author: Copeland, P. J.,

text:
    Ferree v. Gilmore et al.

      Agency — Attorney—Collection of principal of mortgage> — Embezzlement— Two innocent persons — New trial — After-discovered evidence.

    1. The court has power to allow motions and reasons for a new trial to he filed nunc pro tunc.

    2. A motion for a new trial on the ground that evidence has been discovered since the trial from an unexpected source must be accompanied by an affidavit giving the names of the witnesses and what is expected to be proved by them.
    3. One who moves for a new trial on the ground of newly-discovered evidence must satisfy the court that it came to his knowledge since the trial; that it was not owing to a want of due diligence that it did not come sooner; and that if a new trial were granted, a different verdict would probably result.
    4. Where an attorney, who is the agent of the mortgagor in procuring a loan, embezzles the money raised by the mortgage after it is delivered by him, the rule applies that where one of two innocent persons must suffer loss, the one must bear it who, by any act of commission or omission, put the means to perpetrate the fraud into the hands of the wrongdoer.
    Rule for new trial. C. P. Westmoreland Co., May T., 1925, No. 260.

      H. E. Cope, for plaintiff.

      Glen N. Maehesney and Horace G. Durbin, for defendants.
    April 29, 1927.
   Copeland, P. J.,

This case arose over a scire facias sur mortgage recorded in Mortgage Book, vol. 300, page 462, of the records of Westmoreland County, Pennsylvania. This mortgage was given by Bessie May Gilmore to Ollie J. Ferree, dated Jan. 25, 1917, conditioned for the payment of $2500. The property bound by this mortgage was conveyed later by the mortgagor to Ezbon E. Polliard, who paid the debt, interest and costs of this mortgage to William F. Wegley. The amount thus realized, it seems, did not come into the possession of the mortgagee. An affidavit to this seire facias was filed, in which it is stated, in the third paragraph:

“Third. That the said Bessie May Gilmore delivered said mortgage and the accompanying bond to William F. Wegley, a member of the firm of Williams, Wegley & Doran, of the Borough of Greensburg, Westmoreland County, Pa., attorneys and agents for the said Ollie J. Ferree, and received the proceeds of said mortgage from the said attorneys and agents of the said Ollie J. Ferree, and, until the date of the conveyance to Ezbon E. Polliard above referred to, the said Bessie May Gilmore paid all interest due upon said mortgage to the said attorneys and agents of the said Ollie J. Ferree.
“Sixth. That, on or about June 10, 1919, the said Ezbon E. Polliard paid or caused to be paid to Williams, Wegley & Doran or William F. Wegley, attorneys and agents for the said Ollie J. Ferree, the sum of two thousand five hundred and fifty-two (2,552.42) 42/100 dollars, being debt, $2500.00, interest, to June 12, 1919, $50.42, and the cost of satisfaction, $2.00, in full satisfaction of the above stated mortgage.
“Seventh. That the said Williams, Wegley & Doran or William F. Wegley, attorneys and agents for the said Ollie J. Ferree, received the above sum of $2552.42 in full satisfaction of the above stated mortgage and made a notation upon the files of said attorneys and agents as follows:
“ ‘June 11, 1919, received check of Ezbon E. Polliard vendee of Bessie May Gilmore, Mortgagor for the debt, interest and satisfaction fee of this mortgage as follows: Debt $2,500.00, interest, balance to June 12-19, $50.42, satisfaction $2.00, total $2,552.42.’ ”

To this affidavit of defence the plaintiff filed a reply, denying the allegations set forth in the third, sixth and seventh paragraphs of the affidavit of defence, as well as all matters therein set forth, and as a further defence, denied that William P. Wegley was her agent or had any authority whatever to act for her in the receipt of the whole or any part of the debt or mortgage or to satisfy the same. The reply further set forth that she at all times had and yet has in her possession the said mortgage and had possession of the bond until she entered the same of record, at No. 10, May Term, 1924, and that no demand had been made upon her for the surrender of either the bond or mortgage by the defendants in this case. With the issue thus framed, the case came regularly on for trial, with the result that the jury found a verdict in favor of the plaintiff for the full amount of her claim.

It appeared from the evidence at the -time of trial that the property bound by the mortgage of Bessie May Gilmore to Ollie J. Ferree was conveyed by her, the mortgagor, to Ezbon E. Polliard, subject to this mortgage. No doubt was expressed as to the fact that Ezbon E. Polliard paid this mortgage, including debt, interest and costs, to William F. Wegley, as alleged in the affidavit of defence, on June 10, 1919. The real questions that arose during the trial of the case were: Whose agent was William F. Wegley in lending Ollie J. Ferree’s money to Bessie May Gilmore; whose agent was he in receiving the money, in satisfaction of the Bessie May Gilmore mortgage, from Ezbon E. Polliard? These questions, in both instances, were resolved by the jury, on June 8, 1926, in favor of the plaintiff, that William F. Wegley was acting as agent for both the defendants, Bessie May Gilmore and Ezbon E. Polliard.

A motion and reasons for a new trial were filed on July 7, 1926, requesting the court to allow this motion nunc pro tunc as of the date of June 9, 1926. To the rule for a new trial, an answer was filed denying every averment contained in the motion and reasons for a new trial. This matter now comes up to the court to determine whether a new trial should be granted.

We have no trouble about the fact that the court has power to allow the motion and reasons for a new trial to be filed nunc pro. tunc. That question was settled in Lance v. Bonnell, 105 Pa. 46. It was said in that case by Mr. Justice Clark, in delivering the opinion of the court (page 47):

“The rule of practice in the court below required that the motion for a new trial should be submitted within four days from the rendition of the verdict, and until after the expiration of that time, judgment could not be entered. It must be conceded, however, that it was competent for the court, upon a proper showing, to waive the limitation imposed by its own rule of practice. The allowance of the motion . . . which was the date of the rendition of the verdict nunc pro tunc, simply dispensed with or waived the restriction of the rule. It is true that a judgment had been regularly entered upon the verdict, but, as the term had not yet expired, the judgment was as much under the control of the court as the verdict; the whole term, excepting for the rules of practice, is considered as but one day, and the judges may, at any time within the term, revise its judgments; the record is incomplete until the term is ended. . . .
“If, then, it was competent for the court to entertain the motion nunc pro tunc„ the effect of that motion, when made, it must be conceded, is precisely the same as if made at the proper time. This was the import and purpose of the motion, and the court certainly could not have intended that it should have other than that eifect.
“It was equivalent to an amendment of the record, and must be so considered. The motion having been made within the term, no objection can be made that it was not finally disposed of until a subsequent term.”

This case, we think, clearly disposes of the questions of whether it is right to allow the motion at this time.

The reasons given for the new trial are as follows:

“First: Since the trial of the above case, and since the time for filing a motion for a new trial has elapsed, the defendant has discovered evidence material to his defence of the above case, from an unexpected source, which was impossible for him to have discovered prior to the former trial, as follows:
“a. The mortgage from Bessie May Gilmore to Ollie J. Ferree, dated Jan. 25, 1217, and recorded in Mortgage Book 300, page 462, was executed and delivered so that the proceeds therefrom should be applied to the satisfaction of the mortgage given by Bessie May Gilmore et al. to John W. Steele and Sarah May Foster, dated Oct. 10, 1013, and recorded in Mortgage Book 268, page 430.
“6. That the mortgage given to John M. Steele et al. was satisfied by Satisfaction Piece dated July 24, 1018, and recorded July 25, 1018.
“c. That John M. Steele and Sarah May Foster, since the trial of the above case, have attempted to collect the debt and interest of the said mortgage, alleging that the same remains unpaid and owing to them, and that the above Satisfaction Piece was not signed by them, but is a forgery.
“d. That the above mortgage to Ollie J. Ferree is without consideration, was procured by fraud, and is void.
“e. That the above evidence has been discovered since the trial from an unexpected source, and it was impossible for the defendant in this case to discover the same before the trial.
“Second: In case the verdict in this case is allowed to stand, a grave injustice will be done to this defendant.”

All these matters, as we have said, are fully denied in the answer to this motion.

From these reasons for a new trial, it appears that Bessie May Gilmore et al. had given a mortgage to John.M. Steele and Sarah May Foster, dated Oct. 10, 1013, recorded in Mortgage Book 268, page 430, and that mortgage given by her to Ollie J. Ferree, dated Jan. 25, 1017, recorded supra, was executed and delivered so that the proceeds therefrom should be applied to the satisfaction of the mortgage given by her to John M. Steele and Sarah May Foster; that, although the John M. Steele and Sarah May Foster mortgage was satisfied by a satisfaction piece dated July 24, 1018, and recorded July 25, 1018, it now is alleged that it never was paid; that the mortgage given by Bessie May Gilmore to Ollie J. Ferree, the plaintiff in this case, was without consideration, was procured by fraud, and, therefore, void, for the reason that John M. Steele and Sarah May Foster, since the trial of this case, are attempting to collect the debt and interest of the mortgage given by Bessie May Gilmore et al. to them, which, although satisfied by a satisfaction piece, still remains unpaid, for the reason that the satisfaction piece was not signed by them but is a forgery. The reasons further set forth that Ezbon E. Polliard, if this verdict is allowed to stand, will be compelled to pay this mortgage three times. He already has given the money to William F. Wegley to satisfy the-Ollie J. Ferree mortgage, he will have to pay the Ollie J. Ferree mortgage again, and will have to pay the John M. Steele and Sarah May Foster mortgage if the satisfaction piece is declared a forgery.

