author: Strauss, J.

text:
    Duryea Borough School District’s Audit.

      School law — Treasurer—Compensation—Payment to treasurer on his own orders — School Code of May 18,1911 — Act of July 21,1919.

    1. Under the School Code of May 18, 1911, P. L. 309, the treasurer cannot be allowed compensation on account of any balance in his hands paid over to his successor.
    2. The treasurer is entitled to payment of commission on proper orders for his own compensation.
    3. A treasurer elected before the Act of July 21, 1919, P. L. 1076, which amended the Act of May 18, 1911, P. L. 309, is entitled to commissions on repayment of loans or redemption of bonds, inasmuch as he would be entitled to such commissions if it were not for the amendment.
    4. In such case the treasurer is protected by art. iii, § 13, of the Constitution, which prohibits the reduction of the compensation of a public officer during- his term of office.

      School law — Repairing buildings — Three-hundred-dollar limit — Act of July 10, 1919 — Advertising.
    5. The Act of July 10, 1919, P. L. 889, amending section 617 of the School Code of 1911, and limiting certain expenditures to $300, will not be strictly construed as to repair or patch jobs, where the proof of total expenditure is not clear, where no fraud is alleged, and where circumstances point to an economical use of the money.
    6. The Act of July 10, 1919, does not require school directors to advertise for competitive bids on all repairs as a single job. It is not necessary where the costs for repairs of a single building for material and labor are less than $300.
    7. The practice of buying plumbing material for different buildings in a lump way is subject to censure, unless it is accompanied by a system under which the final disposition of the material and its use can be ascertained and stated by the auditors.

      School law — Expenses to conventions — Act of April 18, 1919.

      8. The expenses of only one delegate to a school directors’ convention will be allowed under the Act of April 18, 1919, P. L. 56, and the account of such expenses should be stated in detail and not lumped.
    Appeal by taxpayers from the auditors’ report. C. P. Luzerne Co., Dec. T., 1920, No. 625.

      John D. Farnham, for appellant; G. J. Clark, for appellee.

   Strauss, J.

This appeal presents four questions:

First. Whether the school treasurer was entitled to receive commissions on commissions for which orders were drawn and paid to him?

Second and third. Whether the expense of certain repairs in the Washington Building, and for certain heating and plumbing repairs upon this and others buildings, were in violation of the School Code, which prohibits the board to incur expense beyond $300 without advertisement and contract after competitive bidding?

Fourth. Whether certain orders drawn to compensate directors for attending a directors’ convention were lawful?

The first question involves:

(a) A. commission of 85 cents allowed on $42.80, being the balance due the treasurer from the previous year.

(b) A commission of $20 allowed to James Donley, treasurer (between the first Monday of July and the first Monday of December, 1919), being 2 per cent, on $1000, commissions on orders lawfully paid by him to other persons.

(c) A commission of $17.03 allowed to Michael Swantkowski, treasurer (from the first Monday of December, 1919, to the end of the school year in 1920), being 2 per cent, on $851.50, commissions on orders lawfully paid by him to other persons.

(d) A commission of $710 allowed to James Donley, treasurer as aforesaid, on bonds and interest thereon and temporary loans for which orders had been drawn and were paid by said treasurer in October, 1919.

As to (a), the commission was improperly allowed, because the School Code, § 329, expressly forbids compensation to a school treasurer on account of any balance in his hands paid over to his successor. The balance on which this commission is charged was a balance in the hands of this same treasurer as per audit of the preceding year, and is, therefore, to be treated exactly as if another treasurer had been in office and had turned over the balance found to be due from him to the present accountant.

As to (b) and (c), we are of the opinion that the treasurer was lawfully entitled to receive commissions upon the orders drawn in his own favor for commissions, because, under the School Code of 1911, the treasurer was required to pay money out of the school funds, upon proper orders, signed by the president (sections 324 and 511), and the salary of the treasurer was directed to be such compensation as the school board may determine, not to exceed 2 per cent, of the amount of funds paid on school orders. It is admitted that the school board had fixed the salary at 2 per cent, on orders paid by him.

It is a fair construction of the School Code to require the treasurer’s compensation to be paid upon orders. In this respect the School Code differs from the Act of, May 8, 1854, P. L. 617, under which the schools were in the greater part of the State governed prior to the adoption of the School Code, in that under the latter act the treasurer was permitted “to retain not exceeding 2 per cent, on the moneys passing through his hands for his services.” Had this provision been re-enacted in the School Code, there can be no doubt of the fact that the treasurer would not have been entitled to the commissions upon his commissions. As, however, the requirements now are that all funds belonging to the district shall be deposited in a depository to be named by the board, and that the treasurer shall pay out the funds only on proper orders, it would seem to follow that he receives his own compensation only through payment of orders drawn by the board. The commission to which he is entitled being upon all orders paid by him, necessarily includes the orders in his own favor.

As to (d): On July 21, 1919, the legislature passed an act amending section 329 of the School Code, so that thereafter the treasurer should not be entitled to commissions on the repayment of any loan or redemption of bonds, whether upon order or otherwise. The fact that this amendatory legislation was deemed proper or necessary justifies the conclusion that except for it commissions were allowed for payment of bonds.

James Donley had been elected treasurer before this act was passed, and his compensation was fixed at the time of his election at 2 per cent, on all orders drawn. The bonds that were redeemed in October, 1919, were paid in pursuance of orders issued directing the treasurer to pay them. The treasurer is a public officer and is protected by article III, § 13, of the Constitution, which provides that: “No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.”

Therefore, all the commissions, except 85 cents, which the several treasurers paid and the auditors allowed, were lawfully allowed, but Donley is subject to a surcharge for 85 cents on this account.

2. Repairs to Washington Building. These are included in orders No. 9, Harold Donley, $61; No. 10, Peter Judala, $61; No. 11, George Judala, $61, and No. 38, Turon and Schwartz, 4000 feet of yellow pine flooring, at $70 per M and $5 cartage, less 3 per cent., net bill $276.45, a total of $459.45. Donley, Peter and George Judala were in employment of the district, at 50 cents per hour, to do sundry odd jobs of carpentry, painting, etc., at various buildings, their wages being materially less than usual for that class of work. Because the total is in excess of $300, it is contended that these orders should be disallowed as having been issued in violation of the Act of July 10, 1919, P. L. 889, and, therefore, charged against the several school directors.

If it clearly appeared that these bills were all incurred in connection with laying new floors in the Washington Building, we would be compelled to sustain that contention.

But such evidence as has been produced as to the total cost of laying these floors leads to the conclusion that-the floors cost less than $300. Of the 4000 feet of flooring, it has been testified, only about 3000 feet went into this job, the remaining lumber being used by the school district elsewhere. So, also, it has been testified that two or three days only were required to lay the floors. Though the evidence is somewhat indefinite and does not enable us to fix exactly the amount which was expended for this particular repair, it is sufficient to base the conclusion that it was well within the legal limit.

In our opinion, the Act of July 10, 1919, P. L. 889, by amending section 617 of the School Code and introducing into the statute limiting certain expenditures to $300 the words “where the entire costs, value or amount of such construction, reconstruction, repairs or work, including labor and material,” is so drastic that it is not likely to produce economy in ordinary repairs which school directors must from time to time undertake.

Responsible contractors do not bid closely on “patch jobs” that may in the course of performance develop unexpected defects and consequent unforeseen expense. Yet the act limiting the cost of repairs on any building to less than $300, except where there has been competitive bidding, would almost compel school directors (serving without pay and naturally desiring to avoid the danger of surcharge for an involuntary violation of law) to.cause repairs to be done in many instances by contract at higher figures than would be required if done in the manner adopted at the Washington Building. It would have been wiser in this case if the directors had kept track of the exact quantity of flooring used and of the exact time devoted to its installation. Not having done that, however, they are limited to the best evidence that under the circumstances can be presented. Where there are no circumstances from which fraud or bad faith can he inferred, that is all that should be required of them in measuring their duties under a statute so drastic as this one. There is no sufficient evidence of violation of this statute in connection with these orders, and we, therefore, approve the report of the auditors in allowing them.

