author: Van Swearingen, P. J.,

text:
    Veech et al. v. Connellsville.

      Municipalities — Cities of the third class — Judgment against -city — Mandamus execution — Acts of April 15, 188%., and June 27, 1918.

    Notwithstanding- that no appropriation has been made by the council of a third class city, under the Third Class City Act of June 27, 1913, P. L. 568, for the payment of a judgment against the city, a writ in the nature of a mandamus execution for the payment of the judgment, under section 6 of the Act of April 15, 1834, P. L. 537, will be directed to the city treasurer.
    Rule for attachment. C. P. Fayette Co., March T., 1922, Execution Docket, No. 30.

      Umbel, Robinson, McKean & Williams, for plaintiffs.

      Sterling, Higbee & Matthews, for city treasurer.
    Feb. 7, 1922.
   Van Swearingen, P. J.,

On Nov. 17, 1916, in an action for damages to real estate by reason of a change of the grade of Ashman Avenue, in the City of Connellsville, on which certain lots of plaintiffs abutted, the jury returned a verdict in favor of plaintiffs and against the defendant city for $1800. A motion for a new trial was overruled and dismissed by the court, and, on Oct. 14, 1920, judgment was entered on the verdict, from which judgment no appeal was taken. On Dec. 21, 1921, on a petition setting forth that, although frequent demands for payment had been made, the judgment still remained unpaid, plaintiffs secured a writ in the nature of a mandamus execution, under section 6 of the Act of April 15, 1834, P. L. 537, directed to the treasurer of the city, A. O. Bixler, commanding him forthwith, upon service of the writ upon him, to pay to plaintiffs the full amount of the judgment, with interest and costs, out of any moneys unappropriated by the city, or, if there be no such moneys, out of the first moneys that shall be received by him for the use of the city. The writ was served on the treasurer on Dec. 23, 1921, by the sheriff, who demanded payment in accordance with the terms of the writ, but payment was not made. On Jan. 17, 1922, on motion of counsel for plaintiffs, a rule was granted on the city treasurer to show cause why an attachment should not issue against him for contempt of the process of the court.

The treasurer filed an answer to the rule, wherein he set forth: “That he could not lawfully obey the said writ because, by the statute creating his office and prescribing his duties, he is prohibited from paying out of the treasury of the city any money not specifically appropriated by council, and that no appropriation has been made by council for the payment of plaintiffs’ judgment. He further respectfully suggests that, under such facts, a writ of mandamus does not lie, and avers that he has not made the payment because he has been advised that he could not legally do so, that in so doing he did not mean or intend any disrespect to the court or contempt of its process, and that he was advised that such was the only course open to him to properly raise the question and have the rights of the plaintiffs and his duties in the premises decided by your honorable court.” On Feb. 2, 1922, a demurrer to the treasurer’s answer was filed by counsel for plaintiffs, wherein it is alleged that the answer is not sufficient in law to constitute a defence to the charge of contempt, inasmuch as “(1) No specific appropriation for the particular purpose by the city council is necessary or required to authorize its treasurer to pay a final judgment against the city, regularly rendered by a competent tribunal, which he has been commanded to pay by that tribunal; and (2) that the city treasurer would not be subject to any legal penalty for obeying the lawful process of the court.”

The defendant city is a city of the third class, and at the argument it was contended by counsel for the city treasurer that, since the Act of June 27, 1913, P. L. 568, providing for the incorporation, regulation and government of cities of the third class, a mandamus does not lie against the treasurer of a third class city to compel him to pay out of the funds of the city treasury a judgment recovered against the municipality. In support of that position, attention was called to art. VIII, § 2, of the act cited, which provides that “no money shall be paid out of the city treasury unless the same shall have been previously appropriated by council to the purpose for which it is to be drawn;” art. xv, § 6, providing that “no money shall be paid out of the city treasury except upon appropriation made according to law, and on warrant drawn by the proper officer in pursuance thereof,” and art. VII, § 11, which requires all warrants to be countersigned by the superintendent of the department of accounts and finance and by the city controller under section 2 of the amendatory Act of July 19, 1917, P. L. 1093. The contention of the treasurer’s counsel is that the system of accounting, established by the third class city act cited, and its amendments, is conclusive and exclusive, and that no money may be paid out of the treasury of a third class city otherwise than in accordance with the requirements of the statutes relative to third class cities. It is the contention of the treasurer’s counsel that the writ in a case like' the present one should be directed to the city council to make the appropriation, to the proper officer to draw the warrant, and to the officials designated by law to countersign the warrant. The difficulties of such a proceeding become apparent upon a reading of the many and complex provisions of the statute, but they need not be discussed.

By the Act of April 15, 1834, P. L. 537, relating to counties and townships and county and township officers, it is provided: “Section 6. If judgment shall be obtained against a county in any action or proceeding, the party entitled to the benefit of such judgment may have execution thereof as follows, and not otherwise, viz.: It shall be lawful for the court in which such judgment shall be obtained, or to which such judgment may be removed by transcript from a justice of the peace or alderman, to issue thereon a writ commanding the commissioners of the county to cause the amount thereof, with interest and costs, to be paid to the party entitled to the benefit of such judgment, out of any moneys unappropriated of such county, or, if there be no such moneys, out of the first moneys that shall be received for the use of such county, and to enforce obedience to such writ by attachment. Section 7. If judgment shall be obtained against a township, the like proceedings may be had to enforce payment out of the township funds according to the circumstances of the case.”

In Monaghan v. City of Philadelphia, 28 Pa. 207, where one of the questions before the Supreme Court was as to the correct procedure to enforce the payment of a judgment against the city, it was said by Judge Knox: “The Act of April 15, 1834, provides a mode for enforcing the payment of judgments against counties and townships, and, although cities are not expressly named, yet they are clearly within the spirit of the act. ... We are of opinion that the proper writ is the one provided by the 6th section of the Act of April 15, 1834, which should be issued to the city treasurer, whose duty it is to pay the judgments in the order in which the writs are served upon him, out of any unappropriated moneys in his hands belonging to the city, and if there is none such at the time of the service of the writ, out of the first moneys that shall come to his hands. And we are further of opinion that the command of the writ must be obeyed by the city treasurer, whether councils have or have not made an appropriation for the payment of the judgment upon which the writ has issued.” In discussing the question, the court said further: “The city treasurer is the custodian of the moneys belonging to the city, and it is his duty under the law to pay the creditors of the city. The manner of making the payment and of vouching the debt to be paid is regulated by statute, but no statutory regulation or appropriation by the city councils can give a higher sanction to the liquidation of a debt than the judgment of a court of justice in pursuance of law that the debt is due and must be paid. The command of the mandatory writ is, in the words of the statute, ‘to cause the amount of the judgment, with the interest and costs, to be paid to the party entitled to the benefit of such judgment, out of any moneys unappropriated of such county, or, if there be no such moneys, out of the first moneys that shall be received for the use of such county.’ If this command be disregarded, it may be enforced by attachment.”

Evidently what the court referred to when it said “the manner of making the payment and of vouching the debt to be paid is regulated by statute,” was such provisions as are contained in section 10 of the Act of Feb. 2, 1854, P. L. 21, which was a supplement to an act incorporating the City of Philadelphia, wherein it was provided that “no money shall be drawn from the treasury of the city except the same shall have been previously appropriated by councils to the purpose for which it is drawn,” in section 12 of which act it also was provided that the city controller “shall countersign all warrants on the city treasurer, and shall not suffer any appropriation made by the city councils to be overdrawn,” and in section 21 of the Act of April 21, 1855, P. L. 264, which was a supplement to the act consolidating the City of Philadelphia, wherein, after specifying that “no appropriation shall be made of the moneys of the city without an ordinance therefor, expressing the objects thereof, and the amount appropriated for each object,” it was provided: “It shall be a misdemeanor in office for the controller of the city to pass, or the treasurer of the city to pay, any bill or order for any object not authorized by law.” It was in 1857, after both of these acts had been passed, that the ease referred to was decided, and the court said the writ “should be issued to the city treasurer,” who must obey the command of the writ, “whether councils have or have not made an appropriation for the payment of the judgment upon which the writ has issued.” The Act of May 23, 1874, P. L. 230, dividing the cities of the State into three classes, provided generally in section 7 that “no money shall be paid out of the city treasury , except upon appropriation made by law, and warrant drawn by the proper officer in pursuance thereof. . . .” In section 35, referring especially to treasurers of third class cities, the act provided that “no money shall be drawn from the treasury of the city unless the same shall have been previously appropriated by councils to the purpose for which it is drawn.” And in section 39, clause 5, it was provided that the city controller “shall countersign all warrants on the city treasurer, and shall not suffer any appropriation made by the city councils to be overdrawn.” So the provisions of the Third Class City Act of June 27, 1913, P. L. 568, in the respects now under consideration, do not introduce any new features into the law.