This is a hard case and one of the many hard cases that arose out of the embezzling by William F. Wegley of nearly a million dollars of his clients’ money. The thing that is troubling the court is how Bessie May Gilmore now can come into this court and say that this mortgage given by her to Ollie J. Ferree is without consideration in the face of the affidavit of defence to the scire facias on that mortgage and in the face of her own testimony. Ezbon E. Polliard, in the third paragraph of his affidavit of defence, said: “That the said Bessie May Gilmore delivered said mortgage and the accompanying bond to William F. Wegley, a member of the firm of Williams, Wegley & Doran, of the Borough of Greensburg, Westmoreland County, Pa., attorneys and agents for the said Ollie J. Ferree.”

If there is anything that is plajn from this affidavit of defence and from the testimony of Bessie May Gilmore, it is the fact that she received the consideration money for this mortgage, and if these defendants should come into court now, in a new trial, and testify directly opposite to what was set forth in their affidavit of defence and this testimony, we are of the opinion that this testimony would be given little weight by the jury.

In the first reason, paragraph (e), of the motion for a new trial, it is set forth: “(e) That the above evidence has been discovered since the trial, from an unexpected source, and it was impossible for the defendant in this case to discover the same before the trial.”

This is not in compliance with the rules of court. What is the unexpected source and who is the witness who now is to testify to some indefinite thing not mentioned? What is his or her name and what is it he or she will say if called? Taking all the reasons assigned in the motion for a new trial, there is nothing in any one of them or all together that would warrant the court in granting a new trial on after-discovered evidence.

It is well settled that a motion for a new trial on the grounds of after-discovered evidence must be accompanied by an affidavit of the names of the witnesses and what they are expecting to prove. A new trial will not be granted on the ground of after-discovered evidence if the evidence might have been produced at the trial by the exercise of due diligence. It is incumbent on the party who moves for a new trial on the ground of newly-discovered evidence to satisfy the court that it came to his or her knowledge since the trial; that it was not owing to want of due diligence that it did not come sooner, and that if a new trial were granted, a different verdict would probably take place: Benedict v. Pennsylvania Coal Co., 6 Kulp, 221; Moore v. Philadelphia Bank, 5 S. & R. 40; Norton & Co. v. Breidenbach, 1 Pearson, 467.

As we study the application for a new trial, the question again would arise, whose agent was William F. Wegley in the receipt of the money from Ezbon E. Polliard? That question was squarely decided once by a jury, and we think properly so, under the evidence, and should not now again be submitted to a jury upon the showing made in the motion and reasons for a new trial.

Here, in this case, according to the testimony, Bessie May Gilmore applied to R. G. Shepard, a real estate agent of New Kensington, to borrow money upon a mortgage on one of her houses. R. G. Shepard went to William' F. Wegley, who was in the business of lending money for clients, and, upon his agreement to lend the money, she executed a mortgage and bond in favor of the plaintiff in this case in the sum of $2500. Bessie May Gilmore presumably turned the mortgage and bond over to R. G. Shepard, who, in turn, turned them over to William F. Wegley.. Williarfi F. Wegley recorded the mortgage and' then, in turn, turned over the bond and mortgage to the plaintiff, who is still in possession of them. Bessie May Gilmore made William F. Wegley her agent when she made application for the money and when she placed the bond and mortgage in his hands to be delivered to Ollie J. Ferree in return for the money represented by the mortgage. Even if she never received the money for this mortgage but left it to William F. Wegley'to' apply in the satisfaction of the John M. Steele and Sarah May Foster mortgage, he would be Bessie May Gilmore’s agent for that purpose, and if he failed to properly apply the money, as was intended by her, it would be her loss and not the loss of the plaintiff in this case. The embezzlement by William F. Wegley of the money which was hers after the delivery of the mortgage and bond would be no defence to the mortgage. This principle is well settled in the case of Pepper v. Cairns, 133 Pa. 114.

There is another principle of law that is applicable to this case, and that is, where one of two innocent persons must suffer loss, the one must bear it who by any act of commission or omission put into the hands of the wrongdoer the means to perpetrate the fraud.

It was said in Peters v. Alter et al., reported in 89 Pa. Superior Ct. 34, on page 47 of the opinion: “We have given careful consideration to all the evidence in order that the rule of law applicable to the situation here arising may be properly applied to the facts. The rule, as stated in Froio v. Armstrong (No. 1), 277 Pa. 18, and Browne v. Hoekstra, 279 Pa. 418, is that ‘where one of two innocent parties must suffer loss by reason of the fraud or deceit of another, the loss should fall on him by whose act or omission the wrongdoer has been enabled to commit the fraud.’ ”

Taking as true everything set forth in the motions and reasons for a new trial, it must appear that Bessie May Gilmore was responsible for this fraud by reason of her omission in not getting the money for her mortgage and bond or in not seeing that proper application was made of it, thus enabling William F. Wegley to commit the fraud perpetrated in this case.

Quite different would have been this case if the defendant, Ezbon E. Pol-liard, in his affidavit of defence had said that Bessie May Gilmore never had received any money on account of this mortgage, and if she had come into court and testified that she did not receive the money on this mortgage; that she had borrowed this money to satisfy the John M. Steele and Sarah May Foster mortgage; that William F. Wegley was to so apply the funds, but had embezzled them; that William F. Wegley was the plaintiff’s general agent in the management of her estate, and that as such he was to see that proper application was made of the money borrowed on the mortgage. Under these circumstances, Bessie May Gilmore would not have been estopped from alleging want of consideration for the mortgage, because then, both in law and in fact, no consideration for the mortgage would have passed and there could have been no recovery.

There is no question in our mind that, as a matter of law, Ezbon E. Pol-liard, in paying William F. Wegley the mortgage in full and in paying him the interest from time to time, constituted William F. Wegley his agent to deliver the interest and principal to the plaintiff.

In Peters v. Alter et al., supra (page 199), it is said: “Where there is no evidence that the plaintiff did anything to lead the defendant to believe that the attorney had been given authority to accept payment of the principal, and it appears that the attorney negotiated with the plaintiff for the mortgage, but did not represent her, but was paid for his services by the borrower, had no authority, written or oral, to receive the principal and satisfy the mortgage, and did not have custody of the bond and mortgage, and defendant, in making payment to him, did not ask him to show any authority to satisfy or demand surrender of the bond and mortgage, a judgment thereon will not be opened.”

Realizing that this is going to be a great hardship on the defendant, Ezbon E, Polliard, if this verdict is allowed to stand, we have given this case the most painstaking, thoughtful and careful consideration, and we are forced to the conclusion that no other result could be reached than that William F. Wegley, through R. G. Shepard, was Bessie May Gilmore’s agent in the delivery of the bond and mortgage to him to be delivered to Ollie J. Ferree, and in the application of the money represented by the mortgage, because, as we have said, when she gave William F. Wegley the bond and mortgage, the title to the money in his hands, belonging to the plaintiff in this case, passed to her, and it was her bounden duty to get the money from him or see that proper application was made of it. He was then her agent and she then, by her omission to either get the money herself or see that proper application was made of it, put into his hands the means of perpetrating the fraud and should bear the loss.

And now, to wit, April 29, 1927, after argument and after due and careful consideration, it is ordered, adjudged and decreed that the rule for a new trial be, and the same hereby is, discharged, and that the judgment taken upon the verdict Stand. From William S. Rial, Greensburg, Pa.


source: Caselaw Access Project

author: Reno, P. J.,

license: Public Domain

text:
    Newhard v. Newhard.

      Husband and wife — Divorce—Undetermined proceeding — Costs.
    1. The court, in an undetermined proceeding in divorce, cannot order libellant to pay the costs of the proceeding, and in default thereof dismiss the case.
    2. The Act of March 13, 1815, § 12, 6 Sm. Laws, 289, empowers the court to award costs only on final decree.
    Rule on libellant to pay costs, etc. C. P. Lehigh Co., Oct. T., 1923, No. 139.

      Fred B. Gemerd, for respondent and petition.

      Aubrey, Steckel & Senger, for libellant.
    June 6, 1927.
   Reno, P. J.,

Respondent prays that an order be granted requiring libellant to pay the costs of the proceeding, and, in default thereof, that the case be dismissed. A final decree has not been entered in the case, and, consequently, the time has not arrived when costs may be awarded. The Act of March 13, 1815, § 12, 6 Sm. Laws, 289, provides that “the said court may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs as to them shall appear to be reasonable and just.” This court entered a decree in favor of libellant and directed the costs to be paid by respondent. From that decree an appeal was taken to the Superior Court, which reversed the decree and remitted the record for further proceedings in this court: Newhard v. Newhard, 86 Pa. Superior Ct. 537. Since then no sentence or decree has been passed, and, hence, we are powerless to award costs.

Now, June 6, 1927, the rule to show cause is discharged.

From Edwin L. Kohler, Allentown, Pa.


author: Potter, P. J.,

text:
    Specht v. Moyer.

      Justice of the peace — Rules of court — Appeals — Words and phrases — “Shall.”

    1. Where a rule of court directs that appellant in an appeal from a justice of the peace shall, within five days, give written notice to the opposite party of the filing of the appeal, the word “shall” is mandatory, and if no notice is given within five days, the appeal will be stricken off.
    2. In such case, it is no excuse that the appellant did not have counsel and had no knowledge of the rule of court.
    Rule to strike off appeal transcript. C. P. Snyder Co., Feb. T., 1927, No. 37.

      A. F. Gilbert, for rule; Charles P. Ulrich, contra.
    Sept. 19, 1927.
   Potter, P. J.,

On Dec. 23, 1926, Justice of the Peace John W. Willis, in a civil suit, rendered judgment in favor of the plaintiff, F. M. Specht, and against the defendant, Edward K. Moyer, in the sum of $60 and the costs of suit.

