defence sets forth conclusions rather than facts upon which the presumption of fraud is averred. If defendant has a substantial defence, an opportunity should be afforded to present it in legal form.

And now, to wit, July 25, 1921, leave is granted to file an amended affidavit of defence within fifteen days.


author: Gummey, J.,

text:
    Brown’s Estate.

      Wills — Construction—Will speaks from date — When gift to son’s wife does not include second wife.

    1. In ascertaining the identity of a beneficiary, a will speaks as of its date; ' hence, a reference to the wife of a legatee means one who occupied that relation at the time the will was made.
    2. A legacy in trust for testatrix’s son, A, for life, and upon his death in trust for A’s wife, B, “if his wife survive him, but if he shall leave no wife him surviving,” then this share to be paid to his children: Beld, not to include A’s second wife, whom he married after testatrix’s death.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1916, No. 144.

      Taylor, Robey & Hoar, for exceptions; Duane, Morris & Heckscher, contra.
    Dec. 2, 1921.
   Gummey, J.,

In ascertaining the identity of a beneficiary, a will speaks as of its date; hence, the general rule that a reference to the wife of a legatee means one who occupied that relation at the time the will was made. See Solms’s Estate, 253 Pa. 293.

NOTE. — Compare Rogers’s Estate, 30 Dist. R. 448.

In the will now before us the testatrix bequeathed the one-fourth share of her son, J. Morton Brown, to the West Philadelphia Title and Trust Company upon the following trust:

“In trust nevertheless to hold the same and keep the same invested and pay over the net income therefrom unto my son J. Morton Brown for and during all the term of his natural life, and from and immediately after his decease if his wife survive him it is my will that said income shall be paid to his wife, Isadora P. Brown, for and during all the term of her natural life, and from and immediately after the decease of the said Isadora P. Brown and upon the decease of the said J. Morton Brown if he shall leave no wife him surviving I give, devise and bequeath said one-fourth share of my residuary estate unto the children of the said J. Morton Brown in equal shares absolutely.”

Isadora P. Brown died shortly after the testatrix; subsequently J. Morton Brown married Margaret Sellers and died April 29, 1921, leaving his second wife, Margaret S. Brown, surviving him.

The auditing judge was of the opinion that the provision in the will for the benefit of J. Morton Brown’s wife was not limited to her who was his wife when the will was executed, and accordingly he held that the trust continued until the death of Margaret S. Brown, and awarded her the income therefrom.

With some hesitation we have reached a conclusion different from that of the auditing judge, who in the main based his opinion on the words underscored in the sentence, “upon the decease of the said J. Morton Brown if he shall leave no wife him, survivingbut we do not believe that these words indicate with sufficient clearness an intention on the part of the testatrix to benefit her son’s wife by a marriage subsequent to his first one, in contravention of the general rule. These words appear to have been inserted parenthetically out of an abundance of caution to emphasize the fact that distribution was not to take place upon the decease of J. Morton Brown except in the event that he should not leave his wife, Isadora, to survive him. It will be noticed that in the earlier part of the clause under discussion the name Isadora P. Brown follows the word “wife” only once, although it is evident that she was the only wife of J. Morton Brown that the testatrix had in mind when she wrote that part of her will. In reaching this conclusion we are aided by the fact that there is no direction to pay the income after the death of J. Morton Brown to any one except Isadora; and, to give effect to the contention of Margaret S. Brown, it would be necessary to imply a direction to pay, which, as we read the will, would not be justified; in other words, beyond the bare expression, “if he shall leave no wife him surviving,” there is no provision whatever in the will which can be construed as a benefit to Margaret S. Brown unless we incorporate with it a provision which manifestly was made for Isadora P. Brown only.

Rogers’s Estate, 30 Dist. R. 448, is easily distinguished, because in that case the testatrix’s son was not married at the time the will was made, notwithstanding which testatrix made provision for a wife should he take one.

The exceptions are sustained, and the principal comprising the trust estate, with the income accrued thereon (subject to the payment to the estate of J. Morton Brown of the income accrued and unpaid at the time of his death), is awarded to Mary Brown Moon and Isadora E. Brown Stratton in equal shares. The adjudication is amended accordingly, and, as so amended, is confirmed absolutely.

Lamorelle, P. J., dissents.


author: Maxey, J.,

text:
    Williams v. District Executive Board, U. M. W. of A.

      Unincorporated association — Executive board of — Rights of members of— Jurisdiction and power of court of equity over — Injunction of ultra vires and arbitrary acts of executive board — Qualification for office.

    1. The Court of Common Pleas has equitable jurisdiction over unincorporated associations, to preserve these associations and the tribunals created by their constitution and by-laws in the line of order, and to vindicate the rights of members therein against the illegal and arbitrary action of either the association or its executive officers and committees.
    2. If a proceeding of an unincorporated association, or of the executive board of Such association, against a member of the association, is not in accordance with the laws of the association, or if it is not a tona fide and fair exercise of the power given by the by-laws, a court of equity will interfere to redress the wrong.
    3. When an unincorporated association acts in a judicial capacity with reference to matters of which it has undoubted jurisdiction under its laws, its decisions are conclusive on members and all others who assert rights under such laws, but when an executive board of such an association acts beyond its powers, and in its procedure violates the elementary principles of due process of law, to the prejudice of a member, a court of equity will interfere.
    4. Where a district executive board of an unincorporated association declared that the name of a member who had been duly nominated for a district office should not be placed on the official ballot at a forthcoming election for said office, its action is ultra vires, and particularly where it appears that the board is a prejudiced tribunal and acted in an arbitrary and illegal manner, without due process of law, equity will by injunction restrain said district board from printing and distributing official ballots with the said candidate’s name omitted therefrom.
    5. The word “prior,” as used in a by-law declaring that a member “shall be eligible to hold office provided he has been a member of a local union for one year prior to his election,” is not synonymous with “immediately preceding.” “Prior” means “former,” “anterior,” “previous.” Hence, a member who has belonged to a union for more than one year at a time previous to his candidacy for office is eligible 10 office under such a by-law, even though his membership lapsed during a part of the year immediately preceding his candidacy.
    Rule to dissolve injunction. C. P. Lackawanna Co., June T., 1921, No. 8, in Equity.