In the Sedgeley Avenue Case, 88 Pa. 509, decided in 1879, where a writ of certiorari was taken to the issuing of a writ of mandamus to the treasurer of the City of Philadelphia to enforce the payment of a final judgment against the city for damages awarded in the opening of a street, the proceedings of the court below were affirmed, following Monaghan v. City of Philadelphia, 28 Pa. 207. In the same year, in City of Williamsport v. Com., 90 Pa. 498, a writ of error was taken to review the action of the lower court in making an order upon the treasurer of the City of Williamsport, directing him to pay the overdue interest on certain bonds of the city, and also a certiorari to the action of the lower court in granting an attachment against the treasurer for refusing to obey the order, and the Supreme Court affirmed the proceedings upon each writ. In 1894, in Com. ex rel. Harkins v. Hinkson, City Treasurer, 161 Pa. 266, a demand for the payment of a judgment against the City of Chester having been made by Hinkson upon the treasurer of the city and refused, a writ of alternative mandamus was issued to the treasurer, directing him to pay the judgment, with interest and costs, or show cause why the same should not be paid, and the Supreme Court, in a per curiam order, said, “The writ of mandamus was properly issued,” and affirmed the order.

In each of the cases cited the writ was directed to the city treasurer, and during the period in which those cases were decided, statutory provisions were in force in the cities named very similar to those contained in the Third Class City Act of June 27, 1913, P. L. 568. No reason other than that already stated having been set up by the treasurer of the defendant city for not complying with the requirements of the writ served upon him, no other matters need be discussed. We are of opinion that the writ in this case was properly directed to the treasurer of the defendant city; that no sufficient reason has been shown by the treasurer’s answer to the rule why an attachment should not issue against him for contempt of the process of the court; and that the treasurer will be amply protected by the order of this court awarding the writ in making the payment therein required of him.

And now, Feb. 7, 1922, for the reasons stated in the opinion herewith filed, the rule for an attachment is made absolute, and it is ordered that an attachment issue against A. 0. Bixler, Treasurer of the City of Connellsville, for contempt of the process of this court, unless, within twenty days from this date, he pay to plaintiffs the amount of their judgment, with interest and costs, and the costs on this proceeding for attachment.

From Luke H. Frasher, Uniontown, Pa.


source: Caselaw Access Project

author: Bouton, P. J.,

license: Public Domain

text:
    McKean County Liquor Licenses.

      Liquor law — License—Resort of minors — Hotels—Act of May 5, 1921.

    Liquor licenses cannot be granted to hotels under the Woner Act of May 5, 1921, P. L. 407, because they are bound to furnish entertainment to minors as well as adults, and, therefore, are “resorts for minors” within the meaning of the act.
    Application for retail licenses to sell vinous, spirituous, malt and brewed liquors. Q. S. McKean Co., June Sess., 1922, Nos. 1 and 12.

      Wilson & Fitzgibbon, Melvin & Melvin, W. E. Burdick, L. H. Simons, Mullin & Woods and C. W. Shattuck, for petitioners.
    May 8, 1922.
   Bouton, P. J.,

It will be observed that the Brooks Law, so-called, to wit, the Act of 1887, contained the following: “Provided, that no license shall be granted under the provisions of this act to any persons to sell in any room where groceries are sold, at wholesale or retail.”

The Act of May 5, 1921, P. L. 407, known as the Woner Law, which was an amendment to the Brooks Law, contained the following proviso: “Provided, that no license shall be granted under the provisions of this act to any person to sell in any room where groceries are sold, or in any place of resort for minors.”

It will be observed that both the Brooks Law and the Woner Law absolutely prohibited the sale of vinous, spirituous, malt or brewed liquors to minors, and it seems to have been the policy of the Woner Law to further protect minors from the temptation to purchase liquors, and to remove the temptation of licensees to sell to minors, when they added the proviso above quoted.

Each of the applicants for retail licenses at this term are keepers of hotels, and the place in each instance asked to be licensed is a hotel. A hotel is a public resort beyond all question, and it is as much a place of resort for minors as it is for those of full age. A keeper of a hotel is bound to furnish entertainment to all people of respectability who apply for accommodations, if he has such accommodations. In other words, if his rooms are not all occupied, he cannot refuse applicants for such rooms and accommodations. If we are right in our conclusion that a hotel is a place of resort for minors, then, under the law, we are prohibited from granting a license to such place.

The Woner Law has removed the discretion of the court as to the necessity for the license, but has given the court discretion as to the fitness of the place. It follows, then, in addition to the prohibition against granting licenses to a place of resort for minors, in view of the spirit of the law, which, in our judgment, as already said, seeks to remove the temptation for minors to purchase liquors, that a hotel is not a fit place in which to sell vinous, spirituous, malt or brewed liquors.

This opinion will be filed and will apply to all applications for retail licenses at this term, and will become a part of the record in each case.

From E. G. Potter, Smethport, Pa.


author: Broomall, J.,

text:
    Dransfield v. Young.

      Practice, equity — Specific performance — Coverture—Restoration of purchase money — Prayers.
    1. Where, in a proceeding in equity against man and wife for specific performance of the wife’s contract for the sale of her real estate, the defence is coverture and plaintiffs’ laches, and the defendants succeed on hoth pleas, the court may decree the return of the purchase money, notwithstanding there was no prayer for restoration.
    2. In such case, the duty to restore is involved in the plea of coverture, and, therefore, the court acquires jurisdiction of restoration. .
    Exceptions to decree nisi. C. P. Delaware Co., June T., 1919, No. 62.

      William Taylor, for plaintiffs; W. R. Fronefield, for defendants.
    Feb. 6, 1922.
   Broomall, J.,

In our decree nisi we refused plaintiffs’ prayer for specific performance and awarded to the plaintiffs the sum of $500, being part purchase money, with interest from April 15, 1919, against the defendant, Grace G. Young. We have reviewed the exceptions of the parties, and see no cause to disturb the conclusions in our decree nisi.

In dismissing the exceptions, it may be advisable to refer more particularly to the part of the decree awarding a restoration of the purchase money paid.

The bill is for specific performance. The answer is plaintiffs’ laches and coverture. Y/hen the plea of coverture was filed, it was in intendment of law attended with the undertaking to restore the purchase money. The defendants succeed on their plea of laches, as to which there is no liability to return the purchase money. The defendants succeed on their plea of coverture, as to which there is a liability to return the purchase money. A success on the plea of laches merely means that the liability to return the purchase money does not thereby arise. It does not mean that that liability is extinguished; it does not mean that that liability may not arise in some other way. It does arise in another way by a successful contention of coverture. True it is, to quote the defendants’ argument, “If I owe a man a sum of money for one reason, but can defeat him for another reason, therefore, I owe the money,” is a non sequittvr. The limit of liability is the defeated reason. But is the illustration apposite? A more apt illustration is this: I owe a man a sum of money, and I defend the statute of limitation, and also a release. My plea of the statute is a sufficient defence, but in the development of my plea of a release, it appears that the release was given in consideration of a new promise to pay the debt. Then the limit of my liability is not the statute, but the new promise. True, the new promise would have to be supported by the consideration of the moral obligation to pay the debt. We have no promise in the instant case, but we have its equivalent in the legal duty imposed on the defendant to restore, when she invokes coverture. When she plead coverture, she gave the courts jurisdiction over the restoration, and it then only remains for the chancellor to award or withhold restoration on equitable principles. The defence of laches has no application to a duty to restore. The duty to restore does not arise until the decree is made.

Wherever a court of equity has jurisdiction, if the relief prayed for cannot for some reason be granted, a compensation in damages may be awarded in lieu thereof: Masson & Besanson’s Appeal, 70 Pa. 26.

The question comes to this: A plaintiff files a bill for specific performance, and the defendant defends for coverture, with its correlative duty to restore purchase money paid; can the defendant object to a decree of restoration? True, the bill does not pray for a restoration, but the duty to restore is involved in the defendant’s plea, and, therefore, the court acquires jurisdiction of restoration.

The case of Mansfield v. Redding, 269 Pa. 357, which the defendant specially cites, does not decide the instant case. The cited case was a bill for specific performance by a purchaser who was in default, wherein a restoration was refused; whereas the instant case is a bill for specific performance, wherein relief is refused for the default of the purchaser, and also for the coverture of the defendant, both of which are set up by the defendant’s answer.

We, therefore, dismiss the exceptions of plaintiffs and defendants and make the following

Final deoree.

And now, Feb. 6, 1922, this cause came on to be heard at this term and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed that the prayers of the bill be dismissed, except that under the prayer for general relief, Grace G. Young shall pay to the plaintiffs the sum of $500, with interest from April 15, 1919. From A. B. Geary, Chester, Pa.


author: Searle, P. J.,

text:
    Bell Company v. Tiger.

      Justice of the peace — Failure of plaintiff to appear — Judgment for defendant — Non-suit.
    1. Where a plaintiff in a suit before a justice of the peace fails to appear, and judgment is entered against him with costs, such judgment will be affirmed on appeal.
    2. In such case, the dismissal of the case by the justice is practically the entry of a non-suit, and the plaintiff may proceed <te novo if he desires.

      Certiorari. C. P. Wayne Co., Oct. T., 1921, No. 146.

      Mumford & Mumford, for plaintiff; A. G. Rutherford, for defendant.
    May 8, 1922.
   Searle, P. J.,

Summons was issued in this case, and though an affidavit of claim was filed with the justice, it does not appear from the record that a copy was made and certified by the justice and given to the constable to be served upon the defendant at the time the summons was served. The return of the constable shows no such service was made.

