author: Landis, P. J.,

text:
    Upper Leacock School District.

      Proceedings to take property for school purposes — Appeal from award of viewers — Withrawal of proceedings — Damages to owners.

    In proceedings to take private property for school purposes, where members of the school board entered, measured and staked the ground, and notified the owner not to use it, and it was more or less used by!the school children as a playground, but was never formally opened up or taken over by the board, the school board may withdraw all proceedings after the viewers have fixed the damages and the board has appealed from their award, which appeal is undetermined, provided a proper allowance is made to the owners for damages actually sustained and counsel fees, contingent on the withdrawal of the proceedings.
    Proceedings to take property for school purposes. Appeal from award of viewers. Petition for leave to withdraw proceedings. C. P. Lancaster Co., Trust Book No. 26, page 187.

      M. G. Schaeffer, for petition; John M. Groff, contra.
    June 25, 1921.
   Landis, P. J.,

On Oct. 2, 1920, by a majority vote of the Board of School Directors of Upper Leacock Township, it was resolved that the board should select for school purposes a lot of ground adjoining the Bare-ville Public School on the west, containing in front along the New Holland Turnpike 82 feet, more or less, and extending in depth 420 feet, more or less, and containing 128 perches of land, the same being the property of Harriet Sheaffer, wife of Solomon Sheaffer. As the board of school directors and Harriet Sheaffer were unable to agree as to the damages occasioned by the taking, a petition was presented to this court, asking for the appointment of viewers to fix the same. Thereupon the court appointed viewers, and on April 26, 1921, after a hearing duly had, they ascertained said damages to be $2500. From this award the school district within the statutory period appealed.

The land was not, according to the claim of the petitioners, entered upon nor occupied by the school board for school purposes or any other purposes. It is admitted, however, that it was staked off prior to the passage of the original resolution for the taking, and was subsequently surveyed after the damages had been assessed. As the damages were deemed by the school directors to be excessive, they duly adopted, on May 21, 1921, a resolution, directing that their petition should be presented to this court, asking authority to withdraw all the proceedings.

In answer to this application, the respondent asserts that the school board have taken actual possession of this land, staked it off, notified her that she could not use it, and that their school children have, at least a portion of the time, played upon it.

Depositions were taken by both parties. They do not seem to vary much in actual effect. S. R. Myer, the secretary of the board, testified that, some time during the latter part of October or the beginning of November, 1920, most of the members of the board went to this property, walked through the lot and measured the distance to make a straight line; that they then drove the stakes, and, after that, they told the Sheaffers that this ground belonged to the school district. He also admitted that the children might have seesawed on it a little during the last few weeks of school. The respondents testified that it was occupied and used by the children as a playground, which was the purpose for which it was to be taken by the school district; but there is no evidence that the school board opened it up generally or authorized it to be used for such purposes. The fence between the school property and that of the respondent was never removed.

In section 602 of art. VI of the School Code of May 18, 1911, P. L. 347, it is provided that, “in order to comply with the provisions of this act, and subject to the conditions thereof, the board of school directors of each district is hereby vested with the necessary power and authority to acquire, in the name of the district, by purchase, lease, gift, devise, agreement, condemnation or otherwise, any and all such real estate, either vacant or occupied, as the board of school directors may deem necessary to furnish suitable sites for school buildings and playgrounds for said district, or to enlarge the grounds of any school property held by such district. . . .” Section 607 declares that “the title to all real estate acquired by any school district in this Commonwealth by condemnation proceedings, as herein provided for, shall be vested in such school district in fee simple.” Sections 609 and 610 set out the plan to be pursued when land is to be taken for school purposes, and section 611 declares that “if no exceptions are filed to, or appeal taken from, said report by any party interested within thirty days after the filing thereof, the same shall be confirmed absolutely by the court, and the amount awarded therein to any person shall be a valid debt and obligation of said school district. . .

In 15 Cyc., 937, it is said: “The condemnation proceedings may be dismissed or abandoned at any time prior to final judgment, or final confirmation of the report of the commissioners or appraisers appointed to assess damages or compensation, or before the compensation has been paid or deposited in the manner provided by law, or the right of the property owner to compensation has otherwise become vested. The proceeding may be abandoned even after the damages are assessed, and a reasonable opportunity should be given, after the price of the land is fixed, for the petitioner to reject the award and abandon the proceeding. The right to abandon is not lost by the taking of an appeal by either the condemning party or the owner. But after a final judgment of condemnation has been entered, or the amount of compensation has been finally fixed and judgment therefor rendered, or in any other way the land owner has acquired a vested right to compensation, as where the same has been paid or deposited according to law for his benefit, the condemning party cannot abandon the proceedings so as to deprive the owner of his right to the compensation awarded, especially where the damages are limited to those actually sustained. The right to abandon or dismiss a proceeding is not lost by taking possession of the property -under statutory authority pending the proceedings, or by a mere entry to lay out the improvement, or a mere wrongful or unlawful taking of possession; but it has been held that if, by the owner’s express or implied consent, the property is taken or damaged before compensation is made, the owner has a vested right in the compensation. . . .”

There seems to be in this State a distinction made between the taking of land by a private and by a public corporation. In the case of a private corporation, when a sufficient bond with sureties approved by the court has been given to a land owner for land taken and appropriated, the owner’s title to the land is divested, and his only remedy is upon the bond, in connection with the statutory remedy for the assessment and collection of damages: Fischer v. The Catawissa R. R. Co. and The Philadelphia & Reading Ry. Co., 175 Pa. 554; Dilts v. Plumville R. R. Co., 222 Pa. 516. On the other hand, in Dillon on Municipal Corporations (3rd ed.), § 608, it is said that where municipal corporations have the power to take private property for public use, they may, at any time before taking possession thereof under completed proceedings or before final confirmation, recede from or discontinue the proceedings they have instituted. The text-writer adds: “Until assessment of damages has been made, the amount cannot be known; and it is reasonable that, after having ascertained the expense of the project, the corporation should have a discretion to go on with it or not, as it sees fit.” In Funk’s Admin’rs v. Wayneboro School District, 18 W. N. C. 447, the Supreme Court held that “in proceedings for the taking of land for school purposes under the Act of April 9, 1867, P. L. 351, where there has been no actual or permanent taking of the land, the petitioners may withdraw all proceedings at any time before final confirmation of the report of viewers;” and in Appointment of Viewers for Pine Grove Township School District, 26 Dist. R. 634, it was decided that “in proceedings to take private property for school purposes, where the school district has entered upon the land and staked it off, and has adopted a resolution determining that the property is required for such purposes, and has petitioned for and obtained the appointment of viewers to ascertain the damages, but has not taken any actual possession of the property, the school district may withdraw the proceedings after the viewers have met and fixed the damages, but before their report has been finally confirmed.”

It is true that in Wood v. Trustees of the State Hospital for the Insane at Warren, Pa., 164 Pa. 159, it was decided that “where there has been such an actual taking under the power of eminent domain as invests the donee of the power with title and gives to the land owner a vested right of compensation, the former cannot be permitted to discontinue the condemnation proceedings without the consent of the latter. This rule applies not only to railroad corporations, but also to municipal and quasi-municipal corporations.” However, I am of the opinion that this latter case is not effective in the present proceedings, because the damages had not been ultimately fixed and the school district had not occupied the premises in such a way as to divest finally Mrs. Sheaffer’s title.

I am, nevertheless, of the opinion that the school district should compensate Mrs. Sheaffer for the damages which she has sustained by reason of the action of the directors in commencing the proceedings for the taking of her land; and while there does not seem to be any definite method set out in the act of assembly whereby to fix such damages, I am inclined to think that this can be done by an allowance to withdraw the petition, subject to the condition that the district pays the damages incurred. I am convinced that $250 would be fair compensation, to which should he added a counsel fee of $60; and, if these conditions are complied with, the proceedings will be considered as withdrawn.

Leave to withdraw proceedings granted, upon payment by the school district of $250 damages and $50 counsel fee.

From George Ross Eshleman, Lancaster, Pa.


source: Caselaw Access Project

author: McNees, Dep. Att’y-Gen.,

license: Public Domain

text:
    Revival of Charters.

      Corporations of the second class — Revival of charters — Act of June 25, 1895.

    1. A corporation of the second class chartered after the Act of June 25, 1895, P. L. 310, whose charter has expired, may have its charter revived upon complying with the provisions of that act.
    2. The act is remedial, and applies to all cases where the remedy is needed, unless definitely restricted.
    Attorney-General’s Department. Opinion to Hon. Bernard J. Myers, Secretary of the Commonwealth.
    Sept. 14, 1921.
   McNees, Dep. Att’y-Gen.,

The Attorney-General’s Department is in receipt of your letter inquiring as to whether or not a corporation chartered after the Act of June 25, 1895, P. L. 810, whose charter has since expired, may have said charter revived or renewed under the provisions of said act.

The facts in the case before us are that a corporation duly chartered in 1904 for a term of three years, and which term expired in 1907, has now petitioned for a revival of such charter.

The question turns upon the interpretation of section 2 of the Act of June 25, 1895, P. L. 310. The title of said act and section 2 thereof are as follows:

“A further supplement to ‘An act to provide for the incorporation and regulation of certain corporations,’ approved April 29, 1874.

