text:
    David v. David et al.

      Ulysses S. Koons, for plaintiff; Sterling & Willing, for defendants.
    Dec. 3, 1930.
   Lewis, J.,

This matter comes before the court on two rules,

one to quash, the other to dissolve a writ of foreign attachment. Briefly, the facts are these: On June 9, 1929, Levi David conveyed to himself and Frances Brown, as joint tenants, and not as tenants in common, the premises Nos. 800, 816 and 967 North Second Street, Philadelphia, the deed being duly recorded. On June 19, 1929, Levi David married the joint tenant, Frances Brown. On April 5, 1930, Levi David conveyed his interest in the aforesaid properties to his daughters, Bertha Rubenstein, Elene D. Loeb and Dorothy A. David. On or about May 2, 1930, Levi David left his wife, Frances David (nee Brown), and has not since lived with or supported her. Plaintiff, Frances David, has begun an action in assumpsit for her share of the rentals, naming as co-defendants her husband, Levi David, and his daughters, Bertha Rubenstein, Elene D. Loeb and Dorothy A. David, asking, in addition, for an accounting. None of the co-defendants being residents of Pennsylvania, nor within the county at the time, a writ of foreign attachment issued. The real estate agent, M. Einman, and the tenants of the three properties were served as garnishees, and counsel has entered appearances for them.

Counsel for the co-defendants subsequently entered the two rules above noted, one to quash, the other to dissolve the foreign attachment. The brief in support of these rules raises numerous and intricate questions of law— inter alia, the right of one joint tenant to sue another in assumpsit; whether such suit in assumpsit is ex contractu, as required by the Act of June 21, 1911, par. 1, P. L. 1097; whether the demand for an accounting does not necessarily involve equity jurisdiction; whether a wife joint tenant with her husband has such a “separate property” as will permit her to sue him under the Act of March 27, 1913, P. L. 14; whether the statement that defendant “deserted” plaintiff is a mere conclusion of law, and, as such, insufficient to establish the wife’s right to maintain an action against her husband on a matter unconnected with her “separate property.”

All of the questions thus propounded to us by counsel, while of academic interest, are subject to a more fundamental inquiry as to the parties proper to this action. Assuming that the wife, as a joint tenant, has an action of assumpsit against her husband, this action must rest on a contract of some kind between Levi David and Frances Brown (now David). Assuming, likewise, that Frances David has an action of assumpsit against the three daughters of Levi David, now tenants in common with Frances David, this action must rest upon a similar “contract” between the three daughters and Frances David. These “implied contracts,” while relating to the same premises, or rather the rents issuing therefrom, arise at different times" and under different relationships.

The general proposition that a joint suit cannot be brought when the contracts are several and successive, scarcely calls for any citation of authorities. We may, however, point to an interesting analogy with Sabarof v. Florida East Coast Co., etc., and Atlantic Coast Line, etc., reported in 92 Pa. Superior Ct. 286, 290, at which latter page the court said: “We do not mean to hold that two carriers may not be joined in an action of trespass where their negligence jointly contributed to the injury. But where the cause of action is a contractual one in assumpsit against two carriers jointly, even though based on a negligent performance of the contract, it cannot be sustained by a contract not joint but several and successive. The verdict recovered in such a suit in this state must be against both defendants for the whole amount; not against each for its individual liability. The rule may be different in jurisdictions where practice in a suit against two defendants permits a verdict against each defendant for his individual liability. . . . The order of the court below discharging the rule to dissolve the attachment is reversed and the rule is reinstated and made absolute.”

In the case at bar, the two obligations are constructive — not implied — contracts, as is so clearly pointed out in Hertzog v. Hertzog, 29 Pa. 465, and are the foundation stones on which the action of assumpsit must necessarily rest. Neither contract, it is true, is averred in plaintiff’s cause of action; but the chain of reasoning on which plaintiff relies in order to show the existence of the constructive contracts also leads to the further conclusion that these contracts, if they do exist, are several and successive, and as such do not support a joint action in assumpsit. All these matters being apparent on the record, the rule to quash is made absolute.


source: Caselaw Access Project

author: Ferguson, P. J.,

license: Public Domain

text:
    Prettyman v. Alden Park Manor, Inc., et al.

      Lester S. Hecht, for plaintiff; Ormond Rombo, for defendants.

      Dec. 3, 1930.
   Ferguson, P. J.,

This is an action of replevin. Plaintiff’s statement of claim alleges that he is the owner of certain furniture and household goods and an automobile; that they belong to him and defendants have no title thereto. The statement then proceeds to say that on Aug. 3, 1929, plaintiff leased an apartment from the defendant, the Alden Park Manor, with garage space, and that on June 9, 1930, the Alden Park Manor, by its servants or employees, chained the wheel of his automobile and prevented him from removing it from the garage space. As a consequence, plaintiff refused to pay any monthly rental, and alleges that he has sustained damage in the sum of $450 by reason of his having to employ taxicabs and to incur other expenses in the transaction of his business.

The affidavit of defense declares that on Aug. 3, 1929, plaintiff leased an apartment with garage space at a rental of $140 per month, and on July 3, 1930, defendant distrained on said goods now claimed by plaintiff for six months’ rent in arrears, or a total of $840. The affidavit admits that on June 1, 1930, when there was $700 rent due, defendant notified plaintiff that a distraint would be made on plaintiff’s property unless the rent was paid, and the automobile was detained by reason of the failure to pay the rent. Defendants, therefore, set up a counter-claim in the sum of $840, being the amount of rent due at the time of the distress.

Plaintiff’s reply to the counter-claim admits that plaintiff did not pay the rent alleged to be unpaid, but avers that the president and secretary of the Alden Park Manor were, and are, respectively, president and secretary of the Philadelphia Founders Corporation, engaged in the investment business, and that said president and secretary, on or about Jan. 15, 1930, engaged the services of plaintiff for the purpose of selling securities, and that the secretary of defendant corporation orally agreed that in return for his services to the Philadelphia Founders Corporation the defendant herein would waive payment of his rent. It is further averred that the secretary in making this arrangement was acting within the scope of his authority.

A rule for judgment has been taken by defendant, and we think the rule should be made absolute. Notwithstanding the fact that our rules of court provide that procedure in replevin shall conform, as far as possible, to the provisions of the Practice Act of May 14, 1915, P. L. 483, we must not lose sight of the fact that this action is for the purpose of testing the right to possession of certain personal property. When, therefore, plaintiff in his statement sets up an unliquidated claim for damages, he sets up a claim which can not be considered in this form of action.

Plaintiff admitting that the rent was unpaid, there remains to be considered his defense to the claim. In substance, it is that the rent was remitted by defendant corporation, acting through its secretary, because of certain services rendered to another corporation. We think the defense cannot be admitted. To say that a secretary of a corporation in remitting or waiving a valid claim of the corporation is acting within the scope of his authority is not enough. One dealing with an officer of a corporation cannot rely upon a contract made by such officer unless it be shown that by resolution of the board of directors of that corporation, or its by-laws, he was authorized to bind it. Our attention has been called to no decision under which a corporation is held bound by a contract made by a subordinate officer under circumstances such as appear here. It may be true that if services are rendered to the corporation itself, and it receives the benefit of those services, the corporation would be estopped to deny the authority of its officer, but in this case the services plaintiff rendered were not rendered to defendant, but were rendered to a wholly independent corporation.

There remains to be considered the suggestion that the chaining of the automobile in a part of the demised premises amounted to an eviction. We do not so regard it. At the time the automobile was chained the plaintiff owed $700 in rent and was notified that he would not be permitted to remove the automobile until that rent was paid. In the meantime another month’s rent accrued. The action of the landlord in this matter was in effect a distraint for rent. “As a general rule, to render the distress complete, there must be a seizure of the property distrained upon; but a very slight act is sufficient to constitute a seizure in contemplation of law. It need not be an actual seizure of the particular goods. If the landlord gives notice of his claim for rent and declares the goods which he names shall not be removed from the premises until the rent is paid, it is a sufficient seizure:” Furbush v. Chappell, 105 Pa. 187.

Judgment must be entered for the defendant, and the value of the goods fixed at $840, with interest from the dates the rent fell due. Counsel to file an assessment of damages.


author: Van Dusen, J.,

text:
    McCullough’s Estate.

      Harry J. Alker, Jr., William P. Beeber and Kirchner, Mitchell & White, for exceptants.

      James A. Walker, Maurice Stem, Evan B. Lewis, Carl W. Funk and Charles J. Biddle, contra.
    Jan. 16, 1931.
   Van Dusen, J.,

The testator gave his residuary estate to his nephews and nieces, although he never had any. Testimony was received to ascertain his usage of these words. In his will he applied them to cousins twice removed, in conversation to a first cousin, to the latter’s husband and to persons not related at all.

We can draw no certain conclusion as to the constitution of any class; he used the words so loosely and without discrimination.

The designation in the will of cousins twice removed as a nephew and a niece would seem to give them some color of title; but the gift is in the plural — “nephews and nieces.” At best, they were but members of a class, and in no event were to take all the residue. The testator has given us no clew as to the constitution of the class, and we have no right to make one for him.

The exceptions to the learned auditor’s report are dismissed and an intestacy declared as to the residuary estate; and the report as modified, in that those who take under the intestate law are the same persons to whom the auditor awarded the fund, is confirmed absolutely.


author: Atlee, J.,

text:
    Commonwealth v. Wile.
    S'. V. Hosterman, District Attorney, for Commonwealth.

      Daniel B. Strickler, for defendant.
    Jan. 10, 1931.
   Atlee, J.,

1. The testimony in this case shows that, on or about Aug. 6, 1930, Caroline M. Beyer and her son, Raymond D. Beyer, had a Scotch collie dog, and that, on or about that date, the defendant, David M. Wile, who was a deputy fish warden, together with Constable Knosp, called at the Béyer home and removed the dog from said home, took it over to Constable Knosp’s cornfield, and there shot the dog. Mrs. Beyer testified that Wile told her that she would have to give him (Wile) the dog or the money for six chickens which Wile and Knosp alleged the dog had killed. Justice of the Peace Slack testified that both Knosp and Wile testified at the hearing before him that they took the dog into Knosp’s cornfield and shot it. The justice of the peace imposed a fine of $10 and costs for violation of section 32 of the Act of May 11, 1921 [P. L. 522], known as the Dog Law. The dog was duly licensed under the Dog Law of Pennsylvania.