At the return-day the plaintiff did not appear. The justice entered judgment as follows: “And now, Dec. 2, 1921, the hour of trial having passed and the plaintiff not having appeared to present his case, the case is dismissed for want of evidence and the costs placed on the plaintiff.”

We know of no law which compels the justice to notify a plaintiff of the time of the hearing. A plaintiff is supposed to know or inquire and learn of proceedings he has instituted.

From the facts above given, no affidavit of defence was required and the justice could not render judgment in default thereof. It would have been error to have done so.

It has been argued that we can now enter such a judgment. While we may correct irregularities in the judgment of the justice, we cannot try the case and inquire into the merits upon the facts and enter a judgment thereon upon a case being dismissed by the justice for want of appearance of plaintiff to prosecute. The dismissal of this case by the justice was practically the entry of a non-suit, and plaintiff can proceed de novo if he desires.

Now, May 8, 1922, the exceptions are dismissed and the record of the justice affirmed, at plaintiff’s cost.


author: Henry, P. J.,

text:
    Caldwell v. Taylor et al.

      Contracts of devisement — Evidence—Sufficiency.
    1. Evidence to sustain a contract against a decedent, made up solely of declarations after the time of the alleged contract, should clearly indicate the terms of the contract and that it was agreed to by both parties.
    2. In an action on a contract of devisement, plaintiff’s evidence consisted wholly of declarations by decedent to third persons, made in plaintiff’s presence, that, in consideration of her remaining with him and his wife during their lives and taking charge of their house, he was to devise to her No. 1816 South Broad Street, Philadelphia, and, subsequently, that, in consideration of her marrying C. and “coming down and looking over the house as often as possible,” he would devise this property to her. Plaintiff married C., but there was no evidence that she lived with decedent and his wife during their lives or that she continued to look after the house after her marriage, or that she married C. in fulfillment of the contract. The jury rendered a verdict in her favor of ?9861.60, being the value of the house and contents. On motion for judgment n. o. v.: Meld, that the terms of the contract, its acceptance and performance were involved in uncertainty, and judgment for defendant.

      Contracts of devisement — Breach—Damages.
    3. The measure of damages for breach of a contract to devise real estate for services rendered is the value of the services, not the value of the real estate.
    Motion for judgment non obstante veredicto for defendants. C. P. No. 5, Phila. Co., March T., 1920, No. 1783.

      A. S. Ashbridge, for plaintiff; F. B. Stockley, for defendants.
    April 20, 1922.
   Henry, P. J.,

52nd judicial district, specially presiding,

The plaintiff brought this suit upon an alleged contract claimed to have been made with John R. Taylor, now deceased. The jury returned a verdict in favor of the plaintiff for $9861.60. The defendants, at the trial, presented a motion for binding instructions, and now ask for judgment non obstante veredicto upon the whole record.

The claim of the plaintiff is based upon an alleged contract claimed to have been made with the plaintiff by said John R. Taylor when the plaintiff was in her minority, the substance of which was that if she remained with said Taylor and his wife during their lives, taking charge of the house and looking after them, he would devise to her the house No. 1816 South Broad Street, Philadelphia, and the contents of said house, and that subsequently, in consideration of the plaintiff’s marrying Robert Caldwell, a relative of the said Taylor’s wife, he would give her said house and its contents. The evidence to sustain these alleged contracts consisted in declarations of said John R. Taylor. The first contract was said to have been made in 1892, and the marriage of the plaintiff to Caldwell occurred in 1899. Elizabeth V. Maguire testified that, subsequent to 1911 or 1912, Taylor had said to her in the presence of the plaintiff that the house and contents belonged to the plaintiff because of her kindness and services to them, and because of her obedience in marrying Robert Caldwell. The witness later testified that, “in consideration of Beclde’s marriage to Caldwell, Taylor was to devise this property to her at the time of his death.” A witness named George W. Caldwell testified that in 1892 Taylor, in the presence of the plaintiff, said he had just made an agreement with her that “if she stayed with them and took full charge of the house and looked after him and mama, he would leave the house No. 1816 South Broad Street and the contents to her at his death for such services rendered to them.” He also testified that, just before plaintiff’s marriage, Taylor said in her presence, “as long as Rebecca had stayed with them as long as she had, and she was marrying Robert Caldwell and would come down and look over the house as often as possible, he would still hold to the former agreement originally made and leave the house No. 1816 South Broad Street to her for services rendered.” Again, he testifies that a week or so after the marriage, on July 4, 1899, Taylor said in plaintiff’s presence: “I just made an agreement with Rebecca on her wedding-day that I would turn over the house and contents, fully furnished as it now is at No. 1816 South Broad Street for marrying Robert and carrying out our wishes.” The witness further testified : “He said about the marriage, if she would agree to marry Robert Caldwell, he would give her the house No. 1816 South Broad Street, which he did so, . . . and everything would be left to her at his death and he would carry out all those former agreements.” There was some further evidence of a weaker character, as to declarations by Taylor that the house and contents were to belong to the plaintiff for services she had rendered and in carrying out their wishes in marrying Caldwell.

Evidence to sustain a contract against a decedent, made up solely of declarations after the time of the alleged contract, should clearly indicate the terms of the contract and that it was agreed to by both of the parties. The only evidence of the agreement of Rebecca Caldwell to these alleged contracts is that she was present at the time the declarations were made, and that she continued to live in the household of the said Taylor up to the time of her marriage, and that she did marry Caldwell. The condition of the alleged promise to give the said house and contents to the plaintiff if she lived in the household of the said Taylor and his wife and looked after them until their death might be deemed to have been waived if her leaving Taylor’s home was at his request. The evidence indicates that she married Caldwell at the request of Taylor, but there is nothing to indicate that Taylor had agreed to relieve her from her part of the contract of looking after his household and caring for him and his wife. With respect to the contract claimed to have been made in consideration of her marriage to Caldwell, the only evidence that comes close to indicating that she married Caldwell in consideration of a promise by Taylor to give her the house in question and its contents is that of the witness Caldwell, when he says that “he (Taylor) said about the marriage, if she would agree to marry Robert Caldwell, he would give her the house No. 1816 South Broad Street, which he did so, . . . and everything would be left to her at his death, and he would carry out all those former agreements.” This does not clearly establish that the promise was made by Taylor in consideration of her willingness to marry Caldwell, and that she, upon her part, married Caldwell in consideration of this promise. Moreover, according to the testimony of the same witness, this was coupled with the provision that, after her marriage to Caldwell, she “would come down and look over the house as often as possible.” There is no evidence that the plaintiff performed her portion of either of these agreements in living in the household of Taylor and his wife and looking after them during their lives, under the first contract, or in continuing to go down and look after them, as testified under the second alleged contract.

We do not think this verdict should be permitted to stand; first, because the terms of the contract and the acceptance of these terms by both parties do not clearly appear; and, secondly, because the plaintiff has not shown full performance of the terms of the contract upon her part. The verdict as rendered is open to the further objection that that portion of it given for the value of the real estate is based upon the value of the property at the time of the death of Taylor. It seems to be established in Pennsylvania that the measure of damages for the breach of a contract to devise real estate for services rendered is the value of the services and not the value of the real estate: Hertzog v. Hertzog, 34 Pa. 418; Kauss v. Rohner, 172 Pa. 481; Goehring’s Estate, 70 Pa. Superior Ct. 340. No evidence of the value of the services was presented at the trial, and, consequently, the portion of the verdict for the value of the real estate could not stand.

And now, to wit, April 20, 1922, judgment non obstante veredicto upon the whole record is hereby entered in favor of the defendants. An exception to this action of the court is hereby noted in favor of the plaintiff.


author: Newcomb, J.,

text:
    Williams v. Capute.

      Practice, C. P. — Pleadings—Statement of claim — Demurrer—Trespass.
    1. A demurrer filed to a statement of claim in trespass must fie deemed to operate as a waiver of any objection for informality.
    2. In an action in trespass for death of plaintiff's wife, caused by a fall from a balcony in a house of which the defendant was owner, and of which plaintiff alleged that he was tenant, a statement of claim is fatally defective which avers that the house was of a certain street number, but fails to aver of what the premises consisted; or whether the plaintiff was a tenant of the whole or parcel thereof, or if the latter, of what parcel; when the tenancy began; what were its terms as to repairs; and whether the demised premises included the balcony.
    Statutory demurrer. C. P. Lackawanna Co., May T., 1921, No. 452.

      A. A. Vosburg, for plaintiff; John Memolo, for defendant.
    Dec. 31, 1921.
   Newcomb, J.,

Defence was taken by demurrer to plaintiff’s statement, and at the same time exceptions were filed. Defendant cannot do both. The demurrer must be deemed to operate as a waiver of any objection for informality. No doubt the statement was open to such objection, because it bristles with mere conclusions. But the only question to be now considered is that of substance.

The case was submitted without either brief or oral argument, so that we are quite in the dark as to the personal views of counsel, except so far as indicated on defendant’s part by the mere fact of a general demurrer.