“Section 2. That the charters of all manufacturing corporations granted in accordance with the provisions of the present Constitution of this Commonwealth and the Act of General Assembly, entitled ‘An act to provide for the incorporation and regulation of certain corporations,’ approved April 29, 1874, and the charters of all manufacturing corporations that have accepted the provisions of the said Constitution and act of assembly, which charters were limited in their duration by the articles of association or by the act of assembly under which they were granted, and have now expired or shall hereafter expire, are hereby extended for a period of twenty-ñve years from the date of the expiration of said charters: Provided, that a bona fide organization has taken place and business has been commenced in good faith within a period of two years from the date of the granting of said charters: Provided, further, that manufacturing concerns availing themselves of the provisions of this act shall first pay into the treasury of this Commonwealth the fee and bonus upon their capital stock now fixed by law for the renewal or extension of a corporate charter: And provided, further, that upon the payment of said fees and bonus and the production to the Secretary of the Commonwealth of evidence that the terms of this act have been complied with, letters-patent shall issue to said manufacturing corporation.”

The Act of April 29, 1874, P. L. 73, which is supplemented by the Act of June 25, 1895, P. L. 310, is designated by authority of the subsequent Act of June 13, 1883, § 7, P. L. 122, as “The Corporation Act of 1874,” and establishes a complete system or code for the regulation of all corporations falling within the classes named therein: St. Luke’s Church, 17 Phila. 261 (1884).

The Act of 1874 made no provision under which the expired charter of a corporation could be renewed. The supplement of 1895 was passed to provide a means of reviving charters of corporations which “have now expired or may hereafter expire.” Does this act apply to corporations created after its passage as well as those created before that time? The act is remedial in nature, and should apply to all cases where the remedy is needed, unless definitely restricted: Pocono Spring Water Co. v. American Ice Co., 214 Pa. 640 (1906); Umholtz’s License, 191 Pa. 177; Clay v. McCreanor, 9 Pa. Superior Ct. 433; Seminary v. Bethlehem, 153 Pa. 583.

The only suggested restriction in this case is the use of the word “granted” in line two, section 2, of the act. Does the statement “that the charters of all manufacturing corporations granted in accordance with the provisions of the present Constitution,” etc., refer only to charters granted and in existence at the time of the passage of the act? We are of the opinion that it does not, and that it is not a strained construction to say that it also includes corporations created at any time after the passage of the Act of 1895: Independent School District, 19 Pa. C. C. Reps. 452; Mutual Life Ins. Co. v. Talbot, 113 Ind. 373; Black Creek Improvement Co. v. Com., 95 Pa. 450; Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 Rawle, 9.

We are of the opinion, therefore, and so advise you, that you may revive the charter of a corporation issued subsequent to 1895 and which has since expired, provided said corporation complies with all the other requirements of the act. Prom Guy H. Davies, Harrisburg, Pa.


author: Fuller, P. J.,

text:
    Lottman v. Smith.

      Injunction — Contract as to trade name.

    Plaintiff and defendant had been partners under the trade name of the "Paris Corset Shop.” Upon dissolution of the partnership, the defendant agreed that the plaintiff should have "the exclusive right” to the' trade name. Thereafter the defendant opened a shop within a few doors of the plaintiff's shop and made public announcement of herself as “formerly of the Paris Corset Shop:” Held, that such language merely identified the defendant by reference to her former connection, and was not a breach of the agreement as to the trade name. Preliminary injunction dissolved, with the suggestion that the defendant discontinue the exterior use of such language until final decree.
    Motion to continue preliminary injunction. C. P. Luzerne Co., May T., 1921, No. 6, in Equity.

      B. R. Jones and D. Rosenthal, for plaintiff.

      Andrew Howrigan, for defendant.
    April 23, 1921.
   Fuller, P. J.,

The injunction was granted to restrain the defendant “from doing business or advertising or using the name of the ‘Paris Corset Shop’ by way of signs, placards, advertisements in newspapers or in any manner or form whatsoever” in violation of written agreement with plaintiff.

From the evidence we find the following

Facts.

1. The parties for some years prior to Jan. 28, 1921, had been partners, carrying on the business of female underwear and cognate articles under the trade name of the “Paris Corset Shop,” at No. 47 South Main Street, Wilkes-Barre.

2. On that date they dissolved partnership by written agreement, in which defendant sold all her interest therein, including good-will, for a valuable consideration to plaintiff, and agreed that the latter “shall have the exclusive right to the name of the ‘Paris Corset Shop’ in the County of Luzerne.”

3. Subsequently defendant rented and entered a building near by, No. 53 South Main Street, for the purpose of conducting similar business, and displayed thereon certain conspicuous placards containing the announcement, “On or about April 25th this place will be opened by Fay Smith, formerly of the Paris Corset Shop, with a complete line of corsets, brassieres, hosiery, negligees, kimonas,” etc., and if not enjoined will maintain the placards and open the place as announced.

4. The plaintiff does not complain of the proposal to open the place and conduct the business in such close proximity, but merely complains of the language in the announcement, “formerly of the Paris Corset Shop,” as an invasion of his exclusive right to the name.

5. That language, however, merely identifies the defendant by reference to her former connection with the Paris Corset Shop, and does not amount to such use of the name in her business as the parties intended. It is neither designed to defraud the plaintiff nor to deceive the public. Adopting the language employed in the case of Suburban Press v. Publishing Co., 227 Pa. 148, “there was no intent on her part to get an unfair and fraudulent share of the plaintiff's business, nor was the effect of her action, irrespective of intent, to produce confusion in the public mind and consequent loss to the plaintiff.” The plaintiff still maintains at the old place, close by, the old sign “Paris Corset Shop,” which of itself sufficiently apprises the public of the true situation, and prevents confusion in the public mind.

From the foregoing facts we find the following

Law.

1. Agreements of this character should be strictly construed. This agreement prevents defendant from announcing her place of business as the “Paris Corset Shop,” either explicitly or by deceptive ambiguity, but it does not prevent her from identifying herself by reference to her former connection with that highly respectable institution. The language, indeed, instead of inflicting an injury upon plaintiff, really confers an exalted compliment upon his place of business. In 38 Cyc., 848, it is pertinently said with copious citations, which we have not time to analyze, that “one may truthfully represent himself as being late or formerly of or with a named concern, provided there is no artifice or device connected with the announcement so as to cause deception.” Plaintiff relies strongly upon Hall’s Appeal, 60 Pa. 458, but the facts of that case involved a flagrant invasion of the good-will which defendant had sold to the complainant, and the decision was based upon that ground; while in the case at bar the plaintiff does not stand upon such an invasion, but only upon the alleged unlawful use of the trade name, which, in our opinion, has not been established.

2. The announcement restrained by this injunction does not involve a violation of the agreement; and, therefore,

3. The preliminary injunction should be and hereby is dissolved, with the

suggestion, however, that, after the opening of the defendant’s place, she discontinue, and she expressed her willingness to do so, the exterior use of the language until final decree. From F. P. Slattery, Wilkes-Barre, Fa.


author: Henderson, J.,

text:
    Chew’s Estate.

      Res adjudicata — How far adjudication of one account is conclusive upon the audit of subsequent accounts — Law of case.

    1. A decree of the Orphans’ Court, based upon an award of distribution pursuant thereto, no appeal having been taken and no review granted, is res aiijvMcata in so far as the rights of the parties and their privies are concerned, not merely as to the principal of the fund and accrued income, which was the subject of the decree, but also as to the income thereafter accruing on the fund in the hands of the trustees and included in a subsequent account.
    2. Hence, where a clause of the will has been construed by the court in favor of the construction claimed by one of the distributees, and distribution of income made in accordance with that construction, the distributee's executor, being in privity with the distributee, cannot maintain a different construction of the will from that adopted by the court in the lifetime of his decedent where his claim relates to income accruing after the distributee’s death from the same share of principal which had been before the court in the former proceeding.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1878, No. 228.

      Frederick J. Kuoms, for exceptant.

      Saul, Ewing, Remick & Saul and Howard McMorris, Carlyle H. Ross and Evans, Bayard & Frick, contra.
    Dec. 14, 1921.
   Henderson, J.,

Joseph Chew, Sr., died in December, 1868, having first made his will, which was thereafter duly proven, by which he directed, subject to the payment of a small weekly sum to his son, that the residuary estate should be held in trust, to pay one-fourth of the net income to his son, Joseph Chew, Jr.; one-fourth to his daughter, Emily C. Jeffries; one-fourth to his daughter, Agnes Eareckson, and the remaining one-fourth among the six grandchildren named in his will, “during their respective lives.”

Emily C. Jeffries, one of the children of Joseph Chew, Sr., died Jan. 23, 1882, leaving to survive her three children, Grace C. Burger, Kate Rose and Caroline Berry. Kate Rose died May 3, 1886, leaving to survive her two sons, William M. and Robert J. Rose. Caroline Berry died July 25, 1903, leaving no issue, but a will, which was duly proven, by which she gave her whole estate to her husband, whom she appointed executor, and to whom letters were granted.

The death of Caroline Berry was the occasion for the filing of an account in the estate of Joseph Chew, Sr., which was audited by Judge Ashman. The trust then before the court for construction arose, as stated by Judge Ash-man in his adjudication, “under the residuary clause in the testator’s will, by which he gave his residuary estate to certain trustees in trust, to pay one-fourth of the net income to each of his children, Joseph Chew, Jr., Agnes C. Eareckson and Emily C. Jeffries, and one-fourth to his grandchildren,” as therein named, “equally during their respective lives, and on the death of any life-tenant to pay their share to their respective children until all the life-tenants shall be dead, and then to allot to the children and issue, per stirpes, of each deceased life-tenant the principal sum of their parent’s share.”