On Jan. 8, 1927, the defendant took out an appeal, which was on that day entered in the Court of Common Pleas of Snyder County to the number and term first above mentioned. He did nothing further incident to his appeal.

Our Rule of Court No. 1, on page 8, provides as follows: “In all civil actions brought into court on appeal from justices of the peace, the appellant shall, within five days, give written notice to the opposite party, or counsel, of the filing of the appeal, and proof of service thereof shall, be filed of record.”

The appeal .having been filed and entered on Jan. 8,1927, the defendant had till Jan. 13, 1927, in which to notify the plaintiff of the taking out and the entry of it. This was not done.

The word shall in this rule of court is clearly mandatory. We quote from 35 Cyc., 1451, as follows: “In common parlance (the word shall), a term which, it is said, has always a compulsory meaning, and in its common and ordinary usage, unless accompanied by qualifying words which show a contrary intent, always refers to the future; but it may be used in the preterit sense of ‘must,’ of which it is a synonym. As used in statutes, the word is generally mandatory; although it is not always imperative, but may be consistent with an exercise of discretion. Thus, it may be construed to mean •may’ when no right or benefit to any one depends on its imperative use; when no advantage is lost; when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction; or when it is absolutely necessary to prevent irreparable mischief, or to construe a direction so that it shall not interfere with vested rights, or conflict with the proper exercise of power, by either of the fundamental branches of government; and it also means ‘may’ when used by a legislature in a grant of authority to a court.” ■

This comprehensive legal definition of the word “shall” clearly defines its meaning as used in the rule of court hereinbefore cited, and the defendant not having given the notice within the five-day period, and having before us a motion to strike off the appeal because of the lack of this notice, our duty in the premises is very clear. The respected counsel for the defense, on the argument, seemed to think there should be exceptions made to the literal enforcement of this rule in cases where the defendant had no counsel, where he did not know his duty in regard to this rule, as well as for other good and sufficient reasons. Where, then, are we to draw the line of demarkation?

If this were permitted in every instance where this notice was not given, a good and sufficient (?) reason would be set up, which in reality might be good or might be bad. When a litigant, not versed in the law or in legal procedure, undertakes to defend his suit without legal counsel, he at once shoulders all the responsibilities of his so doing as well as his ignorance of the requirements of the law.

And this is what has occurred in this case. This defendant undertook to defend his suit before the justice of the peace in person, without the aid of legal counsel. He apparently knew nothing about our rule of court requiring him to notify the plaintiff of the taking of the appeal. We would be very much pleased if there was some legal means whereby we could permit him to try his case in the Common Pleas, but we fail to find any. The direction of this rule of court is mandatory. It requires something to be done which was not done in order to perfect the appeal, and we cannot close our eyes to its compulsory provisions. It would not be consistent for us to arbitrarily override our own rules of court, much as we might desire to do so. In this court, all persons, so far as justice is concerned, look alike to us. We cannot discriminate in any instance. No answer being filed to the rule, the aver-ments therein are admitted.

And now, to wit, Sept. 19, 1927, the rule is made absolute and the appeal is stricken from the records, to which ruling an exception is noted for the defendant and a bill is sealed.


author: Koch, J.,

text:
    Smarr v. Shestok.

      Justice of the peace — Transcn-ipt of judgment.

    1. Where the transcript of a judgment of a justice of the peace is filed in the Common Pleas, that court has no power either to open the judgment or to strike it from the record.
    2. If error has been committed by the justice, the remedy is either by appeal or certiorari.

    Rule to show why the judgment should not be opened or stricken from the record. C. P. Schuylkill Co., May T., 1926, No. 21.

      James Gallagher, for plaintiff; M. J. By an, for defendant.
    April 4, 1927.
   Koch, J.,

Although the transcript imports that the summons was personally served upon the defendant, the defendant avers, as a reason for this rule, that he was not served; that he had no knowledge of the suit or judgment until the sheriff of this county levied upon his land under a fi. fa. issued upon the judgment, and, further, that he is not indebted to the plaintiff. But all these averments are denied by the plaintiff in his answer to the petition for the rule.

An examination of the transcript shows that the proceeding before the justice of the peace was regular in all respects, and it must, therefore, stand until its verity is attacked in some other way. We have no jurisdiction to open the judgment nor to strike it from the record. When error is committed by the magistrate, the remedy is either by appeal or certiorari. If there was no service of process, the constable’s return could have been contradicted under a writ of certiorari: Dermody v. McGee, 6 D. & C. 552.

The rule is discharged.

Prom M. M. Burke, Shenandoah, Pa.


author: Gest, J.,

text:
    Llewellyn’s Estate.

      Wills — Probate — Undue influence ■— Confidential relations — Evidence— Issue devisavit vel non.

    1. A confidential relationship arises prima fame, and, it may seem as a matter of law, where the testator and the beneficiary who has to do with the making of a will are trustee and cestui que trust, attorney or scrivener and clerk, physician and patient, clergyman and parishioner, master and servant, or the like, where, in other words, there is trustfulness on one side and a dominating influence on the other, which destroys the free agency of the testator, but it does not exist in its legal sense between a testator and a beneficiary who were intimate friends for many years and whose friendship supplied a natural, strong and entirely worthy motive for the testamentary gift.
    2. A will cannot be successfully challenged because it fails to make distribution according to the intestate laws; in fact, its main object is to withdraw the estate therefrom.
    3. The question before the Orphans’ Court when asked to award an issue dev-isavit vel non is this: “Were the testimony before the court to be submitted to a jury, and that jury should find a verdict against the will, would the court, sitting as a chancellor, be constrained to uphold the verdict?”
    4. A petition for an issue devisavit vel non should not aver that testator lacked testamentary capacity, when contestant relies solely on a claim of undue influence and produces not a scintilla of evidence to impugn testator’s testamentary capacity.
    Exceptions to decree of Steame, J., Presiding Judge, on appeal from Register of Wills. O. C. Phila. Co., Jan. T., 1927, No. 704.

      William T. Connor, John R. K. Scott and James Gay Gordon, for exceptant.

      Ralph, B. Evans and Owen J. Roberts, contra.
    April 5, 1928.
   Gest, J.,

This appeal was heard during four days, and over 400 pages of testimony were taken before the judge who presided at the hearing. We have read it all carefully, with the aid of the elaborate arguments of counsel, and are so well satisfied with the opinion of the Presiding Judge and his conclusions of law and fact that we might well dismiss the exceptions without more. The estate of the testator, however, is very large, and the case was argued in behalf of the appellant with such zeal and ability by his learned counsel that we shall add a few words in support of what the judge in the first instance has so well said, though we do not propose to discuss in detail the numerous eases decided by our Supreme Court upon the subject of confidential relationship. The courts abstain from laying down an exact and comprehensive definition of what constitutes confidential relationship. Briefly, we may say that it arises prima fade, and it may seem as matter of law, where the testator and the beneficiary who has to do with the making of the will are trustee and cestui que trust, attorney or scrivener and clerk, physician and patient, clergyman and parishioner, master and servant, or the like, where, in other words, there is trustfulness on one side and a dominating influence on the other, which destroys the free agency of the testator; as was said in Leedom v. Palmer, 274 Pa. 25: “In some cases, the confidential relation is a conclusion of law, in others it is a question of fact to be established by the evidence.” In the present case, our examination of the testimony convinces us that no confidential relationship, in its legal sense, existed between Llewellyn and Swartly. They were indeed intimate friends and had been so for many years; so much so that the learned counsel for the appellant compared them in his argument to David and Jonathan; but it would be more proper to say that Llewellyn, the elder man and patron of Swartly, had greater influence over him than had Swartly over the other. They were like brothers and closer to one another than many brothers are, and this friendship supplied a natural, strong and entirely worthy motive for Llewellyn’s testamentary gift to Swartly in preference to cousins with whom he had no intimacy and for whom he had no affection; in fact, he declared to disinterested witnesses that he did not wish his next of kin to inherit his property. “A will cannot be successfully challenged because it fails to make distribution according to the intestate laws; in fact, its main object is to withdraw the estate therefrom:” Guarantee Trust Co. v. Heidenreich, 290 Pa. 249. Llewellyn was unmarried and childless; he had no brothers, sisters, nephews or nieces. The will was drawn by an attorney of his own choice and disinherited no one who had any just claim to be benefited. In all the circumstances, it was a natural and proper disposition of his estate. We have examined with care the decisions cited and relied on by the learned counsel for the appellant, and, in our opinion, they do not sustain him in the present ease, but, as we have said, we will not prolong this opinion by any unnecessary recital of their specific facts. Suffice it to say, that we do not discover in the testimony any evidence of undue influence exerted by Swartly over Llewellyn; but, after all, the criterion for us, when asked to award an issue of d. v. n., is a simple one. Briefly, it is this: Were the testimony before us to be submitted to a jury and that jury should find a verdict against the will, would the court, sitting as a chancellor, be constrained to uphold the verdict? The testimony must be considered as a whole: Phillips’s Estate, 244 Pa. 35; Tetlow’s Estate, 269 Pa. 486; Guarantee Trust Co. v. Heidenreich, 290 Pa. 249. Just as an aviator from aloft, with his vision unobstructed by clouds, obtains a bird’s-eye view of the entire terrain, without overvaluation or underestimation of the details of the topography of the landscape beneath him, so the patient perusal of the testimony as a whole gives the court, in one comprehensive view, the correct mental picture of the entire case. Inspecting the case as a whole, the objections upon which the contestant rests are of very minor importance. The omission of the attorney who drew the will to attend to its formal execution, the inconsistent statements of the attesting witnesses, who appeared to be of less than average intelligence, and other matters, do not avail when merged in the mass of testimony adduced in support of the will. This will, without the shadow of a doubt, expressed the real testamentary purpose of the testator, and we would not be justified in throwing the contest into a jury-box. As, in our opinion, the Presiding Judge arrived at the correct conclusion, the exceptions to his opinion and decree must be dismissed.