Plaintiff sues in trespass for fatal injuries suffered by his wife, occasioned by a fall from a balcony on premises owned by defendant, in which plaintiff says he was a tenant. It is said that defendant had allowed the railing of the balcony to become rotten and insecure, of which he had notice, and that deceased, being unaware of its condition, leaned against it, whereupon it gave way and thus she fell to the ground below.

This is not enough to fasten liability upon defendant. He can only be held responsible for the breach of a duty to maintain. For present purposes, such duty could arise only out of contract, express or implied. What, if any, contractual rights plaintiff may have had in the balcony, or indeed elsewhere in the premises, are not disclosed. True, in a sweeping conclusion it is alleged that “plaintiff was a tenant of the defendant in the premises located at No. 1217 South Main Avenue, Scranton, Pa. These premises had a balcony or porch on the second floor, in front, with banisters or railings around the same to prevent persons from falling from said porch. The plaintiff and his family had a right to use said porch under the terms of their tenancy, and did use it in connection therewith.”

Nothing could be more vague and general.

Of what did the premises at that street number consist? Was plaintiff a tenant of the whole thing or only a parcel thereof? If the latter, of what did the parcel consist? How and when was the tenancy created? What were its terms? Anything said about repairs? Did the demised premises include the balcony, etc., etc.?

The declaration will be searched in vain for any answer to these and other pertinent questions of the like import, save only the personal conclusion of the pleader, and even that tends to repel the inference that the balcony had at any time been demised to plaintiff.

He is ostensibly standing upon some conventional relation of the parties. What that was is a question to be answered by the terms of their contract. While counsel’s conception of the reciprocal rights and liabilities of the parties may be correct, at this stage the court is not at liberty to take his word for it. It is for him to plead the facts. Whether they make out a 'prima, facie case or not is a question to be then determined on our own responsibility. It is believed this statement is fatally defective, therefore, for want of specific averment of the essential facts, and the affidavit in the nature of demurrer is sustained, without prejudice to the right of plaintiff to amend within fifteen days.

From William A. Wilcox, Scranton, Pa.


author: Lewis, J.,

text:
    Ottenberg v. William H. Bailey Cigar Company.

      Statute of frauds — Memorandum in writing — Parties and prices to be disclosed — Sales Act of May 19, 1915.

      1. Under section 4 of the Sales Act of May 19, 1916, P. L. 643, which provides that a contract to sell or a sale of any goods or choses in action of the value of ?500 or upwards shall not be enforceable by action . . . unless some note or memorandum in writing of the contract or sale is signed by the party to be charged, etc,, a memorandum is insufficient which does not disclose the seller either by name or description, although signed by the buyer, the party to be charged, since, unless the names of both parties appear, the contract may be foisted upon any one by perjury, which is the very thing the statute was enacted to prevent.
    2. Subsequent papers are inadmissible to supplement an incomplete memorandum unless they are signed by the party to be charged or referred to in the incomplete memorandum signed by him; hence, in the case at bar, the omission of the name of the seller in the original memorandum could not be supplemented by letters written by him to the buyer confirming the alleged contract.
    3. A memorandum which does not necessarily show the prices is insufficient.
    Statutory demurrer. Municipal Court, Phila. Co., June T., 1921, No. 740.

      David L. German, Jr., for plaintiff; Isaac Hassler, for defendants.
    June 28, 1922.
   Lewis, J.,

This is an action brought by Henry Ottenberg against William H. Bailey and Julius Eisenbrand, copartners, trading as William H. Bailey Cigar Company, to recover damages alleged to have been suffered by the plaintiff by reason of the alleged refusal of-the defendants to receive and take a certain quantity of cigars alleged to have been purchased by the defendants from the plaintiff.

The plaintiff in his statement of claim, inter alia, avers that on May 13, 1921, the defendants orally offered to purchase from the plaintiff certain quantities of various grades of cigars therein mentioned, at various prices for the several grades, for the total sum of $2975, and that the plaintiff “orally accepted the defendants’ offer as aforesaid on May 13, 1921, and requested the defendants to furnish him with a written memorandum of the transaction.”

That the defendants thereafter delivered to the plaintiff the following writing:

“Keystone, Main 66-96.'

Bell, Market 43-09.

Wm. H. Bailey Cigar Co.

Importers of Manila and Porto Rico Cigars, N. W. Cor. Second and Arch Sts.

Philadelphia, 6-31, 1921.

Please ship

5000 Atavio Sumatra Gold medal 1-40, 40.00 per M.

10000 McKinley Conquerors 1-20, 35.00 per M.

26000 “ Cazadores 1-20, 35.00

10000 Aroma 1-20, 30. . “

20000 Londres 1-10, 25. “

30000 Lond Chico 1-20, 25.

Terms, 60 days’ note.

F. O. B. Phila.

Wm. H. Bailey Cigar Co.”

That on May 20, 1921, plaintiff confirmed the aforesaid oral agreement by letter to the defendants, a copy of which was set forth in the plaintiff’s statement of claim.

That subsequently, in June, 1921, plaintiff tendered to the defendants the merchandise which the plaintiff alleges the defendants purchased, and that the defendants refused to accept the cigars, and that the plaintiff resold the cigars and sustained an alleged loss of $455.

The defendants, in pursuance to section 20 of the Practice Act of May 14, 1915, P. L. 483, filed an affidavit of defence raising questions of law, stating, inter alia, that the note or memorandum in writing of the bargain relied upon by the plaintiff as the foundation of a right to recover damages for failure to accept the property did not disclose every fact material to constitute a contract of bargain and sale, in pursuance to the provisions of section 4 of the Sales Act of May 19, 1915, P. L. 543, and, therefore, judgment should be entered for the defendants.

Section 4 of the Sales Act of May 19, 1915, P. L. 543, provides: “A contract to sell, or a sale of any goods or choses in action of the value of $500 or upwards, shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.”

The law is well settled that the memorandum to establish a sale under the statute of frauds must be complete in every essential particular.

In Franklin Sugar Refinery v. Huntingdon (Advance Notes, page iv, May 19, 1922), the Supreme Court held: “In a suit to recover for the breach of a contract for the sale of goods in excess of $500 in valué, the statement of claim must set forth the facts showing a compliance with the requirements of the 4th section of the Sales Act of 1915. Every essential element must appear in the written memorandum, and a memorandum which does not necessarily show the price is insufficient.”

“Ordinarily it is indispensable that the memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is charged. The name of the party to be charged is required by the statute to be signed, so that there can be no question of the necessity of his name in the writing. But the authorities have equally established that the name, or a sufficient description, of the other party is indispensable, because, without it, no contract is shown. A memorandum of an auction sale has frequently been held fatally defective for failure to designate both the vendor and vendee. So a bill of merchandise stating items and prices, merely drawn on the letterhead of the buyer, without stating the name of the seller, has been held insufficient as a memorandum of the sale. In case of sales, the memorandum should properly show which party was the buyer and which the seller:” 25 Ruling Case Law, § 288, page 655. See cases cited in note 5.

“In order to satisfy the statute, it is necessary that the memorandum should show who are the parties to the contract, and parol evidence is not admissible to supply a deficiency in this respect:” 27 Corpus Juris, § 473, page 383.

“The memorandum must state who are the parties to the contract, either by naming them or by so designating or describing them that they may be recognized or identified without fair or reasonable doubt or dispute. It must contain the names or sufficient description of both parties to the contract, not only the person to be charged, but also the person in whose favor he is to be charged. An agreement- for a lease should show both the lessor and the lessee; and a memorandum of a contract for sale must show who is the buyer and who is the seller. An auctioneer’s memorandum must show who is the vendor as well as the purchaser; a broker’s memorandum must show the names of both parties, and a sheriff’s memorandum must, among other things, show the purchaser:” 27 Corpus Juris, § 329, page 275.

In the case at bar the memorandum does not contain the names of both parties to the contract, and does not disclose who is the seller. No doubt both names must appear. The reason is clearly stated by Chief Justice Mansfield in Champion v. Plummer, 1 Bos. & P. (N. R.) 252: “How can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sold. It would prove a sale to another person as well as to the plaintiffs.”

Blackman, J., in Tobias v. Lynch, 182 N. Y. Supp. 643, 644 (1920), says: “The reason upon which this rule is founded is that, unless the names of both parties appear, the contract may be foisted upon any one by perjury, which is the very thing that the statute of frauds was enacted to prevent.”

In Di Santis v. Cannata, 105 Atl. Repr. (R. I.) 561 (1919), Parkhurst, C. J., said:

“With regard to the so-called ‘promise’ or ‘agreement’ or ‘note’ or ‘memorandum’ above set forth, and upon which by their declaration the plaintiffs seek to maintain this suit, aside from numerous informalities apparent upon its face, the principal defect to be noted is that it is not signed by the plaintiffs; they are not mentioned in it either by name or by any description by which they may be identified, and it refers to no other writing by which they may be ascertained.

“It has been settled by numerous authorities that such a memorandum is not sufficient under the statute, of frauds. Thus, in Benjamin on Sales (5th ed.), 248, it is said: ‘The cases will now be considered with reference to the inquiry whether and to what extent it is necessary that the writer should show (1) the names of the parties to the sale; (2) the terms and subject-matter of the contract. On the first point, it is settled to be indispensable that the written memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is charged. The name of the party to he charged is required to be signed, so that there can be no question of the necessity of his name in the writing. But the authorities have equally established that the name or a sufficient description of the other party is indispensable, because, without it, no contract is shown, inasmuch as a stipulation or promise by A does not bind him, save to the person to whom the promise was made.’