At the time of the audit, in 1903, Emily C. Jeffries was dead, having died in 1882, and there were living as representing her share, her daughter, Grace C. Burger; William M. and Robert J. Rose, the children of another daughter, Kate Rose, who died in 1885, and the remaining daughter, Caroline Berry, had also died, leaving a will by which she appointed her husband executor.

The question then before the court for determination was, what became of the income from the trust which theretofore had been payable to Caroline Berry. Grace C. Burger was present, claiming the one-quarter of the income which had been originally left to Emily C. Jeffries, her mother; the executor of Caroline Berry does not appear to have been present; and the two sons of Kate Rose claimed one-half of the income from the Caroline Berry share, because they were the children of Kate Rose, the sister. Judge Ashman awarded the share of the income of Caroline Berry, which had accrued to the time of her death, to her husband as executor of her will, and that which accrued subsequently to her decease to her living sister, Grace C. Burger, one-half, and the remaining one-half equally to the two sons of her deceased sister, Kate Rose.

Exceptions were filed to the adjudication by Grace C. Burger, on the ground that the entire income should have been awarded to her as the surviving child of Emily C. Jeffries. These exceptions were dismissed in an opinion by Judge Ferguson, and the adjudication confirmed absolutely. It will be noted that in the distribution as made, as above recited, no share of the subsequently accruing income was awarded to the liusband-legatee-executor under the will of Caroline Berry. This interpretation of the will by Judge Ashman, confirmed by the court in banc, established a course of action which continued without objection from any party in interest for a period of eighteen years.

It is contended that the construction, as established by this court, and unappealed from, became the law of the case. If it did, that is an end of the matter. The question whether it became the law of the case depends on whether the fund and the parties before the court are the same.

It is admitted that the principal fund before the court is the same, but that it is a new income, and for that reason the parties have a right to be heard. This precise question arose in May’s Estate, 25 Dist. R. 608, wherein this court said, speaking by Judge Gest: “But while the principal of the estate in this account remains the same, the income accounted for has, of course, been subsequently received, and it is argued that the previous decrees are not now binding upon the court, according to the' doctrine just now mentioned, inasmuch as the income now distributable is in that sense a different fund. The prior decision was that the income then in the hands of the trustee passed under the intestate laws until the death of Mary E. Mulliken, and the award of principal made to the trustees was, of course, for the purposes' of the trust as in said adjudication determined. At the prior audits the exceptants were represented by counsel, and it would seem to us that they should be concluded by the decision then rendered, the exceptions having been dismissed by the court in banc, not only as to every question that was then and there raised, but every question that should or might have been raised by the distribution directed by the adjudication. If this is not so, there would be nothing to prevent the parties from disputing these questions over and over again whenever the trustees receive additional income, thus causing complexity, annoyance and uncertainty to the trustees and all parties.”

There yet remains for consideration the question as to whether the parties are the same. At the audit before Judge Ashman, Grace C. Burger appeared by counsel and claimed the whole share of the income which had theretofore been paid to Caroline Berry, probably on the ground that she was the surviving daughter of Emily C. Jeffries. It was possible at that audit for the husband of Caroline Berry, her sole legatee and executor, to have claimed the fund on the theory that Caroline Berry had a vested estate in the income while the trust continued. The court, however, divided the fund equally between Grace C. Burger and the children of her deceased sister, Mrs. Rose. She excepted, and the court in banc confirmed the ruling of Judge Ashman.

The question, therefore, presents itself : Can the executor of Grace C. Burger, the exceptant now before the court, claim to be heard on the theory that Grace C. Burger had a vested estate in this income while the trust continued? If the husband of Grace C. Burger was claiming in his own right under the will of Joseph Chew, Sr., then he, not having been a party to the other proceeding, would undoubtedly have had a right to be heard. He, however, has no right under the will of Joseph Chew, Sr., and is merely claiming as the executor of Grace C. Burger the income which he contends was vested in her for the life of the trust, and which, under Judge Ashman’s ruling, has, since her death in 1907, been paid to her two sons. He stands in her shoes and is speaking for her; but, as we have seen, she has already been before this court, contending for another construction, and succeeded to the extent that one-half of the income which had been formerly payable to Caroline Berry was awarded to her. She cannot blow hot and cold. As a result of her efforts, she succeeded in having this clause of the will interpreted to her advantage while she lived. If she had a vested interest in this income, she should have said so at that time, and not having said so, neither she nor her executor will now be heard to make such a contention. It makes no difference that Burger, the husband-legatee-executor of Grace C. Burger, was not present at that audit, because he then had no right to be heard. His wife, however, was present, was heard and aided and profited in the determination of the question upon which he now seeks another ruling. See Gould’s Estate, 270 Pa. 535; Lafferty’s Estate, 209 Pa. 44.

The general principle governing all such cases is well stated in Black’s Law of Judicial Precedents, 262: “When a point or question, arising in the course of a litigation, is once solemnly and finally decided, the rule or principle of law announced as applicable to the facts presented becomes the law of that case in all its subsequent stages or developments, and is binding both upon the parties and their privies and also upon the court, so that the former will not be permitted, nor will the latter consent, to reopen the same issues for further consideration, whatever grounds there may be for regarding that decision as erroneous.”

It is contended by the exceptant that the action of this court in construing the will upon the death of Caroline Berry, and thereunder awarding her share of the income, should not bind the Grace C. Burger stirps in contending for a different construction of the will. Grace C. Burger’s executor contends that she had a vested estate in the income for the life of the trust; he is, therefore, speaking for her; but, as we have already seen, she, in her lifetime, contended for a different construction. Devine’s Estate, 199 Pa. 250-256, is directly in point. Therein it appeared that there was some doubt as to whether the daughters of the decedent had taken estates in fee, and they secured from our Supreme Court a construction of the will, holding that they took absolute estates in fee simple; thereafter, certain of the daughters made conveyances of their shares; and when another daughter died, the two who had secured a construction from the Supreme Court and who had conveyed their shares, appeared and contended that their sister only had a life estate which should pass to them. Judge Penrose, speaking for the eourt below, said:

“If, however, it be conceded that these cases have been, in principle, at least, overruled, and that they are not authority on questions of title so far as strangers are concerned, it by no means follows that the parties, and especially Mrs. Williams, can disregard them. Upon this point many authorities were cited by Mr. Michener, to which may be added Menges v. Dentler, 33 Pa. 495, and Bolton v. Hey, 168 Pa. 418.

“In Bolton v. Hey, where the subject was elaborately considered by Chief Justice Sterrett, it was said ‘that judgment thus became the law of the case, and having never been reversed or set aside, it is still the law of that case, notwithstanding a different rule of construction may have since been applied with a different result to contracts of like tenor and effect. As was said by Mr. Justice Kennedy, in Marsh v. Pier, 4 Rawle, 273, 289, the ‘judgment of a proper court, being a sentence or conclusion of law upon the facts contained in the record,’ puts an end to all further litigation on account of the same matter and becomes the law of the case, which cannot be changed or altered even by consent of the parties, and is not only binding upon them, but upon courts and juries ever afterwards, as long as it shall remain in force and unreversed. This case has since been cited with approval in Brenner v. Moyer, 98 Pa. 278, and elsewhere.’ But, irrespective of the effect of the decision invoked by Mrs. Williams, the daughters, who asserted that the proper construction of the will gave them a fee, and, acting on this assertion, made conveyances of their shares in whole or in part, are clearly estopped, as against her sisters, from now asserting the contrary. This applies to Mrs. Williams now claiming the whole of Mrs. Devine’s share as sole ‘survivor’ of the daughters, and also to Mrs. Smaltz and those deriving title under her, if ‘survivors’ is the equivalent of ‘others,’ as, in the opinion of the auditing judge, it is under the authority of many decisions: Lapsley v. Lapsley, 9 Barr, 130; 4 Kent, 22, note c; Sterling’s Estate, 24 W. N. C. 495.”

NOTE. — See Lafferty’s Estate, 230 Pa. 496, reversing 19 Dist. R. 504, and Gould’s Estate, 270 Pa. 535.

Summarizing the situation in conclusion, we find that the identical clause of the will for which a new interpretation is now sought by the husband-legatee-executor of Grace C. Burger, was interpreted by Judge Ashman in 1903 upon the death of Caroline Berry, when Grace C. Burger appeared by her counsel and was heard in aid of the construction which gave her one-half of Mrs. Berry’s share of the income after her death. Since her decease in 1907, the trustee has paid Mrs. Burger’s share of the income to her two sons, in accordance with the ruling of Judge Ashman; if she were here she would not now be heard to contend for another construction, and as she is dead, her privy, her executor, will likewise not be heard on that question. Judge Ashman’s ruling is the law of the case.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: MARTIN, P. J.,

text:
    Reiszner v. L. Shapiro Shoe Company et al.

      Res adjudicata, — Judgment for plaintiff where set-off was pleaded by defendant in former action, conclusive in subsequent foreign attachment by defendant for sarnie cause of action.

    Where it appears from the affidavit of cause of action that the claim, upon which a foreign attachment was based is in substance the same as that alleged by the plaintiff in the attachment as a defence by way of set-off in a former action by the defendant in the attachment against him in which there was a judgment for plaintiff (the defendant in the attachment), the judgment is conclusive and the attachment will be Quashed, although the defence there pleaded is stated in the case at bar more minutely and in fuller detail than in the former suit.
    Rule on defendant to quash attachment, and rule on plaintiff to file warrant of attorney, &c. C. P. No. 5, Phila. Co., Sept. T-, 1921, No. 15.

      John G. Kaufman, for plaintiff.