3. Repairs to the McKinley Building. This covers two orders in favor of Haggerty Brothers, No. 57, which, according to the invoice, is for radiators, valves and air vents, under date of Aug. 10, 1919, $270; and No. 69, which, according to the invoice, is for changing and repairing steam, fifteen days’ time steamfitter, fifteen days’ time helper and carfare Aug. 1st, $252.80. The radiators had been purchased from Haggerty Brothers in the preceding March. It was the purpose of the school board to have the work done by some of its own employees — teachers or janitors in vacation. They actually undertook to do it, but found it beyond the ability of their employees, and then Haggerty was called in to do it, and so the bill for labor was incurred.

In view of the fact that the radiators were purchased long before the Act of July 10, 1919, was passed, we are of the opinion that these items were not incurred in violation of that statute, nor can we find that they were obtained in violation of the unamended School Code, § 617. We, therefore, affirm the correctness of the audit in allowing these payments.

Order No. 64, remodeling steam in manual training school, labor and material, $115.42, and order No. 85, covering sundry plumbing material bills and labor furnished to the district generally. In a separate request for findings of law these orders are lumped with orders Nos. 57 and 69, already referred to, making a total of all four orders of $825.88, which we are asked to declare unlawful as being in violation of the Act of July 10, 1919.

The evidence shows that order No. 85 was for work done on the Roosevelt Building.

The Act of July 10, 1919, P. L. 889, does not require the school district to advertise for competitive bids upon all the repairs that may be required in the district as a single job. It is restricted by its plain language for work done or material furnished, or improvements made upon any school building; that is, the requirement for each building shall be regarded as a single object and shall not be combined with the requirements for other buildings. If the work and material furnished to any one building involves an expenditure less than $300, it may be executed without competitive bidding. Therefore, we hold that orders Nos. 64 and 85 were not unlawfully issued, and the auditors’ report is in that respect also confirmed.

4. The appellant also asks that order No. 18, paid to Haggerty Brothers under date of Sept. 2, 1919, shall be disallowed, the amount being $256.86, of which $231 was in a lump item for material furnished as per price given on July 2, 1919.

The evidence indicates that this material was purchased generally for use in the district and not specifically for any building, and that it was so used. Much of the work was done by janitors and male teachers in vacation time, and was undertaken upon the theory that by this means the employees would be kept busy during the summer, and at the same time working at wages for less than would have been paid to regular craftsmen, a substantial saving would be effected to the district. As already said, it was all done in good faith. The $231 item was contracted before the Act of July 10, 1919, was passed, and, therefore, in our opinion, does not fall within the prohibition of that act.

The auditors’ report is, therefore, confirmed so far as relates to this order.

6. The Act of April 18, 1919, P. L. 66, authorizes the school boards to appoint “from among their number one delegate to any State convention or association of school directors held within the Commonwealth. It shall be the duty of such delegate to attend the meetings of the convention or association, and each delegate so attending shall be reimbursed for all necessary traveling and hotel expenses actually incurred. Such expenses shall be paid by the treasurer of the school district in the usual manner out of school funds of the district, upon presentation of an itemized verified statement of such expenses.”

Two orders were drawn, Nos. 188 and 189, for $50 each in favor of Joseph Ostrowski and Frank Bachor, respectively, under date of March 1, 1920, the one in favor of Frank Bachor being for “attending convention at Harrisburg, Pa.,” and the other in favor of Ostrowski for “attending directors’, convention, Harrisburg.”

So far as they furnish any light, they may have been issued for attending the same convention, in which event the action would be unlawful, because the directors are by the statute authorized to send only one delegate. The brief presented by the attorney for the school directors would seem to suggest that one of these orders was for attending a seeretarys’ convention. This, however, is not such a convention as the act contemplates. Only “a convention or association of school directors” is within the contemplation of the law. But these bills are also unlawful because they violate the act, in being presented for a lump sum instead of “necessary traveling and hotel expenses actually incurred.” The school board was not authorized to pay even these, except on “presentation of an itemized verified statement of such expenses.” The bills presented are neither itemized nor verified; that is, they are not sworn to, which, according to our understanding, is the purport of the term “verified.”

These orders are, therefore, disallowed.

The appellants call attention to the fact that the auditors fail to state the account with each treasurer, viz., with Donley for the period ending Dec. 1, 1919, and with Swantkowski for the period beginning on that date and ending with the school year.

As the only surcharge that we would make against Donley is 85 cents, being commission on $42.80 that was in his hands at the beginning of the year, as per the audit of the preceding year, this item is too small to make it worth the while to figure out exactly what money was in the hands of Donley when he retired from the office and for which Swantkowski was liable, nor have we the time to do that work..

We shall, therefore, follow the auditors in stating the account with both treasurers for a year as a single proposition. Swantkowski is one of the school directors, and is, therefore, liable to the surcharge of this 85 cents in that capacity. We shall restate the treasurer’s account at the end of this opinion.

We have not answered the specific requests for findings of law and fact because we do not think that we are required to do so. The equity rules are not applicable here. [Here follows restatement of account in detail.]

It will be observed that we have not surcharged the school board for any bills covering plumbing materials bought generally for use of the district and applied at the various buildings, although the school accounts do not show where this material was used. The practice of buying this sort of material in this lump way is a bad practice, unless it is accompanied by a system under which the final disposition of the material and its use can be ascertained and stated by the auditors. Such practice, while it barely escapes the condemnation of the written law, should be avoided.

We also direct that the school directors who participated in the issuing of orders Nos. 188 and 189, and allowing improperly the item of 85 cents as a commission to James Donley, to wit, Frank Bachor, John J. Kelley, Philip McCall, Michael Swantkowski, Joseph Ostrowski, John Crossman, be surcharged the amount of these three items, to wit, $100.85, and unless payment be made forthwith of this amount to the present treasurer, that upon the praecipe of appellant’s attorney judgment be entered jointly and severally against the directors aforesaid and against Michael Swantkowski, treasurer, for $100.85.

It is ordered that the costs of this appeal be paid by the school district.

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


source: Caselaw Access Project

author: Wickeesham, J.,

license: Public Domain

text:
    Burris v. Kain.

      Judgments — Rule to open — Warrant of attorney — Legal capacity of lunatic — Confession of judgment by lunatic.

    1. Where judgment has heen entered upon a judgment note against one who had previously heen adjudged a lunatic, the court will open the judgment so entered upon petition of the committee of the lunatic to allow the committee to show whatever defence there is to the claim of the plaintiff.
    2. One who has been adjudged a lunatic is legally dead while he remains in that status, and is destitute of legal capacity to execute a warrant of attorney.
    Rule to open judgment. C. P. Dauphin Co., Sept. T., 1917, No. 164.

      Sumner S. Bowman, for rule; W. Justin Carter, contra.
    March 2, 1922.
   Wickeesham, J.,

It appears from the record in this case that Elias Kain, on Sept. 11, 1916, executed and delivered to William H. Burris his note for $781.49, payable one day after date. Said note contained a warrant of attorney to confess judgment, and on July 5, 1917, judgment was entered thereon in the Court of Common Pleas of Dauphin County to No. 164, September Term, 1917, and a writ of fieri facias was issued upon said judgment to No. 12, September Term, 1917, on the execution docket of this county.

On Aug. 14, 1917, Harry M. Fairchilds presented his petition, setting forth that by an order of this court dated Nov. 20, 1916, he was appointed committee of the person and estate of the above named defendant, Elias Kain, and that he subsequently qualified as such committee by giving a bond as required by the court and by accepting the appointment, and since that time, and at the time said petition was presented, he was acting as such committee of the said defendant, Elias Kain.