We add a few words regarding the pleadings in the case.

The petition filed by the contestant and sworn to by him averred squarely that Llewellyn, at the time of the execution of the will and codicil, “was not a person of sound and disposing mind, memory and understanding, but, on the contrary, was of unsound mind and incompetent to execute any paper in the nature of a last Will and Testament;” and this averment was as squarely denied in the answer. This, then, is one of the issues raised by the pleadings, and yet, when counsel for the contestant opened the case at the hearing, he confined his contention to this, that.the will was secured by undue influence exerted upon the decedent by Swartly. At the hearing, not a vestige or scintilla of testimony was produced to impugn Llewellyn’s testamentary-capacity, and the proponent, under the pleadings which raised the issue, produced a mass of testimony which proved, without the slightest doubt, that the testator was fully competent to make a will. We have had other cases where such allegations have been made without any substantial foundation, much as an old pleader in actions of trespass would round out his declaration with an averment that the defendant had committed “alia enormia,” and we think that the attention of litigants should be called to the propriety of making no allegations in their sworn petitions, in such cases as this, that have not at least some prima facie basis of fact.

The exceptions to the appeal are dismissed, and the appeal from the Register of Wills is dismissed and the record is remitted to the Register of Wills.

Van Dusen, J., did not sit.


author: Kun, J.,

text:
    Commonwealth v. Wener et al.

      Criminal law — Illegal lottery — Seizure of devices — Seizure of money— “Money” — Words and phrases — Act of March 31, 1860.

    1. Under the Act of March SI, 1860, P. L. 397, providing- for the seizure of “any device or machine” use'd in gambling, “money” is not a device.
    2. Under the act, money seized in connection with any gambling device or machine cannot be confiscated, but must be returned to the owner.
    Rule for return of money. Q. S. Phila. Co., Sept. Sess., 1927, No. 756.

      Edmund G. J. Dale, for petitioner.

      Charles C. Gordon, Assistant District Attorney, contra.
    March 17, 1928.
   Kun, J.,

The above-named defendants were indicted for setting up an illegal lottery and pleaded guilty. Some of the defendants were fined and others were placed on probation. Certain of the defendants filed a petition, setting forth that various sums of money were taken from their persons at the time of the seizure of the alleged lottery and paraphernalia, and the money is in the hands of the Director of Public Safety, who refuses to turn the same over to them, following a practice of his office. A rule was allowed on the Director of Public Safety to show cause why the money so held by him should not be returned to the defendants. No formal answer was filed by the director, but a representative of the district attorney’s office appeared on his behalf to argue the questions of law involved.

If there is any authority for the confiscation or other disposition of the money of the defendants, such authority must be found in the statutes of the Commonwealth. The learned representative of the District Attorney’s office has argued that since the so-called Gambling Act of March 31, 1860, § 60, P. L. 397, provides for the seizure of “any device or machine of any kind, character or description whatsoever, used and employed for the purpose of unlawful gain in gambling,” referred to in the act, the reference to “device” might be construed to include money used in connection with the gambling. It must be stated, however, that, however salutary such a punishment would be, the court cannot declare a forfeiture of persons’ money or other property without very clear statutory authority to do so.

It is unnecessary to discuss the meaning of the words “device” and “machine.” It is enough to state that it is the opinion of the court that money is not a “device” used in gambling, but is rather the ultimate thing, the prize, for which the gambling devices or machines are used in play. In connection with the provision in section 60 of the Gambling Act for the seizure and removal of any such gambling “device” or “machine,” and for its forfeiture, it is provided that the court shall “order it (gambling device or machine) to be publicly destroyed.” It is clear to the court that it could not have been the legislative intent to include money within the descriptive terms “device” and “machine.”

The eases of Com. v. Milloy, 4 Erie Co. L. J. 95, and Miller et al. v. State, 46 Okla. 674, in the Supreme Court of that state, are authority for the proposition that money, even though used in play in connection with gambling devices, does not lose its essential character as money so as to become part of the gambling paraphernalia, and, therefore, cannot be confiscated.

Accordingly, petitioners’ rule on the Director of Public Safety for the return of money held by him must-be made absolute. An appropriate order may be prepared by counsel for petitioners and notice given to the District Attorney, who shall have ten days within which to file exceptions, in the absence of which the Director of Public Safety will pay over the money held by him to the petitioners in accordance with the order.


author: Smith, J.,

text:
    Cushman v. The Pennsylvania Museum and School of Industrial Art.

      Municipalities — Philadelphia—Appropriation to Museum and Art School— Ordinances — Act of March 11, 1783.

      1. Under the Act of March 11, 1789, 2 Sm. Laws, 463, the City of Philadelphia may by ordinance appropriate money to the Pennsylvania Museum and School of Industrial Art, chartered as a corporation of the first class not for profit, which acts as the agent of the city in the care, maintenance and exhibition of the art collections belonging to the city.
    2. The Act of March 11, 1789, 2 Sm. Laws, 463, is still in force, and is not affected by the Constitution adopted in 1874.
    Bill and answer. C. P. No. 5, Phila. Co., March T., 1927, No. 13892.

      C. B. Jay, for plaintiff.

      J. P. Gaffney, City Solicitor, for Mayor and City Treasurer.

      Edmonds, Obermayer & Rebmann, for Pennsylvania Museum and School of Industrial Art.
    Jan. 27, 1928.
   Smith, J.,

Findings of fact.

1. The defendant, The Pennsylvania Museum and School of Industrial Art, is a corporation of the first class, organized under the laws of the Commonwealth of Pennsylvania, for the purposes set forth in its charter, to establish in the State of Pennsylvania and City of Philadelphia a museum of art, with a special view to the development of the art industries of the State and the development of an institution similar in general features to the South Ken-sington Museum of London.

2. The affairs of the corporation are managed by a board of trustees who serve without compensation or remuneration, no member of the board deriving any profit or gain by virtue of his membership.

3. Fees that are charged for some of the educational facilities furnished are much less than the actual cost of supplying the facilities. No charge is made to the general public for entrance to the exhibitions and entertainments conducted by defendant. All exhibitions and entertainments are open to the general public free of charge.

4. No person, firm or corporation makes or receives any profit or gain, directly or indirectly, as a result of defendant’s activity.

5. Defendant conducts its affairs under the control, supervision and management of the Mayor and City Council of the City of Philadelphia, and disburses its receipts and revenues under the direct supervision and control of the city.

The by-laws provide for a board of eighteen trustees, consisting of the Governor of the State and the Mayor of Philadelphia, ex offidis, and one representative of each of the five following bodies, provided they shall make such appointment, viz., the Senate and House of Representatives of the State, the Select and Common Council of the City of Philadelphia, and the Commissioners of Fairmount Park.

6. On Dec. 14, 1926, the Council, of the City of Philadelphia passed an ordinance entitled “An ordinance for the adoption of a financial program of the City of Philadelphia for the year 1927, making appropriations to carry the program into effect,” which ordinance was duly approved by the Mayor. In section 21 there is an item, “Appropriating to the Pennsylvania Museum and School of Industrial Art fifty thousand dollars ($50,000); payments to be made in quarterly instalments.”

7. Plaintiff, a citizen and resident of the City of Philadelphia, owning real estate within the city upon which she pays taxes, claiming to be interested in the proper distribution of revenues derived from taxation, filed a bill in equity to restrain the payment of the appropriation to the Pennsylvania Museum and School of Industrial Art, alleging in the bill that the appropriation comes under the restriction in section 7, article IX, of the Constitution of Pennsylvania; that the Pennsylvania Museum and School of Industrial Art is a private corporation; that the business of the corporation is managed by its board of directors or trustees as other private business corporations are managed, with corporate and salaried officers; that fees are charged for the educational facilities, as well as a charge for admission to the general public for entrance to exhibitions and entertainments conducted by and under its supervision, or held in its respective halls and buildings; that it manages and conducts its business without being under the control, supervision or management of the Mayor and City Council, and, disburses its receipts and revenues without any direct supervision or control of the City of Philadelphia; and that the appropriation, if paid, will be distributed without the City of Philadelphia having a voice in the management, control or distribution; that the appropriation is not necessary to the convenience, government and welfare of the City of Philadelphia, constitutes an appropriation of taxpayers’ money for a purpose not purely municipal in character and necessary for the welfare and comfort of the city, and is ultra vires and in violation of the rights of plaintiff and other taxpayers and section 7 of article IX of the Constitution of Pennsylvania, which provides: “The general assembly shall not authorize any county, city, borough, township or unincorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for or to loan its credit to any corporation, association, institution or individual.”

8. An answer was filed by the Pennsylvania Museum and School of Industrial Art, but no replication was filed by plaintiff.

9. The answer denies that the corporate officers receive any salary or remuneration for services rendered by them; and avers that no member of the board of trustees receives any compensation whatever, directly or indirectly, or derives any profit or gain by virtue of his membership; that the fees charged for the educational facilities are much less than the actual cost of supplying the facilities; and denies that any charges are made to the general public for entrance to any exhibitions and entertainments conducted by defendant, or under its supervision; and avers that all exhibitions and entertainments conducted by defendant, or with which it is in any way connected, are, and at all times have been, open to the general public free of charge. It is denied in the answer that defendant manages or conducts its business without being under the control, supervision or management of the Mayor and City Council of the City of Philadelphia, and that it disburses receipts and revenues without any direct supervision or control of the City of Philadelphia, and that the appropriation, if paid, will be disbursed without the City of Philadelphia having any voice in the management, control or disbursement. It is averred that the Mayor of the city and representatives of City Council serve on the board of trustees.