“And numerous cases are cited to support the text. See, also, 29 Am. & Eng. Ency. of Law, 848. In Lewis v. Wood, 153 Mass. 321, 26 N. E. Repr. 862, 11 L. R. A. 143, the memorandum of sale was as follows:

“ ‘E. Weymouth, Mar. 24, 1890.

“ ‘Dear Sir: My sister and I have decided to accept the offer of $1450 for our interest in the Cambridge property now under discussion. I think, however, I would better see you this evening or next, between six and seven, if convenient. Resp., E. C. Hawkes.’

“The court held: ‘Without considering all the objections that have been urged against the memorandum, it is sufficient to say that it is fatally defective in not containing the name of the purchaser, or any designation of him whatever. In order to satisfy the statute, the memorandum should not only have been signed by the defendant or her authorized agent, and have identified the property to be sold, but should also have contained the name of the other party to the contract, or should have described him with reasonable certainty. This was not done, and the memorandum is, therefore, insufficient,’ citing numerous cases. See, also, Grafton v. Cummings, 99 U. S. 100, 25 Law Ed., 366; Peoria Grape Sugar Co. v. Babcock Co. (C. C.), 67 Fed. Repr. 892; McGovern v. Hern, 153 Mass. 308, 26 N. E. Repr. 861, 10 L. R. A. 815, 25 Am. St. Reps. 632; Lincoln v. Erie Preserving Co., 132 Mass. 129; Nichols v. Johnson, 10 Conn. 192; Sherburne v. Shaw, 1 N. H. 157, 8 Am. Dec. 47; Browne, Stat. of Frauds (4th ed.), 372.”

In Grafton v. Cummings, 99 U. S. 100, 25 Law Ed., 366 (1879), it was held: “The memorandum in writing, necessary to make a valid contract within the meaning of the statute of frauds, though signed by the defendant and describing with sufficient distinctness the property sold and'the consideration to be paid, is not sufficient to sustain an action, unless the other party to the agreement is either named in the memorandum or so designated in some paper signed by the defendant that he could be identified without parol proof.”

Mr. Justice Miller said: “The statute not only requires that the agreement on which the action is brought, or some memorandum thereof, shall be signed by the party to be charged, but that the agreement or memorandum shall be in writing. In an agreement of sale there can be no contract without both a vendor and a vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is, therefore, an essential element of a contract in writing that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it and the party who buys it. . . . The name of the vendor, or some designation of him which could be recognized without parol proof extraneous to the instrument, was an essential part of that instrument to its validity.”

The plaintiff, however, contends that the omission from the memorandum which was signed by the defendants, i. e., the party to be charged, can be supplied by letters which he, the plaintiff, wrote to- the defendants confirming the alleged contract.

“In order that two or more writings sufficiently connected may be construed together and held to satisfy the statute, it is not essential that each of the writings be signed, yet where only one of several papers is signed by the party to be charged, such, and only such, of the others as are referred to in it may be considered as a part of the memorandum. A paper signed by the party to be charged cannot be incorporated in a paper not signed by him by a reference in the latter. The signed paper must refer to the unsigned paper in clear and distinct terms, but it need not refer to it eo nomine 27 Corpus Juris, § 310, page 262.

It will thus be seen that any subsequent papers which are offered to supplement an incomplete memorandum must either be signed by the party to be charged or must be referred to in the incomplete memorandum signed by the party to be charged.

In Peoria Grape Sugar Co. v. Babcock Co., 67 Fed. Repr. (C. C.) 892 (1895), the name of the parties to the contract was absent from the alleged memorandum, and the other party sought to supplement the defective memorandum by subsequent letters, which letters were sent by the plaintiff to the defendant. District Judge Baker, after reviewing a number of apparent authorities, stated: “The note or memorandum counted on in each paragraph of the counter-claim is insufficient to sustain an action for its breach. It does not disclose the name of the purchaser, and there is nothing in either of the letters copied in the statement which can aid its insufficiency.”

The plaintiff in his argument cited a number of cases, none of which we consider are properly applicable to the question directly involved. An examination of each of them shows that the rule as laid down by the cases herein referred to has not been changed in any important particular.

The note or memorandum in writing of the bargain relied upon as the foundation of the plaintiff’s right to recover damages from the defendants does not disclose every fact material to constitute a contract of bargain and sale, and the statement of claim is, therefore, declared to be insufficient, and judgment is now entered for the defendant.


author: Woodward, J.

text:
    Gross v. Exeter Machine Works, Inc.

      Contract — Sale—Affidavit of defence — Parol agreement.

    1. In an action for failure to deliver goods under a contract of sale, where the contract provides that all written and verbal agreements are withdrawn, and that the contract shall be modified only by written agreement, an affidavit of defence which sets up a contemporaneous parol agreement varying the terms of the contract is insufficient unless there is an averment therein of a written modification of the contract or a waiver thereof, either express or implied.

      Contract — Sale — Non-delivery — Provision as to strikes — Embargoes— Transportation difficulties.

    2. In an action for failure to deliver goods under a contract of sale, where the contract is made subject to strikes, an affidavit of defence is unavailing, where the date of the strike is averred as some time after the date set by the contract for first delivery.
    3. In such a case, where the contract was subject to delays by common carriers in delivering raw material, the affidavit of defence must specify the embargoes which prevented the deliveries and the railroads on which they were in force, or the other transportation difficulties experienced.
    Rule for judgment. C. P. Luzerne Co., Oct. T., 1920, No. 607.

      Abram Salsburg, for plaintiff; W. W. Hall and P. F. O’Neill, for defendant.
   Woodward, J.

This is an action of assumpsit brought to recover damages for the alleged breach of a contract for the manufacture and delivery by the defendant to the plaintiff of spindles for the manufacture of silk, ordered by the plaintiff from the defendant, on which the plaintiff paid the sum of $10,000, and which the defendant failed to deliver according to their contract, for which the plaintiff claims, in addition to the $10,000 paid by him, the additional sum of $10,000 fixed in the contract as liquidated damages in case of breach, together with interest on the first $10,000 from the date of payment, Dec. 31, 1919, and on the second $10,000 from the date of the breach, Feb. 15, 1920.

The affidavit of defence sets out two defences: First, a contemporaneous oral agreement varying the terms of the written contract, by which the defendant was allowed a reasonable time to manufacture and deliver the spindles, instead of the fixed time specified in the agreement; and, second, the inability of the defendant to get the raw materials with which to manufacture the order, on account of the inability of the railroads to deliver the material and on account of strikes in the shops of the defendant.

The contract is dated Dec. 27, 1919, and called for the first delivery on Feb. 15, 1920, and a daily delivery thereafter.

There has been no delivery, and on May 19, 1920, the plaintiff rescinded the contract and brought this suit.

The contract stipulates in the eleventh paragraph as follows: “It is understood and agreed that all previous communications, either verbal or written, with reference to the subject-matter of this agreement are hereby withdrawn and annulled, and this contract shall be modified only by written agreement between the parties hereto.”

As it is not alleged in the affidavit of defence that there was any written modification of the contract, the first defence must fail unless a waiver by the plaintiff, either express or implied, is shown.

As to the second defence, the contract provides in the twelfth paragraph as follows: “It is understood that the date of the delivery of the above described machinery, whether express or implied, is subject to delays caused by common carriers or rolling-mills in delivering to us the materials out of which said machinery is to be made, and subject to delays occasioned to us by reason of strikes, labor troubles, fires, accidents at our shops or other causes beyond our control.”

The affidavit of defence in the sixth paragraph alleges, inter alia: “And by reason of most unusual, abnormal and extraordinary conditions prevailing throughout the United States of America affecting the demand for rolling-mill products and the ability to meet such demand, it became and was absolutely impossible for the defendant, prior to Aug. 16, 1920, to obtain within any reasonable bounds of effort and expense, although defendant made every reasonable attempt to do so, a sufficient quantity of said rolling-mill products to enable it, on or before said last mentioned date, to manufacture, fabricate and deliver to the plaintiff any of the ‘completed silk-throwing machines’ specified in the aforesaid ‘agreement in writing.’ ”

This paragraph is insufficient, in that it does not state what efforts the defendant made to procure the material.

The affidavit of defence in the sixth paragraph also alleges: “By way of further unavoidable hindrances and delay in delivering to the plaintiff any of the ‘completed silk-throwing machines’ specified in the aforesaid ‘agreement in writing,’ the defendant avers that between April 9, 1920, and May 24, 1920, both dates inclusive, on account of a strike among its employees, especially its moulders and pattern-makers, it was unable to make any substantial progress upon the work of manufacturing and fabricating said machines.”

The objection to this paragraph is that it gives one of the specified reasons for non-performance, to wit, a strike, as preventing performance between April 9th and May 24, 1920, but does not excuse the failure of performance between Feb. 15th, the date fixed by the contract for the first delivery, and April 9, 1920.