      P. H. Granger (of Reber & Granger), for defendants.
    Jan. 18, 1922.
   MARTIN, P. J.,

L. Shapiro Shoe Company brought suit against Frank I. Reiszner in the United States Court for the Eastern District. of Pennsylvania, as of June Term, 1920, No. 7238, to recover $10,242.92 for shoes sold and delivered by the shoe company to Reiszner.

In an affidavit of defence Reiszner denied the purchase, and averred that some of the shoes were delivered to him with the privilege of returning them to the shoe company; that not all of those with which he was charged were delivered, and nearly all of said shoes were not as per sample and were not assorted in the cases as to size, according to the recognized custom of the trade and as represented, and were not of a market value, as set forth in Exhibit A of the statement, but by reason of defective workmanship, ill-fit, condition and quality of leather, and undersirable sizes, were of less market value than as pleaded by plaintiff, viz., “of not over $6700.” It was further averred that he returned defective shoes which had been billed to him in the sum of $4125, and it was stated he was willing to pay $6117.94. A rule for want of a sufficient affidavit of defence was made absolute and judgment entered for $6117.94, with interest. Leave was granted to file a supplemental affidavit of defence.

In the supplemental affidavit certain shoes were specified as having been returned as not corresponding in kind and quality with the sample exhibited by the vendor, or with the representations made by the vendor or with the custom of the trade; and it was alleged that they were of inferior material and defective workmanship; that they were not merchantable goods, were not as per sample and warranty, and were returned as soon as they could be under the restrictions of freight embargo.

The case proceeded to trial in the United States Court. In a full and impartial charge the presiding judge submitted to the jury the questions whether the sale was absolute or conditional; whether the goods shipped were of merchantable quality and character; and if the jury found there was a right to reject the shoes, it was left to them to determine whether the right was exercised within a reasonable time.

The jury rendered a verdict in favor of L. Shapiro Shoe Company for the full amount of the balance claimed. A motion for a new trial, made by Reisz-ner, was overruled, and judgment was entered on the verdict.

Instead of paying the judgment, next day Reiszner instituted this suit of foreign attachment against the shoe company, defendant, and summoned himself as garnishee. Upon presentation of a petition by L. Shapiro Shoe Company, signed and sworn to by T. Ewing Montgomery as attorney-in-fact, setting forth the suit and judgment in the United States Court, and averring that the attachment was issued for the purpose of hindering and delaying the shoe company in collecting the judgment, the rule was entered to show cause why the attachment should not be quashed.

Reiszner filed an answer, and demurred to the petition, and an affidavit of cause of action, by which it appears that the suit is for the recovery of damages from the shoe company for losses which Reiszner claims to have suffered by reason of some of the shoes purchased by him from the shoe company and the subject of the suit in the United States Court in which the shoe company obtained a judgment against him, being of inferior quality and not corresponding with the sample displayed by the shoe company when Reiszner made the purchase; also, credit is claimed for some of the shoes alleged to have been returned to the shoe company before the suit in the United States Court was instituted. It further appears from the United States Court record, which was placed in evidence, that the same matters were made a subject of defence in the suit between these same parties in that court.

The judgment entered in that case is final and conclusive. Although Reisz-ner’s set-off or defence there pleaded, is stated in the present suit more minutely and in fuller detail, he cannot recover in an independent suit: Pennock v. Kennedy, 153 Pa. 579, 582.

“After a claim has been put in judgment, set-off as against the claim so judicially determined is conclusively presumed to have been made, and the strife over it is at an end:” McClain’s Estate, 180 Pa. 231.

“There is no rule of legal practice of higher value than that which arrests the strife of litigation by declaring that one suit and judgment is an end of controversy as to all matters in issue and which ought to have been put in issue:” Raisig v. Graf, 17 Pa. Superior Ct. 509, 512.

In Pasquinelli v. Gross, 74 Pa. Superior Ct. 296, a writ of foreign attachment was quashed when it appeared by petition that plaintiff’s cause of action had been determined against him in another proceeding in another court.

T. Ewing Montgomery, who signed the petition filed in this case for the rule to quash, although described in the jurat as “attorney-in-fact for Shapiro Shoe Company, the petitioner above named, and authorized to make this affidavit on its behalf,” was in reality acting as the agent of the shoe company, which, as appears from the statement of claim filed in the suit in the United States Court, is a corporation.

And now, to wit, Jan. 18, 1922, the rule to quash the foreign attachment issued against L. Shapiro Shoe Company is made absolute; the rule on T. Ewing Montgomery, attorney-in-fact, for his warrant of attorney, and on “plaintiff” and T. Ewing Montgomery to show cause why an appearance should not be entered of record, and an address furnished at which an answer to the petition may be served or the petition stricken from the record, are discharged.


author: Wickersham, J.,

text:
    Secured Investments, Inc., for use of Goldman, v. Badorf.

      Contracts — Reformation—Evidence—Insufficiency.
    1. One who, having made a valid' oral contract, subsequently enters into a written contract with the same party covering the same matter, cannot require a court to reform his written contract for him, in the absence of clear, precise and indubitable evidence that the contract as signed was different from his understanding of what it should be.

      Practice — Judgments—Warrant to confess — Rule to open — Ejectment.
    2. Where the defendant in a judgment in ejectment, which has been entered in pursuance of authority contained in a written contract, represents, upon a petition to open the judgment, that his contract was for a smaller total obligation than that which the plaintiff has set up against him, but it appears by the petition that he is in default even under his own statement of his undertaking, the rule to open will be discharged.
    Rule to open judgment. C. P. Dauphin Co., March T., 1921, No. 206.

      Harry B. Saussaman, for rule; A. Ross Walter, contra.
    Aug. 8, 1921.
   Wickersham, J.,

The defendant entered into an oral contract Jan. 25, 1919, with the Secured Investments, Incorporated, for the erection of a building on lots in Old Orchard, a sub-division of record in Dauphin County, and upon the payment of $25 he received a receipt, in which it was stated, inter alia: “It is understood that if this property, including the ground, cannot be built for a total cost of thirty-five hundred ($3500.00) dollars, or less, this deposit is to be returned to you.” It appears to have been agreed between them that the deposit which the defendant was to pay amounted to $45, and on Feb. 8, 1919, he made a further payment of $20, which is endorsed upon the receipt from which we have quoted, and which was received “on account of house to be built in Old Orchard.”

Upon the receipt of this deposit, the plaintiff, the Secured Investments, Incorporated, proceeded to build said house, but evidently not being satisfied with the oral agreement with the defendant, they presented to him for his signature a written agreement attached to the defendant’s petition for the rule hereafter mentioned, and marked Exhibit “B,” wherein it is recited, inter alia, that the Secured Investments, Incorporated, were to build for the defendant a house on ground situate on lots Nos. 40 and 41, “Heart of Old Orchard,” in the City of Harrisburg and State of Pennsylvania, and the defendant agreed to pay the sum of $45 on signing the agreement, a further sum of $200 on or before May 24, 1919, and a further sum of $30 per month during the erection, construction and completion of said building; and after possession was given the defendant agreed to pay to the plaintiff the sum of $30 per month until the amount which he owed was paid down to the first mortgage, at which time the plaintiff agreed to deliver to the defendant a deed, free and clear of all encumbrances except the aforementioned mortgage. The defendant also agreed to pay to the plaintiff a certain percentage as interest on the cost of the erection and construction of the building aforementioned from the date of the beginning of the building operation, and Tk per cent, of the total cost of the erection and construction for supervising and construction. The defendant was also to pay all taxes on the unimproved and improved real estate, also water rent, fire insurance and necessary repairs, which the plaintiff was to deduct from the amounts paid by the defendant, and the balance was to be credited upon the cost of the erection and construction of said building.

It was further provided in said agreement that in the event that the defendant should fail within thirty days of the date that any of the aforementioned payments should become due to make said payment, then all amounts paid on the contract by him should be forfeited as liquidated damages for breach of the contract. The agreement also provided that if the defendant should in any particular violate any one of his said covenants or fail to comply with any of the conditions of the agreement, then the plaintiff “might determine this agreement forthwith without notice, and thereupon this agreement would become absolutely determined, and any attorney may immediately thereafter, as attorney for the party of the second part, sign an agreement for entering in any competent court an amicable action and judgment in ejectment without any stay of execution against the party of the second part, and all persons claiming under him, for the recovery by the party of the first part of the possession of the within described premises, for which this shall be a sufficient warrant.” The agreement contained other stipulations which it is not important for us to mention.

After having this agreement in his possession for about two days, and it appearing from the depositions taken that the defendant and his wife looked it over, it was signed by the wife at the request of her husband, who was out of town, and it thereby became the agreement between the plaintiff and the defendant for the erection and construction of said building.

The defendant entered into possession of said house July 22, 1919, and made the payments to the plaintiff, the Secured Investments, Incorporated, with more or less irregularity until Dec. 9, 1920, at which time he had paid to the plaintiff, or to use-plaintiff, Louis C. Goldman, to whom this property had in the meantime been conveyed, $775. At this time the defendant first learned that the cost of the building exceeded $3500, and that the actual cost thereof was $5016, whereupon he refused to make any further payments, and on April 7, 1921, the use-plaintiff, availing himself of that paragraph of the written agreement which we have above quoted, caused a judgment in an amicable action of ejectment to be entered in his favor and against the defendant, which was filed in the Court of Common Pleas of Dauphin County to No. 206, March Term, 1921.

