author: Kun, J.,

text:
    Kaplan et al. v. Bagrier et al.

      H. Arronson, for plaintiffs; H. B. Borneman, for defendants.

      Oct. 4, 1929.
   Kun, J.,

The plaintiffs, in pursuance of the provisions of section 9 of the Arbitration Act of 1927, P. L. 381, have moved to confirm an award made in their favor.

The plaintiffs, the Hebrew Master Bakers Association of Philadelphia, constitute a voluntary unincorporated association composed of thirty-two members who are engaged in the business of manufacturing bakery products in the City of Philadelphia. For the sake of brevity, the plaintiffs will hereinafter be referred to as the “Association.”

The defendants, the Bakers’ Union Local No. 201, constitute a voluntary unincorporated association, having a charter from the Bakery and Confectionery Workers’ International Union of America, composed of various employees engaged in the baking industry in the City of Philadelphia. The defendants will hereinafter be referred to as the “Union.”

The Consumers Baking Company is a corporation organized under the laws of the State of Pennsylvania, and has been since 1921 engaged in the business of manufacturing bakery products at No. 1117 South Randolph Street, in the City of Philadelphia. The Consumers Baking Company will hereinafter be referred to as “Consumers.”

The Consumers is a co-operative bakery owned, managed and controlled by the defendants.

On May 1, 1928, in the City of Philadelphia, the Association and the Union entered into a written collective bargaining agreement, a full copy of which appears as Exhibit A attached to the petition to confirm the award filed in this case. The avowed purpose of the agreement was to have the Union furnish to members of the Association union employees and defining at the same time wages and working conditions and the nature of the work to be performed by the employees, members of the Union. The agreement furthermore provided in Article XI thereof, under the heading “Duties of the Board of Adjustments under the Collective Bargaining in this Agreement,” as follows: “There shall be formed under this Agreement a permanent Board of Adjustment, such Board to consist of eleven members; five representatives of the Union, five representatives of the Association, and Adolph Rosenblum, to act as Impartial Chairman, with the power to render final decisions. Such Board shall function and act from the period commencing May 1, 1928, until April 30, 1929.

“It is further and mutually agreed that the questions, matters, complaints which shall be presented to the Board of Adjustments for decision shall be as follows:

“(a) Alleged violations of this agreement.
“(b) The determination of the true intent and meaning of any part of this agreement.
“(c) The adjustment of any and all grievances between the Union and members of the Association, between the Union and the Association, and members of the Union and members of the Association.
“(d) To finally settle and adjudicate all appeals that should be taken by any party who feels himself aggrieved by the decision of the Executive Board of the Union, or by any decision of the Association, provided, however, said decision affects the Association or any member of the Association.”

At the same time when the agreement was signed by the Union and by every member of the Association, a collateral agreement was executed by the Union and by the Association which provides in a general way that the collective bargaining agreement signed by the Union and by each of the constituent members of the Association shall remain in the possession of Adolph Rosenblum, the Impartial Chairman, until such time as the arbitration board, consisting of Isaac Dornblum, representing the Association, and Morris Poulin, representing the Union, will render its decision with reference to the complaint of the constituent members of the Association and of the Association concerning the activities of the Union in the conduct and operation of the Consumers. The agreement further provided that if the board composed of Isaac Dornblum and Morris Poulin failed to arrive at a satisfactory understanding, an arbitrator was to be selected, whose decision was to be binding upon the Association, its constituent members, the Union and the Consumers.

The collateral agreement also provided: “It is further agreed and understood that the Bakery & Confectionery Workers Local No. 201 assumes full responsibility for the Consumers Baking Company in this agreement.”

Messrs. Dornblum and Poulin held a number of meetings; they were unable to arrive at a satisfactory disposition of the controversy, and thereupon they called in Dr. Jacob Billikopf, who agreed to act as arbitrator, after having been assured by the Union and by the Association that the decision that would be rendered by him would be lived up to by the Association and by the Union in act and in spirit.

Doctor Billikopf made his decision on July 23, 1928, and in a general way he decided that it was impractical and undesirable for the Union to conduct the Consumers as an enterprise competing against the members of the Association, all of whom employ Union help. He ordered that the Consumers discontinue the baking of rye bread by Dec. 31, 1928, and that a committee be forthwith appointed, composed of members of the Association and of the Union, to facilitate the execution of his decision.

Shortly after the decision was rendered by Doctor Billikopf, the Association called upon the Union to appoint their representatives upon the committee referred to by Doctor Billikopf in his report. At a meeting called, which was attended by representatives of the Association and representatives of the Union, the Union expressed its unwillingness to discontinue the baking of rye bread, and submitted an alternative proposition that the Union would sell out all its interest in the Consumers, and that the Consumers would cease the baking and distribution of any food products on and after Dec. 31, 1928. The Association accepted the suggestion made by the Union.

It appears that no active steps were taken by the Union to dispose of the plant owned by the Consumers, and thereupon a complaint or grievance was filed by the Association against the Union with the Board of Adjustments provided for in Article xx of the collective bargaining agreement described above. The complaint of the Association was:

(a) That the agreement of May 1, 1928, between the Union and the Association was violated, in that the Union, acting through the Consumers, did not carry out, nor were they taking any steps to carry out, the decision of Dr. Jacob Billikopf, which was rendered on July 23, 1928.

(b) That to permit the Union, acting through the Consumers, to carry on a business competitive with the members of the Association was in violation of the true intent and meaning of the agreement of May 1, 1928.

(c) That certain practices had been indulged in by members and officers of the Union, acting through the Consumers, which were inimicable to the best interests of employer and employee.

A meeting of the Board of Adjustments took place on Nov. 19, 1928, at 3 o’clock P. M., at No. 509 South 5th Street, Philadelphia, at which time and place the various matters pertaining to the grievances aforesaid were taken up and considered. The meeting was adjourned to Nov. 26, 1928, at 3.30 P. M., and thereafter the meeting was again adjourned to Dec. 29, 1928, at No. 509 South 5th Street, Philadelphia, at which time and place the complaints of the Association against the Union were again discussed and debated.

At each of these three meetings representatives of the Association and representatives of the Union, authorized to act on behalf of their respective members, were present and testimony was orally heard with reference to the grievances presented. Thereafter, the Board of Adjustments having heard all that could be said one way or the other pertaining to the grievances submitted by the Association to the Board of Adjustments for disposition, the Board of Adjustments did, on Jan. 16, 1929, hand down its findings and award, under the hands and seals of a majority of the Board of Adjustments, a copy of which, marked Exhibit B, is attached to the petition filed by the Association for the confirmation of the award.

Immediately thereafter, on Jan. 16, 1929, Adolph Rosenblum, the Impartial Chairman of the Board of Adjustments, delivered a copy of said written findings and award to each one of the parties to the contention.

The conclusions of the Board of Adjustments provided:

(a) That immediate bona fide efforts should be made and proper steps be taken by the Union, the owners and proprietors of the Consumers, to make an immediate sale and disposition of the assets of the Consumers.

(b) That on and after April 1, 1929, the Union, operating the Consumers by its servants, agents and employees, should not manufacture, sell or distribute any bakery products; and

(o) The Union should pay to the Association damages in the sum of $250 per day for each and every day or fraction thereof that the Consumers shall manufacture, sell or distribute bakery products on or after April 1, 1929, or on or after April 15, 1929, should an extension be granted by the Impartial Chairman under the conditions mentioned in the conclusions and order.

The “Conclusions and Order” of the decision of the Board of Adjustments furthermore provided: “Should any provision of this award be found contrary to law, such finding shall in no way affect the other provisions of this award and decision, which shall, notwithstanding, continue in full force and effect.”

The Association, in April, 1929, applied to this court for an order confirming the award of the Board of Adjustments, under the provisions of section 9 of the Act of April 25, 1927, P. L. 381 (1928, West Publishing Company, Pennsylvania Statutes, Cumulative Supplement, page 72).

The Union filed an answer to the motion made for the confirmation of the award, admitting substantially all of the facts set forth in the petition for the confirmation of the award, but raising certain objections, which will be discussed during the course of this opinion.