It is further denied in the answer that the appropriation is not necessary or convenient for the government and welfare of the city, or that it constitutes an application of taxpayers’ money for a purpose not purely municipal in character and necessary for the welfare and comfort of the city; and averred that the defendant performs an important municipal function, and the appropriation is necessary and convenient to the government and welfare of the city, and a legitimate application of public funds. It is denied that the payment of the appropriation would be ultra vires, in violation of the rights of plaintiff or any taxpayer, or a violation of section 7 of article IX of the Constitution of Pennsylvania; or that the expenditure of the public money by virtue of the ordinance will be unlawful or entail the bestowal of public funds upon a private corporation or association which is not engaged in the performance of any municipal function of the City of Philadelphia, necessary for the government and welfare of the citizens, and a misapplication of the taxpayers’ money; but it is averred that payment of the appropriation is within the power of the municipality of Philadelphia, and to the interest and advantage of all taxpayers of the city, in entire accord with the Constitution and laws of the Commonwealth, and that defendant is engaged in the performance of important municipal functions of the city.

10. The land within the borders of Fairmount Park was condemned by the legislature for the use of the City of Philadelphia, and title is vested in the city by the Act of March 26, 1867, P. L. 647, and the Act of April 14, 1868, P. L. 1083. A board of commissioners was created to supervise and control the park for and on account of the city.

11. Section 17 of the Act of April 14, 1868, P. L. 1088, provides that “The said park commissioners shall have power to accept in the name and on behalf of the city of Philadelphia devises, bequests and donations of land, moneys, objects of art and natural history, maps and books or other things upon such trusts as may be prescribed by the testator or donor; Provided Such trusts be satisfactory to the commission and compatible with the purpose of said park.”

12. By virtue of the authority conferred upon them, the Commissioners of Fairmount Park, acting for and in behalf of the City of Philadelphia, have at various times accepted numerous devises, bequests and donations of objects of art and natural history of various kind and descriptions.

13. The Act of March 27, 1873, P. L. 50, provided for an appropriation by the Commonwealth in connection with an appropriation from the City of Philadelphia for the erection of a building in Fairmount Park known as “Memorial Hall,” to remain in Fairmount Park perpetually as the property of the people of the Commonwealth, for the preservation and exhibition of national and State relics and works of art, industry, mechanicism and products of the soil, mines, et cetera, of this State, and that it shall be kept open perpetually for the improvement and enjoyment of the people of the Commonwealth under such regulations as the Fairmount Park Commissioners and the State Centennial Supervisors and the proper representatives of the City of Philadelphia shall from time to time prescribe. By the terms of the act, after the Centennial Universal Exhibition closed, the Fairmount Park Commissioners and the State Supervisors and the proper representatives of the City of Philadelphia were authorized to admit into the building works of art, products of industry, etc., of any other state or government under such regulations as might be deemed just and proper.

14. Pursuant to the authority of this act, the building known as “Memorial Hall,” situated in' Fairmount Park, was erected and equipped.

15. In March, 1877, after the close of the Centennial Exhibition, the Fair-mount Park Commissioners, the State Supervisors and the representatives of the City of Philadelphia were organized into a body called “Directors of the Memorial Hall in Fairmount Park;” and by an agreement dated April 22, 1877, acting under authority conferred upon them by an ordinance of Councils of April 5, 1877, granted to the Pennsylvania Museum and School of Industrial Art permission to occupy Memorial Hall, it being stipulated and agreed that the building should be kept in good order and repair by the Pennsylvania Museum and School of Industrial Art during its occupancy and that the collections of the Museum should be kept open, and the Pennsylvania Museum and School of Industrial Art should receive any works of art dedicated or placed under the charge of either of the bodies composing the directors of Memorial Hall.

16. Sihce the date of the agreement, the defendant, the Pennsylvania Museum and School of Industrial Art, has occupied and used Memorial Hall, kept the same in good order and repair and been the custodian of and taken care of all exhibits, works of art and collections belonging to the City of Philadelphia which were placed in its custody. Since it has had charge of Memorial Hall, the duties of custodian have been increased and the responsibilities enlarged by additional gifts of many rare and valuable works of art accepted by the Fairmount Park Commissioners in the name of and on behalf of the City of Philadelphia, which have been placed in the custody and in the care of defendant. At the present time, in the custody of and under the care of defendant, there is an art collection belonging.to the City of Philadelphia having a value in excess of $2,000,000.

17. Defendant has at all times since the date of the agreement of 1877 had control of the building, collections and exhibits, kept the building in good order and repair, cared for the collections and exhibits therein, and kept the building open every day, free of charge, for the benefit of all persons who desired to view and inspect the exhibits and collections.

18. During the year 1926, 413,547 persons visited the Museum.

19. Defendant was chartered as a corporation of the first class on Oct. 27, 1876, by decree of the Court of Common .Pleas, and, pursuant to the purposes set forth in its charter, owns and maintains, at the northwest corner of Broad and Pine Streets, in the City of Philadelphia, the building in which a school is conducted by a faculty of experts and skilled teachers and technicians providing courses of instruction in drawing, painting, modeling, designing, dyeing, weaving, etc. The privilege of receiving instruction is available to all duly qualified members of the public; and in cases of persons charged fees for tuition, the charge is much less than the cost of providing instruction.

The Pennsylvania Museum and School of Industrial Art is not conducted or maintained for profit, has no capital stock, and is without power to declare dividends or distribute profits among its officers or members.

20. The only persons who receive salaries or wages are servants, agents and employees, none of whom are members of the board of trustees; and no employee receives more than reasonable remuneration for services rendered to the corporation.

21. It is the practice of the defendant to admit persons desiring to attend the school maintained and conducted by it and to furnish instruction therein at the lowest possible cost to pupils; and to permit the general public to visit, inspect and enjoy the advantages of the exhibitions conducted and maintained by defendant, free of any cost to visitors.

If the payment of the appropriation made by Council is denied to defendant, it will not be possible for defendant to continue to conduct its affairs and activities as heretofore, and the service rendered to the City of Philadelphia and the public will be materially crippled.

Discussion.

Under No. 54 of the Rules of Equity Practice, no replication having been filed, the averments of the answer are admitted.

The Act of March 11, 1789, 2 Sm. Laws, 467, provides: “That the Mayor, Recorder, Aldermen and Common Councilmen, in Common Council assembled, shall have full power and authority to make, ordain, constitute and establish such and so many laws, ordinances, regulations and constitutions (provided the same shall not be repugnant to the laws and Constitution of this Commonwealth) as shall be necessary or convenient for the government and welfare of the said city, and the same to enforce, put in use and execution, by the proper officers, and at their pleasure to revoke, alter and make anew, as occasion may require.”

This act is still in force: Philadelphia v. Brabender, 201 Pa. 574.

The appropriation in question was made by virtue of the Act of 1789, and not under authority of any legislation subsequent in date to the Constitution adopted in 1874.

In Com. v. Walton, 182 Pa. 373, it was said in the opinion of the Supreme Court: “By the Act of March 17, 1789, which appears to be still in force, the city councils of Philadelphia ‘have full power and authority to make, ordain and establish such and so many laws, ordinances and regulations as shall be necessary for the welfare and comfort of the city.’ We have no right to assume, nor is there anything from which it may be fairly inferred, that the constitutional prohibition in question was intended to revoke or curtail any of the powers or authorities with which the city councils were theretofore invested by the comprehensive grant above quoted.”

In that case, an appropriation of Councils for the creation or maintenance of a police pension fund, though not an appropriation for strictly municipal use, was held to be for the welfare and comfort of the city in the following language quoted from page 377: “Aside from the general authority of councils to make such appropriations, and aside from any question of expediency or propriety in their doing so, this case might well be disposed of on the ground that the constitutional prohibition relied on by the defendant is inapplicable to councils. In Indiana County v. Agricultural Society, 85 Pa. 357, this court held that the section in question ‘deals only with legislative power.’ . . . That power is thereby limited and restricted. It declares what the legislature ‘shall not’ do. It annuls nothing that it had done. It forbids such legislation thereafter. It struck down no law. Its prohibitions were wholly prospective. It is not pretended that the ordinance in question was enacted in pursuance of any legislation passed since the adoption of the constitutional prohibition. It, therefore, follows that the latter has no application here.”

In Com. v. Barker, 211 Pa. 610, an ordinance appropriating money to a firemen’s relief association was sustained, and in Com. v. Walton, supra (page 377), it was held: “There is no merit in the objection that councils delegated the distribution of the sum appropriated to the Philadelphia Police Pension Fun Association instead of distributing it themselves; if they were satisfied, as they doubtless were, that the distribution of the fund would be better effected through the agency of the association than by an agency of their own creation, they had a right to so provide.”

The Pennsylvania Museum has relieved the city of the management of Memorial Hall and fulfilled the conditions placed on the'city by the Act of 1873; has kept the building open for the enjoyment of the public and used as a place for exhibition of works of art; and has taken full charge of and is caring for the valuable collections belonging to the city and the objects of natural history, maps, books, etc., which the Commissioners of Fairmount Park have accepted on behalf of the city. These objects are cared for, preserved and arranged for display and exhibition by the Pennsylvania Museum and School of Industrial Art as the agent of the city. This duty demands the services of experts and persons qualified to exercise the requisite skill and care. In supplying this expert knowledge and skill, the Pennsylvania Museum and School of Industrial Art is serving the city and contributing to its welfare; and the delegation of this service is within the ruling of Com. v. Pittsburgh, 183 Pa. 202; Com. v. Walton, 182 Pa. 373, and Com. v. Barker, 211 Pa. 610.