2. According to the testimony of David M. Wile, on Aug. 6, 1930, he was first notified by Constable Knosp, who told him that he (the constable) had a job for him, and took him in the constable’s automobile to Beyer’s, and there talked the matter over with Mrs. Beyer. Wile says he asked her about the killing of the chickens and whether she wanted to go before the squire or wanted to take it before the board at Harrisburg, and that she said she did not want to go to court nor before the board. Further, Wile testified that all he knew about the matter was that the dog had killed the chickens of a man named Ehrhart. Wile says he was deputized by the constable to go with him, and, as above shown, he also was a deputy fish warden.

3. Under section 32 of the Dog Law of May 11, 1921, P. L. 522, and section 15 of the Act of Assembly of May 6, 1927, P. L. 833, the Secretary of Agriculture of the Commonwealth may notify the owner or keeper of any dog or dogs, found to have caused loss or damage to any livestock or poultry, to immediately kill the said dog or dogs, and upon the failure of said owner or keeper to comply with the order within a period of ten days, any police officer of the township, town, borough or city in which said dog or dogs are kept, upon notice from the Secretary of Agriculture, shall kill such dog or dogs wherever found.

4. The present record does not affirmatively show that the requirements of these acts have been met. Under the above acts of assembly, the Secretary of Agriculture must notify the owner or keeper of the dog or dogs immediately to kill the same, and then, after the expiration of a period of ten days, any police officer of the proper municipal subdivision, upon notice from the Secretary of Agriculture, shall kill such dog or dogs.

5. The instant case shows that the defendant, David M. Wile, had no authority from the Secretary of Agriculture, nor had the Secretary of Agriculture given the owner the ten days’ notice required by law. In fact, the record shows that Wile went ahead upon his own initiative. The Dog Law of the Commonwealth requires dogs to be licensed, and, when so licensed, such dogs are property.

6. Hence, we find that the dog was illegally killed, because, as above indicated, the defendant here had no authority to take the dog and to kill it. r

7. Under section 23 of the Act of May 11, 1921, P. L. 522, it is unlawful for any person, except a police officer, to kill any dog which bears a license for the current year. In the instant case, the defendant, although deputized by the constable, had no legal authority to do what he did. We find him guilty of violating the above sections of the acts of assembly.

8. The penalty fixed by section 36 of the Act of May 11, 1921, P. L. 522, ánd section 3 of the Act of May 14, 1929, P. L. 1713, is a fine of not less than $5 nor more than $100 and costs of prosecution, or imprisonment for not exceeding thirty days, or both.

9. Therefore, under the facts as the court has found them, the defendant is adjudged guilty of violating the provisions of section 23 of the Act of May 11, 1921, P. L. 522, and is ordered to pay to the county treasurer a fine of $10 and to pay the costs of prosecution; said fine, when paid to the county treasurer, by him to be paid into the state treasury through the Department of Revenue.

From George Ross Eshleman, Lancaster, Pa-


author: Shanaman, J.,

text:
    In re Maidencreek Township Roads.

      George B. Balmer, for petitioner; Lloyd M. Schaeffer, for exceptants.
    April 4, 1930.
   Shanaman, J.,

“The petition for the view lies at the foundation of the proceedings to lay out and open a township road:” In re Road in Shenango Township, 88 Pa. Superior Ct. 51, 52. The petition in the present case prayed for the opening of two new roads, as follows:

“No. 7. Beginning at the northern side of the State Highway leading from the Halfway House to Leesport at a point seventy-five feet southeast of the junction of public roads at Kindt’s Corner, and ending at the western side of a public road leading from Evansville to Moselem at a point five thousand sixty feet westwardly (measured along the said road) from the Iron Bridge over Maiden Creek at Evansville.

“No. 8. Beginning at a point in the present road leading to Shoemakers-ville at a point five hundred and fifty feet southeast of the intersection of another road leading to Shoemakersville, said point being the northwest terminus of the road No. 3 proposed to be vacated, and ending in the above-mentioned road No. 7 at a point approximately fourteen hundred feet south of the above-mentioned intersection and approximately two hundred feet southwest of the present road No. 3 proposed to be vacated.”

It will be observed that one of the termini of the proposed road No. 8 is an intermediate point in the proposed road No. 7, and is described and located in the following language: “. . . . and ending in the above-mentioned road No. 7 at a point approximately fourteen hundred feet south of the above-mentioned intersection and approximately two hundred feet southwest of the present road No. 3 proposed to be vacated.” This alone renders the proceeding fatally defective. “The petition for the view should do no more by way of description of the road than state the termini:” Road in Shenango Township, supra, page 53. Not only was the petition fatally defective because it thus described an intermediate point in the road No. 7 proposed to be opened, but it was fatally defective for another reason. The plan accompanying it was prepared by the petitioner, submitted to the viewers, and returned with their report. It portrayed a precise surveyor’s location of the due courses of the two proposed roads as desired by the petitioner, and as, in fact, favorably reported by the viewers. The description of the roads as contained in the viewers’ report is a faithful reading of the engineering curves, radii, stations, tangents and total length in feet and fractions of feet, as numerically and graphically portrayed on the plan. In Franklin Township Road, 54 Pa. Superior Ct. 293, the court said, at page 297: . . . the unusual and improper method was adopted of attaching to the petition a draft which not only located the termini of the proposed road but located it for the entire distance. This is the first instance which has come to the writer’s notice of a draft fixing the location of 'the entire length of a proposed road being attached to a petition for viewers.” “The law has been well settled in this state since the Act of 1836 went into force that it is fatal error to designate an intermediate point or points between the termini of a proposed road, either in the petition or the order to viewers, or both:” Id., page 298.

Although, for the reasons above stated, the exceptants are entitled to have the viewers’ report quashed, we have carefully considered the proceeding upon the facts and have concluded that the report should be disapproved upon the merits. In Benton Township Road, 41 Pa. Superior Ct. 57, there was a petition and a favorable report by the viewers. Exceptions were filed by the supervisors, first, that the road was unnecessary and only of private benefit, and, second, that it would be burdensome upon the taxpayers. After hearing and testimony taken, the court sustained the exceptions, disapproved the report and dismissed the petition, at the cost of the petitioners. The Superior Court, in aifirming, said, at page 59: “The act of the court in passing upon a report of viewers is not merely ministerial; but in the performance of that act a judicial discretion is to be exercised,” and, at page 60: “. . . the Judge of the Court of Quarter Sessions is vested with discretion to approve or disapprove the report. That in the exercise of that discretion he may consider the question of the necessity for the proposed road does not seem to be open to question.”

The facts appear to be as follows. The City of Reading built a lake or impounding dam in the Townships of Ontelaunee and Maidencreek. The lake has flooded certain township roads and will eventually flood more extensive portions of them. The city thereupon constructed main road No. 7 and spur road No. 8 to take the place of those destroyed or rendered impractical. After the city had built these roads it petitioned the court to open them for public use. Viewers were appointed, who, after hearing and testimony taken, reported favorably. The township supervisors filed exceptions, which upon argument are taken before the court for adjudication.

From the testimony taken before the viewers and the blueprint accompanying their report, it appears that the flooded or impaired roads are as follows: Road No. 2. This road, 10,890 feet in length, runs north from the stone bridge on the state highway running between Shoemakersville and Halfway House. Said road No. 2 skirts the west shore of the Maidencreek stream, at irregular distances from it, and is now unusable up to the Perryville Road at the Maidencreek and will ultimately be flooded as far as Evansville. It continues in a northerly direction into Moselem. Spur road No. 3. This road, 890 feet in length, runs west from a point in road No. 2, at or about the viaduct and connects with the road to Shoemakersville. Spur road No. 4. This road, 760 feet in length, is farther north than spur road No. 3 and, like it, runs west from a point in road No. 2 and connects with a road to Shoemakersville.

In place of these three destroyed roads, the city has built and seeks to open as a public township road: Road No. 7. This road, 10,521.7 feet in length, runs in a general direction north and south and lies west of and roughly parallels destroyed road No. 2. Road No. 7 begins in the state highway above mentioned and runs to the Perryville Road above mentioned. As road No. 2 roughly skirted the west bank of the Maidencreek stream, so road No. 7 roughly skirts the west shore of the lake formed by damming the Maiden-creek. Road No. 8. This road, 934 feet in length, is a spur road and runs westwardly from road No. 7. It lies to the south of destroyed road No. 3 and close to and roughly parallel with that road.

The city did not deem it necessary to build any road in place of destroyed spur road No. 4.

The parties agreed at the hearing before the viewers that the dam and lake necessitates the vacation of roads Nos. 2, 3 and 4. These roads were rough dirt roads — No. 2 on a solid foundation. The new roads are oil-bound macadam — No. 7 being partly built on a fill and including a viaduct. As the ground was at places soft and spongy, some drainage and filling was necessary in the construction of road No. 7. The city spent $145,380 for roads Nos. 7 and 8, including the bridge and viaduct, which cost $64,345. It proposes to present the two roads to Maidencreek without cost, except that the township will be liable for their maintenance.

The cost to the township would appear to be about $1500 a year to maintain roads Nos. 7 and 8, which will not stand up without maintenance and are not the best type of road for heavy traffic. The old road No. 2 was the less expensive in upkeep and was preferable for heavy traffic. It was admitted that roads Nos. 7 and 8 are the shortest practical roads between their respective termini. The present debt of the township is $10,500, its tax rate 10 mills, its assessment $1,443,300, and its mileage of township roads 22 to 23 miles.