Arbitration is intended to be a short cut to substantial justice between parties. In earlier times, the courts were disposed to look with disfavor on arbitration and to give it as little force as possible, but later, more intelligent judicial sentiment has construed it favorably. The mode of settling controversies by arbitration has in modern times become peculiarly the favorite of the law, and the ancient niceties and technicalities applied to it have given way to a more rational and liberal construction, with a view to encourage and sustain this mode of preventing or putting an end to litigation. The practice of settlement of disputes by arbitration is encouraged by the courts. As was said in Horne v. Welsh, 35 Pa. Superior Ct. 569: “Submissions of disputes to arbitrators are favored by the law, and approved by the enlightened sentiment of the world at large.” The policy in Pennsylvania, it was said in one case, has been to encourage arbitration, and the courts have inclined to construe liberally the acts of assembly relating to it: Bingham’s Trustees v. Guthrie, 19 Pa. 418.

This favorably attitude found expression in the Act of April 25, 1927, P. L. 381, by which a simple method of procedure relating to arbitration was adopted by the legislature.

Section 1 of the Act provides: “A provision in any written contract, except a contract for personal services, to settle by arbitration a controversy thereafter arising out of such contract or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more parties to submit to arbitration any controversy existing at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Section 9 provides that “At any time within one year after the award is made any party to the arbitration may apply to the court having jurisdiction for an order confirming the award, and thereupon the court shall grant such an order, unless the award is vacated, modified or corrected as prescribed in the next two sections.”

Section 10 provides that the court shall make an order vacating the award upon the application of either party:

(a) Where the award was procured by corruption, fraud, or undue means.

(b) Where there was evident partiality or corruption on the part of the arbitrators, or any of them.

(a) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced.

(d) Where the arbitrators exceeded their powers or so imperfectly executed them that a final and definite award upon the subject-matter submitted was not made.

Section 11 relates to modification and correction of awards, under certain stated circumstances and conditions.

It is contended by counsel for the Union that the contract of May 1, 1928, between the Association and the Union relates to personal services, and, under the circumstances, the provisions of the Arbitration Act of 1927, above referred to, do not apply to the matter in controversy.

The matter in controversy between the Association and the Union arises, however, out of the provisions of an instrument between an association of employers and a labor union, and the contract which is before the court is what is commonly known as a Collective Bargaining Agreement.

The term “collective bargaining” is used to denote the negotiation of terms and conditions of employment between an organization acting on behalf of employees and an employer, or association of employers, in contradistinction to bargaining between an employer and an individual employee: Oakes, Organized Labor and Industrial Conflicts, § 201, page 220.

It is impossible to frame a definition of the words “personal service” in phraseology which would be so comprehensive as to embrace all the various shades of meaning which it bears in judicial language and in statutory provisions. The essential and characteristic element of a contract of personal service as contrasted with a collective bargaining agreement is, however, sufficiently marked to enable a proper interpretation of the term in our statute. Where one person is employed to do certain work for another, who, under the express or implied terms of the agreement between them, is to have the right of exercising control over the performance of the work to the extent of prescribing the manner in which it shall be executed, the employer is the master, and the work to be performed constitutes personal services: Morgan v. Bowman, 22 Mo. 538; Eversley on Domestic Relations, 859; 1 Labatt Master and Servant (2nd ed.), 19. It is to be presumed that the descriptive term “personal service” was used in section 1 of the Arbitration Act in its ordinary and commonly accepted meaning as applicable to a situation where one performs personal services; that is to say, having reference to a servant or employee who voluntarily agrees to subject himself at all times during the period of service to the control, orders and directions of another, his employer, with reference to certain services to be performed. There is no personal service element in the contract of May 1, 1928, in so far as the rights and obligations of two groups, the Union and the Association, are concerned. The contract is not confined to the usual relationships between master and servant, but has a much wider and broader scope, being a collective bargaining agreement intended to fix certain rights and obligations between the two groups mentioned, one the group of employers and the other the group of employees, for their mutual interests. It is not a direct personal service contract within the contemplation of the exception in the act.

The matter in controversy is not at all concerned about any question of personal service, but arose out of the question whether the Union’s action as a group in- conducting an enterprise through a corporation in competition with their employers was subversive of their mutual interests.

Contracts between employers and a labor union must be given a reasonable construction so as to maintain their entire validity, if possible: Nederlandsch v. Stevedores, 265 Fed. Repr. 397 (1920). See, also, Birdseye on Arbitration and Business Ethics, page 128, and Curran v. Philadelphia, 264 Pa. 111, at page 120.

There is no merit in the contention of the Union that the award of the Board of Adjustments decides an issue which was not submitted. The pleadings in the case indicate the nature and character of the complaint. The details thereof are stated in the earlier portion of this opinion. The issue that was to be decided by the arbitrators related to the activities of the Union, in that it conducted and operated a competitive co-operative bakery. The submission was oral. Both parties participated in the arbitration proceedings. The Union, therefore, is estopped to raise any question as to the propriety of the submission: 5 Corpus Juris, § 14, page 22; Lobb v. Lobb, 26 Pa. 327.

It is within the jurisdiction of the court to determine whether this is such a controversy as the parties have agreed to arbitrate; and where the question is technically close, the court will give effect to the agreement in a more liberal sense, as tending to accomplish a final settlement of the existing controversy.

The Union proceeded to introduce evidence at, and did proceed with, the three arbitration hearings discussed in the award of the arbitrators. It is clear to the court that the Union should not be permitted to upset the award on the alleged ground that the arbitrators awarded on a matter not submitted. See Priore v. Schermerhorn, 237 N. Y. 16 (1923); 142 N. E. Repr. 337.

Paragraph 13 of the petition for the confirmation of the award clearly and distinctly avers that a complaint was filed. The nature and character of the complaint is set forth in the award of the arbitrators. Notice was served, meetings were held, participated in by both sides, and testimony was taken. There is no allegation in the answer filed by the Union that the question which was submitted to arbitration was the one which the arbitrators did not determine or decide.

Paragraphs 11 and 15 of the findings of the Arbitration Board clearly state the contentions of both parties. The Association contended that the Consumers should be closed down on Jan. 1, 1929, in accordance with the agreement made by the Union, which owned and operated the Consumers. The Union sought an extension for a period of six months from Jan. 1, 1929. This was objected to by the representatives of the Association. The issue which was decided by the arbitrators related to the activities of the Union in conducting the operation of the Consumers. The award of Jan. 16, 1929, was the result of the submission. The award did not go beyond the submission in any respect, neither did it undertake to decide matters which were not referred to the arbitrators. The arbitrators decided the things submitted to them and nothing more. See Practice of Commercial Arbitration, page 60. Although an agreement to arbitrate may not be binding, yet if the parties submit the controversy to arbitration, the award is binding unless affected by fraud, partiality or other improper conduct of the arbitrators: Sloan v. Standard Chemical Co., 256 Fed. Repr. 451; 167 C. C. A. 579. And it was also held that an award made pursuant to a submission to arbitration of a dispute will be binding whether the matter submitted did or did not afford a legal cause of action: Saengerbund v. Dunn, 41 Tex. Civ. App. 376, 92 S. W. Repr. 429.

There is no provision in the Arbitration Act authorizing the court to vacate an award because it is against the weight of the evidence or because, perchance, there is no evidence to support it. An arbitration, while it partakes of the nature of a quasi-judicial proceeding, is not such a proceeding in the technical sense. The disputants select their own judges. The object of the arbitration is to arrive at a determination of the matter in dispute and finally dispose of the same in a speedy and inexpensive way. Where the evidence is close, the arbitrators are the sole judges of its weight and what decision should be made. If their decision is against the weight of the evidence or if there is no evidence to support it, it may still be found upon the principles of equity and good conscience and the court is powerless to review the action of the arbitrators on a motion to confirm the award. See Everett v. Brown, 120 N. Y. Misc. 349 (1923); Starr v. McNeal, 253 Pa. 98, particularly the opinion of Barratt, P. J., and Itoh v. Boyer, 198 App. Div. 881 (1921), 191 N. Y. Supp. 292, where Smith, J., said: “The courts have uniformly held that any finding of fact or conclusion of law of an arbitrator will not be reversed. . . , The merits of award, however unreasonable or unjust it may be, cannot be reinvestigated, or otherwise the award, instead of being the end of the litigation, would simply be a useless step in its progress. . . . Code sections state the grounds on which an' arbitration award may be vacated or modified; vacated for fraud, partiality, misconduct or exceeding powers; modified for evident miscalculation of figures, mistake of person or matter, or imperfection of form.”