From the record it appears that proceedings de lunático inquirendo in the matter of Elias Kain were commenced in this court to No. 480, September Term, 1916, which proceeding came on to be heard before E. Leroy Keen, Esq., commissioner, and a jury summoned by the Sheriff of Dauphin County; that, after a full and complete hearing, the inquisition reported Oct. 2, 1916, finding the said Elias Kain to be a lunatic, whereupon, on Nov. 20, 1916, this court appointed Harry M. Fairchilds, of Millerburg, committee to take charge of the person and estate of said Elias Kain.

It thus appears from the records of this court that, at the time judgment was entered upon said note to the number and term above stated, Elias Kain was a lunatic and his person and estate were in the hands of a committee appointed by this court; in other words, Elias Kain, at the time judgment was entered, was legally dead. We think that, at the time of the entry of the judgment upon the warrant of attorney contained in the note of Elias Kain, he was destitute of legal capacity — he had already been declared a lunatic — and, therefore, the said judgment should be opened so as to let in whatever defence the committee of said lunatic may have to offer. No harm can be done by opening the said judgment, as the plaintiff or his representatives can appear before the court and have his case passed upon by a jury, and the committee of the lunatic can also be present to show forth whatever defence there is to the claim of the plaintiff. The rule granted in this case to show cause why the judgment should not be opened is, therefore, made absolute: Ash v. Conyers, 2 Miles, 94.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Endlich, P. J.,

text:
    Fritch v. Flickinger.

      Judgments — Set off of judgment against judgment — Requisites.
    1. The right to set oft judgment against judgment does not rest upon statute, but upon the general jurisdiction of courts over the suitors in them. It is an equitable jurisdiction.
    2. In order to entitle one to be set off against the other they must be of the same or equal grade. The court will not allow a judgment entered on a bond, restricted in its collection to designated real estate, to be set off against a general judgment. Such judgments are not of the same grade.
    3. There is a clear distinction between stipulations restricting the collection of the judgment to designated real estate and stipulations simply restricting the lien of the judgment to such. The latter can be set off because the personal obligation remains.
    Rule to set off judgment. C. P. Berks Co., April T., 1921, No. 49, A. D.; April T., 1921, No. 54, J. D.

      William J. Young, for defendant and rule.

      D. N. Schaeffer & Son, for plaintiff.
    Dec. 24, 1921.
   Endlich, P. J.,

An action of assumpsit was brought by Levi L. Fritch against Milton H. Flickinger, to No. 49, April Term, 1921, A. D., in which, on April 14, 1921, he recovered a judgment for want of an affidavit of defence against Flickinger for $1082.52, which judgment was entered to No. 54, April Term, 1921, J. D.

On May 11, 1916, Levi L. Fritch had given a judgment bond for $1000 to Elbina Mae Stein, who, on July 1, 1916, assigned the same to Milton H. Flick-inger, who, on Nov.. 28, 1917, assigned it to John .Warren, who, on Jan. 5, 1918, reassigned it to Milton H. Flickinger. On April 18, 1921, Flickinger entered judgment on this bond against Fritch for $1000, with interest from May 11, 1916, to No. 96, April Term, 1921, J. D. This bond was secured by a mortgage on a property situate at Friedensburg, this county, and contained, besides a waiver of exemption laws, etc., an express stipulation that “this bond is limited to the real estate described in the accompanying mortgage for collection.” On April 19, 1921, Flickinger obtained this rule to show cause why the judgment No. 54, April Term, 1921, should not be set off against the judgment No. 96, April Term, 1921, to the end that the former judgment might be canceled and satisfaction entered thereon, and the amount due on said judgment, to wit, $1082.52, with interest and costs, credited on the judgment No. 96, April Term, 1921.

The application is resisted on the part of the plaintiff, Fritch, on three grounds: (1) A waiver of the exemption laws, etc., in the judgment No. 96, April Term, 1921, J. D., and the absence of such waiver in the judgment No. 54, April Term, 1921, J. D.; (2) the presence in the bond on which judgment was entered to No. 96, April Term, 1921, J. D., of the stipulation above recited; and (3) an alleged agreement on the part of Flickinger to bid at the sale of the property covered by the mortgage referred to, and his failure to carry out the agreement, leaving the property to be sold at a nominal price.

1. It seems to be the generally accepted view in this country that the practice to set off judgment against judgment does not rest upon any statute, but upon the general jurisdiction of courts over the suitors in them. It is an equitable jurisdiction: see 2 Black, Judgments, § 1000. That is also the settled doctrine in Pennsylvania. Says Judge Rice, in Shoemaker v. Flosser, 8 Pa. C. C. Reps. 479: “The right to set off one judgment against another is not a legal but an equitable right.” And as far back as Ramsey’s Appeal, 2 W. 228, it was laid down that in Pennsylvania: “Judgments are set against each other, not by force of the statute, but by the inherent powers of the courts immemorially exercised, being almost the only equitable jurisdiction originally appertaining to them as courts of law.”

The same doctrine is enunciated in Skinner v. Chase, 6 Pa. Superior Ct. 279; Aber’s Petition, 18 Pa. Superior Ct. 110; Shoemaker v. Hurwitz, 56 Pa. Superior Ct. 632, and recognized in McCormick v. Alexander, 3 Dist. R. 149, and other cases. They all admit as a corollary to this teaching the rule that the judgments, in order to be set off against each other, must be of the same or equal grade, and it was held by Judge Rice, in Shoemaker v. Flosser, 8 Pa. C. C. Reps. 479, that if in one of the judgments the exemption is waived and in the other not, there can be no set-off between them. Other cases lay down the same rule. But in Riehl v. Vockroth, 1 Dist. R. 80, it is said that a judgment without a waiver of exemption will he set off against another judgment with a waiver, and there are some other cases to the same effect.

2. Granting that there may appear to be some doubt on this proposition under the authorities, we are of opinion that the second objection is decisive. The defendant relies for the contrary conclusion upon the decision in Stanton v. White, 32 Pa. 358, where it is declared that the lien of a judgment is but an incident to it, and that a restriction of its lien to certain designated lands does not affect the judgment as a personal security. And it is urged that, therefore, the stipulation in the bond as above recited, that for collection it is limited to the real estate covered by the mortgage, does not stand in the way of a set-off between these two judgments. Speaking of the last cited and other cases, in Carson v. Ford, 6 Pa. Superior Ct. 17, 19, the court says: “In all of these cases there was a simple restriction of the lien of the judgment entered to property specifically described, without in any way, directly or by implication, affecting the obligation or debt upon which the judgments were based respectively. The proviso in this case is much more comprehensive and far-reaching in its terms and consequent effect than any of those referred to in the eases cited. In addition to the restriction of the lien to the premises ... in the City of Philadelphia, it is expressly provided that the judgment is ‘not to affect or bind any other property or estate, real or personal, now owned or which may hereafter be owned by me.’ ” .

A comparison of these cases shows a clear distinction between stipulations restricting the collection of the judgment to designated real estate and stipulations simply restricting the lien of the judgments to such. To the latter class belongs Stanton v. White, 32 Pa. 358, and the cases following its lead. But Carson v. Ford, 6 Pa. Superior Ct. 17, falls in a class different from that — and so does the present case. It does not speak of any lien, but restricts the collection of the bond, destroying all liability for it except with reference to designated property. A judgment containing such a restriction is clearly not of the same grade as a judgment without any restriction. Of course, the provisions of the bond control the judgment authorized by it.

3. On the questions of fact raised by the remainder of the answer, depositions of the parties were taken and resulted in statements involving oath against oath, upon which no decree is to be made by a chancellor: see Brawdy v. Brawdy, 7 Pa. 157, 159. Inasmuch as the set-off must be refused on the ground discussed under the second head, it is needless to make any further comment on this point. The rule to show cause is discharged.