Considerable depopulation has resulted from the necessary condemnation of surrounding properties by the city. Both roads Nos. 7 and 8 now run through city property entirely on both their sides and throughout their entire length. There are no residents along the entire length of the roads. Although road No. 2 was used considerably by cement trucks from Evansville cement works, the bridge over the Maidencreek will eventually be flooded at Evansville. A few families in Perry Township used roads Nos. 3 and 4. Only thirteen resident property owners will be benefited by the proposed roads. These live in the general neighborhood of spurs Nos. 3 and 4. Their total assessed property valuation is $20,703. They are not asking for the opening of the road. The total assessed valuation of the township property west of the lake is $38,734. These owners would be served'by existing roads lying to the west of road No. 7, if that portion of road No. 7 between spur road No. 4 and the Perryville pike were open to the public.

We are of opinion, in view of the testimony that the proposed roads would be burdensome for the township to maintain, and in view of the township debt of over $10,000, which should be paid, and of the existing mileage of roads to be maintained out of an income of approximately $14,500, and in view of the increased maintenance cost of roads Nos. 7 and 8, due to their oil-bound macadam construction, that the proposed roads would be unduly burdensome to the Township of Maidencreek. We are of opinion, further, that public necessity for the roads does not appear, in view of the testimony as to existing highways which serve each of the thirteen property owners of the district who would be affected, and in view of the testimony that such roads could be made available to them if that portion of road No. 7 between spur road No. 4 and the Perryville pike were opened.

We may say that we might be inclined favorably to view a proposition to open that portion of road No. 7 extending from its intersection with road No. 4 in a northerly direction to the Perryville Road. Unfortunately, even if the present proceedings were not subject to the legal objections which would entitle exceptants to have them quashed, we could not in the present proceeding legally approve less than the whole of road No. 7. In re Public Road in Benzinger Township, 115 Pa. 436: “The court should either unqualifiedly approve or disapprove the road laid out and returned. Unless satisfied of the necessity for the road, under the circumstances, the court may refuse approval, notwithstanding the favorable report of the viewers. . . . The court cannot approve a part only.....The entire road, in the opinion of the court, may be unnecessary, and in that case it matters not that the court should believe a fraction of it necessary, for the road must be considered as a whole:” Id., page 439.

And now, to wit, April 4, 1930, exceptions 1, 3 and 4 are sustained, the viewers’ report is disapproved and the petition is dismissed, at petitioner’s costs.

From Charles K. Derr, Reading, Pa.


author: Saylor, Dep. Att’y-Gen.,

text:
    Mortgage Guarantee Companies.
    June 25, 1930.
   Saylor, Dep. Att’y-Gen.,

You have requested an opinion on your right to examine and supervise mortgage guarantee corporations which do not have the power to receive and do not receive deposits.

In the opinion of this department to your department under date of May 10, 1926, Corporations Guaranteeing Mortgages, 7 D. & C. 651, it was stated that Pennsylvania corporations formed for the purpose of guaranteeing mortgages are subject to the supervision and regulation of your department. No distinction, however, was drawn in that opinion between mortgage guarantee corporations having the power to receive and receiving money on deposit and for safe-keeping and such corporations not having and not exercising such power.

Section 4 of the Banking Act of June 15, 1923, P. L. 809, provides, inter alia, as follows:

“The said supervision, duties, and powers shall extend and apply to the following corporations now or hereafter incorporated under the laws of this state or under the laws of any other state and authorized to transact business in this state; namely, all such corporations having power to receive and receiving money on deposit or for safe-keeping otherwise than as bailee, including all banks, banking companies, cooperative banking associations, trust, safe deposit, real estate, mortgage, title insurance, guarantee, surety, and indemnity companies, saving institutions, savings banks and provident institutions. . . .”

It is clear that the legislature in enacting this law did not intend that the Department of Banking should have under its supervision mortgage guarantee companies unless such companies not only had the power to receive, but also did receive money on deposit or for safe-keeping otherwise than as bailee. It would appear, therefore, that unless a mortgage guarantee corporation actually has the charter power to receive money on deposit or for safe-keeping and exercises such power, it is not within the scope of the Banking Act of 1923 and does not, therefore, come under the supervision, duties and powers of your department.

You are, therefore, advised that a mortgage guarantee company not having the power to receive and receiving money on deposit or for safe-keeping is not within the supervision of your department. Consequently, you are not required by law to demand called reports of such companies nor to examine them.

Prom C. P. Addams, Harrisburg, Pa.


author: Wickersham, J.,

text:
    Com. ex rel. Woods v. Sons of Italy, Grand Lodge, Inc.

      Cyrus E. Woods, Attorney-General, for plaintiff.

      George L. Reed, for defendant.
    June 30, 1930.
   Wickersham, J.,

The learned Attorney-General of the Commonwealth of Pennsylvania suggests and gives the court to understand and be informed that Sons of Italy, Grand Lodge, Inc., is a corporation organized and existing under the laws of the State of New York, having its principal or home office at No. 231 East 14th Street, New York City; that the said Sons of Italy, Grand Lodge, Inc., is now a corporation without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit, having a lodge system with a ritualistic form of work and a representative form of government. That said Sons of Italy, Grand Lodge, Inc., is a fraternal benefit society and operating as such in the State of New York. It is also a fraternal benefit society as defined in the Act of the General Assembly of the Commonwealth of Pennsylvania approved May 20, 1921, P. L. 916. That said Sons of Italy, Grand Lodge, Inc., has organized and is now maintaining in the City of Pittsburgh in the Commonwealth of Pennsylvania certain lodges, and is in process of organizing additional lodges in the Commonwealth, the names of which will be found in paragraph 6 of the suggestion. That the persons named in paragraphs 5 and 6 have solicited membership for said Sons of Italy, Grand Lodge, Inc., in the Commonwealth of Pennsylvania, and have inserted or caused to be inserted advertisements in newspapers published in the City of Pittsburgh soliciting membership in said society. That the said Sons of Italy, Grand Lodge, Inc., is not authorized by its charter to operate as a fraternal benefit society or in any manner whatsoever outside of the State of New York in which it is incorporated; and said society has not been incorporated in the Commonwealth of Pennsylvania and has not been licensed to do business in this Commonwealth in accordance with the provisions of the said Act of 1921, or any other act or statute of this Commonwealth, and is, therefore, transacting business and operating in this Commonwealth unlawfully and in violation of the provisions of the said Act of 1921.

The said Attorney-General further suggests that a writ of quo warranto be issued against the said defendant so that it be and appear before this court on a day certain to show by what authority it claims to have and use in the Commonwealth of Pennsylvania the powers, rights, privileges and franchises of a corporation, or any powers, rights, privileges and franchises whatsoever, and why it should not be ousted from the use and exercise of any and all powers, rights, privileges and franchises in said Commonwealth of Pennsylvania.

Upon receipt of the suggestion of the Attorney-General, this court allowed the writ as prayed for. The defendant having failed to file its answer within the time required by law, the learned Attorney-General, on Sept. 25, 1929, filed his motion for an order on the defendant to plead, in accordance with the provisions of section 9 of the Act of June 14, 1836, P. L. 621, whereupon this court, on the same date, directed the defendant corporation to answer, plead or demur to the suggestion filed on or before Oct. 5, 1929. .

The defendant filed an answer, averring, inter alia, that it is not a fraternal benefit society as defined by the insurance laws of the State of New York, and that it is not a fraternal benefit society as defined in the said Act of 1921. It admits the averments in the first, second and fifth paragraphs of the suggestion; it alleges that the lodges organized in Pittsburgh were not organized by the defendant but by member of said order. It admits that it is not incorporated or licensed to do business in this Commonwealth in accordance with the provisions of said Act of 1921. It denies that it is transacting business and operating as a fraternal benefit society in the Commonwealth of Pennsylvania.

The Attorney-General omitted to file a replication, but upon cause shown, the Commonwealth was permitted to file a replication to the answer of the defendant nunc pro tunc.

On Feb. 26, 1930, a stipulation to try without a jury under the provisions of the Act of April 22, 1874, P. L. 109, was signed and filed of record in this case. In accordance with said stipulation, the quo warranto was tried, all the judges being on the bench. Mr. Timpone, representing the defendant, moved for a continuance, which motion was opposed by the Attorney-General. The court, after deliberation, refused the continuance, whereupon Mr. Timpone stated: “Then the corporation do not appear.” Thereupon testimony was taken, both oral and documentary, from which we find the following relevant

Facts.

1. The defendant corporation was incorporated under the laws of the State of New York, a copy of the certificate of incorporation being plaintiff’s Exhibit No. 2.

2. The charter of the defendant corporation was validated by the Legislature of the State of New York by an act (see chapter 217) entitled “An act to validate and continue the membership corporation known as Sons of Italy, Grand Lodge, and to define its powers and purposes.”

3. The said validating act became a law April 9, 1923, with the approval of the Governor of the State of New York.

4. Under the said chapter 217 of the statute laws of the State of New York, the defendant corporation was empowered “to authorize and establish throughout the state subordinate branches or lodges and to grant charters to such branches or lodges and thereby make the members of such branches or lodges members of such corporation. . . .”

5. Under paragraphs 7 and 8, the following additional powers are conferred upon the defendant corporation:

“To establish, maintain, collect, raise by assessment on members, invest and disburse a mortuary fund or funds and to pay out of the same upon the death of a member as a death benefit such sums as may from time to time be determined;

“To raise such sums as may be necessary for such mortuary fund or for other purposes of the corporation by collecting the same as dues or assessing the same upon its members.”

6. The defendant corporation is not authorized, under its charter, to organize lodges or transact any business in the Commonwealth of Pennsylvania.

7. The defendant corporation filed its certificate with the Secretary of the Commonwealth, as provided in the Act of June 8, 1911, P. L. 710, as appears by plaintiff’s Exhibit No. 3.

8. The Sons of Italy, Grand Lodge, Inc., was at all times since its incorporation and is now a corporation without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries and not for profit, having a lodge system with ritualistic form of work and a representative form of government.