Within the past few days the Honorable Harry A. Mackey, Mayor of the City of Philadelphia, sent to the Council of the City of Philadelphia his message placing in nomination names to fill vacancies in certain boards of trustees, and Charles J. Webb, by unanimous vote of the City Council, was elected a trustee of the Pennsylvania Museum and School of Industrial Art.

The instant case is distinguishable from Kulp v. Philadelphia, 291 Pa. 413, in which there was an appropriation by ordinance of $25,000 to a private company engaged in the production of operas, employing paid singers and musicians and charging admission for the privilege of attending performances. There was no return to the city for the appropriation, except by a certain number of free tickets distributed under the supervision of the president of the opera company and the Director of Public Welfare to “scholars of various universities, colleges, public, parochial and other schools” and to “students” of selected musical organizations, necessarily a very small number of people, considering the total population of the city. There was no contract requiring the company to give any performance, although it was not entitled to collect instalments of the appropriation unless one performance was given for each instalment. The city had no voice in any phase of the management.

The Chancellor found as a fact that the appropriation was not made to sustain a municipal purpose and that the contract was not of a character which the City Council was either directly or indirectly authorized to make.

The admitted facts averred in the answer in the instant case establish a municipal character to the services rendered by the Pennsylvania Museum and School of Industrial Art in the care of the valuable art collections now owned by the city and which will, from time to time, be materially increased. The appropriation has been made by City Councils to the Pennsylvania Museum and School of Industrial Art for many years and never been questioned until the present suit.

Conclusions of law.

1. An appropriation of $60,000 to the Pennsylvania Museum and School of Industrial Art by ordinance of Council approved Dec. 14, 1926, is a legitimate use of municipal funds.

2. The appropriation is not unlawful or ultra vires.

3. The appropriation is not unconstitutional and is not a misapplication of municipal funds.

4. The prayers of the bill should be refused.

5. The bill of complaint filed in this case should be dismissed.

6. Plaintiff should pay the costs.

Decree nisi.

And now, to wit, Jan. 27, 1928, on consideration of the foregoing case, it is ordered, adjudged and decreed that the bill in equity filed be dismissed, and that plaintiff pay the costs.


author: Sayers, P. J.,

text:
    Durbin v. Steele.

      Justice’s court — Jurisdiction—Summons—Service in another county — Constable’s return — Regularity — Presumption — Admission — Acts of June 13, 1836, and July 9, 1901.

    X. A judgment entered by a justice of the peace will be stricken off where the summons was served on defendant in another county.
    2. The Acts of June 13, 1836, P. L. 579, and July 9, 1901, P. L. 614, require the return to show the time, place and manner of service, and while ordinarily such return cannot be contradicted and it is conclusively presumed the service was regular, this rule does not apply where it is admitted in the pleadings that the service was made outside the county.
    Motion to strike off judgment entered on transcript from a justice’s court. C. P. Greene Co., Dec. T., 1926, No. 18.

      James J. Purman, for plaintiff; Kyle & Reinhart, for defendant.
    June 4, 1927.
   Sayers, P. J.,

The petition alleges that the summons to appear before a justice in Greene County was never served on the defendant, who was not a resident of Greene County and not within the jurisdiction of the justice; that an attempted service was made by the Greene County constable on deféndant’s husband in Washington County, who resided on her farm, but her dwelling-house or residence was not on the farm and she did not reside with her husband at the time and has not for several years. She alleges that she did not know of the judgment against her until she learned of a testatum fi. fa. on the transcript of the judgment filed at the above number and term. She says the transcript was entered without a proper certificate to the prothonotary by the plaintiff, his agent or attorney, showing the precise residence address 'of the judgment creditor as required by Act of March 31, 1915, P. L. 39. She avers she was not served with a copy of any book account, and she is advised that the whole proceeding is irregular and defective, and that the judgment should be stricken off because the justice had no jurisdiction, the constable had no right to serve a summons in Washington County, and because judgment was entered without the certificate of the creditor’s address as required by the Act of 1915.

She avers she was not indebted to the plaintiff, but the plaintiff actually owed defendant for services rendered.

Plaintiff demurred to the petition, alleging that the judgment had been entered on a transcript regular on its face, and the court is without power or jurisdiction to strike off the judgment or grant petitioner any relief.

This being a demurrer, the facts stated in the petition must be accepted as true. The objection to entering judgment without proper certificate of residence of the judgment creditor under the Act of 1915 cannot avail the petitioner, because the record shows the certificate of residence and transcript were filed the day the judgment was entered.

The constable attempted to serve his writ, a long summons, in a county to which the jurisdiction of the justice did not extend, on an adult not a member of defendant’s family, at a place not her residence or dwelling-house.

The objection that no book account was served on defendant is of no effect. There does not seem to have been any attempt to take judgment on a copy of account as provided by Act of July 7, 1879, P. L. 194, but the judgment was entered after and upon the testimony of plaintiff, who produced and swore to his account.

Demurrant alleges that petitioner has mistaken her remedy because the judgment, regular on its face, cannot be stricken off. If the judgment is regular on its face, it then follows that it should not be stricken off: First National Bank v. Fair, 72 Pa. Superior Ct. 457, 460, and cases cited. The judgment should be stricken from the record if void on its face: McKinney v. Brown, 130 Pa. 365; Hicks v. Building Association, 12 Dist. R. 143. The fate of the petition depends on the sufficiency of the transcript, and not of any matter de hors the record: Saxman v. Perkins, 6 Dist. R. 548; Althouse v. Hunsberger, 6 Pa. Superior Ct. 160; Holly v. Travis, 267 Pa. 136.

If we accept the facts as admitted by the demurrer, the service of the writ was irregular and void, and so was the judgment. There are cases that hold that if the record shows jurisdiction, the judgment cannot be stricken off (Greider v. Kauffman, 19 Dist. R. 90), and that the only remedy is by appeal or certiorari (Wilson v. Wilson, 35 Pa. C. C. Reps. 303), even if the defect is apparent on the face of the record.

The defendant’s claim here is on authority of Pantall v. Dickey, 123 Pa. 431, that the judgment is void for want of jurisdiction to enter it; it matters not how or in what mode or when it is brought to the court’s attention, and, being void, it has no force, and defendant can disregard it until an effort is made, as in this case, to enforce it.

Is the return of the service by the constable so bad on its face that it will not support a judgment or give the justice jurisdiction? The Act of July 9, 1901, § 1, P. L. 614, provides that a writ of summons shall be served “(b) by handing a true and attested copy thereof to an adult member of his (defendant’s) family at his dwelling-house.” The 16th clause of the same act, providing for service of writs issued by justices, provides that: “They shall be served in the county wherein they are issued by the constable . . .” The act does not provide how the return shall be made, except, presumably, it is to follow the above language and to be, as many cases have recited, “full and explicit:” Holly v. Travis, 267 Pa. 136, 145.

In Taylor v. Tudor et al., 81 Pa. Superior Ct. 306, and 83 Pa. Superior Ct. 459, it was held that the validity of a judgment obtained before an alderman, entered in the Common Pleas on a transcript regular on its face, could not be attacked by motion to strike off or by way of defence to a scire fados, and in Holly v. Travis, supra, the Supreme Court has held that the regularity of a justice’s record cannot be attacked by evidence de hors, even on certiorari.

When the transcript fails to show a proper service as provided by the Act of 1907, the court will strike off the judgment: Frisbie Lumber Co. v. Kratzer, 6 D. & C. 295; Roberson v. Ayres, 16 Dist. R. 654; National Casket Co. v. Marley, 29 Pa. C. C. Reps. 280; Hicks v. Building Association, 12 Dist. R. 143.

If there is anything irregular about this transcript and judgment, it is the constable’s return of service. The summons was issued July 20, 1926, returnable July 28th. The constable’s return was: “And now, July 21, 1926, summons returned on oath. Served a true and attested copy of the original summons on Mary E. Steele by leaving at her residence with an adult member of her family. So answers J. E. Bruce, Constable.” The return conforms sufficiently to the language of the above recited clause of the Act of 1901 to be termed regular, full and explicit, if you substitute for “handing” the word “leaving” and “dwelling-house” for “residence.”

It is admitted that the service of the writ, which is the basis of the action, is irregular and void because made out of the county. It is denied that this appears on the face of the transcript.

The transcript shows a regular return of service, but does not show where the service was made. Such a service has been held irregular, but not void, it being presumed, of course, that the service was made in the county: Export Lumber Co. v. Lepusnak, 12 Pa. Justices’ Law Repr. 29; Moll v. Connors, 36 Dist. R. 1001. The return should show that the writ was served in Greene County: Robbins and Son v. Lynn, 15 Pa. Justices’ Law Repr. 182; Chaplin Grocery Co. v. Meo, 13 Pa. Justices’ Law Repr. 128; Holly v. Travis, 71 Pa. Superior Ct. 527, 267 Pa. 136.

To permit this judgment to stand under the admitted circumstances and to allow defendant’s land to be sold on the testatum, fi. fa. would be gross injustice.