      C. B. Little, for plaintiff; W. J. Fitzgerald, for defendants.
    June 6, 1921.
   Maxey, J.,

In this case we find preliminarily the following facts:

1. Enoch Williams, the plaintiff, was a member of Pyne Local Union No. 901, United Mine Workers of America, continuously for twenty-one years prior and up to Sept. 20, 1920.

2. On Sept. 20, 1920, the said Enoch Williams withdrew his transfer card from Pyne Local No. 901 and deposited the same with Taylor Local Union No. 1013, United Mine Workers of America. He was accepted in that organization on Sept. 21, 1920. He paid his dues as a member of Taylor Local No. 1013 from the time of his admission to said local. The said dues were received by the officials of Taylor Local No. 1013.

3. On Sept. 21, 1920, John L. Lewis, National President of the United Mine Workers of America, revoked the charter of the said Pyne Local No. 901, U. M. W. of A.

4. On March 4, 1921, the said John L. Lewis, President U. M. W. of A., restored the charter of the said Pyne Local Union No. 901, U. M. W. of A.

5. On April 1, 1921, the said Enoch Williams, plaintiff, withdrew his transfer card from Taylor Local Union No. 1013 and deposited the same with Pyne Local Union No. 901, U. M. W. of A. He was on said date accepted in said Pyne local. He paid his dues therein and has continued to be a member of said Pyne local.

6. On April 25, 1921, the said Enoch Williams, plaintiff, was duly notified by John M. Mack, Secretary-Treasurer of District No. 1, U. M. W. of A., that the said Enoch Williams had been nominated by three or more local unions of the said U. M. W. of A. for the office of secretary-treasurer in District No. 1, U. M. W. of A., for the term beginning Aug. 1, 1921.

7. That the said Enoch Williams, within one week after being notified as aforesaid of his nomination for the office of secretary-treasurer, gave his consent to become a candidate for said office.

8. On May 18, 1921, Evan Cann, of Wilkes-Barre, Pa., addressed to the executive board of District No. 1 a letter protesting against the name of Enoch Williams appearing on the ballot at the coming election for the office of secretary-treasurer of District No. 1, stating in said letter that “the charter of Local Union 901, of which Enoch Williams is a member, was revoked during the latter part of 1920, and was not reinstated until February, 1921. . . . Enoch Williams is not a member of a local union long enough to be a candidate for a district office, and I hereby file a protest as above stated.”

9. On May 19, 1921, at a meeting of the executive board of District No. 1, U. M. W. of A., a motion was made and carried “that Mr. Enoch Williams be duly notified to appear before this board on May 20, 1921, at 1 o’clock, to show cause why his name should not be kept off the ballot as a candidate for the office of secretary-treasurer at the election to be held June 9, 1921.”

10. At the meeting of the executive board on May 20, 1921, a motion was carried “that the protest of Evan Cann against the eligibility of Enoch Williams as a candidate for the office of secretary-treasurer be received.”

Enoch Williams, the plaintiff, was then called before ¿he executive board and Cann’s protest against him was read. Williams was then interrogated as to the lawfulness of his transfer to the Taylor local.

At this meeting Evan Cann, who protested the eligibility of Williams, did not appear.

After Williams was interrogated by the executive board, the meeting adjourned to May 21, 1921.

11. On May 21, 1921, the district executive board met, and the protest of Evan Cann against the eligibility of Enoch Williams as a candidate for the office of secretary-treasurer was taken up for disposition. It was then “moved by board member Reap, seconded by board member O’Donnell, that the protest be sustained and that Enoch Williams’s name be not placed on the official ballot. Motion carried unanimously.”

Williams was not present at this meeting.

12. Immediately after being notified of the action of the district board declaring Enoch Williams ineligible as a candidate for said office, Williams sent a night letter to John L. Lewis, International President, U. M. W. of A., appealing from the decision of the district board of District No. 1. In reply thereto, President John L. Lewis, on May 23, 1921, sent a telegram to Williams, stating as follows:

“Replying your wire to the International union cannot accept jurisdiction of the appeals as an individual; in such a case, section 3 of article 3 of the International constitution limits the right of appeals of an individual through the district executive board, except in such instances as involves his membership.”

Laws of the United Mine Workers of America.

Article 4, section 1, constitution of District No. 1, U. M. W. of A., provides as follows:

“A member in good standing in the organization shall be eligible to hold office in the district, provided he has been a member of a local union for one year prior to his election, and is at present employed in or around the mines: Provided, however, that this shall not refer to any member employed by the organization.”

Article 9, section 4, of the aforesaid constitution of District No. 1, U. M. W. of A., provides as follows:

“No person shall be elected to office unless he has been nominated by three or more locals, and no nominee shall have his name placed upon the official ballot unless he gives his consent to become a candidate within one week after being notified by the district secretary.”

Article 15, section 11, of the constitution of the International Union, Ui M. W. of A., provides as follows:

“Any member withdrawing his transfer card from a local shall be known as a member of the local issuing the card, until it is deposited with some other local or until the card is lapsed.”

Article 15, section 14, of the constitution of the International Union, U. M. W. of A., provides as follows:

“To protect the membership of members residing where no local union is established, the international, district or sub-district secretaries shall, upon presentation, accept transfer cards and dues and assessments from such members, but no such secretary shall accept transfer cards, dues or assessments from members having access to a local union.”

The “sub-district secretaries” referred to in section 14 does not mean the secretaries of local unions. Section 14 refers to a situation in which a mine worker resides where no local union is established, and it gives him an opportunity to deliver his transfer card to the secretary of his sub-district, thereby becoming, as it were, a “member at large.”

Article 18 of the constitution of the International Union, U. M. W. of A., refers to charges and methods of trials. Section 1 of said article provides for the trial of officers of the organization, other than local officers, who are charged with an alleged official offence against the organization or against any of its members.