9. The defendant corporation is not registered with the Insurance Commissioner’s Department, as required by the Act of May 20, 1921, P. L. 916.

10. On Aug. 18, 1929, Risveglio Lodge No. 1373 of the defendant corporation was organized in Germantown, Pennsylvania, and has initiated approximately 200 members. A copy of the charter of said lodge was offered in evidence and marked plaintiff’s Exhibit No. ¡5.

11. Newspaper articles advertising the defendant corporation, describing its activities and soliciting membership therein, printed in Italian, were offered in evidence, together with a translation thereof, and marked plaintiff’s Exhibits Nos. 6 and 7, respectively. These newspapers were published in Pittsburgh.

12. In the issue of July 19, 1929, of one of these Italian newspapers there appears on the front page a photostatie copy of a check dated July 13, 1929, for $400, showing a payment to the widow of a member of the Pittsburgh lodge of the defendant corporation, which said cheek was issued in New York and delivered to the widow in Pittsburgh, Pennsylvania.

Discussion.

The only question involved in this controversy is whether or not the defendant corporation has legally been transacting business in this Commonwealth. We have found as a fact that it is not authorized under its charter to organize lodges or branches in the Commonwealth of Pennsylvania. It is, therefore, illegally transacting business in this Commonwealth.

It is quite clear to us that the defendant corporation is a fraternal benefit society as defined by the Act of May 20, 1921, P. L. 916. Section 1 of said act is so familiar that it need not be quoted here. Under section 17 of the act the defendant, as a foreign fraternal benefit society, cannot transact business in this Commonwealth without a license from the Insurance Commissioner. Such license has never been issued to the defendant corporation by the Insurance Commissioner, and, consequently, the defendant has also violated the law, in that it has transacted business in the manner set forth in our findings of fact.

It appears from the evidence adduced at the trial, and the law applied thereto, that the defendant is operating and doing business in this Commonwealth as a fraternal benefit society in violation of law, and must, therefore, be ousted from any powers, rights, privileges and franchises which it assumes to exercise in this Commonwealth.

Conclusions of law.

1. The defendant corporation, Sons of Italy, Grand Lodge, Inc., is á fraternal benefit society within the contemplation of the Act of May 20, 1921, P. L. 916.

2. The defendant corporation, Sons of Italy, Grand Lodge, Inc., is not authorized by its charter to operate as a fraternal benefit society or in any manner whatsoever outside of the State of New York, in which it was incorporated.

3. The said Sons of Italy, Grand Lodge, Inc., has not been incorporated in or licensed to do business in accordance with the said Act of [May 20] 1921, P. L. 916, or any other act or statute of the Commonwealth of Pennsylvania, and, therefore, is transacting business and operating in this Commonwealth unlawfully and in violation of the provisions of said Act of 1921.

4. The costs of these proceedings must be paid by the defendant corporation.

Judgment.

We adjudge the defendant corporation guilty of usurping, intruding into and unlawfully holding or exercising the franchises, privileges and powers mentioned in the writ of quo warranto issued in this case. We, therefore, give judgment that such defendant be ousted and altogether excluded from such franchises, privileges and powers, and that the Commonwealth recover costs from the defendant.

A formal decree will be signed on application of the Attorney-General unless exceptions are filed hereto within the time allowed by law and the rules of this court.

From Homer L. Kreider, Harrisburg, Pa.


author: Lewis, J.,

text:
    Fleck Brothers Company v. Pieretti.

      Buckman & Buckman, for plaintiff; Sacks & Piwosky, for defendant.
    March 20, 1931.
   Lewis, J.,

In this action, tried by the court without a jury, plaintiff seeks a finding in its favor in the sum of $500, based upon defendant’s alleged breach of a written contract of guaranty, the relevant portions of which are as follows:

“In consideration of the sum of one dollar by me had and received from Fleck Bros. Co. and in further consideration that Fleck Bros. Co. shall sell to Alfonzo Pierangeli & Frank Palumbi goods, wares and merchandise, or shall extend credit to S. W. Cor. 51st & Stiles Street, Phila. for goods, wares and merchandise, for any other matter or thing whatsoever, I hereby agree with the said Fleck Bros. Co. as follows, to wit:

“First. I am held and firmly bound to the said Fleck Bros. Co. for the prompt payment of such sum or sums of money as may at any time or from time to time be due, owing and coming to them for any goods sold to........ ..............or for any other matter or thing whatsoever, but my liability under this agreement shall not at any time or in any event exceed the sum of Five Hundred..........00/100 Dollars.

“Second. This is an agreement of suretyship and is to be in full force and effect until revoked by me by written notice delivered to the said Fleck Bros. Co. and shall cover all goods and merchandise or credit extended to Alfonso Pierangeli & Frank Palumbi up to the time of delivery of said notice, and also the value of all goods and merchandise or other thing of value which the said Fleck Bros. Co. may have agreed to deliver to him, or become liable for by reason of any agreement entered into with him or at his instance up to the time of the delivery of said notice.............................................

“Fifth. It is understood and agreed that the goods and merchandise, value or thing sold or extended by the said Fleck Bros. Co. to Alfonso Pierangeli & Frank Palumbi shall be upon such terms, conditions and requirements as the said Fleck Bros. Co. may in their judgment extend to him. I hereby waive the signing of this agreement by the said Fleck Bros. Co. . . .”

It was established in the course of the trial that no goods were sold to Frank Palumbi individually or to Alfonso Pierangeli and Frank Palumbi jointly, but that there was an unpaid balance for goods sold and delivered to Alfonso Pierangeli. It was conceded on behalf of the plaintiff that the merchandise for the price of which recovery is sought was sold, delivered and charged to Alfonso Pierangeli individually.

The question to be determined is whether, under the terms of the guaranty, the defendant guarantor is liable for goods sold to either one of the principals after a severance of their joint connection.

The liability of a surety is measured by the express terms of his agreement and is not to be extended by construction: 5 Elliott on Contracts, § 3941, page 17.

The defendant’s contract must be determined from the language used. Whenever the intention of the parties has been thus ascertained, the principle of strictissimi juris applies, and the court guards the rights of the surety to protect him against any liability which is not strictly within the terms of his contract. Thus, a guaranty for the acts or debt of one will not be extended to those of another, and a guaranty of accounts due to one personally will not cover accounts carried by him for a disclosed principal. A guaranty of advances to a firm will not cover advances made to individual members of such firm or advances made to the firm after a change therein: 28 Corpus Juris, 956.

There is also authority for the proposition that as a general rule a surety or guarantor of a copartnership is not liable in respect of transactions or defaults subsequent to its dissolution by a withdrawal from or an addition to its membership, whether the transaction or default is by a partnership which succeeds the original partnership or by an individual member of the original partnership: Zeo v. Loomis, 246 Mass. 366; Lumberman’s Bank & Trust Co. v. Sevier, 270 Pac. Repr. 291; Dupee v. Blake, 148 Ill. 453.

Not only because of authority but in reason might it well be said that one would be willing to stand surety for two principals jointly and be unwilling to guarantee for one of the individuals after severance of the business relationship between the principals.

Plaintiff offered no evidence to show that the parties concerned intended to create a liability for the several obligations of the named principals, and from the transaction itself it appears that the plaintiff recognized a change in the condition of the principals with reference to the subject-matter by its modification of the manner of charging the account to conform to the new business arrangement after the withdrawal of Frank Palumbi from the joint relationship.

The defendant, whom the plaintiff seeks to hold liable under his guaranty, certainly had the right to determine the extent of his obligation. He had a right to rely upon a joint character and credit rather than an individual. It may be that for that very reason he obligated himself to be responsible for goods delivered to or liability incurred by “Alfonzo Pierangeli & Frank Palumbi.” It was a guaranty contemplating sales to the principals in their joint capacity. The language used admits of no other construction. True it is that courts have construed “or” for “and” and vice versa where such construction was necessary to carry out the manifest intention of the parties, but it has never been applied for the purpose of supplying an intention not otherwise appearing: Rice v. Bennington County Savings Bank, 108 Atl. Repr. 708; Roome v. Phillips, 24 N. Y. 463; Hale v. Sweet, 40 N. Y. 97.

The use of the conjunction in the phrase “In further consideration that Fleck Bros. Co. shall sell to Alfonzo Pierangeli & Frank Palumbi goods, wares and merchandise . . .” cannot be construed to include bills of goods bought by either of them individually.

The contract before us clearly indicates that only joint sales were contemplated ; that the liability of the defendant was to attach only upon default of two persons and not on that of either. There is no proof that credit was extended to the property named in the contract of guaranty, to wit, S. W. corner 51st and Stiles Streets, Philadelphia; it appears that all of the goods, payment of which is sought from this defendant, were sold, delivered and charged to Pierangeli after the admitted dissolution of the joint relationship between the two named principals. The phraseology adopted in its limitation of the amount of the guaranty as one gross sum covering sales to both and not to each, to wit, $500, lends itself only to the construction as here outlined, for, if plaintiff’s theory were to prevail, he might well have a double liability on the part of the guarantor for each of the principals. There is no need to further labor this point, since the obvious intention of the parties is disclosed by the instrument and supported by the evidence. It is perfectly plain that an engagement to answer for the obligations of debtors collectively cannot be extended so as to apply to the debt of an individual: Mayer v. Cook, 57 N. Y. Supp. 94; Barns v. Barrow, 61 N. Y. 39; Bank v. Mitchell, 15 Conn. 206.

A careful consideration of the pleadings, of the contract and the testimony adduced leads the trial judge to the conclusion that the defendant is not liable. Accordingly, the court enters a finding for the defendant.


author: Lamokelle, P. J.,

text:
    Smyth’s Estate.

      John J. Cahill, for exceptions.

      Raymond V. John and Carlyle H. Ross, contra.
    Jan. 22, 1931.
   Lamokelle, P. J.,

Counsel for the exceptants, not only in his written brief but also in his oral argument, has presented his clients’ case with thoroughness and marked ability, yet our examination of the record does not convince us of error either in the finding of facts or application of law in the exhaustive adjudication.