Clause 16 of section 1 of the Act of July 9, 1901, P. L. 614, provides that writs issued by a justice of the peace shall be served in the county where they are issued in the same manner as similar writs are served by the sheriff. We, therefore, hold that this act, in connection with the Act of June 13, 1836, P. L. 579, requires the constable serving the writ to state in his return the time, manner and place of service. It is a requirement of the Act of 1901 that the writ be served within the county, and such a service is necessary to give the justice jurisdiction. While there is usually a conclusive presumption in a case of this kind that the proceedings were regular (Saxman v. Perkins, 6 Dist. R. 548), it is admitted by the pleadings here that the service does not comply with the law.

If the constable’s return had set forth .that the writ was served in Greene County, as we think it should do, then we could not, under the majority opinion in Holly v. Travis, 267 Pa. 136, contradict this return by evidence de hors the record. Since the return, however, is silent as to the place of service and is only presumptively correct, we think on certiorari that presumption could be overthrown by evidence outside the record. See dissenting opinion of Chief Justice Brown in Holly v. Travis, supra, page 149. We could stay execution indefinitely, as was done in Singer v. Singer, etc., 2 Pa. C. C. Reps. 578, and pending the stay, defendant might obtain relief by certiorari, but why should she be put to such additional trouble under the facts here? It would be a vain thing to require her to prove on certiorari what is already admitted here, namely, that the only attempt to serve the writ on the defendant was at a place beyond the jurisdiction of the justice.

Order.

And now, June 4, 1927, after consideration of the petition, demurrer and arguments of counsel, the demurrer is overruled, and unless plaintiff files other answers to the petition within fifteen days, a final order and decree will be made striking off said judgment; execution to be stayed on the testatum fi. fa. and the lien of the levy to remain until further order of this court; notice of this order and decree to be given to the Sheriff of Washington County, Pa.

From S. M. Williamson, Waynesburg, Fa.


author: Graff, P. J.,

text:
    Steele v. Apollo Borough School District.

      School law — Contracts—Minutes of directors — Act of May 11, 1927.

    1. The fact that the minutes of a school board do not show how each member voted on a contract does not, under the Act of May 11, 1927, P. L. 965, invalidate the contract, if there is proof that a vote was actually taken as required by law.

      School law — Coal contract — Weighing coal — Waiver—Estoppel.
    2. Where a provision of a contract for coal for a school district provides that the coal shall be weighed on the scales of a private corporation, recovery can be had on the contract, although some of the coal was weighed upon the seller’s scales, if it appears that the coal was received by the district with knowledge that some of it had not been weighed as the contract provided, that the amount received was equal to, if not in excess of, the amount specified, and that the district was in no way injured by the irregularity.
    Rule for new trial. C. P. Armstrong Co., Sept. T., 1926, No. 277.

      C. O. Morris, for plaintiff; Harry C. Golden, .tor defendant.
    Aug. 1, 1927.
   Graff, P. J.,

During the school year of 1925-1926, the plaintiff delivered coal to the defendant school district for the purpose of heating the school buildings. After advertising for bids, a written contract was entered into between the plaintiff and the defendant, by the terms of which the plaintiff agreed to deliver the coal required and the defendant agreed to pay therefor the sum of 12 cents per bushel. It was further stipulated that the coal should be weighed upon the scales of the Apollo Steel Company. This condition was also contained in the advertisement for bids. Steele weighed a part of the coal upon the scales and the remainder was weighed upon the scales at his mine. The plaintiff had requested that he be relieved from the requirement that the coal be weighed upon the Apollo Steel Company scales, for the reason that difficulty was experienced in finding the weighmaster. This request was refused, and subsequently the coal was weighed upon the scales, as required, when the weighmaster could reasonably be found. The coal was delivered by Steele and used by the defendant, which now refuses payment. Upon trial of the case, the jury found a verdict in favqr of the plaintiff for the full amount of the claim. The case is now before us upon a motion for judgment non obstante veredicto and a motion for a new trial. Two reasons have been assigned in support of the motions.

The defendant first contends that the court erred in refusing defendant’s point for binding instructions. The minutes of the school district disclose that the contract in question was duly authorized at a meeting of the board, but fails to disclose how each member voted upon the motion. The oral evidence upon the trial is to the effect that the approval was unanimous. Defendant relies upon the requirement contained in section 403, article iv, of the School Code of May 18, 1911, P. L. 309, that the minute must show each member voted upon contracts for fuel involving more than $100. It has been held that the act must be strictly complied with and the aye and nay vote recorded: Mauch Chunk Township School District, 75 Pa. Superior Ct. 434; Garland v. Riebe, 78 Pa. Superior Ct. 567. It is provided, however, by the Act of May 11, 1927, P. L. 965, as follows: “That whenever heretofore the school directors of any school district shall have taken any action, performed any duty or exercised any power which by law required the affirmative vote of a majority, or greater proportion, of all the members of the board of school directors, and which by law was required to be recorded so as to show how each member of the board voted thereon — if such action or vote was actually taken or duty performed or power exercised by the board as required by law, the same shall be deemed and' is hereby made valid and legal, to all intents and purposes, notwithstanding the fact that the secretary of the school board, or the board, did not actually record on the minutes of the board the vote showing how each member voted, as required by law.” This act was approved subsequent to the date of trial, but, nevertheless, specifically validates the action of the board, if the vote was actually taken as required by law, where the secretary failed to record how each member voted. The minutes show, at least, the approval of the majority of the board, while the oral testimony proves unanimous approval of the ixmtract. Under these circumstances, it would be a useless thing to grant a new trial, for nothing could be gained thereby. The School Code requires the approval of the contract by a majority of the board, and the written record of the meetings of the board clearly proves this. The first reason is now without merit.

The second reason relied upon is that “the court erred in submitting to the jury the question of waiver.” The written contract provided that the coal should be weighed upon the scales of the Apollo Steel Company. This condition was contained in the advertisement for bids. Admittedly, all of the coal was not weighed as required by the condition or stipulation, and therein Steele failed to comply with a term of his contract. However, the coal was, nevertheless, received and used by the school district. It is true that the request of Steele to be relieved from this condition was refused, but there is no evidence of any refusal to proceed with the contract. Undoubtedly, the delivery of the coal and use thereof was known to the board. No contract was made with any other person to supply the fuel. Nor is there any evidence whatever that full weight was not delivered. In fact, the evidence shows that Steele’s scales allowed a greater amount than the scales of the Steel Company. The question of waiver of the condition heretofore mentioned was submitted to the jury. Defendant contends that it was not within the corporate powers of the board to waive this condition, and, therefore, such was error. We can agree that the board could not waive any condition contained in the advertisement for bids, as well as the contract itself. However, the defendant was not injured by submission of this question to the jury.. Clearly, the plaintiff has substantially complied with his contract and is entitled to some compensation: Commissioners v. Sewickley Borough, 159 Pa. 194; Smith v. Cunningham Piano Co., 239 Pa. 496; Koch v. Oil City, 47 Pa. Superior Ct. 248. We are not unmindful of the rule that where the officers of a municipality are not legally authorized to enter into a contract, any attempted ratification of their action in making such contract is of no validity: Smith v. Philadelphia, 227 Pa. 423. In this case, the contract as made was entirely legal and within the powers of the school district. A condition of that contract was violated by the vendor. The defendant had the right to refuse to continue with the contract, but did not take advantage of this privilege. The defendant could also treat the failure to perform the condition as a breach of warranty, as provided by the Sales Act of May 19, 1915, P. L. 543. No attempt was made to do so upon trial of the ease. No contention is made that the defendant was injured by the failure of Steele to perform the condition. Nor was any evidence offered to prove that the full amount of the coal was not delivered, as required by the contract. All of the evidence in the case shows delivery of the coal, its receipt and use and refusal to pay for a technical reason. We conclude that the plaintiff was entitled to the verdict, and any error in submitting the question of waiver of a condition of the contract to the jury was harmless.

The reasons discussed are the only ones relied upon for a new trial, and we, therefore, conclude that the motion should be refused.

And now, Aug. 1, 1927, the motion for judgment non obstante veredicto is refused and the rule heretofore granted discharged.

Eo die, exception granted and bill sealed.

And now, Aug. 1, 1927, the motion for a new trial is refused, the rule heretofore granted discharged and judgment is directed to be entered on the verdict upon payment of the jury fee.


author: Stewart, P. J.,

text:
    Gilbert v. Steinmetz.

      Practice, C. P. — Statement of claim — Affidavit of defence — Rescission of a contract for the sale of real estate.

    1. A statement of claim is always open to - an attack when plaintiffs ask for judgment on the pleadings, and it must aver in clear and concise terms all the facts essential to support the judgment asked for.
    2. "Where the plaintiffs allege that they have rescinded a contract for the purchase of real estate, they must not he in default, and they must aver all the facts specifically, showing a full compliance with the contract.
    3. Where the plaintiffs attempt to rescind a contract, they must restore the defendant to the position he was in before the contract was entered into, and must specifically surrender the property to the defendant.
    4. In the absence of a special agreement, the vendor (defendant) is not entitled to rent from the vendee (plaintiffs) for the use and occupation of the premises prior to an attempted rescission of the contract, but there is nothing illegal in an agreement which stipulates that the vendor shall retain the moneys paid on account of a contract of purchase of land as rentals for the same.

      Assumpsit to recover for moneys paid on account of contract of purchase of real estate. Rule for judgment for want of sufficient affidavit of defence. C. P. Northampton Co.,' Nov. T., 1926, No. 129.