Section 2 of said article provides as follows:

“When any local officer or any member not an officer is accused of violating any of the organization’s laws or of any transgression against the organization or any of its officers or members, the charge must be first lodged with and prosecuted before the local union of which the alleged offender is a member,” etc.

We find nothing in the article referring to charges and methods of trials, or elsewhere in the constitution of the International Union or in the constitution of District No. 1, U. M. W. of A., with reference to any tribunal to determine the right of a member of a local union to have a place on the official ballot for the election of officers at the annual election. Article 3, section 4, of the constitution of District No. 1, U. M. W. of A., which defines the powers of the executive board, is silent as to any authority of the executive board to determine what candidates’ names shall appear upon the official ballots of the organization. The “grievances” which said section gives said board the power to decide has a very definite and restricted meaning in union labor affairs and cannot be construed to include Evan Cann’s protest.

Discussion.

The first question raised in this proceeding by the defendants is as to the right of a court of equity to take jurisdiction of a controversy of this kind. This is the question we will first consider.

Section 13 of the Act of the General Assembly of the Commonwealth of Pennsylvania, approved June 16, 1836, P. L. 789, provides as follows: “The several Courts of Common Pleas shall have the jurisdiction and powers of a court of chancery, so far as relates to (inter alia), fifth, the supervision and control of all corporations other than those of a municipal character, and unincorporated societies or associations and partnerships.”

The courts of equity in Pennsylvania have long asserted their right to interfere in certain cases in matters relating to unincorporated societies. In the case of Powell v. Abbott, 14 Phila. 104, it was held that “the defendants are an unincorporated association, and as such, by virtue of the Act of June 16, 1836, P. L. 789, are subject to the equitable jurisdiction of the Courts of Common Pleas. It has been well settled by numerous adjudications that the courts entertain a jurisdiction to preserve these associations and the tribunals created by them under their constitutions in the line of order and to correct abuses.” See, also, Monongahela City Baptist Church v. Shaw, 36 Pa. C. C. Reps. 514; Harmon v. Raub, 25 Pa. C. C. Reps. 97.

Manning v. Klein, 1 Pa. Superior Ct. 210: “The appellate courts and the several Courts of Common Pleas, under the Act of June 16, 1836, P. L. 784, have jurisdiction and powers of a court of chancery, so far as relates to the supervision and control of all corporations other than those of a municipal character, and also of unincorporated associations and partnerships.”

Sperry’s Appeal, 116 Pa. 391: “Upon the complaint of a member of an unincorporated beneficial society that he has been wrongfully suspended and deprived of the benefits of his membership, and praying that he be restored thereto, equity has jurisdiction to inquire into the regularity of the proceedings under the constitution and laws of the society.”

Wallace v. Trustees of General Assembly, United Presbyterian Church, et al., 201 Pa. 292: “A minister dismissed by action of his congregation, which dismissal was sustained by the General Assembly, filed a bill in equity against the General Assembly to declare its action void on the ground that the procedure followed was not in conformity to church law. The court below found as a fact that there were irregularities in the proceedings before the General Assembly which rendered its decision null and void. The Supreme Court held, inter alia, that the plaintiff had a right to have his dismissal from the congregation declared unlawful by the civil courts. The decree restoring him to his pastorate was affirmed.”

Metropolitan Baseball Club v. Simmons et al., 17 W. N. C. 153: “It was held that membership in a national association of baseball clubs was a property right of which the complainant could not be deprived without having done some act which was ground and cause of forfeiture, or without notice and trial. It is said that the association possesses no property itself. While it may have very little property itself, it is evident it has some property. It pays its president ... a salary of $1800 a year. . . . The privilege of playing with the other clubs (is) the source of very great profits. . . . These are certainly rights of property which are entitled to the protection of the law.’ ”

We do not deem it necessary in this proceeding to determine whether or not Enoch Williams has been deprived of a property right. “While courts have been quicker to protect members of unincorporated societies when their property rights were involved, they have not always expressed clearly this distinction as a ground for their decisions:” Wrightington on Unincorporated Associations, § 56. Nevertheless, we deem it pertinent to here refer to the fact that, according to the constitution of District No. 1, U. M. W. of A., the salary of the position for which the plaintiff, Enoch Williams, was nominated, to wit, secretary-treasurer of the district union, is fixed by article 5, section 1, at $2162.16 per year, and all legitimate expenses. If the executive board of the district can deprive a member of a local union of his right to become a candidate for this position, they are depriving him of something that comes very near to being a right of property, or at least a potential right of property.

We believe the authority of a court of equity to interfere in matters relating to the rights of members of an unincorporated association is best expressed in Kerr on Injunctions (3rd ed.), chap. 19, page 562, as follows:

“The court (of equity) has jurisdiction to restrain the committee or a general meeting of the club from expelling a member of the club, but in exercising the jurisdiction the court does not sit as a court of appeal from the decision of the members of the club duly assembled. All that the court requires is that their proceedings be conducted on the common principles of ordinary justice. The court will not interfere against the decision of the members of a club expelling a member of the club, unless it can be shown either that what has been done is not authorized by any rule of the club or is not regular, or that, if it be within any rule of the club, the rule is not consonant with the principles of natural justice, or that there has been mala fides or malice in arriving at the decision.”

(Page 563) : “If the proceedings of the committee or members of a club in expelling a member have been in strict accordance with the rules, and the rules are not in any way contrary to natural justice, the next consideration for the court is whether the proceedings have been in the bona fide, honest exercise of the powers given by the rules. If the committee, acting bona fide and without malice, come to the conclusion that a man is not a fit member of the club, or that his conduct is injurious to the interests of the club, the court will not interfere. It is not for the court to consider whether it should have arrived at the same conclusion or not. . . . The only question is whether it was bona fide. The question whether the decision was erroneous or not can only be taken into consideration in determining whether that decision is so absurd or evidently wrong as to afford evidence that the action was not bona fide, but was malicious or capricious or proceeding from something other than a fair and honest exercise of the powers given by the rule.”