Then, too, the courts will not allow a party to speculate on the results of the arbitration. If he has grounds or desires to repudiate his submission, he is bound to do so before the result is known and he has been defeated: Hewitt v. Lehigh & H. River R. Co., 57 N. J. Eq. 511, 42 Atl. 325. A party who goes to trial before arbitrators and takes his chances of a favorable award is conclusively bound by an award against him: Bingham v. Guthrie, 19 Pa. 418.

The Union also contended that the award is not binding on the Consumers, which did not execute the agreement of May 1,1928. It is clear from the findings in the award of the arbitrators that the Union is an unincorporated association; that the Consumers is a Pennsylvania corporation, and that the Consumers is owned, managed and controlled by the Union.- In.other words, we have one group of persons operating as two separate entities; first, as an unincorporated association; and, second, the same group operating as a corporation known as the Consumers. As hereinbefore noted, the collateral agreement between the parties provided that the Union “assumes full responsibility for the Consumers Baking Co. in this agreement.” If the award be carefully examined, it will be seen that it was directed against the Union, which owns, controls and operates the Consumers.

The effect of the award is to bring pressure to bear on members of the Union which will ultimately affect the operations of the Consumers.

The fiction that the corporate existence and corporate functions are distinct from that of stockholders ... is introduced for convenience and to sub-serve the ends of justice; but when invoked in support of an end subversive of its policy should be and is disregarded by the courts: Southern Electric Securities Co. v. State, 91 Miss. 195 (1907), 124 Am. St. Reps. 638, 44 So. Repr. 785, 1 A. L. R. 610.

It is said by Morawetz, in his book “Private Corporations,” § 227: “The statement that a corporation is an artificial person or entity, apart from its members, is merely a description in figurative language of a corporation viewed as a collective body; a corporation is really an association of persons, and no judicial dictum or legislative enactment can alter this fact.” See Buffalo Loan, Trust & S. D. Co. v. Medina Gas & E. L. Co., 12 App. Div. 199 (1896), 42 N. Y. Supp. 781. Also, Kendall v. Klapperthal Co., 202 Pa. 596 (1902), in which it is said: “But it is well understood that for purposes of equity courts will look behind that artificial personality and, if need be, ignore it altogether and deal with the individuals who constitute the corporation (Rice’s Appeal, 79 Pa. 168; Montgomery Web Co. v. Dienelt, 133 Pa. 585; Pennsylvania Knitting Mills v. Bibb Mfg. Co., 12 Pa. Superior Ct. 346; Gas Co. v. West, 50 la. 16).” See, also, 14 Corpus Juris, 59, and 7 Ruling Case Law, § 4, page 27.

The stockholders of a corporation are distinct from the corporation itself, but an injunction against their doing a specified act is violated if they cause or aid the corporation to do that act: King v. Barnes, 113 N. Y. 476 (3 Cook on Corp., §§ 663, 664). See, also, Elliott on Private Corp., § 10, page 14.

It follows, therefore, that the award is not defective because directed against certain acts or certain conduct on the part of the individuals constituting the Union, who, at the same time, operated. the Consumers and for which it specifically assumed full responsibility. The award would be effective to prevent their use of a corporate entity for the purpose and to the end of destroying the effect and intent of a proper award.

Section 4 of the conclusions and order of the award of the arbitrators is as follows: “The Union shall pay to the Association damages in the sum of Two Hundred and Fifty Dollars per day for each and every day or fraction thereof that the Consumers Baking Company, acting through its servants, agents, officers, stockholders and employees, shall manufacture, sell and distribute bakery products on and after the 1st day of April, 1929, or after April 15, 1929, should an extension be granted by the impartial Chairman under the circumstances mentioned in the third finding hereof.”

The Union contends that the arbitrators exceeded their power and authority in making the award against the Union for damages should the Union violate the order and award of the arbitrators. Counsel for the Association has with a great deal of force and earnestness argued to the contrary and has called our attention to a number of cases and authorities which upon their surface may lend color and weight to this contention.

The court, however, after a careful study of the cases and argument of counsel, has concluded that the clauses in the collective bargaining agreement relating to arbitration did not authorize the “Board of Adjustments” to make an award before any damages had in fact been sustained. By section 4 of .the conclusions and award of the Board of Adjustments, above quoted, the arbitrators made an award, not for damages which the Association had sustained, but for those which the arbitrators supposed the Association would sustain in the event the Union would not carry out its award. Such an award is premature and void. See Allen v. Galpin, 9 Barb. (N. Y.) 246; 5 Corpus Juris, § 323, page 134.

Originally, it seems, an award which was bad in part was considered altobether bad. But from an early day it has been the general rule that an award which is good in part and bad in part will be sustained as to that which is good, if the two parts are severable — if the void part is not necessary to the finality of the award under the submission, or if it be not the consideration of the thing awarded to be done on the other side: 5 Corpus Juris, 156; Wynn v. Bellas, 34 Pa. 160; Babb v. Stromberg, 14 Pa. 397; Richter v. Chamberlin, 6 Binn. 34. See 2 Ruling Case Law, § 39, page 397.

Whether the decision of the arbitrators whom the parties chose as their tribunal was or was not economically sound is a matter with which the court is not concerned. It is to be noted that the provisions of the Arbitration Act relating to the confirmation of an award leave no discretion to the court. It prescribes (section 9) that the court shall confirm the award, unless such award has been vacated, modified or corrected: Everett v. Brown, 120 N. Y. Misc. 349; 198 N. Y. Supp. 462.

As was well said by Judge Andrews in Kelley et al., 240 N. Y. 74, 147 N. E. Repr. 363 (1925): “As to the merits between the parties, neither we nor the courts below are concerned. That is solely for the arbitrators to determine, if arbitration there should be.”

The court, therefore, enters the following order:

That section 4 of the conclusions and orders of the arbitrators is stricken out; and, with this modification, the rule to show cause why the award should not be affirmed is made absolute, and judgment is now entered in favor of the plaintiff against the defendants.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    Dion Business Exchange v. Maus.

      E. Tolen, for plaintiffs; G. F. Blewett, for defendant.
    July 2, 1929.
   Martin, P. J.,

In this action of assumpsit a statement of claim was filed, averring that the defendant employed plaintiffs to procure a purchaser for a property located at No. 2101 Stenton Avenue, in the City of Philadelphia, where defendant conducted a grocery and provision business. The agreement of employment provided that plaintiffs were to receive 5 per cent, of the purchase price for which the property, good-will, stock and fixtures were sold.

The statement averred that plaintiffs procured a purchaser who agreed to pay defendant $18,000 and the market price for the stock in the store, and that defendant agreed to accept this price; that the agreement of sale was. verbal on the evening of Jan. 23, 1929, but the parties agreed to meet at the office of plaintiffs on the following morning and reduce the verbal agreement to writing; that on the next morning the purchaser appeared, ready and willing to execute a written agreement confirming the verbal agreement entered into with defendant on the previous evening, but defendant notified plaintiffs that he had changed his mind, and refused to sell the property and business.

It is further averred that the reasonable market value of the stock in defendant’s place of business was $2000; that, after defendant refused to complete the sale, plaintiffs demanded payment of the sum which defendant agreed to pay for the services in procuring a purchaser, but defendant failed to pay the amount demanded.

An affidavit raising questions of law was filed by defendant, in which it was alleged that the contract between plaintiffs and defendant, a copy of which was attached to the statement of claim, was not a valid and enforceable contract, in that it was oral, and nothing was given to bind the contract; that plaintiffs were not entitled to recover except upon a valid and legal agreement, and that no valid legal agreement had been entered into between the purchaser and defendant; that there was no averment of delivery of possession to bind the oral contract of sale; that no contract was entered into between the purchaser and defendant; that the statement of claim failed to set forth a breach of contract; that the measure of damages set forth in the statement of claim is improper and not in accordance with the terms of the contract; and that no valid and proper item of damages was set forth in the statement of claim.

Plaintiffs undertook to procure a purchaser for the property belonging to defendant, at a price satisfactory to him. They did not guarantee that the contract would be carried out by the vendor.

The averments of the statement of claim must be accepted as true, that plaintiffs procured Abraham Newman, who agreed to pay defendant a price that defendant agreed to accept for the real estate, good-will and fixtures of the business, and the market price for the stock; that defendant entered into a verbal agreement to sell, and Newman agreed to purchase for $18,000, and was ready and willing to execute a written agreement in confirmation of the verbal agreement entered into on the previous evening, but that defendant refused to complete the sale.