One of the exceptions especially stressed and pressed is that the Rule in Shelley’s Case applies and that the trust has not terminated. There does not appear to be any merit in this contention. There is no gift to any of the five children of the testatrix, save and except of income, and this income is protected by a spendthrift trust; when and as each of the children die, their appointee takes the share from which the income was theretofore payable; in the absence of appointment, their children, and, in event of no living descendants nor exercise of power of appointment, their heirs at law; so until death occurs no one can say who takes, and, even though the children should have a present vested interest in corpus, there is no coalescence, because one estate is equitable and the other legal; as to which see Moore's Estate, 198 Pa. 611.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Boose, P. J.,

text:
    Sipe v. Balis.

      L. W■ Walker, for appellant; D. R. Heckman, for appellee.
    April 22, 1930.
   Boose, P. J.,

On Dec. 2, 1929, Herman Balis, the plaintiff in error, sued out a writ of certiorari to bring up the record of the proceedings and judgment of R. E. Craver, Esq., a justice of the peace, in order that ihe court might review his jurisdiction as well as the legality and regularity of his proceedings and decision. On Jan. 20, 1930, the plaintiff in the above case obtained a rule to show cause why the said writ of certiorari should not be quashed, alleging that the same was not issued within twenty days after notice of the rendition of judgment by the justice of the peace; both the writ of certiorari and the rule to quash are now before the court, and will be considered in their reverse order.

Counsel for the judgment plaintiff contend that, inasmuch as the writ of certiorari was not issued by the defendant within twenty days after notice of the entry of judgment against him, the writ should be quashed. On the other hand, counsel for the plaintiff in error argues that the justice of the peace, because of the alleged irregularities in his proceedings, was without jurisdiction to enter said judgment and that the question of jurisdiction may be raised at any time or stage of the proceedings.

The Act of March 20, 1810, 5 Sm. Laws, 161, provides:

“That no judgment shall be set aside in pursuance of a writ of certiorari unless the same is issued within twenty days after judgment rendered and served within five days thereafter; and no execution shall be set aside in pursuance of the writ aforesaid unless said writ is issued and served within twenty days after the execution issued.”

The certiorari must be issued within twenty days if the justice had jurisdiction and the defendant has knowledge of the judgment. But if the justice had no jurisdiction, then the statute will not apply and the certiorari may be issued at any time; and such writ is the method to be used to show that the justice had no jurisdiction and that the proceedings before him were irregular and illegal: Nalen v. Burke, 12 Pa. C. C. Reps. 490; Heany v. Faust, 20 Pa. C. C. Reps. 73; Edwards & Sigler v. Fonk & Brother, 6 Dist. R. 505; Lehighton Borough v. Roth, 7 Dist. R. 426; Bertz v. Troast, 17 Lane. Law Rev. 169; Lacock v. White, 19 Pa. 495; Graver v. Fehr, 89 Pa. 460.

Wahl v. Poore, 46 Pa. Superior Ct. 630, and Schwartz Bros. v. Adams Express Co., 75 Pa. Superior Ct. 403, have been cited by counsel in support of the motion to quash. In the first case the certiorari was sued out by garnishee long after he had knowledge that the judgment had been entered against him, and it was held that this constituted a waiver. In the latter case the constable made a return that he handed a true and attested copy of the summons to defendant’s agent and that the defendant had knowledge of the judgment thirty-four days before the certiorari was issued. In the case at bar, there was no return of the summons served upon the defendant or any knowledge on his part that the judgment had been entered against him until an execution was issued and a levy made thereon. In these respects it is easily distinguished from the cases cited.

If, therefore, the justice did not have jurisdiction, the rule to quash the certiorari cannot prevail, and this leads us into a consideration of the errors assigned to his proceedings and judgment. The first four assignments of error challenge the legality and regularity of the proceedings before the justice in the issuance, service and return of the summons, and may, therefore, be considered together.

The transcript sets forth that'the summons was issued to C. F. Herring, constable, but an inspection of the summons attached to the transcript shows that it was not directed to any officer by name. There is no return of service endorsed thereon, supported by affidavit, showing the time, place or manner of service. There is written on the face of the summons “service hereof accepted 10-15-29. Herman Balis,” but nothing to show by whom such service or return was made or that a copy of the summons was left with the defendant. These defects are fatal, as there is nothing in the record to prove that the justice had jurisdiction of the person of the defendant.

Generally speaking, service must be made upon, by and in the manner prescribed by the Act of July 9, 1901, P. L. 614, which provides that “writs issued by any . . . justice of the peace . . . shall be served in the county where they are issued by the constable or other officer therein to whom given for service, in the same manner and like effect as similar writs are served by the sheriff when directed to him by the proper court.” Said act prescribes the manner of service as follows: “The writ and summons . . . may be served by the sheriff of the county wherein it is issued upon an individual ... in any one of the following methods: (a) by handing a true and attested copy thereof to him personally.” The method of service prescribed by the Act of 1901 is exclusive, and the return must show definitely that service was made in the manner prescribed; otherwise, the justice acquires no jurisdiction. The record should disclose a return of service made by a constable on the summons, and such summons must be in compliance with the act. The record must show on its face everything necessary to sustain the judgment: Carter v. Shindel, 7 Dist. R. 308. And since it is only by service that jurisdiction of the person can be had, proper service must be shown on the face of the record or the judgment rendered thereon will be declared void. Where the record shows neither service of summons on the defendant nor appearance by him to the action, a judgment rendered in the case will be reversed. In the present case the summons was not given to a constable or other officer for service, nor was there service upon the defendant by handing a true and attested copy thereof to him personally. The act requires a copy of the summons to be left with the defendant, and where such copy is not left, the justice had no jurisdiction and a judgment by default will be reversed, although the certiorari was not taken

out within twenty days: Montgomery Table Works v. Nice & Co., 11 Dist. R. 202; Witmeyer v. Kreider, 20 Lanc. Law Rev. 50; Corson v. Sullivan, 12 Dist. R. 538.

The return must show that a copy of the writ was handed to the defendant: Brenner v. Meltzer, 14 Dist. R. 461.

The copy must be both true and attested. When the record of a justice of the peace recites that a copy was served but does not recite that it was a true and attested copy, the judgment will be reversed on certiorari: W. F. Main Co. v. Sloan, 2 Blair Co. 371.

We have already called attention to the fact that in the present case there was no return whatever showing the time, place or manner of service. This is fatal to the proceeding; it is wholly unnecessary, to consider or pass upon the other errors assigned as ground for reversing the judgment.

Decree.

Now, April 22, 1930, the rule to show cause why the writ of certiorari should not be quashed is discharged; and the assignments of error are sustained and the judgment reversed; and judgment is now entered in favor of the plaintiff in error for the costs which have accrued upon the writ of certiorari, together with all costs incurred in the case.


author: Knight, J.,

text:
    Molony v. Belzer.

      Louis M. Childs, 2nd, for plaintiff; Thomas Hallman, for defendant.
    June 6, 1930.
   Knight, J.,

Findings of fact.

1. The plaintiff, H. Martin Molony, is the owner of a certain tract of land in Lower Merion Township, this county, subdivided into 347 lots, and more particularly known as “Merion Park.”

2. Merion Park is being developed by the plaintiff as a highly restricted residence neighborhood, and as a part of the general scheme of development, for the protection of purchasers and owners of lots in said development, certain covenants, conditions, reservations and restrictions were placed on said land in a deed of conveyance from H. Martin Molony and wife to Martin Stotz, dated March 10, 1925, and recorded in the office for the recording of deeds in and for Montgomery County, in Deed Book No. 945, page 158, &c.

3. The defendant purchased, and is the owner of, a lot and tract of ground, being a part of said development and known as premises No. 514 Lafayette Road, Merion Park, which said premises are more particularly described in a deed from H. Martin Molony and wife to John L. J. Belzer, dated Dec. 11, 1925, and recorded in the office for the recording of deeds in Deed Book No. 973, page 165.

4. The defendant holds title to his property, subject to certain restrictions and covenants contained by reference in his deed, among which are the following: Fourth. That the walls of all dwellings, including bay windows and overhangs hereafter erected on any of the herein mentioned lots of ground must set back at least thirty-five feet from the front building line, which shall be along the street upon which the lot of ground faces, and a distance of six feet from any adjoining party line, and that no porch shall be closer than twenty-five feet from the above mentioned building line except in the case of twin semi-detached one-family private dwellings the walls separating the twin dwellings shall be built on the party line. On all lots of ground situate at the intersection of two or more streets, the front building line shall be considered the one having the shorter dimension and the above set-back shall apply. Along the gable side or the building line having the longer dimension, all dwellings must set back at least fifteen feet from the gable building line and no porch shall be closer than twelve feet from the gable building line. Fifth. That the portion of the lots of ground left open by the set-backs described in section 4 shall at all times hereafter forever be left unbuilt upon, open and unobstructed except by open terrace, steps, trees, hedges and shrubbery, and at no time hereafter forever shall there be erected on any portion of the herein mentioned lots of ground any fences other than hedges. Twelfth. It is hereby further understood and agreed that the above mentioned restrictions shall at all times hereafter forever be enforced by the grantor, his heirs, executors or administrators and the Merion Park Civic Association.

5. There is erected on the defendant's lot a large and attractive suburban home, also a separate private garage. The house fronts on Lafayette Road and the garage is erected to the rear of the house and south thereof. Along the rear of this garage, and along the side away from Lafayette Road, the defendant has placed the construction complained of.

6. This construction consists of strong meshed wire, five feet or five and one-half feet high; it is supported by upright iron posts, on the top of which are ornamental knobs, iron piping connects the top of these posts, and to this piping there is attached the wire. The testimony does not disclose the dimensions of the fence, except the height, but from the photographs introduced into evidence we find that it is at least thirty-five feet in length. This wire construction and the side and rear garage walls form an enclosure at least ten feet wide at the front of the garage and running to a point in the rear. On the side of the enclosure where it adjoins the garage doors there is a wire gate corresponding in height, appearance and design with the rest of the construction.