From Wellington M. Bertolet, Reading, Pa.


author: Baldwin, P. J.,

text:
    Wall v. Pittsburgh, Lisbon & Western Railroad Company.

      Practice, C. P. — Statement of claim — Signature of attorney — Act of May U, 1915.

    Where plaintiff is represented by an attorney, the statement of claim must be signed by such attorney. The Act of May 14, 1915, P. L. 483, is mandatory in this respect.
    Motion to strike off statement. C. P. Beaver Co., Dec. T., 1921, No. 542.

      W. A. McConnel, for plaintiff; Reed & Reed, for defendant.
    April 5, 1922.
   Baldwin, P. J.,

In support of this motion, defendant's counsel has filed five reasons. At the argument, however, all of same were abandoned except the last, which is as follows: “It (plaintiff’s statement) is not signed by the attorney, although plaintiff is represented by an attorney.”

Section 9 of the Practice Act of May 14, 1915, P. L. 483, provides in part as follows: “The statement of claim . . . shall be sworn to by the plaintiff or some person having knowledge of the facts, and if there be an attorney, shall be signed by his attorney.”

The question for our decision is whether the above quoted provision, relating to the signing of plaintiff’s statement by plaintiff’s attorney, is mandatory or merely directory.

In our opinion it is mandatory. The provision relating to the signing of the statement by plaintiff’s attorney is in the same sentence with the provision requiring the statement to be “sworn to by the plaintiff or some person having knowledge of the facts.” There is, of course, no doubt that the provision last quoted is mandatory, and it would seem to be equally free from doubt that the same is true of the provision requiring the statement to be signed by the attorney, if any.

The late Judge Ralston, in discussing this section of the Practice Act before the Pittsburgh Law Club on Dec. 27, 1915, said: “If there be an attorney, he must sign the statement, which makes him responsible for its allegations— not for their truth, but for their relevancy and the propriety of making them. An attorney cannot file a statement containing scandalous and irrelevant statements and shift the responsibility upon his client.”

Order.

Now, April 5, 1922, the plaintiff’s statement is struck from the record, unless plaintiff’s attorney shall, within ten days next hereafter, sign the plaintiff’s statement.

From F. H. Laird, Beaver, Pa.


author: Baldrige, P. J.,

text:
    Notley v. Orr et al.

      Execution — Sale—Change of possession.

    1. A sale of cows, horses and farm implements, not accompanied with, nor followed by, any change of possession, is fraudulent as to creditors, and such property may be subsequently levied upon under a judgment against the vendor.
    2. The mere notice of such sale without delivery of possession will not prevent a judgment creditor of the vendor from issuing execution and levying upon the property.
    Motion for judgment n. o. v. C. P. Blair Co., Oct. T., 1921, No. 89.

      John M. Snyder, for plaintiff.

      B. F. Warfel and Hicks & Owen, for defendants.
    March 15, 1922.
   Baldrige, P. J.,

On Dec. 24, 1920, C. L. Schreffler executed a bill of sale to R. F. Notley for cows, horses, some farm implements, etc., and upon the same day Notley leased the personal property to Schreffler, who had been, and continued to be, in possession thereof. Plaintiff was a judgment creditor of Schreffler, and he issued on his judgment, and a levy was made upon the personal property described in the bill of sale and the lease. This issue was framed to determine the ownership of the property levied upon.

There was submitted to the jury the question as to whether or not notice was given to H. L. Orr of the sale of the personal property and the leasing thereof from Notley to Schreffler. The jury determined that question in the affirmative and brought in a verdict in favor of the plaintiff.

A motion was made for judgment n. o. v. The contract of sale entered into on Dec. 24, 1920, not having been accompanied with or followed by a change of possession, is fraudulent as to creditors. It may have been perfectly fair and upright between the parties, but as the possession was permitted to remain in the hands of Schreffler, the former owner, the transaction was void as to creditors. It was not an actual fraud, in that it was not a dishonest transaction as between the immediate parties, but it was a constructive or legal fraud as against these defendants. It has long been the law in this State that where a sale of personal goods, reasonably susceptible of delivery, is unaccompanied by a transfer of actual possession, it is binding between the parties, but a fraud as to creditors: Cadbury v. Nolen, 5 Pa. 320; Buckley v. Duff & Sons, 114 Pa. 596; Bowersox v. Weigle & Myers, 77 Pa. Superior Ct. 367.

Assuming that Schreffler notified Orr of the transaction with Notley, that did not affect Orr’s standing or preclude him from proceeding with an execution, as Orr did nothing that would estop him from pursuing his legal remedies, as neither Notley nor Schreffler were misled to their prejudice by anything that Orr did or failed to do: Atchison v. United Presbyterian Board of Publication, 266 Pa. 47. The mere notice of this transfer without delivery of possession did not prevent Orr from issuing this execution: 20 Cyc., 551.

The notice of the transfer, which is a constructive fraud, did not affect one who had already extended credit to the vendor: Warwick Iron Co. v. First National Bank, 10 Sadler, 14. As was said by Justice Burnside in Stark v. Ward, 3 Pa. 328: “If the law was not so, all that the holder of a fraudulent bill of sale of personal property would have to do to legalize his purchase would be to proclaim to the world his fraudulent and illegal act. This will not purge it of its iniquity. Our law is not so absurd.”

As the sale of this personal property was a fraud by reason of the lack of notorious change of possession compatible with the nature of the property, merely notifying the creditor of the sale did not thereby validate it. However honest the transaction was between Notley and Sehreiller, it was against the policy of the law: Steelwagon v. Jeffries, 44 Pa. 407.

In the view of the law there was no question to be submitted to the jury, and, therefore, this motion for judgment n. o. v. is hereby sustained.

From Robert W. Smith, Hollidaysburg, Pa.


author: Gawthrop, Dep. Att’y-Gen.,

text:
    National Banks as Executors.

      Banks and banking — Executors and administrators — Act of May 20, 1921.

    A national bank cannot act as executor, administrator or testamentary trustee if its appointment was made on or after the date of the Act of May 20, 1921, P. L. 991, unless, prior to such appointment, it had qualified itself to act in accordance with the requirements of the statute.
    Attorney-General’s Department. Opinion to Hon. John R. Morrison, First Deputy Banking Commissioner.
    March 6, 1922.
   Gawthrop, Dep. Att’y-Gen.,

The Attorney-General is in receipt of your communication of the 27th ultimo, asking to be advised whether a national bank which was appointed administrator or executor on May 21, 1921, can legally act as such administrator or executor.

I understand that the purport of your inquiry is the effect of the Act approved May 20, 1921, P. L. 991, entitled “An act restricting the appointment of corporate fiduciaries by testators or by any court or register of wills to corporations fully subject to supervision and examination by the Banking Department,” upon the right of national banks to act as executors or administrators.

The act provides in section 1 as follows: “That hereafter no person shall have power by any last will and testament or codicil or other testamentary writing to appoint as executor, guardian, trustee or other fiduciary any corporation other than a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania and subject to supervision and examination by the Banking Department of this State, or a corporation organized and existing under the laws of the United States doing business in this State, and by resolution of its board of directors duly adopted, a certified copy whereof shall have been placed on file with the Commissioner of Banking of this State, agreeing to place itself under and continue to be subject to supervision and examination by the State Banking Department in the same manner and to the same extent as corporations organized and existing under the laws of this State are or shall be subject; and any such appointment in violation of the provisions of this section contained in any last will and testament, codicil or other testamentary writing, made after the date of the approval of this act, shall be null and void.”

Section 2 of the act places similar restriction upon the power of any court or register of wills in this Commonwealth to appoint an executor, trustee, guardian, receiver, committee or other fiduciary.