The defendant filed his petition April 11, 1921, alleging substantially the facts as we have stated them, and praying that the judgment so confessed might be opened and he let into a defence thereto, the principal reason therefor, as alleged by him, being that the cost of erecting and constructing said house was far in excess of the amount agreed upon between him and the Secured Investments, Incorporated, in the oral agreement made between them Jan. 25, 1919. He endeavors to read into his written contract the oral contract made in January, 1919, which is supported by the receipt given to him by the plaintiff when he made his first deposit of $25. The contract which he signed May 14, 1919, is what is known as a cost-plus contract; that is to say, in it he agreed to pay the plaintiff the cost of erecting and constructing said dwelling-house, plus the percentage therein named for supervision and interest on said costs. His contention is, however, that we should reform the written contract so as to include therein the provisions of the oral contract he made in January, the effect of which would be to limit the cost of the house to $3500. The defendant could have so contracted when he executed the written contract. He was not required or compelled to sign said contract of May 14, 1919, and when so doing he could have insisted on its being so reformed as to read that the cost of the erection and construction of said house was not to exceed $3500. Having failed to do so, he cannot now require the court to perform by reformation of the contract what he failed to perform himself when the contract was made. He has not convinced us by testimony that is clear, precise and indubitable that he had any understanding of his contract with the plaintiff, at the time of execution thereof on May 14, 1919, other than that expressed therein: Thompson v. Schoch, 254 Pa. 585; Hill v. Smith, 75 Pa. Superior Ct. 340.

Assuming, however, that the contract was as contended by the defendant, that the cost of the erection and construction of his house was not to exceed $3500, has he shown anything in his petition or in the depositions taken in support thereof which entitles him to relief? Under his written agreement, he was required to pay to the plaintiff $45 cash, $200 on May 24, 1919, and monthly payments of $30 during the erection, construction and completion of said building, and the sum of $30 per month thereafter until the amount owing by him had been paid down to the first mortgage. It was conceded that the first mortgage was $2500. It appears, therefore, that before the defendant could complain of any violation of even his oral agreement that the cost of his house should not exceed $3500, it became necessary for him to pay $1000, and said payments were to be made at the rate of $30 a month. From March, 1919, the date when said construction began, to Dec. 9, 1920, the date of the last payment, is twenty-one months. If the defendant had paid $30 a month as he agreed to do, his payments would have amounted to $630. He was also required to pay $245 in addition to the monthly payments, making a total of $875. It appears, however, from his receipt book that he only paid $775, and, therefore, in December, 1920, he was in arrears $100, or more than three months. Even if the payments should have commenced in May instead of March, 1919, the defendant still would have been in arrears in December in the sum of $40, or more than one month’s payment. The plaintiff took no action, however, against him until April, 1921, or two years after the payments should have begun. During that time he should have paid under his contract $965, but he only paid $775. At the time, therefore, when the plaintiff commenced his action to eject the defendant from the premises under the terms of their written contract, he, the defendant, was in arrears $190, or six and one-third months. What right, therefore, has the defendant now to complain if the plaintiff proceeds to enforce the agreement between them and eject him from the premises? Had the defendant complied with the terms of the contract as he contends they were understood to be, then he might be entitled to relief; but having failed to comply with the terms of the contract as he contends they were, he cannot now complain that judgment in the amicable action of ejectment was entered against him.

The rule to show cause why the judgment entered in this case should not be opened and the defendant let into a defence is, therefore, discharged.

From William Jenkins Wilcox, Harrisburg, Pa.


author: FULLER, P. J.,

text:
    Commonwealth v. Nanstlel.

      School law — Compulsory attendance — Summary conviction — Appeal — School Code of May 18,1911.

    The defendant was convicted and fined before a magistrate for failing to send his daughter, eight years old, to school. His defences were the refusal of the school board to furnish free transportation of the child to and from the school, three miles distant from his residence, and the dangers to his child in going to a school one and a-half miles away, but in another district, without an attendant, which he could not afford: Held, that under the School Code of May 18, 1911, P. L. 309, one and a-half miles is the minimum distance of compulsion without free transportation, and judgment reversed on appeal.
    School Code, §§ 1404, 1406. 1407, 1414 and 1418, considered.
    Appeal by defendant from summary conviction. Q. S. Luzerne Co., April Sess., 1921, No. 177.

      M. S. Be Fierro, Assistant District Attorney, for Commonwealth.

      E. Shortz, Jr., for defendant.
    May 10, 1921.
   FULLER, P. J.,

In this case the defendant was summarily convicted and fined before a magistrate under section 1423 of the School Code

for breach of compulsory attendance, by failing to send his daughter, eight years of age, to school as the law requires.

His main defence before the magistrate and in court on this appeal is the refusal of the school board to furnish free transportation of the child to and from school on account of the distance, by reason whereof and on other grounds he claims exemption under certain provisions of the Code. We find the following

Facts.

1. Defendant is a resident of Foster Township, a school district of the third class, and has a daughter eight years of age subject to the requirement of compulsory attendance at school.

2. This daughter had been attending the Oley Valley School of the district where she properly belonged, but in the fall of 1920 the board closed that school for reasons specified in section 1406 of the Code, and assigned the pupils to another school in the district, about three miles distant, as legally computed, from her residence.

3. The defendant then, with approval of the board and at the latter’s expense, though without formal assignment, placed his daughter in a school of White Haven Borough, an adjacent district of the fourth class, with consent of its board, said school being distant from her residence somewhat over one and one-half miles, where he continued to send her until March 1Y, 1921.

4. On that date he detained her from school and has since refused to send her for the following reasons which are true in fact, viz.: (1) That the board refused to provide free transportation of the daughter to and from school; (2) that he cannot afford to provide such transportation himself; (3) that the road to the White Haven School is a lonely one, dangerous for a child of such tender years to travel without an attendant, which he is unable to furnish.

The case involves two questions which we are asked to decide, viz.: 1. Whether the defendant was relieved from his obligation to send his daughter to school by the board’s failure to provide free transportation? 2. Whether, with or without free transportation, he was relieved by the other reasons just mentioned?

If both of these questions be negatived, the conviction should be sustained; but if either of them should be affirmed, the conviction should be reversed.

1. The parental obligation of attendance is defined in the first instance by section 1414 of the School Code, viz.: “Every parent, etc., in this Commonwealth having control or charge of any child or children between the ages of eight and sixteen years is required to send such child or children to a day school in which the common English branches are taught; and such child or children shall attend such school continuously through the entire term during which the public elementary schools in their respective districts shall be in session.”

This plainly contemplates attendance at a school within the district, and does not of itself impose an obligation upon the parent to send the child to a school in another district.

Section 1418 provides: “In case there is no public school in session within two miles, by the nearest traveled road, of the residence of any child, such child shall be exempt from the provisions of this act relating to compulsory attendance, unless proper free transportation be furnished to such child to and from school.”

In this case the assigned school being distant from residence more than two miles, the defendant was plainly absolved from his obligation, unless this conclusion be prevented by other sections of the Code.

Section 1404 provides: “Where any pupil in any school district resides one and one-half miles or more, by the public road, from the nearest public elementary school in the district, such pupil, unless proper free transportation be furnished to a suitable school in the district, on obtaining the consent of the board of the school directors thereof, may attend any public elementary school in another school district more convenient of access without the consent of the board of school directors of the district where such pupil resides;” and the section then imposes upon the latter district the cost of tuition, textbooks and school supplies only, and further provides that the board “may, on account of convenience of access or other reasons, permit any pupils to attend the schools of another district on such terms as the two boards may mutually agree upon,” and, further, “may provide for the free transportation of any pupil to and from the public schools.”

Under this section, if the residence be one and one-half miles or more, though less than two miles, the parent, if free transportation be not provided, has the option to place the child in a school of another district with consent of the outside board and without consent of the inside board, but is not compelled to exercise this option, and the board of the resident district is not compelled to provide free transportation; for the word “may,” both as applied to the pupil and to the board, does not properly fall within the rule of statutory construction which sometimes makes that word the equivalent of “shall,” mandatory instead of discretionary.

Down to this point in our review we are unable to discover any obligation resting upon this parent in the premises.

So we come to section 1406, viz.: “The board of school directors of any school district may, on account of the small number of pupils in attendance, etc., close and consolidate any one or more of the public schools in its district, and, upon such school or schools being so closed, the pupils who belong to the same shall be assigned to other schools: Provided, that in any district of the fourth class, pupils who belong to any such closed school, and reside one and a-half miles or more from the school to which they are assigned, shall be furnished proper transportation, etc.”

With which may be read section 1407, viz.: “If any such pupils are assigned to an adjoining district, the district where such pupils reside shall promptly pay to the district in which they attend school the cost of tuition, text-books and school supplies only, etc.”

And section 1408, which defines the rule for computation of distance, and provides “that the free transportation of pupils, as required or authorized by this act, may be furnished by using electric railways, etc., when the total distance which any pupil must travel between his residence and the school, in addition to such transportation, does not exceed one and one-half miles, etc.”

It may be that if this pupil, under sections 1406 and 1407, had been formally assigned to the outside school, distant more than one and one-half miles, though less than two miles, the duty of furnishing free transportation would not devolve upon the board of Foster Township, being of the third class, even though White Haven Borough District is of the fourth class, and the duty of the parent would exist, notwithstanding the refusal of free transportation.

But in this case the school of formal assignment inside the district is distant more than two miles, establishing exemption under section 1418, and there was no formal assignment to the outside school, the pupil having been sent there by the parent in the voluntary exercise of his option under section 1404.