Plaintiffs performed their part of the contract of employment. They procured a purchaser who was ready and willing to accept the property at the price upon defendant’s terms. Defendant cannot refuse to carry out his bargain and escape liability to plaintiffs for the services which they have rendered him.

And now, to wit, July 2, 1929, the affidavit of defense raising questions of law is not sustained. Defendant is given fifteen days to file a defense to the averments of fact in the statement of claim.


author: Bkownson, P. J.,

text:
    Commonwealth, to use, v. Turri.
    Before Brownson, P. J., and Cummins, J.

      Joseph J. Benedict, for plaintiffs; Witherspoon & Devore, for defendant.
    Jan. 28, 1929.
   Bkownson, P. J.,

In this suit, brought upon a forfeited recognizance in a criminal case, the legal plaintiff is the Commonwealth, and two use-plaintiffs are named — Catherine Bautz appearing by her next friend, A. J. Bautz, and A. J. Bautz appearing in his own right. These two use-plaintiffs apparently are claiming the whole of the recognizance moneys, whereas the county in which the forfeiture took place probably has a claim also for a part of those moneys; but this situation does not affect the regularity of the proceeding, and is not an obstacle to the entry of a judgment against the defendant, because in such a case, upon collection of the moneys by execution, they will have to be brought before the court for distribution, and, under the statute governing cases of this kind, the court must then ascertain who may be entitled to share in such distribution and the amounts of their respective claims, so that “the designation of the plaintiff is not material in this issue,” i. e., for the purposes of the issue as to whether the recognizor owes the moneys for which the recognizance was given to the legal plaintiff, the Commonwealth: Com. v. Balsamo, 72 Pa. Superior Ct. 182.

The only other question raised by the motion to strike off the amended statement of claim that requires any remark is whether sections 25 and 26 of the Act of July 30, 1842, P. L. 449, have been repealed by the Act of May 18, 1911, P. L. 309. Those sections regulate the procedure and practice in the matter of the collection of forfeited recognizances given in criminal cases, and the distribution of the recognizance moneys when collected.

The Act of May 18, 1911, established a code for the regulation and government of the public school system of the Commonwealth. It is entitled “An act to establish a public school system in the Commonwealth of Pennsylvania, together with the provisions by which it shall be administered, and prescribing penalties for the violation thereof; providing revenue to establish and maintain the same, and the method of collecting such revenue, and repealing all laws, general, special or local, or any parts thereof, that are or may be inconsistent therewith.” At the end of the statute appears a “repealing clause,” in which is listed, among those repealed, the Act of July 30, 1842, by giving its title and date and a reference to the page in the Pamphlet Laws where it is printed. No particular section or sections of the Act of 1842 are mentioned, and the words in which the Act of 1842 is mentioned would, when considered alone and by themselves, indicate an intent to repeal the entire act.

We have no doubt, however, that this was not the actual intention of the legislature, as manifested by the act when considered as a whole. The occasion and purpose of this repealing clause, and the reason which led to its enactment, are stated in words which appear at the beginning and the close thereof, as follows:

“This Act of Assembly is intended as an entire and complete School Code for the public school system in this Commonwealth, hereby established in every school district therein, and the following acts, or parts of acts, to wit [then listing them]. Together with any and all other Acts of Assembly, general, special or local, or parts thereof, that are in any way in conflict or inconsistent with this act, or any part thereof, shall, at the time of the taking effect of this act, be and the same are hereby repealed.”

The purpose of the repealing clause, as thus clearly manifested therein, is to do away with all acts or parts of acts inconsistent with or supplied by the regulations established by the new School Code, and the same purpose is shown in the title. This being so, we think it plain that there was no actual legislative intent to interfere with any prior enactments having no connection with and not germane to the public school system, or to affect prior statutes, in so far as they deal with matters not within the scope of the Act of 1911 and are not inconsistent with its provisions. A part of the Act of 1842 (being the only part the subject-matter whereof is mentioned in its title) deals with education, but sections 25 and 26 are part of the system of laws regulating criminal procedure, providing the method of enforcing and collecting forfeited recognizances in all criminal cases. The Act of 1911 contains no provisions respecting the enforcement of such recognizances, even those given in prosecutions for the new offenses which that act creates, and there is absolutely no inconsistency between these two sections and any part of the Act of 1911. Moreover, the prosecution, in the course of which this recognizance was given, was for an offense having no relation whatever to the public school system. Notwithstanding the fact that the repealing clause mentions no particular sections, but only the act as an act, whereas in the case of some other statutes particular sections are specified, we believe that a repeal of the sections in question, so as to prevent them from continuing to regulafe cases like the present one, is not within the true intent, meaning and purpose of the Act of 1911, as manifested by the statute as a whole. Although a thing may be within the letter, it is not within the statute if not within the manifested intention and purpose of the legislature: Henry v. Morgan, 2 Binn. 497; Com. v. Cuyler, 5 W. & S. 275; Koontz’s v. Howsare, 100 Pa. 506.

But suppose it should have to be held that the purport and intent of the words used in the Act of 1911 do embrace a repeal of sections 25 and 26 of the Act of 1842, then we should have to hold, also, that such repeal is constitutionally invalid. The constitutional requirement, in force now and when the Act of 1911 was passed, is that “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”

If a repeal of sections 25 and 26 was a part of the purpose of the Act of 1911, then the act would offend against this constitutional provision in two particulars: First, the act would embrace two distinct and unrelated subjects, (a) the public school system, and (b) the system of criminal procedure, not merely in cases of violations of the School Code itself, but generally in cases having no relation whatever to the school system. And, secondly, the title of the Act of 1911 would then be an insufficient and misleading title. It gives notice that the laws which are to be repealed are those whose place it supplies and such as “are or may be inconsistent” with this statute, and gives no notice whatever that any laws or parts thereof having absolutely nothing to do with its subject-matter, and being thus entirely incapable of being “inconsistent therewith,” are to be affected. See Union Pass. Ry. Co.'s Appeal, 81½ Pa. 91; Brown’s Estate, 152 Pa. 401; Com. v. Arguello, 7 Wash. Co. Reps. 17. We believe, however, as already indicated, that the repealing clause of the Act of 1911 is capable of being interpreted in such a way as to make it constitutional.

The specific question now for determination being whether an enactment contained in the Act of 1842, which provides how suits may be instituted for the collection of recognizances forfeited in criminal cases, has been repealed by the Act of 1911, so as to be inapplicable to the case at bar, we hold that such repeal has not been effected. We may add that in Com. v. Balsamo, supra, although the question does not seem to have been raised and argued, the Superior Court treated the Act of 1842 as still in force, in so far as applying to and regulating cases such as the present one.

And now, Jan. 28, 1929, the rule granted is discharged.

From Harry D. Hamilton, Washington, Fa.


author: Gest, J.,

text:
    Johnson’s Estate.

      Michael J. Geraghty, for petition; Saul, Ewing, Eemick & Saul, for trustee.
    Nov. 1, 1929.
   Gest, J.,

The testator in this case, after disposing of his personal estate, devised his real estate, which consisted of premises No. 133 West Apsley Street, to the Real Estate Title Insurance and Trust Company in trust to collect the rents, pay taxes, etc., and to pay. the residue of the income to Mary A. Johnson, wife of Prank P. Johnson, during the term of her life for her sole and separate use, and upon her death he devised the premises to such persons as Mary A. Johnson should, by her last will and testament, have appointed devisee or devisees thereof. The testator then provided: “Said Trustee shall sell any or all of said real estate at any time during the natural life of the said Mary A. Johnson, if in her judgment and discretion it be necessary so to do to relieve her pecuniary circumstances.”

Mary A. Johnson has presented her petition, setting forth that she is sixty-seven years of age and in feeble health, unable to work and in need of funds for her own use; that her husband is seventy-seven years of age and is in impecunious circumstances; that she occupies premises No. 133 West Apsley Street as her home and has no income for her support, and the current taxes have not been paid. She, therefore, asks that the trustee be directed to sell the property and appropriate the proceeds to her support and maintenance in accordance with the provisions of the will.