Under this act, no national bank can lawfully act as executor, administrator, guardian, trustee, committee, receiver or other fiduciary by an appointment by last will and testament or other testamentary writing, or by a court or register of wills, if such appointment was made on or after May 20,1921, the date upon which the act went into effect, unless the bank, prior to such appointment, had qualified itself to so act in accordance with the requirements of the act.

From Guy H. Davies, Harrisburg, Pa.


author: Rogers, J.,

text:
    Spear v. Spear.

      Divorce — Matrimonial residence — Establishment of separate residence by wife during marriage — Bona fide residence in jurisdiction.

    1. During the continuance of the marriage relation, the residence of the wife is that of the husband, and she cannot establish a separate residence.
    2. Libellant and respondent established a matrimonial domicile at Wallingford, Pa. Libellant, the wife, with respondent’s consent, thereafter, in 1917, leased an apartment in New York in her own name; this apartment was subsequently occupied by her mother, with whom she spent most of her time, although returning from time to time to her husband’s home. On or about Aug. 6, 1919, on going to Wallingford, she was convinced of her husband’s adultery; she at once went to the apartment in New York, remaining with her mother until about the end of August. She then took rooms in a hotel in Philadelphia, where she lived until the filing of the libel, although making frequent visits to her mother: Held, she was a resident of Pennsylvania, and the Court of Common Pleas of Philadelphia County had jurisdiction.
    Exceptions to master’s report. C. P. No. 2, Phila. Co., Sept. T., 1919, No. 183.

      Cornelius Haggarty, Jr., for libellant.

      Henry J. Scott, John R. K. Scott and Pierce Archer, for respondent.
    June 5, 1922.
   Rogers, J.,

This is an action in divorce a mensa et thoro, brought by the libellant, Helen M. Spear, against the respondent, James Spear, Jr., on the charge of adultery. The libel was filed on Aug. 14, 1919, in Court of Common Pleas No. 2. On May 5, 1920, James Spear, Jr., filed a libel in divorce a vinculo matrimonii against Helen M. Spear, in Court of Common Pleas No. 4, alleging adultery on her part. On May 25, 1920, Helen M. Spear took a rule to show cause why the case in No. 4 Court should not be transferred to Common Pleas No. 2, of September Term, 1919, No. 183, and tried there as a cross-bill. On June 7, 1920, this rule was made absolute. On June 8, 1920, William C. Wilson, Esq., was appointed master in the case of the wife against the husband, and he was also appointed master in the cross-suit of the husband against the wife on Oct. 8, 1920.

The master held numerous meetings, and considerable testimony was taken. On Feb. 20, 1922, he filed separate reports recommending that both libels be dismissed, the wife’s because of lack of jurisdiction, and the husband’s for want of sufficient proof of his allegations.

Exceptions to the master’s reports were filed by counsel for both parties.

In the case of Helen M. Spear v. James Spear, Jr., the master decided that the wife’s alleged residence here was not bona fide; that she kept a room at the Windemere Hotel, 224 South Broad Street, Philadelphia, Pa., merely for the purpose of securing a divorce, and that her real residence was in New York City. He, therefore, decided that it was unnecessary to pass upon the question of adultery against the husband, as this court had no jurisdiction.

The testimony of the libellant is that she was married to the respondent on Nov. 17, 1915, in New York City; that she lived in New York at the time, and had lived previously in various parts of the United States. She was an actress, and her profession compelled her to move about the country. Immediately after the marriage she moved to Wallingford, Pa., with her husband, where she lived with him until on or about Aug. 6, 1919. She also testified that in the year 1917, with the knowledge of her husband, and without objection from him, she leased an apartment in her own name and had a telephone installed in her name in an apartment in New York City; that this was done for her mother, who was at that time in the middle west, and that her mother, coming on to New York shortly thereafter, occupied the apartment as her own and still occupies it. No testimony by the husband was offered in contradiction of these facts. She also testified that on a return from her mother’s apartment in New York to Wallingford, Pa., on or about Aug. 6, 1919, she found that some of her clothes had been worn by another person, that they had been taken down from closets in the third floor; that her hats lying around had been worn, and that there were black hair combings in her hair brushes, and dark hair-pins on her dresser of a color which she did not use. She immediately left the house, went to New York for a short time, and then, later in August, 1919, went to the Windemere Hotel in Philadelphia, and has since resided there. That she has since made a number of visits to New York to see her mother, where she had no room of her own, but occupied a room in the apartment on those occasions which her sisters and various members of the family used when visiting her mother.

The husband admitted that between July 26, 1919, and Aug. 6, 1919, two women had come to his country home in Wallingford, Pa., and had remained there for several days and nights, there being present only himself and another man, a naval officer, whose name the husband would not disclose, and the servants of the household. On Sunday, other naval officers visited Mr. Spear’s home, and there was evidence as to the drinking of intoxicating liquors all during this time, though no proof of any undue intoxication. The husband specifically denies that any misconduct occurred at this time on his part, or at any other time. On the other hand, there was testimony by Lenora Williams, a maid in the Spear household, who told of hearing Mr. Spear talking to one of the women, Alice, in his bed-room, and, also, the maid saw Mr. Spear go into the bath-room when this woman was in there. Then she said that the women dressed very scantily in one-piece suits and walked on the lawn without stockings. She also found articles of women’s wearing apparel in Mr. Spear’s bed-room, upon the bureau and at other places. Prom this testimony, and the other facts adduced, it appears to the court that the conclusion must be reached that the husband did commit adultery with one or both of these women, there present during the dates specified, as alleged by the wife in her libel, between July 26, 1919, and Aug. 6, 1919.

The master in his report, referring to the alleged establishment of a residence in New York, stated:

“It is apparent that at this time she wished to establish a home of her own amid congenial surroundings in New York, where her interest and her friends were. The relations between the parties at this time must have been rather strained. . . .

“Can any one doubt that after the litigation is over she would pack her trunk and take the next train for New York. . . .

“. . . That the residence of the husband is the residence of the wife is true, but two years prior to the final separation Mrs. Spear established a separate residence in New York, either as a harbor of refuge or on account of her fondness for the life there. . . .

“. . . but in the present case the wife had established a separate residence of her own two years prior to the separation, and she apparently used the Wal-lingford residence more as a place to visit than to go and live. Therefore, having established her separate residence prior to the separation in New York, where she lived continuously for a greater portion of her time prior to her separation, and her business interests being there, [there] is no reason, in the opinion of the master, why she should change her residence to Philadelphia, except for the purpose of procuring a divorce.”

After reading the report of the master, it is only natural to conclude that he based his findings upon the fact that, two or three years prior to the separation, an apartment in New York City was leased in the name of Mrs. Spear, and the master, for some reason which does not appear of record, finds that she did not like Philadelphia and intended, as the master expresses it, to “pack her trunk and take the next train for New York.” From the record in the case, no objection was ever made by the husband to the occupancy of this apartment, and it seems to have been more of a haven for the wife’s other than any residence of hers.

In the case of Barning v. Barning, 46 Pa. Superior Ct. 291, the libellant alleged as her right to claim Philadelphia as her domicile, that previous to her marriage her husband agreed to move to Philadelphia just as soon as he secured a position; that she married with the intention of returning to Philadelphia, and always had the intention of returning here. Rice, P. J. (March 3, 1911), at page 294, said: “Following out the theory of an identity of person, the law fixes the domicile of the wife by that of the husband, and denies to her during cohabitation the power of acquiring a domicile of her own separate and apart from him: 14 Cyc. of Law and Procedure, 846. This statement of the general rule is sustained by abundant authority. Her mere intention that his domicile should not be hers, even though expressed to her husband and assented to by him, could not alter the fact or detract from the legal consequences growing out of their cohabitation in New York in the relation of husband and wife. To hold that her intention to consider Pennsylvania her residence was, under the circumstances, equivalent to bona fide residence in the State, would defeat the manifest purpose of a statutory provision which ought not to be refined away by such subtlety of reasoning.”