Owing to the extraordinary verbosity and ambiguity of the School Code, the product of many intelligent though differing minds at work in the evolution of a system, it is not easy to reach clear and positive conclusions on this subject, but we seem to discover a general intent to regard one and one-half miles as the minimum distance of compulsion without free transportation, notwithstanding the limit of two miles, stated in section 1418, and if we give effect to this intent, the defendant would be absolved without aid of other considerations. Be that as it may, however, we conclude from the law as above quoted, and from the facts as above found, that he was absolved by refusal of the board to furnish free transportation.

2. The equity of his attitude is enhanced by the verity of the other reasons urged by him and stated in our fourth finding of fact. In law, however, under section 1415, it perhaps devolved exclusively upon the board, without interference by the court, to determine whether those reasons are of an “urgent” and exemptive character, and so we will not pass upon their sufficiency.

On the sole ground of the board’s refusal to furnish free transportation, the judgment of conviction is reversed.

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


author: Hassler, J.,

text:
    Fehl v. Pfaeffle.

      Landlord and tenant — Proceedings for possession — Proof of damages to defendant — Practice — Evidence — Re-lease of premises — Burden of proof— Newly-discovered evidence — New trial — Act of Dec. 17, 1863.

    1. In a proceeding under the Act of Dec. 14, 1863, P. L. (1864) 1125, by a landlord to obtain possession of leased premises at the end of the term, the defendant can prove damages for his ejectment. No pleading is necessary, and an affidavit of defence is not required.
    2. In such case, where the defendant sets up a parol agreement to extend the lease, the burden is on him to show that both parties so understood the agreement.
    3. The fact that the plaintiff did not attempt to renew the license of the premises, a hotel property, but the defendant did, was admissible as evidence to sustain the defendant’s contention that the lease had been extended.
    4. A witness may refresh his memory from a book showing entries of receipts and expenditures made by him at the time when the money was received and spent.
    5. Newly-discovered evidence, as a reason for a new trial, must have been, since discovered, such that it could not have been obtained before by due diligence, not cumulative, on the merits of the case and sufficient to change the verdict.
    Rule for a new trial. C. P. Lancaster Co., Aug. T., 1918, No. 143.

      John A. Nauman and B. F. Davis, for plaintiff and rule.

      Joseph B. Wissler, Bernard J. Myers and John E. Malone, for defendant.
    July 2, 1921.
   Hassler, J.,

We are satisfied that a new trial should be granted in this case because of after-discovered testimony. We will, however, consider several of the reasons filed for a new trial, so that our views may be known at the next trial of the case.

The plaintiff contends that in a proceeding such as this the defendant cannot prove his damages. This is a proceeding under the Act of Dec. 14, 1863, § 1, P. L. (1864) 1125, in which a landlord seeks to obtain possession of leased premises from a tenant at the expiration of the term. It provides the manner of proceeding when an appeal shall be taken, which “shall be tried in the same manner as actions of ejectment, and if the jury" shall find in favor of the tenant, they shall assess the damages he has sustained by reason of his removal from the premises, &c.” We do not think that it is necessary to say anything further to show that there was no error in permitting the defendant to prove the damages sustained by reason of his having been ejected from the premises, as the jury could not assess such damages without proof of what they were. No pleading is necessasy under the act of assembly to enable the defendant to do this. An affidavit of defence was not required, as none were required in actions of ejectment in 1863, when the act was passed. As the defendant claimed a right to remain on the premises until April 15, 1919, it was certainly not error to permit him to prove what loss he sustained up until that time. We are satisfied that the fourth, sixth and eighth reasons, which raise these questions, are without merit.

The fifth reason is that we permitted the defendant to testify from a book prepared for the purpose of showing profits in the business of conducting the said hotel, etc. This reason is not in accordance with the facts. The book was the defendant’s hook of account of his business of conducting the hotel during the time he was there. It contained all his receipts and all his expenditures in connection with the business, and he testified that the entries were made at the time the amounts stated were received or expended. It was, therefore, certainly a proper book with which to refresh his recollection, as the entries were made at the time amounts were received and paid out.

At the argument the plaintiff raised the point that the testimony of the re-leasing of the premises by the defendant was not sufficient, and cites the case of Lutz v. Wainwright, 193 Pa. 541, to the effect that the burden of proof that the premises were re-leased is upon the defendant, and he must show that both the plaintiff and defendant understood that the premises were being re-leased when the arrangement was made. We are satisfied with the correctness of that position, and are also satisfied that the facts in this case are in exact accordance with the requirements of that case. The defendant testified that he received the proper notice to quit from the plaintiff in December, and that it contained a clause as follows: “If you wish to re-rent for another term, please call and make the required arrangements on or before Jan. 10th;” that on Jan. 8th, two days before the time fixed, he called up the plaintiff, who came out to the hotel. They had some conversation about re-renting, and the plaintiff wanted the defendant to open the whole of the hotel instead of the part which the defendant had previously rented. The defendant refused to do so except under certain conditions, and then the plaintiff said, “We will let it go at that.” His wife testified that he said, “We will let it go that way.” The plaintiff denied that such an arrangement was made. If this conversation did take place, as the defendant testified it did, there can be no question that the plaintiff understood that he was re-leasing the premises for another year. We submitted this question to the jury very carefully, as being the vital one in the case, and they found in favor of the defendant.

The matter complained of in the seventh reason for a new trial we think was proper on the quesCon of a re-leasing of the premises, as it showed that the plaintiff did not attempt to renew the license to the property, but the defendant did. Neither would have acted in this way had they not understood that the premises were re-leased in the conversation of Jan. 8th. The first three reasons are without merit. We are of the opinion, therefore, that none of the reasons for a new trial, excepting the ninth and tenth reasons, which ask for it on the ground of after-discovered testimony, have any merit.

The plaintiff, at the argument before the court, asks for a new trial because he has discovered since the trial that the defendant told several witnesses that he had not rented the premises for the year beginning April, 1919. He alleges that this could not have been discovered before the trial. In the depositions Jacob Neiss testifies that along about April, 1919, Mr. Pfaeffle told him he could not rent the place from Fehl, the plaintiff, but Mr. Armstrong was going to rent the whole and he would run the bar. This was about April 1st. Hilen P. Dunn testified that Mr. Pfaeffle told him that he had been ordered out of the hotel. “Later, when he was there, I asked him about re-renting it, and he said, ‘No, I tried to rent the hotel, but Mr. Fehl would not give me a lease; I will fix him; I am too smart for him.’ ” This was some time before Pfaeffle left the hotel when he was ordered out.

Motions for a new trial on the ground of after-discovered evidence are regarded with disfavor, both because of the danger of perjury and because of the manifest injustice of allowing a party to allege what may be the consequence of his own negligence or wilful fault to defeat an adverse verdict. Such testimony, therefore, must meet the following requirements: First, it must have been discovered since the trial; second, it must be such testimony that it could not have been obtained at the former trial by the exercise of due diligence; third, it must not be simply cumulative or corroborative of the other testimony in the case; fourth, it must go to the merits of the case, and not merely impeach the credibility of other witnesses; and fifth, it must be of such a character that it should, and probably would, produce a different verdict if a new trial were to be granted: Com. v. Williams, 2 Ashmead, 69; Heiss v. Lancaster, 18 Lanc. Law Rev. 289; Com. v. Albert, 16 Dist. R. 759; Swartley v. Steigerwalt, 23 Lanc. Law Rev. 390; Denlinger v. Conestoga Light Co., 23 Lanc. Law Rev. 117; People’s Bank v. Eberly’s Admin’x, 21 Lanc. Law Rev. 89.

This after-discovered testimony, we think, meets all these requirements, and a new trial trial should be granted on account of it.

The testimony offered to show that Mrs. Pfaeffle, at a hearing of the case before the alderman, testified that she did not hear what the conversation was between her husband, the defendant, and the plaintiff on Jan. 8th, is an additional reason for granting a new trial, for the same reasons as given above. All this testimony is important, would have great weight and likely produce a different verdict on a new trial, and as it meets all the requirements of the cases above cited, the rule for a new trial is made absolute.

From George Ross Eshleman, Lancaster, Pa.


author: Stewart, P. J.,

text:
    City of Bethlehem v. Durning.

      Practice, C. P. — Cash bail — Return of — Fines imposed by justice — Restitution.

    Where a petition was presented setting forth that petitioner had furnished cash hail to secure his release from custody; that the alderman had imposed a fine upon him; and that, upon certiorari to this court, his case was reversed, it is not good practice to enter a rule on the alderman to show cause why the money should not be returned. A writ of restitution should be asked for.
    Restitution is a matter within the sound discretion of the court, and should be refused where the evidence does not present the applicant in a favorable light.
    Rule to show cause why bail money should not be returned. C. P. Northampton Co., Nov. T., 1920, No. 98.