The answer of the trustee sets forth on the advice of counsel its doubt as to its right to pay over any part of the proceeds of the sale of the premises to Mary A. Johnson, and that the above-quoted provision of the will relates solely to the income of the proceeds of the sale as it may hereafter accrue.

We observe, however, that although Mary A. Johnson is given a power of testamentary appointment over the real estate in question, yet the will contains no remainder over in case of her default in the exercise of this power of appointment, and, consequently, in such an event the testator may have died intestate with respect to the premises.

We are of opinion, therefore, that the testator’s heirs should be cited to show cause why the prayer of the petition should not be granted. We will retain the petition and answer for further action after the heirs have been made parties to the record and have filed their answers to the petition.


author: Landis, P. J.,

text:
    Althouse v. Althouse et al.

      K. L. Shirk, for first rule; Willis G. Kendig, for second rule.
    April 13, 1929.
   Landis, P. J.,

On May 23, 1928, the use-plaintiff issued a scire facias sur judgment to revive the judgment entered to May Term, 1924, No. 32, for $3068. On June 4, 1928, H. S. Zimmerman filed an affidavit of defense.' Therein he averred that on or before April 28, 1924, the Terre Hill National Bank held a promissory note for $3000, of which Filena K. Althouse was the maker and Zimmerman was the accommodation endorser; that on that day the bank brought suit to May Term, 1924, No. 32, against both Filena K. Althouse and Zimmerman, and on May 22, 1924, judgment was entered against both of them for $3068. On Aug. 19, 1924, this judgment was transferred to the People’s Trust Company of Lancaster, Pa., and on April 13, 1928, the whole amount due, namely, $3068, was paid to the People’s Trust Company of Lancaster, Pa., who, instead of satisfying it, made a transfer to Filena K. Althouse, the present use-plaintiff. Zimmerman claims that as the original debt was that of Filena K. Althouse, and he was only an accommodation' endorser, she could' not obtain a transfer of the judgment so as to use it against him. On June 11, 1928, the use-plaintiff obtained a rule for judgment for want of a sufficient affidavit of defense.

On Oct. 20, 1928, Zimmerman presented his petition and obtained a rule to show cause why the said judgment should not be marked satisfied. In this petition he states the facts substantially as above recited. The depositions of the parties were taken on the said rule. The parties differ very little in their statements as to what occurred before and at the time the note and other papers were signed. It seems that the La Park Plant and Seed Company, of which Zimmerman was then treasurer and a director, was offering common and preferred stock for sale. E. E. Currens was one of its salesmen. He called on Mrs. Althouse an,d obtained her subscription for twenty shares of common and twenty shares of preferred stock of the La Park Seed and Plant Company. She gave him in payment a note for $3000. Currens took this note to Zimmerman, and he rejected it because he did not know the maker. Currens then went back to Mrs. Althouse and obtained from her a mortgage on her real estate, with an accompanying bond, for $3000, which was to be used as collateral security for the note, and the stock was subsequently delivered to her. Zimmerman took the note, with the collateral, to the Terre Hill National Bank, who discounted it. The mortgage was either given to or transferred to the bank. Zimmerman signed his name as endorser on the note, and the proceeds were credited to his account. • He, in turn, paid the amount of it into the treasury of the La Park Seed and Plant Company. Subsequently, the Terre Hill National Bank brought suit against Mrs. Althouse and Zimmerman on the note and obtained a judgment against them for $3068. As that bank insisted upon the payment of the money, Mrs. Althouse made arrangements with the People’s Trust Company of Lancaster, Pa., to furnish it. The judgment was thereupon transferred to the latter company. Some time after that, Mrs. Althouse raised the money and paid off the People’s Trust Company, and that company transferred the security to her. She is now endeavoring to enforce the judgment against Zimmerman. The La Park Plant and Seed Company went into bankruptcy and its stock became valueless. It is admitted that Zimmerman was not present when any of the papers were signed by Mrs. Althouse, and it has not been shown that he at any time made any representations to her to induce her to purchase the stock and sign the note and mortgage.

It must be remembered that Mrs. Althouse was the maker of the note and Zimmerman was the endorser. While both of them were liable to the Terre Hill National Bank, the obtaining of.judgment by that bank against them did not change their relation as to the primary liability on the note. It is provided in chapter 4, section 192, of the Negotiable Instruments Act of May 16, 1901, P. L. 194, that “the person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to> pay the same. All other parties are ‘secondarily’ liable.” By chapter 1, section 119, article vili, it is declared that “a negotiable instrument is discharged r (1) By payment in due course by or on behalf of the principal debtor. (2) By-payment in due course by the party accommodated, where the instrument is made or accepted for accommodation. ... (5) When the principal debtor becomes the holder of the instrument, at or after maturity, in his own right.” In Buckwalter’s Admin’r v. Shirk, 11 D. & C. 78, 40 Lanc. Law Rev. 541, this court decided that “the rights and liabilities of accommodation signers of a promissory note áre fixed by the position in which their names appear on the instrument, and one who signs a promissory note as maker assumes a primary liability and cannot escape the consequences by subsequently alleging that he signed it as an accommodation for subsequent endorsers, and he cannot recover on the note against such endorsers after he has paid it.” It follows that he cannot, after he has paid a judgment obtained by a holder on a note on which he appears as maker, keep it alive as against an endorser on the note, against whom the holder has also obtained judgment. Having paid the judgment, it is canceled as to all the subsequent parties on the note.

We are, therefore, of the opinion that the rule for judgment for want of a sufficient affidavit of defense should be discharged, and the rule to show cause why the judgment should not be marked satisfied should be made absolute.

Rule for judgment for want of a sufficient affidavit of defense discharged.

Rule to show cause why judgment should not be marked satisfied made absolute.

Prom George Ross Eshleman, Lancaster, Pa.


author: Fleming, P. J.,

text:
    Commonwealth v. Ripka.

      John G. Love, District Attorney, for Commonwealth.

      W. D. Zerby, for defendant.
    May 28, 1929.
   Fleming, P. J.,

Counsel having presented a petition for the discharge from custody of the above-named defendant under the Act of June 4, 1901, P. L. 404, the court has heretofore declined to entertain such petition.

We are now firmly of the opinion that the matter is ruled decisively by the case In re Insolvency of Hogan, 83 Pa. Superior Ct. 221, and that the defendant, having served an actual confinement of three months and more, is entitled to have the prayer of his petition granted and to be discharged under the Insolvent Act of 1901.

In order that all may be duly advised, we here state that it will be the future policy of this court when imposing sentences upon defendants convicted of fornication and bastardy to require the filing of a bond for the faithful performance of such order within ten days from the date of such sentence, and providing that if such bond is not filed within the period prescribed or other action taken by the court, the provisions of the Act of May 24, 1917, P. L. 268, be invoked and the defendant committed in accordance with the provisions of that act.

In the instant case, however, while the defendant was directed to file security for the faithful performance of his order, he has been permitted to remain in jail for a period in excess of three months without such action having been taken. Under these circumstances, he is entitled, by authority of the case cited above, to his discharge.

And now, May 28, 1929, it is ordered that if counsel for the above-named defendant will again present his petition, such petition will be entertained, and when the requirements of the Act of June 4,1901, P. L. 404, have been by him fully complied with, that a discharge thereunder will be granted.

From S. D. Gettíg1, Bellefonte, JPa.


author: Gray, J.,

text:
    Commonwealth ex rel. v. Scheck.
    Before Cohen, Rowand and Gray, JJ.

      Andrew G. Smith and Samuel A. Schreiner, for plaintiff.

      Elmer A. Barchfeld and J. I. Simon, for defendant.
    April 5, 1929.
   Gray, J.,

It appears from the suggestion for the writ that the respondent, C. W. Scheck, was duly elected and qualified as a member of the Board of Commissioners of the Township of Mount Lebanon and entered upon the performance of the duties of his office on Jan. 1, 1926, and is now, and has been since said date, an incumbent of said office and performing the duties thereof; that between November, 1926, and June, 1928, said respondent, as a copartner with his wife, Maude W. Scheck, in the Hollywood Service Station, sold to the Township of Mount Lebanon gasoline, oil and other automobile accessories, vouchers for the payment of which were issued by the Township of Mount Lebanon Commissioners, which vouchers were subsequently paid, vouchers having been thus issued for seventeen different items of merchandise sold and delivered to the township by the respondent and his copartner, the total amount of said sales being $635.29; and it is conceded that the respondent, as president of the Board of Township Commissioners, signed the vouchers for the payment of said sums to himself and his copartner.