There was no evidence that the parties in the case of Spear v. Spear had been or were separated prior to the wife leaving the husband in August of 1919. It can readily be seen from the case of Barning v. Barning that the master is in error in quoting the law and in his findings that the libellant was competent to establish a separate residence of her own two years prior to the separation: Hollister v. Hollister, 6 Pa. 449.

In Angier v. Angier, 7 Phila. 305, Pierce, J., said: “. . . the dwelling-together of parties in marriage implies of necessity that either they concur as to the place of their abode or one of them determines where it shall be. But as differences of opinion and wishes are liable to arise in this matter, the law must intrust to one of the parties the authority to fix the place and change it from time to time — when the concord of views which ought to subsist between persons so closely allied fails to do this — and the doctrine is familiar that this authority is vested by law in the husband.”

In re Hartman, 70 N. J. Eq. 664, it was held that, where a husband and wife resided together most of the time at her home in New York City, but spent the week-ends at the husband’s domicile in New Jersey, where he was engaged as a clergyman, the wife’s domicile was that of her husband — New Jersey.

Regarding the rule just stated as absolute, it has been held not to be affected by the fact that the husband and wife are living apart in the absence of a judicial decree of separation or divorce: 19 Corpus Juris, 416.

When Mrs. Spear was forced from her home at Wallingford, Pa., because of the misconduct of her husband, she sought a haven of refuge in the place most natural for her to go — the home of her mother. Had she remained at his residence, such conduct might be considered as a condonation of his actions and bar her claim to remedy: 1 Bishop on Marriage and Divorce, § 123; Barber v. Barber, 62 U. S. 582; Reed v. Reed, 30 Pa. Superior Ct. 229.

It is clear from the evidence that Mrs. Spear did not intend to relinquish her domicile in the State of Pennsylvania. She remained at the home of her mother hut two weeks and then returned to Philadelphia. Being forced from her husband’s home because of his misconduct, the law gives to the wife the right to choose a domicile for herself for the purpose of conferring jurisdiction on the proper tribunal in an action of divorce, and it will not deprive her of the benefit of her residence in Pennsylvania because of occasional visits to her mother in New York City.

In Shaw v. Shaw, 72 Pa. Superior Ct. 191, it was held: “A domicile in Pennsylvania is not lost by occasional visits to other states, where there is no evidence to warrant a finding that the libellant intended to establish a residence without the State.”

The testimony of Helen M. Spear is corroborated by servants of the hotel and several of her Philadelphia acquaintances as to her residing at the Windemere Hotel.

The court is of opinion that the master erred in finding that she was not a resident of the State of Pennsylvania.

As to the charge of adultery against the husband, James Spear, Jr., the court finds that the fact was clearly established by the testimony of the wife and the servants at the home in Wallingford.

The court also finds and concurs with the master in that respect in finding, that the charge of adultery made by James Spear, Jr., in his cross-bill against Helen M. Spear, was not sustained by the evidence.

For the reasons above set forth, the report of the master in the case of Helen M. Spear against James Spear, Jr., is not approved; the exceptions filed on behalf of Helen M. Spear to the master’s report are sustained and the court directs a rule be entered on James Spear, Jr., to show cause why a decree a divorce a mensa et thoro should not be entered.

The master’s report in the case of James Spear, Jr., v. Helen M. Spear, dismissing the libel on the ground that there is not sufficient proof of the allegation of adultery, is approved by the court, and the exceptions thereto are dismissed.

Helen M. Spear v. James Spear, Jr.

C. P. No. 2, Phila. Co., Sept. T., 1919, No. 183.

And now, to wit, June 5, 1922, after examination and consideration of the evidence in the case of Helen M. Spear v. James Spear, Jr., the court sustains the exceptions filed by the said Helen M. Spear, and it is ordered and decreed that the findings of the master are reversed. The court finds as a fact that the said Helen M. Spear is a bona fide resident of the City of Philadelphia, and that the court has jurisdiction. The court further finds that the said James Spear, Jr., did, at Wallingford, Pennsylvania, between July 26, 1919, and Aug. 6, 1919, commit adultery with one or both of the women named in the testimony. It is, therefore, concluded that the allegations of the libel are sustained and the libellant is entitled to a divorce a mensa et thoro.

Let final rule for divorce a mensa et thoro issue.

James Spear, Jr., v. Helen M. Spear.

Transferred from C. P. No. 4 to No. 2, Phila. Co., June Term, 1920, No. 294.

And now, to wit, June 5, 1922, the master’s report in the case of James Spear, Jr., v. Helen M. Spear having been filed, recommending a dismissal of the libel, and the exceptions filed to said report by said James Spear, Jr., having been argued by counsel, the exceptions are dismissed, and the report of the master is affirmed, and it is ordered and decreed that the libel filed by said James Spear, Jr., be dismissed.


author: McLaughry, P. J.,

text:
    Fish’s Contested Election.

      Election law — Petition for contest — Qualifications of signers — Payment of taxes — Women voters — Marriage after registration — Change of name.

    1. A signer of a petition for contest of an election must have been assessed for taxes within two years prior to the election.
    2. If the tax books of the county in which he resides show no such assessment, the burden is upon him to show assessment within two years in some other county of the Commonwealth.
    3. An unmarried woman, whose name appears on the registration list prior to the primary election, who subsequently marries before the election day, cannot, without having filed an affidavit as to such marriage, sign a petition for a contest as a qualified voter.
    Motion to quash petition for election contest. Q. S. Mercer Co.

      W. W. Moore, for plaintiffs; C. E. Brockway, for defendant.
    Dec. 21, 1921.
   McLaughry, P. J.,

A petition was presented to the Court of Quarter Sessions, signed by alleged qualified voters of the 4th Ward of the Borough of Farrell, Mercer County, Pennsylvania, setting forth that they voted at the election held on Nov. 8, 1921, in said ward, for the election of burgess of said Borough of Farrell. The petition avers that F. S. Fish was declared to have received 1253 votes and James Nevant 1168 votes in said Borough of Farrell, and that said James Nevant was the nearest contestant to the said F. S. Fish for the office of burgess. The petition further avers that in the 4th Ward of said Borough of Farrell, F. S. Fish was given 444 votes and that James Nevant received 342 votes, and that if the vote of said 4th Ward be set aside as illegal that F. S. Fish would receive 809 votes in said borough for the office of burgess, and James Nevant would have received 826 votes for said office, and said James Nevant would thereby be entitled to a certificate of election as burgess of Farrell instead of F. S. Fish.

At the date set for the hearing, and immediately before any testimony had been taken, counsel for F. S. Fish presented a motion to quash the petition, giving as a reason for the presentation of said motion that certain names attached to the petition were not those of qualified electors, and that the petition did not contain the signatures of twenty-five qualified electors, as required by law. The court then announced that testimony would be heard on this motion, together with other testimony affecting the matters alleged in the petition, and would give consideration to the motion to quash and act upon the same at the time the matters alleged in the petition were considered. . . .

It is our first duty to dispose of the motion to quash, for reasons stated in said motion. The fifth reason given is that the petition is not signed by twenty-five, qualified electors of the 4th Ward of the Borough of Farrell.

The Act of May 19, 1874, P. L. 208, upon which the proceedings in this case are based, requires the petition for contest to be signed by at least twenty-five qualified electors who voted at the election contested. If this averment is true, it is the duty of the court to grant the motion. The statutory requirements must be complied with in every detail. The act requires that the petition must not only be signed by twenty-five electors who voted at the election on Nov. 8th, but they must also have been qualified electors. Where a question of this kind is raised, it is the duty of the court to hear evidence presented to determine whether or not the signers were qualified electors. From examination of the petition in this case, we find but twenty-five names signed to the petition. If one of these signers is not a qualified elector, the petition must fall.