      Geo. R. Booth, City Solicitor, for plaintiff; D. L. McCarthy, for defendant.
    April 11, 1921.
   Stewart, P. J.,

This was a rule on an alderman to show cause why bail money should not be returned to the petitioner, who was the defendant in an action, City of Bethlehem v. Durning, 17 Northamp. Co. Repr. 353; 30 Dist. R. 727. We reversed the judgment in that case. The present petition sets forth that the petitioner was found guilty by the aiderman, who imposed a fine of $50 and costs; that thereafter petitioner furnished $105 cash bail to secure his release from custody, and that within five days petitioner entered into a recognizance before the prothonotary of this court in the sum of $150, conditioned for the payment of said fine and costs, and all costs that might thereafter accrue; that after the case was reversed, a demand was made upon the alderman for the cash bail, and that the aider-man returned $52.50 and refused to return the balance, $52.50. An answer was filed to the petition, setting forth that the alderman had paid over the said $52.50 to the City of Bethlehem, and that the petitioner must make the City of Bethlehem a party to this proceeding, and that he must ask for a writ of restitution, directed to the City of Bethlehem, if he wishes to get his money back. It is a question whether a rule is the proper procedure in this case. In the excellent address of the late Chief Justice Mitchell before the Law Academy of Philadelphia, no mention is made of any rule like the present, and from his discussion of the subject it is questionable whether it is within the scope of a rule to order the payment of money in a case like the present. It is, however, argued by the learned counsel for the petitioner that under Rule 46 the certiorari became a swpersedeas, and that the alderman acted in contempt of court when he paid the money over to the City of Bethlehem. The date of the payment does not appear in the answer, but the learned counsel for the city suggests that when the writ of certiorari issued without an allocatur, the alderman was not bound to consider it as a super-sedeas. That phase of the question was discussed in a number of similar cases, one of which [was] City of Bethlehem v. Catalano et al., 17 Northamp. Co. Repr. 382; 30 Dist. R. 824, where we held that while an allocatur should be had, yet, under certain circumstances, it might be waived, and that it could be allowed nunc pro tunc. It would be, however, a dangerous step for an alderman ordinarily to decide this matter himself, and if that were all that there was in the case, we would make short work of it, but the fact is that the money is now in the hands of one of the parties to the original suit, to wit, the City of Bethlehem, and, as a matter of practice, a writ of restitution is the proper way to get it back. In Schlager v. Nanticoke Borough, 4 Luzerne Legal Reg. Reps. 244, President Judge Rice said, after reversing the judgment: “Upon the question as to the power and duty of the court to order the borough, which was only a nominal plaintiff in the proceedings, to make restitution to the defendant of the fine and costs paid by him under compulsion, we have some doubt. But in order to give the parties an opportunity to be heard on that question, we will enter a rule to be argued at next argument court.” In Leffingwell et al. v. City of Wilkes-Barre, 4 Luzerne Legal Reg. Reps. 494, the same judge said: “The question as to duty and power of the court to order restitution upon reversal of a judgment of an inferior magistrate was examined by us in the case of Schlager v. Nanticoke Borough. It seems not to be a matter of right, but of grace, and rests in the sound discretion of the court. After a careful reconsideration of the question and examination of this record, we are of opinion that, in the exercise of the undoubted discretion of the court, this motion should be denied.” In New Castle v. Genkinger, 37 Pa. Superior Ct. 21, Judge Morrison said: “This leaves undisposed the question of restitution. The evidence does not present the .conduct of the defendant in a light favorable to him. We would not reverse the judgment on the merits, but feel constrained to reverse on legal and technical grounds alone. Restitution in a case of this character is within the sound discretion of this court, and, therefore, we refuse to award restitution.” We referred to the same subject in South Bethlehem Borough v. Weiland and Reiter, 11 Northamp. Co. Repr. 118, and quoted what President Judge Trexler said in City of Allentown v. Reinhard, 2 Lehigh Co. L. J. 154, as follows: “Restitution is a matter of grace. I do not think that I should award it in this case unless it is plain that the defendant was unjustly fined. To raise that question he should have asked for an appeal. As the matter is before me, it is merely an attempt of the defendant to escape through the fact that the record of the justice was not made up fully.” That quotation expresses the situation. If petitioner was unjustly fined, he should have asked for a trial on the merits and appealed, but, instead of doing that, he asked for a certiorari. The cases cited by the learned counsel for the petitioner, Wilcox v. Knoxville Borough, 12 Pa. C. C. Reps. 641, and Bailey v. Jefferson Township, 21 Pa. C. C. Reps. 20, are not in point. They simply decide as to the right of the defendant to elect whether he will appeal or ask for a certiorari. From what is set forth in the record of the case, and in the evidence set forth in the alderman’s return, setting aside all technical objections, and considering this as an application for a writ of restitution, we do not feel that it should be granted.

And now, April 11, 1921, rule is discharged and writ of restitution is denied.

From Henry D. Maxwell, Easton, Pa.


author: A. W. Johnson, P. J.,

text:
    Badger v. Miller.

      Practice — Act of May 14, 1915 — Statement of claim — Paragraphs—Lumping charge.

    1. Section 5 of the Practice Act of May 14, 1915, P. L. 483, as to numbered paragraphs, is to be reasonably construed.
    2. A mere averment of a lump sum of damages is not sufficient. The statement should indicate the basis upon which the claim for damages is made; the elements of such liquidation must be furnished.
    3. Affidavit of defence raising the above points of law sustained on the latter ground.

      Assumpsit. Affidavit of defence raising question of law. C. P. Union Co., Jan. T., 1921, No. 47.

      H. M. Showalter, for plaintiff.

      Andrew A. Leiser, Cloyd Steininger and John A. Beard, for defendant.
    May 7,1921.
   A. W. Johnson, P. J.,

Defendant’s affidavit of defence raises two questions for decision by the court; First, whether the plaintiff’s statement is properly paragraphed; and, secondly, whether plaintiff’s statement of damages in a lump sum is sufficient.

As to the first point raised, whether plaintiff’s statement is properly paragraphed, we hold plaintiff’s statement sufficient. We think it reasonably complies with section 5 of the Act of May 14, 1915, P. L. 483, which requires that plaintiff’s statement shall be “divided into paragraphs numbered consecutively, each of which shall contain one material allegation.”

Büt we think that it is not sufficient under the statement of facts in plaintiff’s statement simply to state plaintiff’s damages in a lump sum of $10,000. It is clear from plaintiff’s statement that there are a number of items of damage alleged as flowing from the breach of contract, and the statement should set forth the different items of damage which go to make up the total sum of $10,000 claimed by the plaintiff.

In Cohen v. Wind & Co., 26 Dist. R. 158, plaintiff’s allegations of damages was as follows; “6. By means of the failure and refusal of the said M. Wind to keep the covenants and agreements of the contract aforesaid, plaintiff is greatly damaged, and to the amount of $2500.” As to this the court says: “It is necessary that the statement should contain all the ingredients of a complete cause of action averred in clear, express and unequivocal language, so that if the defendant is unable to controvert or deny one or more of the material averments of the claim, a judgment in default of an affidavit or sufficient affidavit may be entered and liquidated. The statement should indicate the basis upon which the claim for damages is made, and a mere averment of a lump sum is not sufficient.” See, also, Lancaster and Berks Ry. Co. v. The Casualty Co. of America, 26 Dist. R. 761, 763, and Byrne v. Hayden, 124 Pa. 170, where, on page 177, Mr. Justice Sterrett, delivering the opinion of the court, said: “It is necessary, however, that the statement, should contain all the ingredients of a complete cause of action, averred in clear, express and unequivocal language, so that if the defendant is unable to controvert or deny one or more of the material averments of claim, a judgment in default of an affidavit or sufficient affidavit of defence may be entered and liquidated. The elements of such liquidation must be furnished, at least to the extent that the maxim id certum, est quod certum reddi potest may properly apply.” The affidavit of defence herein is, therefore, sustained, with leave to the plaintiff to file an amended statement specifying the items of claim which make up the $10,000 within ten days from date hereof.

And now, May 7, 1921, the affidavit of defence is sustained and the plaintiff is allowed ten days to file an amended statement in accordance with the above opinion.


author: HAYMAKER, J.,

text:
    Southern Coal Exchange v. Youngstown Sheet and Tube Co.

      Foreign corporations — Doing business within State — Agency—Service of process — Act of April 8, 1851.

    The maintenance of an office in this State by a foreign corporation for the purpose of giving orders for the purchase of coal and coke and the shipment thereof to its plant in another state, does not constitute "doing business’’ within this State, and service of summons upon the agent in charge of such an office gives no jurisdiction, as such an agent does not come within the purview of the Act of April 8, 1851, P. L. 353.
    Rule to show cause why service of summons should not be set aside and writ quashed. C. P. Allegheny Co., Jan. T., 1921, No. 2037.

      Stonecipher & Ralston, for plaintiff.

      Packer & Sherrard, d. b. e., for defendant.
    May 5, 1921.
   HAYMAKER, J.,

The plaintiff is a corporation organized under the laws of the State of Kentucky, and the defendant is a corporation organized under the laws of the State of Ohio, and is engaged in the manufacture and sale of iron and steel products in the City of Youngstown, State of Ohio.

The plaintiff brought this action in assumpsit, and the defendant secured a rule on the plaintiff to show cause why the service of the summons should not be set aside and the writ quashed for want of jurisdiction. The plaintiff filed its statement of claim, which was followed by defendant’s petition for the rule, to which an answer was filed. No depositions were taken, and we will dispose of the rule on the undenied allegations of fact contained in the defendant’s petition. From plaintiff’s statement and exhibits attached, the plaintiff offered to sell, and the defendant agreed to purchase, a certain kind of coal. The exhibits, constituting the alleged contract, consist of two telegrams, as follows:

“Middlesboro, Kentucky,

“Youngstown Sheet & Tube Company, September 2, 1920.

Pittsburgh, Pa.

“Are you in position to use Middlesboro & Clay County Coal at ten dollars per ton. Answer. Southern Coal Exchange.”

“Pittsburgh, Pa., Sept. 2, 1920.

“Southern Coal Exchange, Middlesboro, Ky.

“Your wire, you can enter our order for fifty cars of Middlesboro Clay County coal for prompt shipment, ten dollars net ton mines.

Youngstown Sheet & Tube Co.”