The basis of the motion to quash is that the sales by the respondent and his copartner to the township were not contracts for the sale of such supplies to the township; that, therefore, the transactions are not within the terms of section 66 of the Act of March 31, 1860, P. L. 382; that a township commissioner is not within the terms of said act of assembly, and that said act only prohibits a contract for the sale of supplies or materials to a municipal corporation by one who is a member of another corporation or public institution, and that since respondent was a member of a partnership making sales to the township, he is not within the terms of prohibition of the act.

Section 66 of the Act of March 31, 1860, P. L. 382, reads as follows: “It shall not be lawful for any councilman, burgess, trustee, manager or director of any corporation, municipality or public institution to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom or be the secretary of such officer, nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality or institution and his office or appointment thereunder and shall be held guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding $500.”

That the transactions which admittedly took place between the respondent, through the Hollywood Service Station, and the township aré within the prohibition of said act of assembly is established by the case of Com. v. Egan, 234 Pa. 24, where a series of sales to a municipality of a similar nature to the sales in this case were held to be a contract for the sale or furnishing of supplies or materials under the Act of May 28, 1907, P. L. 262, relating to boroughs, which act of assembly is substantially the same as the Act of 1860 in reference to the contracting or furnishing of supplies to a municipality.

Com. v. Witman, 217 Pa. 411, is a conclusive authority against the position of the respondent that because the Hollywood Service Station is a partnership and not a corporation the respondent is not such a person as is prohibited by the act from trading with the municipality of which he is a member. That case definitely holds that the words “nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution” refer to the membership of the party furnishing the supplies in the municipal corporation to which the supplies are furnished and not to his membership in a corporation furnishing such supplies to the municipality.

The third and last reason given by the respondent for the quashing of the writ is that a township commissioner is not within the terms of the 66th section of the Act of 1860; that since said act is a penal act it must be construed strictly, and it must be held that it does not prohibit a township commissioner from furnishing supplies to the municipality of which he is a member. This position is untenable. The Superior Court, by Judge Keller, at No. 188, October Term, 1928, in an opinion filed Jan. 25, 1929, which was a case where township commissioners were surcharged the amount of certain disbursements made to the engineer of highways of the township for materials supplied for township roads, among other things, said: “The court below rightly held that township officers were within the inhibition of the 66th section of the Criminal Code aforesaid.” [95 Pa. Superior Ct. 401.]

And, further: “The inhibition of the statute is deeply grounded in public policy and is intended to prevent any possibility of the self-interest of a public officer coming into conflict with the interests of the municipality which he represents.”

Section 66 of the Act of 1860 prohibits any member of any corporation or public institution, or any officer or agent thereof, to be in anywise interested in any contract for the sale or furnishing of any supplies or materials to or for the use of the corporation, municipality or institution of which such person shall be a member or officer. Respondent is clearly within the terms of said prohibition.

We are of opinion that the motion to quash should be refused.

Order.

And now, April 5, 1929, it is ordered and decreed that the rule to show cause why the writ of quo warranto should not be quashed is discharged and the motion to quash denied, respondent to answer within fifteen days from receipt of a copy of this order.

Prom William J. Aiken, Pittsburgh, Pa.


author: Coughlin, J.,

text:
    Shannon’s Estate.

      Andrew Zawoiski, for Commonwealth; Oscar C. Foster, for poor district.

      Hall & Flannery, for guardian.
    Dec. 19, 1928.
   Coughlin, J.,

The audit of this estate came on to be heard in pursuance of order of court and notice in accordance therewith.

The account filed Nov. 3, 1928, by the Peoples Union Savings Bank of Pitts-ton, Pennsylvania, guardian of Rebecca C. Shannon, and designated as the fifth (partial) account, is herewith confirmed absolutely, proof of all reports with the Attorney-General having been made.

The fund for distribution, in amount $3497.30, arises from moneys in the hands of the guardian, as set forth in the account.

The Commonwealth of Pennsylvania, by rule to show cause upon the Peoples Union Savings Bank of Pittston, Pennsylvania, claims $2881.99 to reimburse expenditures for maintenance of Rebecca C. Shannon in the Danville State Hospital. The claim is supported by the affidavit of Dr. George B. Humphreys, Assistant Superintendent of the Danville State Hospital. It is allowed.

The Poor District of West Pittston presented and proved at the hearing of the audit the claim for $1383 to reimburse expenditures for maintenance of Rebecca C. Shannon in the Danville State Hospital. This claim for maintenance covers a period from Jan. 1, 1920, to Dec. 1, 1928.

There are insufficient funds to pay both the claims of the Commonwealth of Pennsylvania and that of the Poor District of West Pittston in full.

The Commonwealth of Pennsylvania urges the statute of limitations against the poor district, reducing the claim thereby to $978.19, covering a period of six years prior to the date of presentation. This period is from Dec. 1, 1922, to Dec. 1, 1928.

The statute of limitations may be pleaded against the poor district and its claim restricted to six years from the date of the filing of its claim for reimbursement: In re Margaret McCanna, a Lunatic, 77 Pa. Superior Ct. 1(1921).

The sum of $978.19, only, of the total claim of the Poor District of West Pittston is allowed.

There are insufficient funds to pay the Commonwealth of Pennsylvania and the allowed claim of the poor district in full.

“Where there is a claim against the estate of any person maintained in any home, hospital, asylum or other institution, both on behalf of the Commonwealth and on behalf of any county or poor district, and there is not sufficient in the estate to pay the claim in full, the same shall be paid pro rata to the State and the county, in the proportion of the amount of maintenance legally recoverable by each:” Act of June 1, 1915, § 7, P. L. 661.

We find that the Poor District of West Pittston has expended the sum of. $978.19. The amount claimed by the Commonwealth of Pennsylvania was $2881.99, and the total sum for distribution is $3497.30.

Of the said amount, the Commonwealth of Pennsylvania is entitled to receive $2881.99 — 3860.18ths part thereof, or $2611.07 — and the Poor District of West Pittston is entitled to receive 978.19 — 3860.18ths part thereof, or $886.23.

And now, Dec. 19, 1928, the distribution is made in compliance with the foregoing opinion, and the several amounts as stated above, to wit, $2611.07, is now awarded to the Commonwealth of Pennsylvania and $886.23 is awarded to the Poor District of West Pittston, and the guardian of Rebecca C. Shannon is directed and ordered to pay the funds in its hands, to wit, $3497.30, to the said claimants in the amounts stated in this order.

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


author: Rowand, J.,

text:
    Carrick Borough v. Wanemaker Heirs.

      William M. Ewing, for plaintiffs.

      Elmer A. Barchfeld, for Carrick Borough.
    Jan. 4, 1929.
   Rowand, J.,

This is before the court upon petition of Mary Wanemaker to strike from the record the municipal lien filed at the above number and term. Upon examination of the record, it appears the work for which this lien was filed was begun on July 29, 1924, and completed Nov. 24, 1924, and that viewers were appointed thereon and hearings had. The schedule was filed and was confirmed nisi on April 21, 1925. The municipal claim sets forth that the report of the viewers was confirmed absolutely on Oct. 14, 1925, and it appears from the record the lien was filed Oct. 25, 1925. The number and term at which the proceedings for the board of viewers is filed is No. 105, April Term, 1925, and an examination of this record discloses that the report of the viewers was not confirmed absolutely until Nov. 16, 1925, or twenty-four days after the filing of the lien.

Under the Act of May 16, 1891, P. L. 69, it is provided in section 2, inter alia: “Any city, borough, township or other municipal division of the State entitled to such lien may, within six months from the date of decree or order finally fixing such assessment, file a lien therefor in the office of the prothonotary of any Court of Common Pleas of the county in which the property lies. Such lien shall state the name of the party claimant, which shall be in the city, borough, township or other municipal division of the State making such improvement, the owner or reputed owner and a reasonable description of the property, the amount or sum claimed to be due, for what improvement the claim is made, and the time when the assessment is finally confirmed or made.”

There can be no question, we take it, under the requirements of this act, that the final assessments on the owner became liens after the time of the confirmation of the report or a final decree of the court fixing such assessment. The lien having been filed twenty-four days before the final confirmation by the court, it was prematurely filed and cannot stand. The rule, therefore, is made absolute.