The sixth paragraph of the affidavit of defence goes on to state as a further reason for non-compliance: “And throughout the entire period, commencing Dec. 27, 1919, and lasting until Aug. 16, 1920, defendant avers that, by reason of embargoes on the various railroads and other transportation difficulties experienced with all of the common carriers serving it, delays of various kinds and durations were caused to its ability to complete and deliver to plaintiff the machines aforesaid.”

The objection to this paragraph is that it does not specify the embargoes, the railroads on which they were in force or the other transportation difficulties experienced.

For these reasons, the tenth, eleventh and twelfth exceptions to the affidavit of defence must be sustained, and the defendant is given fifteen days in which to file a supplemental affidavit specifying the facts that would excuse performance, wherein the original affidavit is decided to be too general. The counter-claim of the defendant can wait until the sufficiency of the affidavit is established.

Defendant is allowed fifteen days in which to file a sufficient supplemental affidavit of defence, and in default thereof the rule made absolute.

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


author: Reno, J.,

text:
    Reichard, etc., Company v. Lehigh Valley Railroad Company.

      Interstate commerce — Act of Congress of Aug. 29, 1916 — Order bill of lading — Negotiation—Rights of holder.

    An order bill of lading, issued by carrier under instructions from the shipper to hold the goods until such time as shipper gave orders for forwarding-, was thereafter negotiated, and on suit against the carrier by the holder of the order bill of lading, on a claim for shrinkage in weight and value, it was held, under the Act of Congress of Aug. 29, 1916, 36 Stat. at L. 538 (Interstate Commerce): 1. That section 8, providing that a carrier, in the absence of a lawful excuse, is bound to deliver the goods to the holder of an order bill of lading, does not require the carrier to deliver, in the absence of order for shipment, even though the order bill of lading has been issued and endorsed over to the holder. 2. That section 81, providing for transfer of title to the endorsee of an order bill of lading, and creating an obligation in the carrier to hold possession of the goods for him, creates no more than an obligation of the carrier to the holder “according to the terms of the bill.” 3. That section 39, forbidding a seller’s lien or right of stoppage im transitu, does not preclude a contract between the shipper and carrier to withhold shipment of the goods, to which contract the holder of an order bill of lading becomes a party by purchase of the bill, it being provided that the carrier should not be held responsible for damages caused by the act of the shipper. 4. In a suit in assumpsit upon a bill of lading instituted by the holder thereof against the carrier, such holder is bound by the terms thereof, and if the damages complained of were due to the act of the shipper, the clause of the bill exempting the carrier from liability for damages caused by the act of the shipper will prevent recovery.

      Assumpsit. Motions ior new trial and for judgment n. o. v. G. P. Lehigh Co., June T., 1919, No. 67.

      Aubrey, Steckel & Senger, for plaintiff; Butz & Rupp, for defendant.
    May 15, 1922.
   Reno, J.,

On July 28, 1917, George E. Mosser, hereinafter called the shipper, delivered to the Lehigh Valley Railroad Company, hereinafter called the carrier, at its depot in Allentown, Pa., a consignment of hides for shipment to himself at Newark, N. J. The carrier issued an order bill of lading, wherein it recited that the goods were “consigned to the order of George E. Mosser: destination, Newark, N. J.: Notify Reichard Hide and Tallow Company at Ashland, State of Pa.” At the same time the shipper instructed the carrier to hold the goods at Allentown until such time as he gave orders for forwarding them to Newark. Of this order a notation was made upon the shipping order (which seems to be a copy of the bill of lading retained by the carrier), but none upon the bill of lading delivered to the shipper. Thereafter the shipper endorsed the bill of lading in blank, attached a sight draft to it, placed it in a bank for collection, and on Aug. 6, 1917, the draft was taken up and paid by the Reichard Hide and Tallow Company, plaintiff, and hereinafter called the holder, and to it the bill of lading was delivered. On Aug. 11, 1917, the shipper instructed the carrier to transport the goods to, and the goods were started to their destination on Aug. 12th and arrived at Newark on Aug. 13, 1917. Prior thereto, on Aug. 7, 1917, the holder, or some one on his behalf, had presented the bill of lading to the carrier at Newark and demanded delivery of the goods, but they had not then arrived and did not arrive until the date stated. The time generally and ordinarily necessary to ship goods from Allentown to Newark is two or three days. The claim is for shrinkage in the weight and value of the hides, caused, it is alleged, by the failure of the carrier to transport the goods immediately upon delivery to it.

These facts were developed upon the trial of the case before the late judge, Hon. Milton C. Henninger. At the conclusion of the plaintiff’s case, the defendant submitted no evidence, but presented a number of points to the court. The court, holding “that the Lehigh Valley Railroad Company cannot be held for this delay because of that order not to ship,” directed a verdict for the carrier. We are now asked to order a new trial or to enter judgment for plaintiff n. o. v.

The transcript of the evidence does not contain all of the bill of lading. Only that portion of the bill of lading which is printed upon the face of the bill has been transcribed. The conditions printed on the reverse side are omitted from the record. However, we assume that the points presented by the defendant substantially stated these conditions, and for the'purpose of this opinion we assume that upon the back of the bill were printed the following conditions: “(a) No carrier or party in possession of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner, or for differences in the weights of grain, seed or other commodities, caused by natural shrinkage or discrepancies in elevator weight.” “(b) The carrier shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request.”

The bill having been issued for the transportation of goods from “a place in one state to a place in another state,” after Jan. 1, 1917, is to be interpreted under the Act of Congress approved Aug. 29, 1916, chap. 415, 39 Stat. at L. 538. The bill is an order bill of lading within the meaning of that act, and is, therefore, negotiable. The bill was in fact negotiated, and the whole controversy revolves about the effect to be given to the quality of negotiability of the bill in the form in which it was written.

Plaintiff contends that when a carrier issues an order bill of lading, it must immediately transport the goods, that it may not recognize the shipper’s instructions to hold the goods subject to the shipper’s order to transport, and that if it does recognize such order, the terms of the bill will not protect it in an action by the holder. In other words, he contends that, as against the carrier, the holder has greater rights than the shipper, and that these rights accrue to him because of the negotiable character of the bill. The defendant, of course, contends that the holder is bound equally with the shipper to the terms of the bill, and that these terms are sufficient to defeat recovery.

It is manifest that the provisions of the bill quoted would be sufficient to prevent recovery by the shipper. The loss, damage or delay occurred while the property was stopped or held upon request of the shipper. The loss or damage or delay was caused by the act of the shipper. It was shipper’s order to hold that was directly responsible for the delay and the loss thereby entailed. Hence, if plaintiff can recover, it will be because he is not bound by the terms of the bill, and because the holder’s rights against the carrier are greater than those of the shipper. Thus, he can recover only if he shows that in an order bill of lading there inheres a quality of negotiability that gives him greater rights against the carrier than those expressed by the tenor of the bill. This he endeavors to do by an argument based largely, if not entirely, upon the construction to be given to the provisions of the Act of Congress.

In a recent case it is said that the purpose of certain sections of the Act of Congress “is to give bills of lading attributes of commercial paper:” Pere Marquette Ry. Co. v. J. F. French & Co., 254 U. S. 538; s. c., 41 Supreme Court Repr. 195. But the attributes thereby to be given are undoubtedly only those expressly conferred by the text of the act, and the word “negotiable,” as therein used, does not enlarge the quality of their negotiable character beyond the plain words of the act. Unaffected by statute, the effect of a transfer of a bill of lading was to pass title to the goods represented by it as effectually as though the goods themselves were delivered: 10 Corpus Juris, § 265, page 201. No statute is to be construed as altering the common law further than its words import: Shaw v. Merchants’ National Bank, 101 U. S. 557; s. c., 25 Law. Ed., 892; Lis’s Estate, 139 N. W. Repr. 300. If, therefore, greater effect is to be given to the act of transferring or negotiating a bill of lading, either order or straight, the party claiming such greater effect must establish it by the terms of the act.

It is argued that the 8th section does so provide. That section provides that a carrier, in the absence of a lawful excuse, is bound to deliver the goods to the holder of an order bill. But is it not a lawful excuse that the carrier was restrained by the act of the shipper, in view of the stipulation to that effect upon the bill of lading? To our mind, a lawful excuse, within the meaning of the act, is an act which the original parties to the bill have stipulated shall excuse the carrier. If the holder is not bound by the provision exempting the carrier from damages caused by the act of the shipper, neither is he bound by other provisions, and then it would follow that, as against the holder, a carrier could not defend against damages “caused by the act of God or the public enemy.”