While the above quotation refers to the right of an unincorporated society to expel a member, it is clear to us that the same rule applies as to the right of a committee of an unincorporated association to deprive a member of his right to be a candidate for office in that association. If courts of equity can supervise the expulsion of a member by the entire club, they can certainly interfere to prevent a denial by a mere executive board to a member of his right to be recognized as a candidate for office in such association.

It is, therefore, very clear to us, both in reason and in authority, that we have jurisdiction as a court of equity of the subject-matter of this controversy submitted to us for adjudication.

The next question is, should we award to the plaintiff the relief he seeks? We are persuaded that we should for the following reasons:

1. We find nothing in the constitution or by-laws of either the International Union or District No. 1 which gives to the executive board any power to declare that Enoch Williams, the complainant, was ineligible to become a candidate for the office of secretary-treasurer of the district organization. The act of this executive board was, therefore, ultra vires.

2. The proceeding of the executive board was not bona fide and was not a fair exercise of any actual or imaginary power possessed by the executive board. The whole proceeding savors of a “cut-and-dried” program to deny the complainant, Williams, his right to become a candidate for the office of secretary-treasurer of the district. In support of this conclusion we cite the following facts:

(a) Daniel McCue, one of the five member of the executive board, who was present at the meeting which denied to Williams the right to have his name on the official ballot, declared to Garfield Lewis on Friday, May 20, 1921, prior to the hearing in the Williams case before the executive board, “Enoch Williams’s name is not going to be on the ballot.” This indicates prejudice and prejudgment of the matter in controversy by one of the tribunal that passed upon the question of Williams’s eligibility. The evidence as to McCue’s statement to Lewis was corroborated by the testimony of Peter Calas and Ranaldo Capalini.

John Collins (Kolodziecjzak), who was one of the five executive board members constituting the tribunal that declared Enoch Williams ineligible for a position on the official ballot, stated to George Isaacs, several weeks before the meeting of the executive board, “We will see that Enoch Williams won’t be on the ballot.” Evidence as to Collins’s prejudice and prejudgment was corroborated by the testimony of Ranaldo Capalini.

James Gleason, who was a member of the tribunal that declared Enoch Williams ineligible for a place on the ballot, made a statement to John Ruane before the district board took action on Cann’s protest against Williams. This statement is open to the inference that Gleason also had prejudged Williams’s case before formal hearing. This evidence as to Gleason’s prejudice was also given by Alexander Campbell, a witness called for the plaintiff.

(b) The notice that was sent to Williams on May 19, 1921, informed him to appear and give reasons why his name should not be kept off the ballot. This indicates that the executive board presumed Williams “guilty” before trial and put upon him the onus of proving himself “innocent.” Inasmuch as Evan Cann charged that Williams was ineligible, the procedure dictated by common justice should have been that Williams should simply have been notified to appear to hear Cann’s charges, and the burden should have been upon Cann to prove Williams’s ineligibility. On the contrary, the burden was put upon Williams to prove that he was eligible.

(c) Williams was given but one day’s notice to appear to give reasons why his name should be placed on the ballot. This abrupt and summary procedure is not consonant with due process of law, either unincorporated association law or the law of the Commonwealth.

(d) The minutes of the meeting of the executive board show that Williams was given “short shrift.” According to the minutes, “Mr. Enoch Williams was then called before the board and was informed by President Collins as to why he was called.” It seems to us that Mr. Evan Cann should have been called before the board and should have been directed to substantiate his claim that Enoch Williams was not eligible for the office he was seeking. Mr. Cann, the one who averred Williams’s ineligibility, was nowhere in sight or hearing. It is a fundamental principle of justice that any man on trial for any offence has the right to meet his accuser face to face. The proceedings at Williams’s so-called trial were significantly brief. A verdict of guilty was not even rendered in the presence of the defendant at the bar. The court adjourned and the next morning reconvened, and forthwith, upon reconvening, it was “moved by board member Reap, seconded by board member O’Donnell, that the protest be sustained and that Enoch Williams’s name be not placed on the official ballot. Motion carried unanimously.”

In view of the fact that the district executive board usurped to itself powers, which the constitution and laws of the organization nowhere give it, to declare a candidate who has been duly placed in nomination ineligible to have his name on the official ballot; in view of the fact that three of the board of five judges who tried the plaintiff gave evidence of their prejudgment of the case before the tribunal met; in view of the fact that the plaintiff was given only one day’s notice to appear and that the burden of proving himself eligible was placed upon him rather than putting the burden of proving him ineligible upon Evan Cann, who asserted it; in view of the fact that the plaintiff was not allowed to meet his accuser face to face, so that the latter might be examined as to who and what prompted the protest, we hold i that the plaintiff was denied that due and fair process which all accused per-I sons are entitled to when tried before any tribunal in the world, whether tha tribunal be one constituted by the Commonwealth or one constituted merely* by an unincorporated association.

As pointed out by the legal authorities we have quoted, it is not for the court to consider in a case of this kind whether it should have arrived at the same conclusion as the tribunal arrived at or not. However, the question whether the decision was erroneous or not can be taken into consideration in determining whether the decision of the tribunal was so absurd or evidently wrong as to afford evidence that the action was not bona fide, but was malicious or capricious or proceeding from something other than a fair and honest exercise of the actual or assumed powers. We deem it pertinent to state that we find nothing in the constitution, rules and by-laws of the United Mine Workers of America that, in our opinion, would justify the claim that Enoch Williams was not entitled to a place on the official ballot. It is conceded that he was duly nominated for secretary-treasurer in the manner provided by the constitution and by-laws of District No. 1, U. M. W. of A., to wit, that he had been nominated by three or more locals, etc. The substance of article 9, section 4, is that any person who has been nominated by three or more locals, and who has given his consent to become a candidate within one week after being notified by the district secretary, is entitled to have his name placed upon the official ballot. There is nothing in the record that discloses that Williams failed to comply with these provisions of section 4 of article 9.