From William J. Aiken, Pittsburgh, Pa.


text:
    Hagen’s Estate.

      Powell & Inudlow, for exceptants; Townsend, ElUott & Munson, contra.
    Oct. 8, 1929.
   Gest, J.,

We do not think it necessary to discuss the question of res judicata suggested in the argument, as we agree with the Auditing Judge in his construction of the will. Christian Hagen is clearly given a general power of testamentary appointment over his one-fourth of the estate in clause (b) of paragraph 2, but in clause (a) Arthur Hagen, Jr., is given no such power. There is a provision that this one-half of the estate so held in trust for Arthur should, after the payment of the legacies of $70,000 to each child he might leave, be held “as is above directed with reference to the one-fourth of my estate devised and bequeathed In Trust for my son Christian Ax Hagen.” This, it is argued, is a “short-cut” employed by the testator to mean that Arthur was to have such a power of appointment over this one-half of the estate as was given to Christian over the one-fourth given in trust for him under clause (b).

We do not agree with this construction of the will. The gift of a power of appointment is not to be so lightly implied, but any doubt on the subject is resolved by the clause making the Catholic Archbishop the ultimate remainderman on the failure of prior limitations. These the testator sums up when he says: “Should my son Christian Ax Hagen die without leaving any last will and testament and without leaving him surviving any children or issue of deceased children or children or issue of deceased children of Arthur Hagen, Jr., and should said Arthur Hagen, Jr., die without leaving any child or children or issue of deceased children him surviving, then I direct that the three-fourths of my residuary estate above given In Trust shall be distributed and I give, devise and bequeath the same as follows.” The testator then bequeathed certain pecuniary legacies, and continued: “To the Catholic Archbishop of this Diocese One Thousand Dollars to be distributed by him among poor churches of the diocese in his absolute discretion, with the request that Masses be said for the repose of my soul, to that extent, and the balance of the said three-fourths of my residuary estate I give, devise and bequeath in equal shares to the following organizations and institutions,” etc. There is nothing here to indicate the slightest intention to confer a power of appointment on Arthur. The testator speaks of Christian dying without leaving a will, but not of Arthur so dying, and disposes in terms of three-fourths of the estate, which includes both Christian’s and Arthur’s shares.

The exceptions to the adjudication are, therefore, dismissed, and the adjudication is confirmed absolutely.

Lamorelkb, P. J., was absent.


author: Stern, P. J.,

text:
    Ferry’s Case.

      Franklin E. Barr and William Clark Mason, for petitioner.
    Nov. 18, 1929.
   Stern, P. J.,

This proceeding is based upon a petition of the Committee of Censors of the Law Association of Philadelphia, upon which a rule was granted on the respondent, Herman S. Ferry, a member of the bar of this court, to show cause why he should not be disciplined under Rule 215 of the Courts of Common Pleas of Philadelphia County.

The court finds as facts that on July 11, 1924, one Jane M. Mehlan turned over to the respondent the sum of $5900 in cash, which he was to invest for her in a first mortgage. The respondent, instead of using the money for the purpose for which it had been entrusted to him, deposited it the following day in his personal bank account, and checked it out, for purposes of his own, in small amounts over a period of the following three months. He never procured any mortgage for Miss Mehlan nor accounted to her in any way for the money.

The respondent contends that within a day .or two after he received the money from his client he turned it over to some associates, who borrowed it for the purpose of using it as part payment for some properties which they were then purchasing, and that he took from them a judgment note which he sent to Miss Mehlan as her security for the loan. The respondent produced before the Committee of Censors what purports to be a copy of such note. Miss Mehlan denies ever having received the note. The respondent admits that he never recorded it. The respondent alleges that the note was signed by six persons, whose names he produces, but none of these persons was an owner of the properties which the respondent contends that they purchased. The court finds as a fact that there never was any such note and that the respondent did not turn over his client’s money to the persons claimed by him. There was put in evidence by the Censors a photostatic copy of the respondent’s account at his bank, showing clearly that, as already stated, he deposited the money and then drew it out over a period of time in small amounts. This was nothing more nor less than an embezzlement, and he has never made any restitution, although for several years his client has urged him to account for her money.

Upon this state of facts the court owes it to the Bar of Philadelphia and to the community in general to make the following

Order.

The rule of the Committee of Censors is made absolute, and the prothonotary is directed to strike from the roll of attorneys of the Courts of Common Pleas of Philadelphia County the name of Herman S. Perry, the respondent, and to give notice of this action to the Orphans’ Court of Philadelphia County and to the Supreme and Superior Courts of Pennsylvania.


author: Smith, J.,

text:
    Packerman v. Shuster.

      Charles Salkind, for demurrer; Jacob Hoffman, contra.
    Nov. 18, 1929.
   Smith, J.,

This action arose from an affidavit of defense' raising a question of law. A statement of claim in assumpsit was filed by the plaintiff, averring that there is due and owing to him by the defendant the sum of $500 for procuring for the daughter of the defendant a young man inclined towards matrimony and the subsequent harmonizing by him of their relations until the affair was consummated in an engagement to marry.

The affidavit of defense raising questions of law alleges that such a contract is illegal, as opposed to public policy.

What was the object of this contract? To procure the engagement to marry between the daughter of the defendant and a young man named Hyman Cohen.

Marriage is understood to be the free and voluntary union of one man and one woman to the exclusion of all others. It is essential that the union be voluntary or free from the power of influence brought to bear upon either of the parties by some more experienced or powerful will.

One seeking to bring about this status actuated by the taint of money payment for his services might well be expected to so exert his will to overwhelm and negative any voluntary action of any more inexperienced person then under his influence. It matters not if the plaintiff avers that the promise of payment came from the father of the young woman concerned. Marriage is too sacred a relation to be touched by the sordid influences that so often attend the considerations of more material contracts.

The House of Lords at an early date declared marriage brokers’ contracts to be opposed to public policy. Common logic tells us that such a contract is opposed to morality. The object of such a contract is, therefore, illegal and as such cannot be enforced.

There seems to be no case in the law books of this Commonwealth upon this question. Many of the other states, however, have decided it in accord with the declaration of the House of Lords.

In Duval v. Wellman, 124 N. Y. 156, Mr. Justice Brown said: “It seems that the business of promoting marriages is against the policy of the law and public interest, and the courts will aid a party who has patronized such a business by relieving him or her from all contracts made and will grant restitution of any money paid or property transferred.”

The affidavit of defense raising questions of law is sustained.


text:
    Wilcinska v. Jastremska.

      Willard, Greenwood & Willard, for plaintiff; C. G. Gartling, for defendant.
    Sept. 16, 1929.
   Martin, P. J.,

In this action of slander plaintiff recovered a verdict for flOO. Defendant, having presented a point for binding instructions at the trial, moves for judgment n. o. v., for the reason that the alleged slanderous words set forth in the statement were not proved to have been spoken by defendant. The words in the statement are set forth in English. The words uttered were in Polish.

In actions of slander, the words must be specifically set forth in the statement in the language in which they were spoken: Yundt v. Yundt, 12 S. & R. 427, 428, where Mr. Justice Gibson said: “But what is still stronger, and indeed conclusive, is the rule in relation to words uttered in a foreign language, which, it is well settled, must be set out in the language in which they were spoken, together with an averment that they were understood by the bystanders. Now, whatever doubt may have been entertained whether a translation of them should not also be given in the declaration, there has been no doubt at all, that the original words must be laid as they were spoken.” This was followed in Rahauser v. Schwerger Barth, 3 Watts, 28, where an amendment was permitted at the trial. The same general rule was followed in Trianovski v. Kleinschmidt, 20 W. N. C. 296.

Any amendment of the statement changing the language set forth should be made at or before the trial, to enable a defendant to meet the amended averment.

The allegation in the statement in this case is that on Nov. 24, 1926, the defendant used the words, “that plaintiff’s husband had caught plaintiff in the act of having sexual intercourse with one Cazamir Fuss at plaintiff’s home, 4527 Gaul Street, five years ago, and that plaintiff’s husband had a terrible row with plaintiff and said Cazamir Fuss at that time,” and that on Jan. 30, 1927, the words averred to have been uttered are, “that plaintiff has had sexual intercourse with Cazamir Fuss at 4527 Gaul Street, five years ago, and that plaintiff and Puss were caught by plaintiff’s husband, who thereupon made a terrible commotion.”