Thus, by legislation purporting to relate only to bills of lading, by implication and by indirection, the liability of carriers has been enlarged, making them practically absolute insurers of the goods they carry. It is not to be supposed that such was the intention of Congress. Moreover, if the holder is not bound by the clauses of the bill which stipulate for “lawful excuses,” a fortiori, he is not bound by others. Then it would follow that he might sue a carrier without previously furnishing a statement of his claim to the carrier or sue at a time beyond that stipulated for the bringing of actions. When carried to its logical conclusion, the argument becomes obviously untenable. We are forced by this course of reasoning to hold that the act of the shipper is a “lawful excuse” within the meaning of the act, and that the holder is bound by the stipulation which exempts the carrier from damages caused by the act of the shipper. Rightly understood, section 31 is not at variance with the views we have already expressed. That section provides: “That “a person to whom an order bill has been duly negotiated acquires thereby (a) such title to the goods as the person negotiating the bill had; ... (b) the direct obligation of the carrier to hold possession of the goods for him, according to the terms of the bill, as fully as if the carrier had contracted directly with him.” It is obvious that the first sub-section does no more than recognize the effect at common law of the transfer of a bill of lading (cf. Williston on Sales, § 415, et seq.), and that the second sub-section makes available to the holder, as against the carrier, the rights of the holder as an assignee of the contract. That is, the carrier is bound to hold the goods for the holder. It may not deliver them to any one but the holder. But the obligation of the carrier to the holder is “according to the terms of the bill.” The irresistible conclusion is that the holder is bound by the terms of the bill, and that if delivery is postponed because of the act of the shipper, or by the act of God, or by the act of the public enemy, the holder cannot hold the carrier in damages.

But it is claimed that the act of the shipper was an exercise of his right to a seller’s lien. That is, the carrier, by obeying the instructions of the shipper, allowed the shipper to withhold delivery of the goods until he had been paid for them. It is argued that this was a violation of section 39 of the act hereinafter quoted, and that, since there is no right to the exercise of the seller’s lien or of stoppage in transit of goods covered by an order bill, the act of the shipper is not a lawful excuse. Section 39 follows: “Where an order bill has been issued for goods, no seller’s lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom such bill has been negotiated, whether such negotiation shall be prior or subsequent to the notification to the carrier who issued such bill of the seller’s claim to a lien or right of stoppage in transitu; nor shall the carrier be obliged to deliver or justified in delivering the goods to an unpaid seller unless such bill is first surrendered for cancellation.” It will be observed that this section contains two distinct sentences, and that the goods not having been delivered by the carrier to the shipper, the second sentence does not apply to the instant case. The first sentence protects the holder against the exercise of the right of stoppage in transitu by providing that the holder’s rights shall not be thereby defeated. But what are the rights which shall not be thus defeated? It is easy to answer that the holder has a right to reasonably prompt transportation of the goods covered by the bill. Unquestionably that is his right. But certainly that right can be extinguished or altered by a contract between the shipper and the carrier, to which contract the holder becomes a party by purchase of the bill. It may be conceded that the holder has a right, as against the carrier, to reasonably prompt transportation, but this concession cannot alter the fact that the very same document whereby the holder comes into the possession of that right also provides that the carrier should not be held responsible for damages caused by the act of the shipper.

In the consideration of this question we have not been unmindful of the manifest intention of the framers of the act. Undoubtedly its purpose was to afford a large measure of protection to purchasers of, and lenders upon, this class of securities. See Report of Senate Committee on Interstate Commerce, quoted; 1 Roberts’s Federal Liabilities of Carriers, § 351. But if it was the intention to give to the holder a right against the carrier superior to the right of the shipper, the legislation is, in our judgment, ineffectual to that end. Indeed, it is to be questioned whether that was the end sought; for, following the example of the Supreme Court (Miles’s Estate, 272 Pa. 329), we have examined the minutes of the proceedings of the Senate committee in charge of the legislation, and We are persuaded that the intention of the original draftsman is borne out in the construction which we have given to the act. The following colloquy between Senator Porerene and Professor Williston is illuminating:

Senator Pomerene: “Your position is that in that respect, then, the transferee of the bill of lading will be essentially different from that of the original consignor?” Professor Williston: “A bill of lading is both a contract and a symbol of title to the goods. In so far as it is a contract, it is a contract of the railroad company, and B (the transferee) gets the contract rights which the consignor bargains for against the railroad company.”

It has been suggested that the carrier, having accepted the goods for transportation at a future time, should not have issued a bill of lading, and, in lieu thereof and pending transportation, it should have issued a warehouse receipt. Without undertaking to decide this question, it is a sufficient answer that the present suit is founded upon the bill of lading. The same answer must be made to the contention that the act of the carrier in holding the goods constituted a conversion of them. The action was in assumpsit. The bill of lading was introduced in evidence by plaintiff. Recovery was sought by virtue of it. The contractual relation between the parties was the basis of the suit. It requires no citation of authorities to support the proposition that a plaintiff, even in an action instituted before a justice of the peace, cannot recover damages for a tortious conversion of goods in an action founded upon contract. Our conclusion is that in a suit upon a bill of lading, instituted by the holder thereof against the carrier, such holder is bound by the terms thereof, and that if the damage complained of was due to the act of the shipper, the clause of the bill exempting the carrier [from liability] for damages caused by the act of the shipper will prevent recovery. Accordingly, the rulings of Judge Henninger at the trial were correct; and

Now, May 15, 1922, motions for new trial and for judgment n. o. v. are overruled and dismissed.

From James L. Schaadt, Allentown, Pa.


author: Alter, Att’y-Gen.,

text:
    Banks’ Reserve Funds.

      Banks and banking — Deposit of reserves in other institutions — Act of May 8, 1907.

    Under the Act of May 8, 1907, P. L. 189, a hank may deposit its reserve funds in the form of bonds with another banking institution approved by the Commissioner of Banking for safekeeping, convenience or availability for immediate use, provided such bonds are duly earmarked and kept separate and apart from the assets of the depository, and are subject to the call, order or demand of the bank owning the same, and remain under its domination and control, and are free and unpledged for other purposes not in contemplation of the act requiring the creation and maintenance of a reserve fund.
    Attorney-General’s Department. Opinion to Hon. Peter G. Cameron, Deputy Commissioner of Banking.
    April 19, 1922.
   Alter, Att’y-Gen.,

I acknowledge receipt of your communication of April 11, 1922, referring to section 2 of the Act of Assembly approved May 8, 1907, P. L. 189, entitled “An act to provide for the creation and maintenance of a reserve fund in all banks,” etc., and inquiring whether bonds carried by such banking institutions as part of the legal reserve required by said act of assembly must be in the immediate possession of the hanking institution in its own vaults, or whether such bonds may be placed or deposited for safekeeping or convenience in the custody of another banking institution, subject to the call, order or demand of the bank so depositing the same.

Section 2 of the act above referred to provides as follows: “Every such corporation, receiving deposits of money subject to check or payable on demand, shall, at all times, have on hand a reserve fund of at least 15 per centum of the aggregate of all its immediate demand liabilities. The whole of such reserve fund may, and at least one-third thereof must, consist of either lawful money of the United States, gold certificates, silver certificates, notes or bills issued by any lawfully organized national banking association, or clearing-house certificates, representing specie or lawful money specially deposited for the purpose of any clearing-house association, held and owned by any such corporation as a member of a clearing-house association. One-third, or any part thereof, may consist of bonds of the United States, bonds of the Commonwealth of Pennsylvania, and bonds issued in compliance with law by any city, county or borough of the Commonwealth of Pennsylvania, and bonds which now are or hereafter may be authorized by law as legal investments for savings banks or savings institutions in Pennsylvania, computed at their par value, and which bonds are the absolute property of such corporation. The balance of said reserve fund, over and above the part consisting of lawful money of the United States, gold certificates, silver certificates, notes and bills issued by any lawfully organized national banking association, or clearing-house certificates, representing specie or lawful money specially deposited for the purpose of any clearing-house association, held and owned by any such corporation as a member of a clearing-house association, and the part thereof consisting of bonds, not exceeding the limit above provided, may consist of moneys on deposit, subject to call, in any bank or trust company in the State of Pennsylvania which shall have been approved by the Commissioner of Banking, or in any bank or trust company in any other state, located in any city designated as a reserve city by or by virtue of the authority of the Revised Statutes of the United States and the amendments thereto, which shall have been approved by the Commissioner of Banking.”

The expression used in the act, “shall have on hand a reserve fund,” etc., contemplates the having, by such bank, immediately available, for use in case of need, emergency or stress, the reserve fund, consisting of bonds or moneys on deposit in other banks subject to call, as therein provided. The act does not expressly direct that such bonds shall be in the actual physical custody or possession or in the vaults or boxes of such banking institution.

There might be situations where it might be either safer or more convenient for country banks to deposit their reserve bonds with the larger banks in the cities, so that in case of sudden need, emergency or stress these bonds might be made immediately available by “wire,” for the purpose of obtaining funds from such correspondent banks. If these bonds were “on hand” in the sense that they remained in the vaults of the bank carrying the same as a part of its reserve, they might not, in case of need, emergency or stress, be immediately available for reserve purposes, but would perhaps have to be taken to the correspondent bank in some distant city for the purpose of obtaining funds thereon, thereby failing to meet immediately the emergency requirement for which the maintenance of the reserve is intended.

In my opinion, therefore, it is a sufficient compliance with the act of assembly if the reserve bonds are deposited or placed with another banking institution, approved by the Commissioner of Banking, for safekeeping, convenience or availability for immediate use, provided, of course, such bonds are duly earmarked and kept separate and apart from the assets of the depositary, and are subject to the call, order or demand of the bank owning the same and remain under its domination and control, and are free and unpledged for other purposes, not in contemplation of the act of assembly requiring the creation and maintenance of a reserve fund.