Section 1 of article 4, which refers to the qualification of officers, states that “a member in good standing in the organization shall be eligible to hold office in the district, provided he has been a member of a local union for one year prior to his election, and is at present employed in or around the mines.” This defines a member’s eligibility to hold office; it says nothing as to the right of a person duly nominated to have his name on the official ballot.

Furthermore, Enoch Williams is a member in good standing in the organization, and he has been a member of a local union not only for one year, but for twenty years “prior” to the present time. The construction placed by the defendants upon the word “prior” in section 1 of article 4, that before a member is qualified to hold office he must be a member of a local union for one year immediately previous to his election, is a strained construction. “Prior” means “preceding in the order of time; former; antecedent; anterior; previous:” Webster’s Dictionary. If it was intended that to make a person eligible for office he must have been “a member in good standing in the organization” for one year immediately preceding the election, the section should have been drawn so as to be free from all ambiguity on this point; as, for example, section 1 of art. VIII of the Pennsylvania Constitution of 1874, which defines the qualifications of an elector in Pennsylvania as follows: “He shall have resided in the State one year immediately preceding the election. He shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election.” Likewise the Act of June 16, 1911, § 5, P. L. 1014, providing for the qualifications of registrars, states that they “must be duly qualified electors” ... of the election district for which they are appointed, “and shall have been residents ... of the ward for one year immediately preceding their appointment.”

Furthermore, if the construction contended for by the defendants is correct, we should hesitate to hold, were the question before us, that Williams’s membership in the Taylor local was a nullity and that it does not count in computing one year’s membership immediately preceding the election. He transferred from the Pyne local to the Taylor local, and was accepted by the latter as a full-fledged member and permitted to pay his dues as any other member of the local. If there was anything illegal about his transfer, said transfer might have been attacked in the proper manner; but, prima facie, Williams was a member in good standing in Taylor local from Sept. 21, 1920, until he transferred back to the Pyne local on April 1, 1921. We do not expressly decide this question as to whether or not Williams was a member of a local union for one continuous year just previous to the present election; we do not deem it necessary in this proceeding for us so to hold; but we refer to this question merely to show the extremely trivial and technical character of the attempted justification of the denial of Williams’s right to a place on the official ballot as a candidate for secretary-treasurer.

That the mere prejudice of a tribunal that passes upon a member’s rights may in itself be sufficient to justify the interposition of a court of equity was held in the case of Wilcox v. Supreme Council, Royal Arcanum, 210 N. Y. 370; s. c., 104 N. E. Repr. 624, in an opinion by Governor Miller, of New York, when he was a member of the Court of Appeals of that state. That case held that the validity of the expulsion of a member of a beneficial society by a prejudiced committee may be collaterally attacked in an action on his certificate, where there is no method of directly reviewing such expulsion.

To the same effect is Correia v. Supreme Lodge (Mass.), 105 N. E. Repr. 977, in which case it was held that to render a decision of a tribunal of a beneficial society expelling a member conclusive and binding upon the civil courts, the procedure befqre the tribunal must have been fair and in conformity with the rules of the association; that hearings of this character are quasi-judicial and ought to be conducted in a spirit of impartiality, without prejudice, and reasonably full opportunity ought to be given to learn the nature of the charges preferred and to present evidence and arguments in reply. To the same effect, also, is People ex rel. v. McDonough, 8 App. Div. 591; s. c., 40 N. Y. Supp. 1147, which held that the member is entitled to an impartial tribunal, and if the method of trial is not regulated by the laws of the association, it should be analogous to ordinary judicial proceedings, so far at least as to conform with substantial justice.

Looking at this controversy from another standpoint also, that of fair play, we feel that we are justified in continuing the injunction forbidding the defendants from excluding the plaintiff’s name from a place on the official ballot. A member in good standing for twenty years, he was duly placed in nomination for the office he seeks, and if for any reason the membership of District No. 1 desire to have another person than the complainant for their secretary-treasurer, they will have an opportunity to say so by the ballots they cast. On the other hand, if the membership of District No. 1 desire Enoch Williams to be their secretary-treasurer, it is highly unjust that their will should be thwarted by the arbitrary action of the executive board that constituted itself without any warrant of law a tribunal to decide that Enoch Williams’s name should not be placed upon the official ballot.

If the constitution and by-laws of the United Mine Workers of America provided for the raising of the question of a member’s eligibility to be placed on the official ballot, and created a tribunal to determine that question, and directed the mode of procedure, and if that tribunal had determined that question in substantial compliance with the mode prescribed and in consonance with the spirit of fair play, the adjudication of that tribunal would with us be conclusive and we would not attempt to interfere with said adjudication, even though we deemed it in fact erroneous. But in the ease at bar we find just the opposite situation. The executive board members had no authority to constitute themselves a tribunal to declare what candidates' names should be on the official ballot. They had no more authority to determine that question than the commissioners of the county would have, for example, to determine what candidates’ names would be placed on the official ballot for county offices. The district board of the United Mine Workers of America has no more authority to keep off the ballot the name of a person duly nominated for a district office than they have to put on the ballot the name of a person not duly nominated for a district office. Either act is equally a usurpation of power and authority. Furthermore, the mode of procedure followed contravenes every fundamental principle of due process and betrays a disposition and a premeditated plan to deprive the plaintiff of his rights as a candidate for district office.

Judge Smith, in Myers v. Fritchman, 6 Pa. Superior Ct. 580, 583, said: “When the organization acts in a judicial capacity with reference to matters of which it has undoubted jurisdiction under its laws, its decisions are conclusive on members and all those who claim under its laws; hence, they cannot resort to the courts with alleged grievances which have thus been passed upon.” Here, first, the organization has not “acted;” second, the district board, purporting to act for the organization, has not “acted in a judicial capacity” on a matter of which it has “undoubted” or any other kind of “jurisdiction under its laws.” Its act is, therefore, illegal, and as it tends to deprive the plaintiff of an undoubted and valuable right, a proper case is presented for the intervention of a court of equity in the supervision of unincorporated associations as provided by the Act of June 16, 1836, P. L. 785, 789.