Evidence was presented for the purpose of showing that Steve Thomas and William Heinze were not qualified electors, for the reason that they had not been assessed as required by law. Steve Thomas was called to the witness-stand, and testified that he had been a resident of the 4th Ward of Farrell for about seven years, and the assessment books of the 4th Ward were offered in evidence. These assessment books show that Steve Thomas has not been assessed with any taxes payable within the two years, as required by section 1 of art. VIII of the Constitution of Pennsylvania, which requires, among other qualifications, the following: “If twenty-two years or upward, he shall have paid within two years a State or county tax, which shall have been .assessed at least two months and paid at least one month before the election.” Steve Thomas offered in evidence a tax receipt for 1921 taxes, being paid on Aug. 22, 1921. The evidence before us shows that he was not assessed for said taxes, which is a part of the requirements of the law to qualify him to vote. We think, under the evidence before us, that Steve Thomas was not a qualified elector.

In the case of William Heinze, the only testimony before us is that he has been a resident of Farrell for a period of twenty-one years, and had lived in the 4th Ward of Farrell for more than two years. Upon the examination of the evidence before us, we find that he has not been assessed as required by law, and there is no evidence that he has paid any tax within two years. From all the evidence before us, we find that William Heinze was not a qualified elector on Nov. 8, 1920, the date of election.

Counsel for the petitioners argued that the above named signers might have been assessed and paid taxes elsewhere within the Commonwealth, and that the assessment books filed in the court-house of Mercer County would not be sufficient evidence to base a conclusion that the law had not been complied with.

It has been held by the courts that the assessment books filed in the commissioners’ office are the best evidence of an assessment; and when such records are offered in evidence, showing there has not been an assessment as required in the case before the court, then a prima facie case is raised which stands until it is shown that the party was assessed elsewhere. In the case before us this has not been done, and it seems very clear that the above named William Heinze and Steve Thomas had not complied with the qualifications required by the laws of the State of Pennsylvania to entitle them to vote, and were, therefore, not qualified electors as required by the Act of May 19, 1874, P. L. 208.

It is also alleged that Elizabeth Broderick was not a qualified elector, for the reason that her name does not appear upon the registration list, and for that reason she should have been required to make an affidavit qualifying herself as a qualified voter. It is evident that the name of Elizabeth Broderick does not appear upon the registration list, and there is no affidavit qualifying a person by that name to vote. Elizabeth Broderick testified that she has been married subsequently to the primary election, and that her name appeared on the registration list as Elizabeth Heinze. Under the circumstances, would she be a qualified elector? The Act of July 2, 1839, § 65, P. L. 519, 533, reads as follows: “No person shall be admitted to vote whose name is not contained on the list of taxable inhabitants furnished by the commissioners as aforesaid, unless (1) he produce a receipt for the payment within two years of a State or eounty tax assessed agreeably to the Constitution, and give satisfactory evidence, either on his own oath or affirmation or the oath or affirmation of another, that he has paid such a tax, or, on failure to produce a receipt, shall make oath to the payment thereof.”

NOTE. — The order of the court below was affirmed by the Supreme Court (273 Pa. 410) upon the ground that the lower court had correctly held that the facts averred did not justify the rejection of the entire vote of the 4th Ward; the ruling of the court below as to the alleged disqualification of the three signers of the petition was not passed upon.

The name of Elizabeth Broderick does not appear on the list of voters, and the law specifically says that “any person whose name does not appear” shall make affidavit. We think that, under a strict compliance with the law, an affidavit should have been taken, setting forth the fact of her marriage, and that she was the Elizabeth Heinze whose name appeared upon the voters’ list. We are corroborated in taking this position by the Voters’ Guide, which is placed in the hands of the election boards throughout the county by the county commissioners, from which we take the following: “A woman who has registered and subsequently marries a native-born or a naturalized citizen of the United States between the registration and election day may vote by making a proper affidavit, providing she continues to reside in the election district, as required by law.” We are of the opinion that Elizabeth Broderick was not a qualified elector until she had made said affidavit. From the evidence on the motion to quash, it is obvious, as above shown, that there was but twenty-two of the petitioners who were qualified electors at the election. . . .

Petition dismissed. From W. G. Barker, Mercer, Pa.


author: Corbet, P. J.,

text:
    Fedel v. Miller et ux.

      Replevin — Household goods of wife — Contract of husband — Vendor and vendee — Statement of claim — Affidavit of defence.

    1. Where a statement of claim in replevin avers that the goods replevied are the property of plaintiff, a married woman, and purchased with her own funds, an affidavit of defence is insufficient which avers that defendants have no means of knowing whether plaintiff or her husband, or both, are the real owners of the property and demand proof.
    2. Where a husband contracts to purchase real estate, paying a small sum as hand-money, and the vendor, pending final settlement, permits household goods of the vendee’s wife to be placed in a dwelling on the premises, the vendor, after oreach of contract by the husband to complete the purchase of the land, cannot replevy such goods of the wife.
    3. In such case there was no lien for storage.
    4. A set-off is not admissible in an action of replevin.
    Replevin. Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. C. P. Jefferson Co., Aug. T., 1921, No. 190.

      Brown & Means, for motion; M. M. Davis, contra.
    Jan. 18, 1922.
   Corbet, P. J.,

Replevin for numerous articles of household goods and chattels. The goods were replevied and the defendants duly served. They filed no counter-bond within the prescribed time, and the goods were delivered and turned over to the plaintiff.

Plaintiff in her declaration avers, among other things, that “all of which articles of personal property belong to and are owned by the said Cornelia Fedel, the plaintiff, who purchased them with her own funds.” This was all that was necessary: McCrary v. McCully, 75 Pa. Superior Ct. 464; Commercial Car Co. v. W. H. Murphy & Sons, 50 Pa. C. C. Reps. 190; 30 Dist. R. 858.

The eighth paragraph of the affidavit of defence sets forth: “The defendants have no knowledge or means of knowing whether the plaintiff or her husband, or both, are the real owners of the property replevied; that they can neither affirm or deny the facts and demand proof thereof at the time of the trial.” This is insufficient, and may be treated as conceding the matter thus averred in the declaration: Buehler v. United States Fashion Plate Co., 269 Pa. 428.

The defence the defendants interpose by their affidavit of defence may be summarized as follows, namely: That defendants on May 17, 1921, by article of agreement, sold to Louis Fedel, plaintiff’s husband, three lots or pieces of land in Winslow Township for $1100, of which grantee paid hand-money $25, and the balance was payable on or before June 1, 1921, when possession was to be given. That on the date said contract was made, Louis Fedel, in conjunction with his wife, the plaintiff, sought and obtained permission from the defendants to store their household goods in the dwelling on the purchased premises, then occupied by defendants, and did, on or about May 17, 1921, so store them. That defendants made request of plaintiff and her husband to fulfill the agreement of purchase and go into possession June 1, 1921, but the request was denied by them. That plaintiff and her husband fraudulently formed a plan to rescind his purchase of the real estate, he being insolvent, intending it never should be paid for, and by this plan to avoid the purchase and to secure their household goods stored on the premises as the property of the plaintiff, without compensation to defendants for storage-room, time and trouble, vexation and annoyance, by reason of the sale and storage of the property. That defendants claim from the plaintiff $25 for the storage of the goods, and are entitled to full costs of suit and $700 damages for breach of contract.