The return of the sheriff of this county of the service of the writ of summons is as follows: “Served ... on the within named defendant, Youngstown Sheet & Tube Company, a corporation, at the Oliver Building, Pittsburgh, Pa., its office in the County of Allegheny, Pennsylvania, by handing a true and attested copy of the within writ to W. B. Prescott, Agent, he for the time being in charge of said office, upon inquiry thereat the residence of any of the officers of said defendant corporation within the County of Allegheny, Pennsylvania, not being ascertained, and at the same time handing to the said W. B. Prescott, Agent aforesaid, a true copy of plaintiff’s statement of claim, with notice to file an affidavit of defence within fifteen days, and making known to him the contents thereof.”

The undenied allegations contained in the defendant’s petition are, inter alia, as follows: That it is a corporation organized under the laws of Ohio, and is engaged in the manufacture and sale of iron and steel products at Youngstown, in said state; that it maintains a general purchasing department and purchasing agent in Youngstown, and in the Oliver Building in Pittsburgh it maintains an office for the purchase of coal and coke only, which is in charge of W. B. Prescott, a salaried employee of the defendant, who gives orders for the purchase of coal and coke and its shipment to defendant’s manufacturing plant in Youngstown, where it is used and paid for; that it maintains a general sales office at Youngstown, and in the Oliver Building in Pittsburgh an office in charge of a salaried employee, who solicits and takes orders for the sale of defendant’s iron and steel products and their shipment from defendant’s said plant to the purchasers, which orders are forwarded to defendant’s home office in Youngstown for approval, and all collections on account thereof are made by defendant at its said home office; that it owns the office furniture of said two offices in Pittsburgh; that the writ was served on W. B. Prescott, who transacts no other business for defendant; that he makes no payments personally or through his office for coal or coke so ordered; that he does not transact any general business for defendant, nor has he done so in the past; that he is not an officer or director of the defendant company, and does not transact, and has not transacted, any business for the defendant except to place orders for the purchase and shipment of coal to defendant at Youngstown; that defendant is not registered in the State of Pennsylvania as a foreign corporation; that it transacts, and has transacted, no business in the County of Allegheny, Pennsylvania, except as above stated; that it has, and has had, no property, real or personal, in said Allegheny County, and that none of its officers or agents reside or are located in said county.

We are of opinion that the above facts do not give jurisdiction to this court. The defendant is a foreign corporation, with its legal domicile and chief place of business in the State of Ohio, and has filed no statement in the office of the Secretary of the Commonwealth, as provided by the Act of April 22, 1874, P. L. 108. Unless we have some statute that brings the defendant under our jurisdiction, it cannot be sued outside the state of its legal domicile. We will not cite the numerous acts of assembly giving jurisdiction over foreign corporations under certain circumstances merely to show that they have no application to the case in hand, as we agree with plaintiff’s contention as set forth in his brief, that “the act of assembly which is controlling in the case at bar is the Act of April 8, 1851, § 6, P. L. 353,” which provides: “That in any case when any insurance company or other corporation shall have an agency or transact any business in any county of this Commonwealth, it shall and may be lawful to institute and commence an action against such . . . corporation in such county, and the original writ may be served upon the president, cashier, agent, chief or any other clerk, or upon any directors or agent of such . . . corporation within such county. . . .”

This act relates to foreign corporations only: Cochran v. Library Co., 6 Phila. 492, and Frick & Lindsay Co. v. Maryland, &c., 44 Pa. Superior Ct. 518. The writ in question now was served on W. B. Prescott, a salaried employee of defendant, located at Pittsburgh, whose only business was to give orders for the purchase of coal and coke and the shipment thereof to the defendant’s plant at Youngstown, Ohio, where the same is paid for by the company. For this purpose only an office was maintained for the use of Prescott. In addition, the defendant maintains an office in Pittsburgh, in charge of a salaried employee, who solicits and takes orders for the sale of defendant’s products and their shipment from Youngstown to the purchasers. These orders are sent to Youngstown for approval, and collections therefor are made at its home office' in Youngstown. The office furniture is owned by the defendant. Does the employment of Prescott, on whom service of the writ was had, constitute such an agency, or does the work of defendant’s employees in giving orders for the purchase of coal and coke, and soliciting and taking orders for the sale of defendant’s iron and steel products manufactured at Youngstown, constitute the transacting of such business in this county as will give this court jurisdiction as contemplated by the Act of 1851? We do not think so. It would appear from the act that if the defendant had either an agency or transacted business here, service of the writ on the agent would be good. Taking up the question of agency first, does the business transacted by Prescott constitute an agency under the act? Surely not. His employment required him to do only one act, that is, to purchase coal and coke when occasion demanded, which was merely incidental to the business in which the defendant was engaged. The act contemplates an agency in the transaction of the very business in which the defendant is engaged, and, in this case, an agency in the manufacture and sale of iron and steel. The section just quoted was construed in relation to an insurance company in the case of Parke v. Commonwealth Ins. Co., 44 Pa. 422, in which service was had on an agent whose business was to procure applications for insurance, and it was held not to be a valid service, the court saying, “and for trading companies, the Act of 1851 rightly provides that they may be sued in any county where they habitually transact business by an agency or branch.” See Reynolds v. Standard Gage Steel Co., 65 Pitts. L. J. 469; Green v. Chicago, B. & Q. Ry. Co., 205 U. S. 530; Sheetz v. C. & O. Ry. Co., 10 Dist. R. 373. We are of opinion that Prescott was not such an agent on whom the service of the writ in this case would give us jurisdiction. We are likewise of opinion that the maintenance of offices and employees, in which and by whom orders are given for the purchase and shipment of coal and coke, and orders are solicited for sale of defendant’s products and their shipment from the defendant’s plant at Youngstown, are not sufficient to constitute “transacting business” as contemplated in that act. The case of Macaluso v. Keystone Coal and Coke Co., 65 Pitts. L. J. 484, cited with apparent approval in Frank P. Miller Paper Co. v. Keystone Coal and Coke Co., 28 Dist. R. 775, 48 Pa. C. C. Reps. 72, is a case directly in point, and is an adjudication by this court of the questions involved here. See, also, Eline v. Western Maryland Ry. Co., 253 Pa. 204; Com. v. Wilkes-Barre & H. R. R. Co., 251 Pa. 6; Green v. Chicago, B. & Q. Ry. Co., 205 U. S. 530; Sheetz v. C. & O. Ry. Co., 10 Dist. R. 373, and Reynolds v. Standard Gage Steel Co., 65 Pitts. L. J. 469.

From Edwin L. Mattern, Pittsburgh, Pa.


author: Collins, Dep. Att’y-Gen.,

text:
    Female Labor Law.

      Female Labor Law — Employment of women in printing establishments after 10 P.M.

    under Section 4 of the Act of July 25, 1913, P. L. 1024, providing that no female shall be employed or permitted to work in any manufacturing establishment before the hour of 6 A. M. or after 10 P. M., with certain exceptions, women may not be employed to operate linotype machines in a printing establishment, as such estabment is a manufacturing establishment within the meaning of the act.
    Attorney-General’s Department. Opinion to Hon. Clifford B. Connelley, Commissioner of Labor and Industry.
    May 16, 1921.
   Collins, Dep. Att’y-Gen.,

This department is in receipt of your communication of the 28th ult., asking to be advised whether women may lawfully be employed to operate linotype machines in a printing establishment after 10 o’clock P. M.

Section 4 of the Act of July 25, 1913, P. L. 1024, provides as follows: “No female shall be employed or permitted to work in any manufacturing establishment before the hour of 6 o’clock in the morning or after the hour of 10 o’clock in the evening of any day: Provided, that this section shall not apply to managers, superintendents or persons doing clerical or stenographic work.”

The answer to the question submitted by you consequently depends upon whether such an establishment as above mentioned is a manufacturing one or not. This matter has been ruled in this Commonwealth in connection with the laws relating to tax on the capital stock of corporations.

In the case of Com. v. J. B. Lippincott Co., 7 Dauphin Co. Reps. 193, it was decided that a corporation engaged in the printing and publishing of books and periodicals is a manufacturing one, and as such exempt from tax on its capital stock. The case of the Com. v. Canfield Co., 7 Dauphin Co. Reps. 195, is to the same effect. I understand that upon the principle laid down in the above cases a corporation publishing a newspaper is, for the purposes of taxation under the laws of this State, deemed a manufacturing corporation. It would seem, therefore, from the foregoing, that it is now settled in this Commonwealth that a printing establishment is a manufacturing one within the meaning of our tax laws.

If the Commonwealth treats printing establishments as manufacturing establishments for the purpose of taxation, it is obvious that we could not logically treat them otherwise in regard to the laws regulating labor. A concern could not, on the one hand, be allowed exemption from a certain tax on the ground that it is a manufacturing enterprise and, on the other hand, allowed exemption from some provision in other statutes on the ground that it does not possess that character. Of course, the above quoted provision of the Act of 1913 relates to all manufacturing establishments, not simply to those organized in corporate form, the prohibition therein contained applying equally to all.

The purpose in view in the above provision of the Female Labor Law strengthens the reasons for holding the establishments here under consideration to be manufacturing establishments within its spirit and intent, and it is a familiar rule that a statute is to be construed in the light and furtherance of its purpose. This present conclusion tends to secure a fuller measure of the safeguards which the law throws around the employment of women.

You are, therefore, advised that it is not lawful for women to operate lino-type machines in printing establishments “before the hour of 6 o’clock in the morning or after the hour of 10 o’clock in the evening of any day.”

From Guy H. Davies, Harrisburg, Fa.