The district board is but the creature and servant of the United Mine Workers of District No. 1. That board has no power except the power given it by the constitution and by-laws of the United Mine Workers. When it acts outside of the scope of its authority, its actions are personal, not official. The district board has no more authority to deprive a duly nominated member of a place on the official ballot than it has to deprive a duly elected official of the emoluments of his office.

The action of the five members of the district executive board who by their acts nullified the nominations made by three local unions is repellent to one’s instinctive sense of justice. Not only did this self-constituted tribunal have no authority to take the action they did take, but their procedure was arbitrary and summary and bore every evidence of being a preconcerted plan to deny to the plaintiff his rights as a member of the organization and to deny to the three locals who placed him in nomination their rights as constituent parts of District No. 1, United Mine Workers of America.

It is clear to us that we have jurisdiction in this matter to award to the complainant the relief he seeks, and that equity will be done by the continuance of the injunction until final hearing.

Order.

Now, to wit, June 6, 1921, it is ordered that the rule to show cause why the injunction should not be dissolved be discharged, and that the injunction remain in full force and effect until final hearing or until the further order of the court.

From M. E. McDonald, Scranton, Pa,


author: Fox, J.,

text:
    Miller v. Secretary of Commonwealth.

      Election laws — Parties entitled to nominate — Party -within a county — Act of July 12, 1913.

    1. The Act of July 12, 1913, P. L. 719, divides political parties into two classes, those within the State and those within a county; the second class may function when one of their candidates “at either the general or municipal election preceding the primary polled at least 5 per cent, of the largest vote cast for any elected candidate.” This alternative enables a party to test its Qualification to make nominations by either one of two preceding elections. A party within a county may, therefore, nominate candidates, although it may have had no qualified candidates at the last general election.
    2. A party within a county may nominate candidates for such offices as are to be voted for only by the electors of the county or of a political district therein, but has no power to make nomination for an office to be voted for by electors of the State at laz’ge.
    3. A party within a county may nominate candidates for delegate to the Constitutional Convention.
    Petition for mandamus. C. P. Dauphin Co., Commonwealth Docket, 1921, No. 29.

      E. Spencer Miller (of Philadelphia), for petitioner; no appearance contra.
    Aug. 23, 1921.
   Fox, J.,

The prayer of the petitioner in this case is that a peremptory mandamus be issued to the Secretary of the Commonwealth, ordering him to accept the nomination certificate of the petitioner and deal with it according to law for action by voters of the Charter Party at the approaching primary election.

It is admitted that the petition is signed by the requisite number of qualified electors in proper form; that at the last municipal election in the County of Philadelphia in November, 1919, one of the candidates of the Charter Party polled at least 5 per centum of the largest entire vote cast for any elected candidate in Philadelphia County; that the Charter Party is a political party within the county, and that at the last general election in 1920 no candidate of this party polled at least 5 per centum of the largest entire vote cast for any elected candidate.

The Secretary of the Commonwealth has refused, and still refuses, to receive for filing this nomination petition for Delegate to the Constitutional Convention for two reasons, viz.: 1. That no candidate of the Charter Party polled within the County of Philadelphia 5 per centum of the largest entire vote cast for any elected candidate at the last general election (November, 1920) last preceding the approaching primary election. 2. That a party within a county cannot place in nomination a candidate for Delegate to the Constitutional Convention.

The Act of July 12, 1913, P. L. 719, by section 2 (which has not been modified) , divides political parties into two classes: 1. A party within the State. 2. A party within a county.

The first class may function “if one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than 2 per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least 2 per centum of the largest entire vote cast in the State for any elected candidate.”

The second class may function when “one of whose candidates at either the general or municipal election preceding the primary polled at least 5 per centum of the largest entire vote cast for any elected candidate in any county.”

The petitioner seeks to be a candidate for the nomination by the Charter Party from the First Congressional District of Pennsylvania, which is in the County of Philadelphia, for the office of Delegate to the Constitutional Convention, and it is contended by the Secretary of the Commonwealth that the words “at either the general or municipal election preceding the primary,” in paragraph 2 of section 2 of the act, should be interpreted to mean: The last election preceding the primary, whether general or municipal, and because no candidate of the Charter Party at the last election, which was the general election in November, 1920, polled the requisite percentage, it is not entitled to function as a party at the approaching primary. The petitioner contends that the interpretation as given by the Secretary of the Commonwealth is incorrect, and that the proper interpretation is that if a party within a county polled the requisite percentage of the vote at either one of the two elections last held, one having been general and the other municipal, the party is entitled to make nominations.

The rule of construction requires us to give effect to every word, unless rejection is justified; “no word in it is to be treated as unmeaning, if a construction can be legitimately found which will preserve it and make it effect-, ual: ” Endlich on the Interpretation of Statutes, 29.

By section 3 of the act, provision is made for the holding of one primary each year in each election district of the Commonwealth. In the even-numbered years the primary shall be held in the spring, and in the odd-numbered years in the fall. Candidates for offices to be filled at the municipal election shall be nominated in the fall primary; the candidates for other offices shall be nominated in the spring primary. Municipal offices are to be voted for in the odd-numbered years. A party within a county may make nominations for offices in such county and in all political districts within said county or of which said county forms a part, and it is quite likely to occur that such party may be primarily interested in municipal affairs and may have candidates at municipal elections only and none at a general election, although having a limited right to make nominations for the general election. It was with this thought in mind, we think, that the words “at either the general or municipal election preceding the primary” were adopted by the legislature in connection with a party within a county, and so as to preserve its functioning powers over and beyond the even-numbered years, when no municipal offices are to be filled, and, therefore, provided that the test cfcrald be made on the vote at the last preceding municipal election or on that of the last preceding general election. Had the legislature intended the test to be restricted to the last election, whether municipal or general, it would have said so in simple language; but it did not, but in simple language says that if any of the candidates polled the requisite 5 per centum of the largest entire vote cast for any elected candidate in any county at either the general or municipal election preceding the primary, it is declared to be a political party within said county. The test is the requisite per centum at either one or the other of the two elections mentioned.