It is clear the ownership of the personal property in question, or the right to its possession, has no relation whatever to the real estate deal mentioned by defendants, and that no claim for a breach of the latter is chargeable upon the personal property in suit, or would warrant or justify the defendants in holding it as security therefor. Defendants do not deny plaintiff’s ownership of the household goods. They do not deny they detained them from her. They merely seek to justify the detention. We have not been shown, nor do we see, any reasonable, rational or legal reason which in any way supports the contention that for a breach of the husband of his agreement to purchase the lots — and he alone is the party with whom defendants dealt in that respect— the defendants could seize and hold the plaintiff’s household goods. One may not thus take the law into his own hands. We do not think this a legitimate ground for the detention. Nor do we think defendants’ position either bettered or strengthened by the fraud alleged. A set-off is not admissible in an action of replevin: Guernsey v. Moon, 46 Pa. Superior Ct. 645; C. H. Hardy Auto Co. v. Posey, 50 Pa. Superior Ct. 399; Ford C. B. & M. Co. v. Hess’s Estate, 55 Pa. Superior Ct. 587; Kennedy v. McSorley, 68 Pitts. L. J. 855. The refusal of Louis Fedel to consummate his purchase cannot be held to constitute a fraud, and his breach, as has been indicated, was no justification for defendants’ seizure and detention. Pleadings other than those prescribed by the Act of April 19, 1901, P. L. 88, are improper: Stern v. Yates, 25 Dist. R. 474.

It is alleged by defendants that plaintiff’s husband, in conjunction with his wife, sought and obtained permission from defendants to store their household goods in the dwelling on the purchased premises then occupied by the defendants, and did so store them. By reason of the agreement and payment of hand-money, the husband had an equity in the lots, although not the present right to possession. No express bargain is alleged whereby plaintiff or her husband were to pay for the privilege, nor do we think the circumstances stated would justify any implication of an obligation of that kind. If defendants wanted to convert the permission into a contract, they should have withdrawn their permission and notified plaintiff and her husband that if the goods remained they would be subject thereafter to a charge for storage. Plaintiff and her husband did not relinquish their possession of the goods, nor put the defendants in possesssion of them, merely by storing them in the dwelling. Defendants were not warehousemen, nor in any way entitled to a lien on the goods for storage that we can see, and if they seized and detained them, they were wrongdoers. Where defendant has a lien only, his remedy is on the plaintiff’s bond: Pickering v. Yates, 51 Pa. Superior Ct. 436; McCrary v. McCully, 75 Pa. Superior Ct. 464; Burgert v. Fitch, 16 Lacka. Jurist, 158; Shreiner v. Kauffman, 34 Lanc. Law Rev. 179; Banks Con. Co. v. Harwood-Barley Manuf. Co., 19 Luzerne Legal Reg. 47; Lyons v. Wymbs, 20 Lacka. Jurist, 171; Automobile Securities Co. v. Forepaugh, 68 Pitts. L. J. 12; Moore v. Wilson, 37 Lanc. Law Rev. 351.

If there were a lien accompanied by possession by the defendants, a conditional verdict might be entered under section 6 of the Act of April 19, 1901, P. L. 88, which would transfer the lien from the chattels to the bond, which stands in lieu of them: Young v. Couche, 52 Pa. Superior Ct. 592.

If there be a contract and its terms negative the theory of a lien in defendant’s favor, plaintiff is entitled to judgment: Standard Accident Ins. Co. v. Edwards, 13 Lacka. Jurist, 183.

Defendants do not allege any facts which establish a lien in their favor on the goods in suit, either statutory or contractual; hence, plaintiff is entitled to judgment. The judgment should be in favor of the plaintiff and against the defendants: Painter v. Snyder, 22 Pa. Superior Ct. 603; Miller v. Douglas, 32 Pa. Superior Ct. 158; Westinghouse Co. v. Harris, 237 Pa. 203; Salant & Salant v. Miller, 11 Del. Co. Reps. 256.

And now, Jan. 18, 1922, the rule to show cause is made absolute, and judgment is entered in favor of the plaintiff and against the defendants.

From Raymond E. Brown, Brookville, Pa.


author: Landis, P. J.,

text:
    Hallman v. Sterner.

      Automobile collision with standing truck at night — Negligence — Motor Vehicle Act of June 30, 1919.

    Where, in an action for damages, it appeared that the defendant’s chauffeur, on a dark and rainy night, left a truck standing on a public highway in the country, mostly in the centre of the road, unguarded and without lights, thirty feet beyond a garage where a light was burning over a gasoline pump, and the plaintiff, driving his auto at a safe speed, collided with the truck, the case is for the jury and a verdict for the plaintiff should be sustained.
    Act of June 30, 1919, § 20. P. L. 678, considered.
    Trespass for damages. Rule for new trial and for judgment n. o. v. C. P. Lancaster Co., Jan. T., 1921, No. 82.

      K. L. Shirk, C. E. Ehrhart and John A. Coyle, for defendant and rules.

      Charles W. Eaby, contra.
    Jan. 14, 1922.
   Landis, P. J.,

The reasons filed for a new trial in this case do not seem to me to raise a serious proposition. They are all either general reasons, which need not be considered, or they complain of error in failing to give binding instructions. That question was decided preliminary to the trial, but it is also raised in the motion for judgment non obstante veredicto. The only point involved is, therefore, whether we should have given binding instructions to the jury.

On Nov. 16, 1920, the plaintiff left his father’s cattle stables, which are located at Bridgeport, on the Lincoln Highway, in his Ford sedan, and drove westward on said highway, at from twelve to fifteen miles an hour, towards his home, which is located in the City of Lancaster. This was about 5.55 o’clock in the evening. The night was dark, and it was raining and blowing heavily. He had his lights burning, and he drove on the north or right-hand side of the highway, about four feet from that side of the road. He crossed over Witmer’s Bridge and was ascending the hill, when he bumped into a truck, which was standing up the hill mostly in the centre of the road, unguarded and without any lights. There was a garage thirty or forty feet east of where the truck was standing, in front of which were two gasoline pumps, but the plaintiff testified that the light on one of these pumps was not burning. He said that he could not see far on this night, and he did not see the truck until he struck it. Two minutes after the accident, he saw a man coming out of the garage, who told him he was operating the truck. The plaintiff was corroborated by other witnesses, and these facts have been established by the verdict. Are they sufficient in law to sustain it?

By the Act of June 30, 1919, § 20, P. L. 678, it is provided that “every motor-vehicle on the public highway shall, from one hour after sunset until one hour before sunrise, or whenever it is impossible to see clearly for a distance of 200 feet, show at least two lights of approximately equal power on the front of such vehicle that shall be clearly visible for a distance of 200 feet,” and that “every motor-vehicle, including motorcycles, shall also, whether standing or in motion, display one red light on the rear thereof. . . .” And in section 25 it is stated that “every operator of a motor-vehicle shall at all times keep as close as possible to the right-hand side of the highway, allowing other vehicles free passage to the left, and no operator of a motor-vehicle shall allow such vehicle to stand in the centre of the highway or so as to obstruct or interfere with any other users thereof.” In Marks v. Kauffman & Baer Co., 67 Pitts. L. J. 596, it was held that “where defendant’s chauffeur, on a dark and rainy night, left a truck standing along or near the curb on plaintiff’s right, near a telegraph pole and in a dark place, without lights, and plaintiff, driving his auto at a safe speed, collided with the truck, defendant was . . . liable in damages, in that the chauffeur failed to exercise the care required by the circumstances.” This seems to be very near the present case, and it is determined, as I think, in accordance with the law.

Here, the plaintiff was driving at a moderate speed, not on a city street well lighted, but along a country highway. The night was dark, and the wind was blowing and the rain was falling fast. The defendant’s chauffeur left his truck standing partly in the centre of the highway, unguarded and without lights. This was negligence on his part, for he was not exercising due care under the circumstances. On the other hand, the plaintiff was where he had a right to be, and he was not, according to the evidence, guilty of any contributory negligence, whereby the accident was occasioned.

I am of the opinion that the rule for a new trial should be discharged and the motion for judgment non obstante veredicto overruled.

Rule discharged and motion overruled.

From George Ross Eshleman, Lancaster, Pa.