7. The enclosure described in the foregoing finding is used by the defendant as a pen for his dogs.

8. The defendant has planted along the wire construction thirteen rose bushes of a climbing variety. These bushes are two years old, but they do not hide the construction or any considerable portion of it.

9. The construction described in the foregoing findings, in appearance, in design and in its general makeup, is identical with what is commonly called a meshed wire fence. Fences of this type, commonly called “cyclone fences,” are often seen surrounding poultry yards, playgrounds and industrial plants.

10. When the wire material was delivered on the defendant’s land, he was immediately notified by the plaintiff- that no fence would be allowed to be erected.

11. Merion Park is being developed by the plaintiff as a high grade restricted residential neighborhood. At least thirty-eight houses have been built upon the subdivision.

12. The covenant not to build a fence on any part of the defendant’s lot is of substantial benefit to the lots of the plaintiff.

Discussion.

The plaintiff contends the structure in question is a fence and the defendant says it is a rose arbor. It looks like a fence, it is built like a fence, it is used as a fence, and we are constrained to say that it is a fence. If the defendant’s contention is sound, it would nullify the restriction against fences, as all an owner would have to do would be to plant a few rose bushes, and, presto — the fence becomes a rose arbor. The location of the enclosure, in back of the garage; the use to which it is admittedly put, that of a dog run; the swinging gate; the design and construction of the substantial barrier, all stamp it as a fence and not a trellis for roses. This is so plainly and palpably a fence, as that term is commonly used and employed, that we deem it unnecessary to quote definitions of the word “fence,” or cite cases in which the question of what is a fence, within the meaning of building restrictions, has been discussed.

The defendant has violated the covenant contained by reference in his deed, and we have but to consider if the plaintiff is entitled to equitable relief.

If the right a property owner seeks to enforce is not merely incident to the general public, but is contractual and based on an express covenant in a deed, equity will restrain the violation of the covenant so long as it remains of substantial value to the owner of the dominant estate: Landell v. Hamilton, 175 Pa. 327; Hunter v. Wood, 277 Pa. 150. We have found as a fact that the covenant prohibiting the erection of fences on any portion of the defendant’s land is of substantial benefit to the plaintiff, owner of the dominant estate.

Merion Park is a new development, and the plaintiff in selling his land has given great prominence to the building restrictions and covenants designed to protect each lot, and to secure a quiet, peaceful, artistic and attractive residential community. Further, he has obligated himself in his deeds and public advertisements to see that the restrictions are enforced. To permit the defendant to openly violate his covenant not to build a fence on any portion of his lot would undoubtedly encourage other violations of the restrictions and render worthless the plaintiff’s solemn promise to see that the building regulations and covenants are enforced. The effect would be to discourage buyers of the plaintiff’s lots and to depreciate to some extent the value of the land, as well as the value of other lots sold by him in the development. In such a project as Merion Park, the high type of the development, and consequently the best value, can only be maintained by the rigid enforcement of the restrictions which protect each lot owner and insure the character of the subdivision as a whole.

In his bill the plaintiff asks for an allowance of counsel fees against the defendant. He bases his demand upon section 8 of the restrictions. As we construe this section, it does not empower us to require the defendant to pay the plaintiff’s counsel fees.

From the foregoing findings of fact and discussion we draw the following

Conclusions of law.

1. Equity has jurisdiction.

2. The fence erected by the defendant upon his lot constitutes a violation of the building restrictions contained by reference in the defendant’s deed.

3. The plaintiff is entitled to a mandatory injunction, directed to the defendant, and requiring him to remove the fence mentioned in the bill and described in the findings of fact.

4. The defendant should pay the costs.

Decree.

And now, June 6, 1930, after final hearing, it is ordered, adjudged and decreed that the prothonotary mark these findings of facts and conclusions of law filed, thereafter to become a part of the record of the case, and enter the following decree nisi:

And now, June 6, 1930, it is ordered, adjudged and decreed that a mandatory injunction issue, directed to the defendant and commanding him, within sixty days of this date, to remove the fence described in the bill and findings of fact, and that the defendant pay the costs.

The prothonotary is further ordered and directed to give counsel in the case notice as required by the rules of equity practice, that unless exceptions thereto are filed within ten days of this date, the decree entered nisi will become the final decree as of course.

From Aaron S. Swartz, Jr., Norristown, Fa.


text:
    Commonwealth v. Lord.

      James B. Landis, District Attorney, and C. L. Shaver, for Commonwealth.

      T. J. Itell, for defendant.
    May 9, 1930.
   Boose, P. J.,

The defendant has been indicted in the above case upon two bills, the one charging “secreting goods after levy to prevent sale,” and the other alleging, under separate counts, “larceny and receiving stolen goods.” Motions have been presented to quash both indictments. The first bill of indictment alleges that the defendant “did willfully, maliciously and unlawfully and fraudulently remove, secrete, transport and' carry away the personal property, to wit, the goods and chattels, of another person, to wit,, of Nora Romesburg and Harry Romesburg, after a levy had been made thereon by J. J. Sobiesky, tax collector of Central City Borough in said county, with intent to defraud and to prevent said property from being sold by virtue of an execution after levy made as aforesaid, contrary to the act of assembly,” etc.

This indictment is laid under the Act of April 22, 1903, P. L. 242, which provides: “Any person who shall remove any of his or her property, or the property of any other person or persons, out of any county with intent . . . to prevent the said property from being sold by virtue of any said execution after levy has been made thereon, . . . shall be guilty of a misdemeanor,” etc.

The precise question here involved is whether the removal of goods after levy by a tax collector, thereby preventing a sale thereof, constitutes an offense within the meaning of this act. The answer to this question depends upon the construction to be placed upon the word “execution” as employed in the said act. An execution is the writ which directs and authorizes an officer to carry into effect the final judgment or decree of a court. The word “execution” as used in this act must be understood in its ordinary and usual acceptation, that is, as a judicial process for carrying into effect the final judgment, decree or sentence of a court.

The general rule is that penal statutes, that is, statutes imposing penalties or prescribed punishments for crime, are to be strictly construed. The letter of such a statute is to be adhered to, and it is not to be extended by implication. A case not expressly covered and within the plain and precise meaning of the words cannot be brought within the statute by loose or broad construction. The interpretation is to be most favorable to the person accused of having violated the statute, and a doubt as to the application of the penalty is conclusive in his favor.

A tax collector derives his power to levy and distrain for taxes from section 21 of the Act of April 15, 1834, P. L. 509, which makes it his duty to levy the taxes by distress and sale of the goods and chattels of the delinquent. The question has not been raised and has never been decided in Pennsylvania whether a levy and distress under a tax collector’s warrant constitutes an execution within the meaning of the Act of April 22, 1903. It has been decided that a landlord’s warrant is not an execution under said act in Com. v. Toomey, 25 Dist. R. 737. By analogy, we think, it necessarily follows that a levy made under a tax collector’s warrant is not an execution as the term is used in said act, and that removing of goods thus levied upon to prevent their sale does not constitute an indictable offense under said act as laid in the present bill of indictment.

In Com. v. Mahon, 12 Pa. Superior Ct. 616, it was held, although probably not necessarily for the purpose of the decision upon the fact involved, that a tax collector’s warrant is in the nature of an execution. The court said:

“The warrant to the collector, which the act authorized, empowered him to levy the amount of the tax by distress and sale of the goods and chattels of the delinquent, and, in case sufficient goods and chattels could not be found, to take his body. There was a personal liability of the owner, legally enforceable, but not by a common-law action. The warrant was in the nature of an execution, and the collector might levy upon personal property not on the land assessed.”

However, while it has. been held that a tax collector’s warrant is in the nature of an execution, it is not a judicial process in the ordinary sense of the term: Acme Harv. Mch. Co. v. Hinkley, 122 N. W. Repr. 482; Sprague v. Birchard, 60 Am. Dec. 393; Haley v. Elliott, 26 Pac. Repr. 559; Tweed v. Metcalf, 4 Mich. 579; 37 Cyc. 1202.

We are not prepared to say, and it is unnecessary to decide, that the defendant might not be indicted and convicted under any of the provisions of the Act of April 22, 1903, P. L. 242. This act amends section 1 of the Act of June 23, 1885, P. L. 136, which amended section 130 of the Act of March 31, 1860, P. L. 382, 413; that section was a transcript of the 3rd section of the Act of July 12, 1842, P. L. 339. The Act of June 23, 1885, was construed by the Supreme Court, in Com. v. Lewis, 6 Pa. Superior Ct. 610, as follows:

“The evil aimed at by the Act of June 23, 1885, under which the indictment is framed, is the defrauding of creditors by placing the debtor’s property beyond their reach. While the statute enumerates some of the methods by which this might be done and prohibits them under a penalty, it also contemplates all fraudulent means of secreting, removing or disposing of property, with like intent, by the words ‘or otherwise dispose of any . . . property . . . with intent to defraud any creditor.’

“The fraudulent removal of property to evade liability for debts is forbidden by the statute, and this is its principal subject. The purpose is to protect creditors from being fraudulently deprived of recourse to the property of the debtors, and it includes all creditors who may thus be defrauded, without regard to the nature or status of their claims. The reference in the act to methods of removal which might more particularly affect debts of a certain status was not designed to exclude the claims of other creditors from its provisions. The act was intended to embrace all fraudulent methods of placing property beyond the reach of creditors. And all creditors who may thus be defrauded are included in its scope and purpose. The substantive offense is the fraudulent removal; and the inclusion of several methods or phases of the removal in one count is not forbidden by the principles of criminal pleading, although the removal might have been accomplished by one or more of these, to the exclusion of others. Conviction of a fraudulent removal by proof of one phase or method would be a bar to a subsequent prosecution or the removal of the same property through other methods, when all relate to the same transaction: Com. v. Mentzer, 162 Pa. 646.”