To sustain the first objection we would be required to eliminate the word “either.” We are not at liberty to do this when we find no justification for so doing, but, on the contrary, find justification for its retention.

We think the second objection of the Secretary of the Commonwealth is unsound. In the ease of Campbell's Petition, 27 Dist. R. 1021, a petition was presented to the Secretary of the Commonwealth by electors known as the Town Meeting Party, in the County of Philadelphia, and the office to be filled was that of Representative in the General Assembly from the 16th Legislative District within that county. It was objected to on the ground that the party was not empowered to nominate a candidate for Representative in the General Assembly, and this court, by Kunkel, J., said: “The act authorizes a political party within a county to nominate its candidates for all offices electable in any political district within the county, as distinguished from the power conferred upon a political party within the State to nominate its candidates for an office to be voted for by the electors of the State at large. We can find nothing in the act to limit the right of such a party to nominate candidates only for county offices or for offices in the municipal divisions of the county, whose nomination petitions must be filed with the county commissioners. On the contrary, the words of the section are ‘all political districts.’ Section 14 of the act throws some light on their meaning, if any be needed. It directs the Secretary of the Commonwealth to give to the county commissioners of each county a written notice, designating all the offices for which candidates are to be nominated whose nomination petitions are required to be filed in his office, and to set forth in the notice the number of the officers of the Commonwealth to be elected at the next succeeding election by a vote of the electors of the State at large, and also the number of the officers of the Commonwealth to be elected by a vote of the electors of the county, or of any district therein, or of any district of which the county forms a part. Thus, the act recognizes a political district within a county to be one from which may come a nomination petition required to be filed in the office of the Secretary of the Commonwealth, and such a petition is a petition nominating a candidate for the legislature.

“The act also gives a party within a county the right to nominate candidates for office in a district of which the county forms a part, evidently referring to a congressional district or a senatorial district of two or more counties, in one of which a body of electors constitutes a political party therein. There would seem to be no good reason for granting to a party within a county the right to make a nomination for an office in a district extending beyond the territorial limits of the county and withholding the right as respects a representative or congressional or senatorial district which is wholly within the county, and this, in our view, has not been done.

“Of course, the right of such a party to nominate candidates is restricted to those candidates for office who are to be voted for only by the electors of the county, or only by the electors of a political district therein. It has no power to make a nomination for an office to be voted for by the electors of the State at large.”

We think this ease disposes of the second objection.

After a careful consideration of the facts and the law, we are constrained to hold that it was the duty of the Secretary of the Commonwealth to receive the nomination petition for filing with him.

And now, Aug. 23, 1921, after hearing and upon due consideration, it is ordered, adjudged and decreed that a peremptory writ of mandamus in favor of the plaintiff and against the defendant be and the same is hereby awarded, commanding the Secretary of the Commonwealth to receive and file the nomination petition and to deal with it according to law for action by voters of the Charter Party at the approaching primary election.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Schaeffer, P. J.,

text:
    Albright’s Estate.

      Decedents’ estates — Executors and administrators — Commissions — Cash assets.

    A 5 per cent, commission to an administrator on cash assets is excessive. A commission of 2% per cent, is a proper allowance for responsibility in all cases, with an additional percentage to be measured by the labor and trouble involved in the settlement of the estate.
    Audit of the account of Daniel H. and Henry H. Albright, administrators. O. C. Berks Co., Dec. T., 1920, No. 28.

      Wilson H. Eothermel, for accountants; Edward D. Trexler, for exceptant.

      S. H. Hoverter and Paul H. Price, for claimants.
    Jan. 8, 1921.
   Schaeffer, P. J.,

The accountants’ compensation excepted to amounts in the aggregate to $1573.18. Of this sum, $157.95 represents 3 per cent, of the amount realized from sale of real estate; $53.68, 5 per cent, charged on collections of personal income, and the balance, slightly less than 5 per cent., charged on principal personal assets. We are not disposed to disturb the first two items. For the care and responsibility involved in the sale of real estate accountants are entitled to compensation, and we are of the opinion that the charge here is not excessive. The same observation may be made of the charge for collecting and accounting for the personal income.

But in the principal personal account, the commissions charged may, for an estate of this size and character, be a little high. The total personal assets were close to $30,000. The services performed, as disclosed by the testimony, were, at least, such as is ordinarily required in an estate of this size and character, and were performed with fidelity. In fact, the work was somewhat greater than is ordinarily required in such an estate where no litigation is resorted to. Accountants not only showed much care and attention to their duties in collecting assets, but were persevering and painstaking in their efforts. For such services 5 per cent, on the proceeds of personal property up to $50,000 has been approved in Davis’s Estate, 28 Dist. R. 535.

In this estate, however, it appears that about $11,000 never underwent conversion, and was in fact, at the time of decedent’s death, cash on deposit in bank. Outside the responsibility of keeping it intact and accounting for it, therefore, this portion of the estate required no labor. With respect to such assets, the Supreme Court, in Gongaware’s Estate, 265 Pa. 512, held that commissions of 5 per cent, were properly refused. But we do not understand the court to mean that all compensation on liquid assets should be refused. We understand simply that in such cases 5 per cent, is excessive, for Stevenson’s Estate, 4 Wharton, 98, seems to lay down the general rule that 2h per cent, is a proper allowance for responsibility in all cases. Consequently, we gather the rule to be 2% per cent, commissions for responsibility in all cases, and an additional percentage to be measured by the labor and trouble involved in the settlement of a given estate; and applying that rule to this case, we think accountants will be adequately compensated by an allowance of $1100 out of the personal estate. The excess over that compensation, for which accountants have taken credit in the principal personal account, or $263.55, will, therefore, be the subject of a surcharge.

Prom Wellington M. Bertolet, Reading, Pa.


text:
    Road in East Donegal Township.