The proofs and interpretations of the witnesses do not meet these charges. The translation of what is alleged to have been said on Jan. 30th do not mention the words “sexual intercourse” as having been used.

It would be dangerous to permit such a variance between the words proved and those alleged to have been spoken.

And now, to wit, Sept. 16, 1929, judgment n. o. v. is entered in favor of defendant. An exception to this action of the court is noted for plaintiff.


author: Wagner, Dep. Att’y-Gen.,

text:
    Corporations for Title Insurance.
    Aug. 29, 1929.
   Wagner, Dep. Att’y-Gen.,

We beg to acknowledge receipt of your letter of Aug. 6th, in which you ask to be advised:

1. Whether a corporation organized “for the insurance of owners of real estate, mortgagees and others interested in real estate from loss by reason of defective titles, liens and. encumbrances” may. be incorporated under the Act of April 29, 1874, P. L. 73, as amended by the Acts of July 9, 1901, P. L. 624, and May 11, 1909, P. L. 515, with a nominal capital and the right and power of transacting a title insurance business only; and

2. Whether a corporation incorporated “for the insurance of owners of real estate, mortgagees and others interested in real estate from loss by reason of defective titles, liens and encumbrances,” pursuant to the provisions of said Act of 1874, may engage in such business with a capital of less than $125,000, and without having first accepted the provisions of the Act of May 9, 1889, P. L. 159?

The two questions which you have asked are so closely related that it is advisable to answer them together.

Section 2 of the Act of 1874, referred to above, as amended from time to time, sets forth the purposes for which corporations may be formed under the provisions of the act. Clause xix of Subdivision 2 of said Section 2 has not been changed since 1874 and reads as follows:

“XIX. The insurance of owners of real estate, mortgagees and others interested in real estate from loss by reason of defective titles, liens and encumbrances.”

Clause xviii of Subdivision 2 of said Section 2 covers the incorporation of companies for the purpose of carrying on a mechanical, mining, quarrying or manufacturing business. This clause, by the amendment contained in the Act of July 9, 1901, P. L. 624, was expanded to include the incorporation of a company “for the transaction of any lawful business not otherwise specifically provided for by Act of Assembly.”

Clause xx of Subdivision 2 of said Section 2 was amended by the Act of May 11, 1909, P. L. 515, to provide for the incorporation of a company “for any lawful purpose not specifically designated by law as the purpose for which a corporation may be formed.”

In view of the fact that the incorporation of title insurance companies is specifically provided for under clause xix of Subdivision 2 of Section 2 of the Act of 1874, it is our opinion that no corporation for the purpose of transacting the business of such a company may be organized under the provisions of clauses xvm or xx of Subdivision 2 of said Section 2.

Nor, in our opinion, is it lawful for a corporation organized under the provisions of clause xix, referred to above, to transact business with a capital of less than $125,000, or without having first accepted the provisions of the Act of May 9, 1889, P. L. 159, referred to above. While clause xix states the purposes for which a title insurance company may be formed, the powers of such company were set forth in Section 29 of the Act of April 29, 1874. This Section 29 was amended by the Act of 1889, referred to above, and one of the powers conferred by Section 29, as amended by the Act of 1889, is: “First, to make insurances of every kind pertaining to or connected with titles to real estate, and to make, execute and perfect such and so many contracts, agreements, policies and other instruments as may be required therefor.”

This language is practically identical with that contained in Section 29 as originally enacted in 1874. The Act of 1889 added numerous other powers, including the power to act as fiduciary, to transact a trust business and to become surety and security in certain designated instances.

Paragraph 13 of clause I of Section 29, as amended by the said Act of 1889, contains the following proviso: “Provided, however, . . . that before exercising any of the powers hereby conferred, each such corporation shall have a paid-up capital of not less than one hundred and twenty-five thousand dollars, . . . and each such company . . . shall file in the office of the Secretary of the Commonwealth a certificate of its acceptance hereof. . . .”

It will be noted that the requirements of a minimum capital of $125,000 and the acceptance of the Act of 1889 are necessary before corporations incorporated as title insurance companies may exercise any of the powers hereby conferred. One of the powers conferred by the Act under discussion is the power to make insurances pertaining to or connected with titles to real estate, and it would seem evident that before such power may be exercised the corporation desiring to exercise it must comply with the requirements above set forth.

In view of the above, the answer to both of the questions propounded by you is in the negative, and you are, therefore, advised that a corporation incorporated “for the insurance of owners of real estate, mortgagees or others interested in real estate from loss by reason of defective titles, liens and incumbrances,” must be organized under the provisions of Clause xix of Subdivision 2 of Section 2 of the Act of April 29, 1874, P. L. 73, and that such a corporation is not authojrized to exercise any of the powers conferred upon it by Section 29 of the said Act of 1874 without having a minimum capital of $125,000, and without having first accepted the provisions of the Act of May 9, 1889, P. L. 159.

From C. P. Addams, Harrisburg, Pa.


author: Reno, P. J.,

text:
    Shimer v. Roach.

      Harvey H. Steckel and Herbert J. Hartzog, for plaintiff.

      Dillinger & Schneller, for defendants.
    June 17, 1929.
   Reno, P. J.,

John Roach, owner of three properties, mortgaged one for $600 to Mary E. Shimer, which has been assigned to E. P. Wilbur Trust Company. Subsequently, he mortgaged the three properties for $1700. This latter mortgage was foreclosed and Tobias K. Landis purchased the three properties at the sheriff’s sale for $7300. The balance ($5783.01) remaining in the sheriff’s hands, after payment of the $1700 mortgage, costs and fees, was paid to E. P. Wilbur Trust Company as administrator of John Roach, in accordance with the Fiduciaries Act of June 7, 1917, § 15, cl. (j), P. L. 447.

Upon the sci. fa. sur the $600 mortgage, Tobias K. Landis pleads payment, and alleges that the plaintiff was bound to pay the mortgage out of the fund in its hands as administrator. At the trial, a verdict for plaintiff was directed, and we are reviewing the case upon a motion for judgment n. o. v.

Clearly, Tobias K. Landis bought subject to the first mortgage: Act of May 8, 1901, § 1, P. L. 141. Nevertheless, he contends that since “more money” [was] raised than [was] sufficient to pay off liens of record” (Fiduciaries Act of June 7, 1917, ,§ 15, cl. (j), P. L. 447), the administrator was bound to pay the $600 lien of record and to that extent relieve him. The difficulty with this position is that, having purchased subject to the mortgage, he bought “simply the equity of redemption, i. e., the right to retain the land by paying the mortgage debt:” Steele v. Walter, 204 Pa. 257, 266. “The purchaser [at a sheriff's sale] in thus buying the land [subject to a mortgage] undertakes the duty of paying the mortgage, not personally, but so far as the land is sufficient for that purpose. Then, thus far, he assumes the duty of relieving the obligor [i. e., the mortgagor], and, as between them, the land becomes the primary fund for the payment of the debt:” Hansell v. Lutz, 20 Pa. 284, 286. “The Parks [purchasers at a sheriff’s sale] bought subject to the prior mortgages, and when they paid them, they did nothing more than their duty:” Cooley’s Appeal, 1 Grant, 401. “When McClurkan [purchaser at sheriff’s sale] bid off the property at the sale on his own judgment, he bid subject to the mortgage of the bank, and what he acquired by the sheriff’s deed was Burns’s equity of redemption. The mortgage, by the Act of 1830, being a charge upon the land, the bid of the plaintiff on the sale of the subsequent judgment necessarily included this charge, and it became a part of that bid. It is, therefore, obvious that as long as McClurkan chose to retain the premises he had acquired at the official sale, he could by no process, direct or indirect, compel Burns to pay any part of the mortgage debt, for he had agreed to do that himself:” Dollar Savings Bank v. Burns, 87 Pa. 491, 496. It follows that Tobias K. Landis acquired no equity against Roach or his estate. Manifestly, the clause “more money raised than is sufficient to pay the liens of record,” swpra,, refers to liens which are discharged by the sale. It does not require executors or administrators to pay undischarged liens in relief of a purchaser who bought subject to them.

Now, June 17, 1929, the motion for judgment n. o. v. is overruled and discharged.

Prom Edwin H. Kohler, Allentown, Pa.