We do not mean to hold that the facts alleged in the information might not be sufficient to support an indictment if properly set forth and charged in the bill to constitute one of the prohibited methods of secreting, removing or disposing of property or preventing such property from being made liable for the payment of the debts of another person. All that we do decide is that a tax collector’s warrant, and a levy and distress made thereunder, is not an execution within the meaning of said act so as to prevent a removal of the goods levied upon and to constitute an indictable offense.

The second bill of indictment contains two counts: The first charging larceny, and the second count, receiving stolen goods. This indictment is sufficient on its face to constitute the offense charged if supported by the evidence. It is not necessary to pass upon the reasons urged in support of the motion to quash. The principle reasons assigned in support of the motion to quash the first count are: That the information does not support the indictment and does not allege legal possession and title to the goods alleged to have been stolen. An inspection of the information shows that it does allege the felonious taking and carrying away of the goods and chattels therein enumerated, their value, oustody and possession.

“Where property is levied upon by a constable or sheriff, he acquires a special property in it, and if stolen, it may be charged in an indictment or complaint as his property or as that of the owner:” 2 Wharton’s Criminal Law (11th ed.), page 1404.

As to the last count, the objections that there was no charge in the information of receiving stolen goods, that the defendant was not bound over to answer this charge, that he had no notice of such charge being presented to the grand jury and that leave of court was not obtained, cannot be sustained. The Act of March 31, 1860, P. L. 427, 436 [§ 24], provides as follows:

“In every indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the said property, knowing it to have been stolen, and in any indictment for feloniously receiving property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing said property, and it shall be lawful for the jury trying the same to find a verdict of guilty either of stealing the property or of receiving the same, knowing it to be stolen:” Stahl’s Appeal, 1 Pa. Superior Ct. 496, 499.

Decree.

Now, May 9, 1930, the motion to quash the indictment for secreting goods after levy to prevent sale is sustained and indictment quashed; the motions to quash the indictment for larceny and receiving stolen goods are overruled, leaving it to the discretion of the district attorney to press said indictment to trial, if, in his opinion, the Commonwealth’s evidence is sufficient to warrant a conviction upon either or both counts therein contained.

From Mrs. Daryle it. Heckman, Somerset, Pa.


author: Patterson, P. J.,

text:
    Sullivan, Guardian, v. J. B. Fluke & Co., Inc., et al.

      Robert A. Henderson, for claimant; Harry J. Nesbit, for defendant.
    July 14, 1930.
   Patterson, P. J.,

This is an appeal by the Utica Mutual Insurance Company from the decision of the Workmen’s Compensation Board dismissing a petition for termination of a compensation agreement.

Edward Barr, employed by J. B. Fluke & Co., Inc., was injured in the Course of his employment Sept. 16, 1925, and died as a result thereof Oct. 3, 1925, leaving as dependents his widow, Eva Gertrude Barr, and Walter John Barr, five years of age and son of a former wife from whom he had been divorced. The Utica Mutual Insurance Company was the insurance carrier of the employer. The minor son is supported and maintained in the home of his maternal grandfather, W. C. Walker. A compensation agreement was entered into by the insurance carrier with the widow personally for payment of 299 weeks at $8 per week, or $2392, and with the minor son, through his grandfather, W. C. Walker, for payment at $2 per week from Oct. 5, 1925, to June 27, 1931, $595, and at $3 per week from June 28, 1931, to Aug. 8, 1935, $644.14, or a total sum to the minor son of $1242.14. This agreement, numbered 1872659, was approved by the board Dec. 11, 1925. Edward Barr lived one week after the injury and received compensation for that time. Payments under said agreement were made to the widow in the sum of $206, and payments for medical, hospital and burial expenses in the sum of $426, a total of $632. Payments were made to W. C. Walker for the minor child continuously to July 12, 1929, a total of $394.

The widow entered suit against the Pennsylvania Railroad Company, the third person liable for the death of Edward Barr, and settled the same for $5000, out of which she paid attorneys’ fees of $1468 and refunded to the insurance carrier $632 for compensation and other items paid by her, leaving in her hands the net sum of $2900. In order to induce the widow to proceed with her settlement with the Pennsylvania Railroad Company and allow her the net sum of $2900, the insurance carrier, appellant, agreed with her that her part of the agreement be terminated, and that instead of charging any part of said settlement to payments made and to future instalments to become payable to the minor child, payments were to be continued to him under the existing agreement until he should become sixteen years of age. A guardian, J. Austin Sullivan, Esq., was appointed by the Orphans’ Court of Blair County, who filed a bill in equity against the widow on Aug. 16, 1926, to recover from her the minor’s share of said $2900, and this action resulted in a settlement approved by the court Dec. 21, 1926, in which the widow paid to the guardian $1000. The decree of court in the settlement of the equity suit of the guardian against the widow provided that the payment to the guardian of said $1000 “shall not affect the right of said Walter John Barr receiving the compensation as was awarded him by the Workmen’s Compensation Board.” The appellant carrier was not made a party to said equity suit, neither was it given notice of the same, and when it learned of the said equity suit and the payment of $1000 by the widow to the guardian, it filed its petition with the compensation referee to terminate the agreement and to credit said $1000, less $200 attorneys’ fees, or $800, as an advance payment on account of future instalments of compensation. Answer was filed for the guardian of the minor and hearing had before Jacob Snyder, Esq., referee, who made an order dismissing the petition for want of jurisdiction. This order was later affirmed and appeal dismissed by the Workmen’s Compensation Board, whereupon the present appeal was taken to this court.

The question involved, as stated by appellant, is as follows: Should the net fund collected by the guardian of the minor as his share, out of the settlement for the death of the deceased employee, made with the third party responsible for the death, be credited as advanced payment of compensation?

Section 319 of the Workmen’s Compensation Act of 1915 provides as follows:

“Where a third person is liable to the employee or his dependents for the injury or death, the employer shall be subrogated to the right of the employee or the dependents against such third person, but only to the extent of the compensation payable under this article by the employer. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee or to the dependents and shall be treated as an advance payment by the employer on account of any future instalments of compensation.”

It is under this section that counsel for appellant contends that the employer (in this case the insurance carrier) has the right to demand subrogation on account of the compensation due the minor under the original agreement to the extent of $800, this being the amount his guardian has received from the $2900 paid by the third party, the wrongdoer. And with this contention we would be bound to agree if it were not for the fact that the evidence shows that the $2900 paid by the wrongdoer to the widow was for her exclusive personal use, and that while the suit against the Pennsylvania Railroad Company (as a result of which said sum was recovered) was originally instituted for the widow and the son, the settlement was made for the widow alone and with the clearly expressed understanding that said settlement was not in any wise to affect the payment to the minor son as provided for in the compensation agreement.

Mr. Max W. Dickey, who was assistant secretary of the Utica Mutual Insurance Company, appellant, and claims manager for the State of Pennsylvania, and who had personal supervision of the present case and personally represented appellant at the time Eva Gertrude Barr made settlement of her suit against the Pennsylvania Railroad Company, testified (page 29) as follows: “Q. Well, Mr. Dickey, when you made the agreement with Eva Gertrude Barr, whereby she released her compensation, except $206, and was allowed to receive the $2900 from the railroad company in settlement of the trespass case she had brought, you didn’t make any contention to her that your insurance company had any control over the money she received from the railroad company in settlement of that case? A. No; we had no control over that; that was her money.” And, again, on page 30, Mr. Dickey further testified: “A. We attempted negotiations to have the settlement protect our subrogation for both Mrs. Barr and the minor child.” Question by Mr. Nesbit: “Q. And then you made the concession of continuing the payments of the child to the guardian, the grandfather, for the purpose of allowing Mrs. Barr to get the $2900? A. That is correct.” And later, on the same page, question by Mr. Henderson: “Q. But, as you have testified, you had no control over the amount of money which Mrs. Barr received — that is, she could use it as she saw fit? A. If you mean after negotiations were all through, any sums of money that she received then were hers. We had no control after that point.” And on page 28, testimony of Mr. Dickey: “Q. Well, now, when you came to make the agreement, when Eva Gertrude Barr settled with the Pennsylvania Railroad Company, you left in full force and effect that portion of the agreement between the insurance carrier and Mr. Walker, the grandfather of Walter John Barr, the original payment of compensation as contained in that agreement? A. Yes; have been continuing in this one agreement; no other agreement was ever entered into. Q. And it was understood that he should be paid these payments in full? A. Under certain circumstances. Q. Well, the circumstances you have already related — that Mrs. Eva Barr or Gertrude Eva Barr, should receive $2900? A. I believe you misunderstand what I am trying to get at. We continued payments to the minor child with the idea in mind that this $2900 that Mrs. Barr would receive would be hers entirely; that she wouldn’t have to split that up in order to protect this minor child, and that is the reason we made the agreement.”

It is agreed by all parties interested that the $2900 received by the widow in settlement of her suit against the Pennsylvania Railroad Company belonged to her personally and exclusively. In our opinion, she could have given all of it to the minor child or kept it all, so far as the appellant was concerned. Under the intestate laws the son had some right to share in the sum so recovered, and in the absence of the agreement testified to by Mr. Dickey, the appellant would have had the statutory right of subrogation in the sum of $800, being the net amount recovered by the minor son. The guardian agreed to settle for less than the amount the minor was entitled to receive because of the agreement between the widow and the insurance carrier that compensation payment would continue on behalf of the minor. And since this expressed agreement was fully understood by all parties at the time the settlement was made and it was the inducement which caused the widow to accept settlement, it is now too late for the carrier to ask the courts to disregard its own voluntary participation in such an understanding and to permit it the right of subrogation as provided by law as though no agreement and understanding had been entered into.

21 Corpus Juris, 1110, 1111, § 110, defines estoppel as follows: “There are two sorts of what has been termed 'estoppel by contract,’ namely, (1) estoppel to deny the truth of facts agreed upon and settled by force of entering into the contract, and (2) estoppel arising from acts done under or in performance of the contract.”