      .Roads — Opening of — Report of viewers — Damages—Appeal.
    Where viewers to lay out a public road state in their report that the benefits fully offset the damages, and, therefore, no damages are allowed, it is not necessary to state also what the damages and benefits were to each property owner. If a land owner was injured, he has his remedy in an appeal, but it is not a reason why the report should not be confirmed.
    Exceptions to report of viewers. Q. S. Lancaster Co., Sept. Sess., 1920, Minute 105.

      John A. Coyle, for exceptions; John E. Malone, contra.
    July 2, 1921.
   Hassler, J.,

Ten exceptions have been filed to the report of the viewers in this case. The second and seventh exceptions are to the effect that the report should not be confirmed because no damages are allowed to the exceptant. In their report the viewers say that the benefits derived from the opening of the road fully offset the damages to the respective land owners. This, therefore, is the reason that no damages were allowed to the exceptant. If the exceptant is injured by this finding, he has his remedy in an appeal, but it is not a reason why the report should not be confirmed.

The third exception is that the viewers failed to assess benefits to the land owners whose land is taken. The fourth exception is that they erred in finding that the benefits fully offset the damages. The fifth is that the viewers erred in not mentioning all the owners of the land through which the road passes. None of these matters are reasons for refusing to confirm the report of the viewers, as there is no proof that they erred in the facts set forth in the exceptions.

In the sixth and eighth exceptions it is complained that the viewers do not find that the road is necessary. An examination of the report shows that this is not the fact. The viewers report that they find that there is occasion for said road, and “judge the same necessary for a public road.” The ninth exception is that the viewers did not endeavor to secure release of damages. They report that they did endeavor to do so, and there is no proof that that allegation in the report is not true. The tenth exception is that the viewers have omitted to note in their report any improvements along the road. There is no proof that there are any improvements.

The exceptions are dismissed and the report of the viewers is confirmed.

From George Ross Eshleman, Lancaster, Pa.


author: Evans, J.,

text:
    The Meyercord Company, Inc., v. P. H. Butler Company.

      Sales of personal property — Failure to comply with terms of contract— Effect of delivery to carrier — Act of May 19, 1915.

    Under the Sales Act of May 19, 1915, P. L. 543, the contract must be strictly complied with in order to bind the purchaser. Therefore, delivery to a carrier is ineffective to fix liability upon the purchaser where a greater quantity of the articles than were ordered were shipped and lost, as otherwise the buyer would have no opportunity of exercising the options granted him in such cases by the 44th section of the act.
    Motion for judgment n. o. v. C. P. Allegheny Co., July T., 1921, No. 2497.
    Before Evans, Haymaker and Reid, JJ.

      Earl F. Reed, for plaintiff.

      Alexander C. Tener and JVilson & Evans, for defendant.
    May 13, 1921.
   Evans, J.,

The defendant is a dealer in groceries in the City of Pittsburgh, and the plaintiff is a manufacturer of window signs, and on Sept. 23, 1918, the defendant gave the following order to the plaintiff:

“Order No. 1321. Date Sept. 23, 1918.

The Meyercord Co. (Inc.)

Chicago, Ills., U. S. A.

Sold to P. H. Butler Co.

At Pittsburgh Pa

Ship via Express When at once

Terms 1% cash 10 days or 30 days net from date of invoice

F. O. B. Chicago.

As it is impossible to make the exact quantity, it is agreed that an overage or shortage, not to exceed 10%, shall be accepted as filling this contract. All contracts are taken contingent upon strikes and accidents beyond our control.

Not subject to countermand.

Quantity Description

125 Window Signs as per Sketch ‘Fine Groceries’

75 Dittoe — ■ ‘Teas & Coffees’

At 1.35 per sign

PHC • P. II. Butler Co.

Accepted Coffee

Salesman.”

On Sept. 26th the plaintiffs wrote the defendant as follows:

“P. H. Butler Co.,

Pittsburgh, Pa.

Gentlemen: We are pleased to acknowledge your order for transfer window signs placed with our Mr. Cullis and this will have prompt attention.

We thank you for this order, and we are, Yours very truly,

The Meyercord Company,

By

ELW/A Sales Manager.”

On Nov. 22, 1918, the plaintiffs delivered to the Chicago office of the American Express Company, for transportation to the defendant, 180 window signs “Fine Groceries,” and 117 window signs “Teas & Coffees.” The signs were never delivered to the defendant by the express company. Claim was made on the defendant for the price of the 297 window signs, which amounted to $495. Defendant refused to pay. At the trial of the case the above stated facts were admitted, and binding instructions were given to the jury to render a verdict in favor of the plaintiff for the price of 220 signs as per the contract.

By the terms of the contract, it will be observed the signs were to be shipped by express F. O. B. Chicago, and we think there is no question that if the signs had been shipped in accordance with the terms of the contract, delivery to the express company would have been delivery to the defendant, so far as the obligations of the plaintiff were concerned. But the signs were not shipped in accordance with the contract. The contract was for 200 signs, which might be increased to 220 because of the difficulty in this character of work of manufacturing an exact number of signs. By the terms of the 44th section of the Sales Act of May 19, 1915, P. L. 543, “Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole.” In this case the buyer never had an opportunity to accept the whole or to accept the amount of his contract or to reject the whole. A delivery of the exact amount of the contract to the American Express Company would have been a delivery to the buyer, but surely a delivery of a number of signs which he had a right to reject or accept, or partially reject and partially accept, could not be construed to be a delivery to him.

The cases of Lockhart v. Bonsall, 77 Pa. 53, and Brownfield v. Johnson, 128 Pa. 254, do not govern this case. In both of those cases there was an offer to deliver the exact amount of the contract to the buyer in person, or to his representative, or to the place where he designated the delivery to be made. There is no such situation in this case. The plaintiff is resting this case on the fact that, under the terms of the contract, a delivery to the express company was a delivery to the buyer, and when he rests upon the exact terms of his contract, he must on his part fulfill the exact terms of his contract.

And now, May 13, 1921, judgment is hereby entered in favor of the defendant non obstante veredicto.

Eo die, exception and bill sealed.

From Edwin L. Mattern, Pittsburgh, Pa.