      George W. Geiser, Jr., for plaintiffs; Smith & Paff, for defendants.
    March 7, 1927.
   Stewart, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defence. The plaintiffs have assigned seven reasons why the rule should be made absolute, but the sum of the reasons is that the affidavit of defence is insufficient by reason of general denials and that it contains admissions of the vital points of plaintiffs’ statement and sets up no facts as a defence. Defendant counters by alleging that the plaintiffs’ statement is deficient and that it would not support a judgment. In the leading case of Parry v. First National Bank of Lansford, 270 Pa. 556, it was held: “A statement of claim itself is always open to attack when plaintiff asks for judgment on the pleadings. To entitle one to judgment for want of a sufficient affidavit of defence, his statement of claim must aver, in clear and concise terms, all facts essential to support the judgment asked; it must he such that judgment may be taken and liquidated upon data which it furnishes. . . . The filing of an affidavit of defence does not constitute a waiver of defendant’s right subsequently to rely upon the insufficiency of plaintiff’s statement of claim when the latter asks for judgment on the pleadings.” Tested by the principles of that case, as well as many subsequent cases in which it was followed, we must examine plaintiffs’ statement. It sets forth, in effect, that the plaintiffs and the defendant entered into a written contract on April 1, 1924, wherein the defendant agreed to sell the plaintiffs, free and dear of all encumbrances, a tract of land, designated as Nos. 356 and 357 on a certain plan of lots, for the sum of $4000; $50 to be paid upon the signing of the agreement, and thereafter the sum of $50 to be paid on the first day of each and every month. At the end of one year the interest was to be added to the principal, and from the principal and interest, payments made during the year were to be deducted and the balance was to form a new principal, and so to continue from year to year. Parties of the second part agreed to pay all expenses connected with the drawing and execution of the deed; also to keep the property in good order and repair. It then concluded: “In default of the said parties of the second part making said monthly payments each and every month and keeping the same in good order, it shall be at the option of the said party of the first part to declare this agreement terminated, after first giving thirty days’ notice of their intention so to do, said notice to be delivered at the Dwelling House on premises and left with some one there. Upon the termination of this agreement by non-payments as aforesaid or a breach of any of the other covenants, the said parties of the second part shall waive all further notice and vacate the said premises within thirty days and all payments made shall be considered as rental for said premises for the time occupied.” It also set forth that it was orally agreed that the said lots contained a frontage of sixty feet, and that, as a matter of fact, a dwelling-house “in the possession of one Hugh J. Hughes extends into and upon said lot No. 357 for a distance of eighteen feet,” and that by reason of said encroachment, defendant was not able to convey the lots with the sixty feet frontage as agreed. It set forth various payments under the agreement and payments of taxes, insurance, water rents, repairs, &c., and that, on Friday, Oct. 1, 1926, plaintiffs tendered to defendant the sum of $3056.26 and demanded a deed for the premises, and that on said day plaintiffs rescinded the written contract and demanded repayment of the various sums of money which they expended. These various expenditures are carefully itemized in the statement. Having in mind the $50 down-money that was to be paid at the time the agreement was entered into and calculating the various payments due Oct. 1, 1926, it would seem as if the plaintiffs were short $50 in the sum that was due from them to the defendant on that date. Certainly there is no averment that they tendered the defendant the cost of drawing and executing the deed, nor do we find in the statement any general expression that they have in all respects complied with the terms of the contract, or words to that effect. The tender of this amount under the contract was incumbent on the plaintiffs and we can find no reference to it in the statement. That the amount is significant, see Shamlian et al. v. Waxman, 80 Pa. Superior Ct. 73. It is also to be observed that the statement nowhere sets out that the plaintiffs surrendered the premises to the defendant, nor does it aver that they served any notice on the defendant of their intention to rescind the contract. The record shows this suit was commenced on Oct. 14, 1926. The statement does not show when the property was vacated by the plaintiffs, hut the affidavit of defence states that they continued to occupy the premises after the institution of the suit up until Oct. 30, 1926. That the plaintiff must not be in default was held in many cases. In Irvin v. Bleakley, 67 Pa. 24, the syllabus is: “A party in default has no right to insist upon rescission. A vendee cannot insist upon a rescission on the ground of encumbrances when he owes unpaid purchase money sufficient to discharge them. A vendor is not bound to remove encumbrances unless upon demand of the vendee for performance, and at the same time showing a readiness to perform his part.” See, also, Boyd v. McCullough, 137 Pa. 7, and Sanders v. Brock, 230 Pa. 609. In Holt’s Appeal, 98 Pa. 257, the syllabus is: “Where articles of agreement are entered into for the sale of land, the purchase money to be secured and the deed to be executed and delivered within a fixed time, the vendees are not entitled, after having allowed more than the fixed period to elapse, to make such tender and demand, and, on the vendor’s failing to execute and deliver the deed at once, to rescind the contract. The vendees must, in such case, give the vendors full notice of their intention, and cannot rescind until after the expiration of a reasonable time for performance.” See page 270 for a discussion by Mr. Justice Gordon as to the effect of continued occupancy of the premises and the obligation to give a reasonable time to the defendant. In Burchfield v. Alpha Process Co., 45 Pa. Superior Ct. 254, which was a contract for the delivery of an engine, the syllabus is: “Where the time fixed by a contract within which the agreement is to be carried out is permitted to pass, both parties concurring, the time of performance thereafter becomes indefinite, and one party cannot rescind until full notice and a reasonable time for performance is given; what is a reasonable time is a question for the jury.” That case was referred to in Young v. U. S. Housing Corporation of Penna., 86 Pa. Superior Ct. 341, a case similar to the present one. It was there held: “In an action to recover money paid on account on the sale of real estate, it is error to direct a verdict for the plaintiff where the evidence fails to establish that the vendee, before attempting to rescind the contract, placed the vendor in the same position he was before the sale. In such action the very first thing to be done, after showing that the plaintiff parted with a valuable consideration in pursuance of the contract alleged, is to show that the plaintiff has rescinded the contract by doing or offering to do all that was necessary and reasonably possible to restore the parties to the condition in which they were before the contract, and then show that he had good ground to rescind it. This is the order demanded by the very nature of the action. Where one has agreed to purchase certain real estate from a ‘selling agent,’ and has entered into possession and granted a lease thereon, he cannot rescind and at the same .time retain possession. Possession cannot be delivered to persons who had no authority to accept the rescission of the contract. Under such circumstances, plaintiff’s case fails for want of an offer to restore the status quo, and there can be no recovery.” It would thus seem to be a serious matter whether, under the above authorities, plaintiffs are entitled to recover, and, as we are at present advised, we would not enter a judgment on the statement. However, the statement of claim avers as a ground for rescission the encroachment of another building on the premises agreed to be conveyed. It is true that the affidavit of defence, in paragraph after paragraph, is subject to the criticism that it does not conform to the rules laid down in the leading case of Buehler v. U. S. Fashion Plate Co., 269 Pa. 428. Nevertheless, it is not deficient with reference to the crucial matter in dispute. The issue must be confined to that alleged encumbrance: Haney v. Hatfield, 241 Pa. 413. The fourth paragraph of the statement alleges an oral agreement that the total frontage was to be sixty feet. That oral agreement is denied in the affidavit of defence. The seventh, eighth, ninth and tenth paragraphs of the statement contain the averments with reference to the double house erected on the eighteen feet, and the latter paragraph contains the averment that the defendant is unable to convey this property. The eighth, ninth and tenth paragraphs of the affidavit of defence, while admitting the erection of the building and the possession of the building, nevertheless aver that the title 'to the lots on which the building is at all times and is at the time of the execution of the agreement in the defendant. That averment sets up a matter of fact, which we must assume to be true, and that fact, together with the denial of any oral agreement, must be determined by a jury. The criticism of the learned counsel for the plaintiffs is well founded that many of the expressions in the affidavit of defence are too general. For illustration, take the twenty-seventh: “That the defendant avers that the said plaintiffs did not perform the terms and conditions of the agreement marked .Exhibit ‘A’ of the plaintiffs’ statement of claim.” The twenty-eighth and twenty-ninth paragraphs are to the same effect. Good pleading requires that the matters which the defendant alleges the plaintiffs had defaulted in should be set out specifically.

On the argument, it was stated that the defendant claimed the various sums mentioned in the statement as payments on the principal as rental, and that the denial of liability was based on the last clauses of the contract quoted in full above. It seems to be the law that the defendant herein could not compel the plaintiff to pay rent, and that he could not set off the sums paid to be considered as rent in the absence of an agreement: Bardsley’s Appeal, 20 W. N. C. 90; but it is equally well settled that the vendor and the vendee can enter into an agreement such as the one in suit, by which the vendee will lose all claim to moneys paid on account of the contract and the vendor can hold them as rental: Vito v. Birkel, 209 Pa. 206; Weaver v. Griffith, 210 Pa. 13; Cape May Real Estate Co. v. Henderson, 231 Pa. 82. We find no unequivocal statement in the affidavit of defence that the defendant herein, at the time when the plaintiffs tendered the balance which the plaintiffs thought was due to the defendant, declared that he claimed the moneys paid as rental; nor do we find any such, claim made prior to the affidavit of defence averred in it. The above authorities seem to require such a declaration to be made. Query: Did the rescission of the plaintiffs relieve the defendant from stating his position with respect to the money paid? What was the reason the defendant did not accept the tender and notify the plaintiffs that he would have the Hughes house removed from the lot? These inquiries naturally present themselves to our mind and will present questions to be determined on the trial. On the argument, the learned counsel for the defendant asked leave to amend his affidavit of defence by inserting a counterclaim based on the allegation that the plaintiffs had left the premises in d>ad repair when they vacated. We declined to consider this matter as the record stands. There are far too many questions already involved without adding another complexity based upon an oral application.

And now, March 7, 1927, rule for judgment for want of a sufficient affidavit of defence is discharged.

From Henry D. Maxwell, Easton, Pa.