“If, in making a contract, the parties agree upon or assume the existence of a particular fact as the basis of their negotiations, they are estopped to deny the fact so long as the contract stands, in the absence of fraud, accident or mistake. There can, of course, be no estoppel as to matters not included in the contract:” 21 Corpus Juris, § 111, page 1110 (citing Old Colony Trust Co. v. Allentown R. T. Co., 192 Pa. 596).

To permit the appellant to repudiate its voluntary agreement in order to procure a settlement with the widow would be fraud as to the minor. We have carefully examined the cases cited in appellant’s brief and find that they do not support appellant’s right to subrogation. Mayhugh v. Somerset Telephone Co., 265 Pa. 496, construes section 319 of the Workmen’s Compensation Act as giving the right of subrogation where there is no agreement, as in present case. In the case of Tallett et al. v. Scranton Ry. Co., 10 Dept. Reps. 751, the money paid was from disinterested parties and not from the wrongdoer, and, therefore, there was no right of subrogation. The cases of Wilson v. Pittsburgh B. & I. Works, 85 Pa. Superior Ct. 537, and Smith v. Yellow Cab Co., 87 Pa. Superior Ct. 143, and the same case in 288 Pa. 85, are cases in which both the Superior and Supreme Courts construe the laws as to the right of subrogation where there is no agreement, as in the present case. Riley v. Alexander-Johns Co., 14 Dept. Reps. 84, and Zimmer v. Casey, 296 Pa. 529, are also cases relating to the right of subrogation where there is no agreement, as we have in the present case.

Decree.

The findings of fact and order of the referee as affirmed by the Compensation Board are hereby approved and sustained and the appeal is dismissed.

From Robert W. Smith, Hollidaysburg', Pa.


author: Hughes, J.,

text:
    Ramsdell Packing Company v. Cohen et al.

      Lloyd O. Hart, for plaintiff; David H. Weiner, for defendants.
    June 9, 1930.
   Hughes, J.,

The plaintiff’s statement of claim avers that the defendants, by oral contract, purchased merchandise totaling $390, and this merchandise was delivered, received and accepted by the defendants. Paragraph 3 of the the plaintiff’s statement of claim sets forth: “On account of said total purchase price of $390, defendants are entitled to a credit of $22 for freight, leaving a balance due of $368, with interest, as above stated, all of which is now due and payable from defendants to plaintiff.”

The defendants’ answer admits all the averments of the plaintiff’s statement of claim except paragraph 3, which they answer as follows: “The defendant admits that the total of said purchase price was $390, and there was a credit to which they were entitled of $22, leaving a balance of $368, but denies that the said balance is due and payable to the plaintiff by the defendants. The defendant avers that on or about Sept. 18, 1929, the said plaintiff, through its attorney, Lloyd O. Hart, communicated an offer to the defendants that, in consideration of the cash payment thereof, it would accept the sum of $184 in full payment and satisfaction of their said balance. That the said defendants, through their attorney, David H. Weiner, accepted the said offer of said plaintiff, and on Sept. 18, 1929, accepted the said offer in writing and delivered to Lloyd O. Hart, as attorney for the said plaintiff, a check of their attorney, the said David H. Weiner, in the amount of $184, dated Sept. 18, 1929, drawn to the order of Lloyd O. Hart, attorney, on the Union Trust Company of Washington, Pennsylvania, being check No. 298, which said check was received and accepted by the said Lloyd O. Hart, as attorney for the plaintiff, in accordance with the offer aforesaid. The defendant admits that the said check was never presented for payment, but avers that they have been, and still are, ready and willing to pay the said check upon presentment or to pay the said amount in cash.” The plaintiff has moved for judgment for want of a sufficient affidavit of defense.

An agreement between a debtor and creditor for the acceptance of part of a debt in satisfaction of the whole is void for want of consideration. From the answer of the defendants, this is all that was attempted by the attorneys for the parties in this case. There is no averment that the plaintiff consented to the arrangement his attorney is alleged to have made or that it was acquiesced in or ratified by the plaintiff in any manner. An agreement of an attorney within the scope of his authority binds his client; and his retainer authorizes him to do, in behalf of his client, all acts incidental to a due and orderly conduct of the suit, which affect not the cause of action, but the remedy. An attorney, by virtue of his employment as such, merely, has no general power to compromise the claims of his client, and no such authority can be inferred from the relationship of attorney and client. There must be some averment of agency or authority beyond that implied by the relation, or of a ratification, to bind the client by acts of his attorney not within the scope of his duties as an attorney: Isaacs v. Zugsmith, 103 Pa. 77; Brockley v. Brockley, 122 Pa. 1; Manieri v. City of Philadelphia, 10 D. & C. 292.

There are no such averments in this case. However, the defendant has requested that an opportunity be given him to amend his pleadings.

And now, June 9, 1930, the defendant is granted ten days in which to file an amended affidavit of defense, otherwise judgment is directed to be entered for the plaintiff for want of a sufficient affidavit of defense, the prothonotary to liquidate the amount of the claim.

Prom Harry D. Hamilton, Washington, Pa.


author: Reno, P. J.,

text:
    Lehnert, to use, v. Newark Realty Co., Inc., et al.

      Dillinger & Schneller, for plaintiff; Groman & Rapoport, for defendants.
    June 16, 1930.
   Reno, P. J.,

The mortgage contained, inter alia, the usual insurance clause and “for the production [to the mortgagee] on or before the first day of August of each and every year, all receipts for all taxes of the current year assessed upon the mortgaged premises.”

■ Execution was issued upon the bond accompanying the mortgage and the condition alleged to have been broken was the failure to pay taxes in 1928 and 1929. Various reasons for opening the judgment have been alleged, but the sole question raised by the depositions relates to the payment of the taxes.

It is quite clear that as to the taxes for 1929 the defendants have not met the requirements of the burden of proof. Their obligation is to produce the tax receipts. In view of the conflict of interests between defendants and the de'ath of the tax collector in Catasauqua, we can understand the difficulties encountered by petitioners in securing proof of the fact of payment. But it is quite clear, we think, that the 1929 taxes have not been paid, and certainly defendants have not produced' receipts showing such payment. In these circumstances, plaintiff must be allowed to proceed with the execution.

Fox v. Helmuth, 27 Pa. Superior Ct. 81, upon which petitioners rely, does not rule the case at bar. There, in a somewhat similar situation, the taxes were actually paid, although paid after the execution was. issued. Had that fact appeared here, we would have-been free to follow the Fox case. Without that fact, plaintiff must no longer be restrained in the exercise of his right to collect.

Now, June 16, 1930, the rule to show cause why the judgment should not be opened is discharged.

From Edwin L. Kohler, Allentown, Pa.


author: Alessandroni, J.,

text:
    Trasoff v. Yale Building and Loan Association.

      Wessel, Bennett & Weiss, for plaintiff; Yale L. Schekter, for defendant.
    Dec. 29, 1930.
   Alessandroni, J.,

The Yale Building and Loan Association filed a petition for interpleader, alleging that it holds the sum of $961.12 on five shares of stock, book No. 244 B, in the name of Samuel Libshitz. It further alleges that the plaintiff, Abraham Trasoff, claims that the sum is payable to him, and the trustee in bankruptcy of Samuel Libshitz also claims the fund and has brought a suit in C. P. No. 3, as of June Term, 1930, No. 4160, to recover it. Abraham Trasoff claims by virtue of an assignment, and the trustee in bankruptcy claims the fund on behalf of the bankrupt’s estate. The petition prays for a rule on Abraham Trasoff and Alfred I. Reese, trustee in bankruptcy of Samuel Libshitz, to show cause why they should not inter-plead. The petitioner offers to pay the sum of $961.12, less costs incurred in these proceedings and a reasonable attorney’s fee, into court or to dispose of it as the court may order.

An answer was filed to the petition on behalf of the trustee in bankruptcy which merely alleges that the trustee in bankruptcy of Samuel Libshitz is entitled to the sum of $961.12.

It is firmly established that where there are rival claimants to a fund, which the holder of the fund is willing to pay but does not know to whom to pay it, the rival claimants will be required to interplead upon petition of the stakeholder. The precise question was passed upon in McKinley v. Mutual Life Ins. Co., 278 Pa. 300, in which the court stated: “The case is ruled by Schmidt Brewing Co. v. Pittsburgh Life and Trust Co., 256 Pa. 363, where Mr. Justice Mestrezat, speaking for the court, says: ‘The proceeding was instituted under section 4 of the Act of March 11, 1836, P. L. 76, which provides, inter alia, as follows: “The defendant in any action which shall be brought in the said court for the recovery of money, . . . which shall have come lawfully to his hands or possession, may, at any time after the declaration filed, and before pleat pleaded, by a suggestion to be filed of record, disclaim all interest in the subject-matter of such action, and offer to bring the same into court, . , . and if he shall also allege, under oath or affirmation, that the right thereto is claimed by, or supposed to belong to some person not party to the action (naming him or them) who has sued or is expected to sue for the same, . . . the said court may, thereupon, order the plaintiff to interplead with such third person.” It will be observed that the defendant’s suggestion or petition avers every jurisdictional fact required by the Act of 1836, and they are not denied by the rival claimants to the fund in controversy. . . . We are not now concerned, as the learned counsel for the appellee argues, with the merits of the controversy. That question will be determined on the trial of the interpleader.’ ”

The petition establishes all the facts necessary for an interpleader, and the answer seeks to raise the merits of the controversy between the rival claimants. This question cannot be passed upon by the court at this time, nor can we accede to the trustee in bankruptcy’s request that the question be decided in the equity proceedings which he has brought in another court.

And now, to wit, Dee. 29, 1930, the rule for an interpleader is made absolute and the Yale Building and Loan Association is ordered to pay into court the sum of $961.12, less the costs of this proceeding and a counsel fee of $25.