From Guy H. Davies, Harrisburg, Pa.


author: Endlich, P. J. Endlich, P. J.,

text:
    Strzelecki v. Guizieska.

      Contract for sale of real estate — Specific performance — Principles governing granting of decree of specific performance.

    1. A decree of specific performance is always a matter of grace and not of right. The power to grant it is an extraordinary one, not to be arbitrarily exercised or withheld, but subject to every consideration calculated reasonably to persuade the conscience of a chancellor that in a given case it would be contrary to equity and good conscience to employ it.
    2. It requires less to refuse specific performance of a written contract than to reform it or to rescind it, and less stringent proof to rebut an equity for specific performance than to establish it.
    3. Even in the absence of any fraud or mutual mistake or illegality in the contract itself, a mere misunderstanding or imperfect understanding as to the real situation, with consequent surprise or hardship, is sufficient ground for withholding a decree of specific performance.
    4. On a bill in equity praying for specific performance of a written agreement to convey real estate, where it is reasonably clear from the testimony that the defendant entered into the contract of sale under a mistaken and inadequate conception of the value of her property, and that the enforcement of the contract would work a clear surprise and hardship upon her, although there is no pretence of any fraud practiced by the plaintiff upon her, the court will refuse the decree.
    Upon trial and final hearing. C. P. Berks Co., Equity Docket, 1920, No. 1267.

      Walter S. Young, for plaintiff; H. Robert Mays, for defendant.
   Endlich, P. J.

Findings of fact.

1. On and before April 21, 1920, the defendant, who is the mother of the plaintiff, was the owner of house and lot No. 428 South Seventh Street, Reading, Pa.

2. On the date mentioned, defendant entered into an agreement in writing with the plaintiff to sell and convey her property to the plaintiff for the consideration of $3800, $50 of which was paid down at the making of the agreement, and the balance of which was to be paid on July 10, 1920, when the proper conveyance was to be delivered'.

3. The plaintiff had been occupying the house for some time, and conducting a business in it which had become established and profitable.

4. On May 28, 1920, the defendant called upon the plaintiff and brought back to her the down-money of $50 and announced her determination to rescind the bargain and retain her property. To this the plaintiff first said, “All right,” but then refused to agree to the proposition, and when the defendant left threw the money after her. It was, however, picked up and returned to the plaintiff, and has been retained by her since.

5. On July 10, 1920, the plaintiff’s husband called upon the defendant with the stipulated price of the property in money, offered payment of it to her and demanded a conveyance. The defendant refused, and he left.

6. The reason for the defendant’s determination to renounce the contract of April 21, 1920, was, as declared by her with practical uniformity, that she had been offered more money for the property.

7. In truth, the price she was to get from the plaintiff was below the value of the property, and a better price was obtainable by her. The property was admittedly worth more to the plaintiff on account of the business she had established in it, but the price agreed upon was several hundred dollars less than it was fairly worth in the market.

Discussion.

A decree of specific performance is always of grace and not of right: Freetly v. Barnhart, 51 Pa. 279; Washabaugh v. Stauffer, 81* Pa. 497; Brown v. Pitcairn, 148 Pa. 387; Friend v. Lamb, 152 Pa. 529. That is to say, the power to grant it is an extraordinary one, not, of course, to be arbitrarily exercised or withheld, but subject to every consideration calculated reasonably to persuade the conscience of a chancellor that in a given case it would be contrary to equity and good conscience to employ it: Workman v. Guthrie, 29 Pa. 495, 510. And in general, it is laid down, it requires less to refuse specific performance of a written contract than to reform it (Brown v. Pitcairn, 148 Pa. 387) or to rescind it (Stewart’s Appeal, 78 Pa. 88, 95; Kelly’s Appeal, 108 Pa. 29, 52), and less stringent proof to rebut an equity for specific performance than to establish it: Raffensberger v. Cullison, 28 Pa. 426, 429; Workman v. Guthrie, 29 Pa. 495, 510. Even in the absence of any fraud or mutual mistake or illegality in the contract itself (see Henderson v. Hays, 2 W. 148, 152; Graham v. Pancoast, 30 Pa. 89, 97), a mere misunderstanding or imperfect understanding as to the real situation, with consequent surprise or hardship, is sufficient ground for withholding a decree: Wistar’s Appeal, 80 Pa. 484, 495; Lynch’s Appeal, 97 Pa. 349, 353. Here it is reasonably clear from the testimony that the defendant entered into the contract of sale under a mistaken and inadequate conception of the value of her property. There is no pretence of any fraud practiced by the plaintiff upon the defendant. But the enforcement of the contract would work a clear surprise and hardship upon the defendant, which, under the principles airead stated, is enough to forbid a decree of specific performance. The result seems inevitable that the plaintiff’s bill cannot be successfully maintained.

Conclusions.

A. The principles controlling the exercise of the jurisdiction invoked in this case forbid the granting of a decree of specific performance in favor of plaintiff against defendant as prayed for in the plaintiff’s bill.

B. Plaintiff’s bill is to be dismissed, at the costs of the plaintiff.

And now, June 13, 1921, the prothonotary is directed to enter a decree nisi in accordance with the foregoing decision, and forthwith to give notice thereof to the parties or their counsel of record, sec. reg.

Endlich, P. J.,

opinion on exceptions. — The decision excepted to in this case is to be found in 13 Berks Co. L. J. 288 [1 D. & C. 780]. A careful reconsideration of it has failed to disclose adequate grounds for its modification. The bill for a decree of specific performance against the defendant of the contract of sale of her property to plaintiff avers, in the paragraphs 4 and 5, that defendant’s reason for repudiating her contract with plaintiff was by her stated to be “that she could obtain a better price — because of a higher price having been offered her for the property” — and the evidence adduced by plaintiff is to the same effect. The defendant in her testimony denies that she made these statements, and alleges a mutual agreement to rescind the contract, evidenced on the plaintiff’s part by her exclamation, “All right,” when defendant announced her determination to rescind (see Findings of Fact, 4). If this-were the truth, there might be an end of this case. A mutual rescission of the contract of sale would require a dismissal of the bill. Accordingly, the matter as now raised by plaintiff is not understood to be raised as a decisive issue in the case or as a ground for deciding in her favor, but as a circumstance making against the acceptance of her theory of the defendant’s reason for backing out of the contract. Even for this purpose, it cannot perhaps be contended that this hasty utterance, immediately taken back and manifestly never designed to be received as a deliberate and definite assent to so sudden and surely unexpected a proposition, should be fixed and binding. Following directly upon the announcement of, and as the answer to, a fully formed purpose of the other party to repudiate her bargain, those words did not necessarily import an approval of and joinder in that purpose, but were rather calculated to evidence a realization that the power and intent to repudiate existed in the other party, and that her attempt to do so would have to be met (as it was by the filing of this bill within a few days of the time designated in the contract for its consummation). There is nothing in this matter which affects the defendant’s right to a decision in her favor. As. against the plaintiff, however, the rule is sufficiently decisive that the court will not decree specific performance when it appears (as it does here) that hardship and inequity against the other party would be wrought by such disposition (see cases collated in decision excepted to). It may, in this connection, be pointed out that the view taken in the decision excepted to is based upon the evidence adduced in support of plaintiff’s contention to the exclusion of defendant’s. And it may be proper to add that when, in the 6th finding of fact, it is stated that the defendant’s reason for renouncing the contract was declared by her “with practical uniformity” to be as above indicated, that language palpably refers, not to her allegations in her pleadings or in her own testimony, but to what the proofs in the case lead to and to the conclusion they justify. And in the 7th finding, the statement that the agreed price of the property was below its value by several hundred dollars is verified by the defendant’s own statements and declarations proven to have been made by her. It is true that by a decision in defendant’s favor she gets the benefit of facts which she denies. But it must be remembered that the question is not whether the case of the defendant is stronger than that of the plaintiff, but whether the latter (on whom rested the burden of proving a case satisfying the conscience of a chancellor) has made out her right to a decree free from the criticism of hardship, etc.; and the conclusion is that she has not. If the principle invoked is to be valuable and effective, it must be true that it is to be applied whenever the facts which it contemplates appear as facts in the case, no matter on which side or in which party’s evidence. It is to be noted that the exceptions to these two findings of fact (6 and 7) are the only ones that were pressed at the argument.

The exceptions are dismissed, and counsel may prepare and submit the proper final decree, sec. reg.

From Wellington M. Bertolet, Reading, Pa.


author: Berger, J.,

text:
    Hannon v. Carroll.

      Vendor and vendee — Sale of real estate — Description of property — Specific performance — Equity.
    1. A contract for the sale of real estate sufficiently describes the property where it states that it is hotel property, situated at a certain number on the north side of a designated street in a borough named.

      Specific performance — Real estate — Lease—Option to buy — Exercise of option — Tender of purchase money.

    2. Where a lessee, having in his lease an option to purchase the demised premises, notifies the lessor of his intention to exercise the option, such notice is not equivalent to, and does not relieve him from the necessity of, an actual tender of the purchase money, as a prerequisite to a decree of specific performance of the agreement of sale.
    Demurrer to bill in equity. C. P. Schuylkill Co., March T., 1922, No. 3.

      J. O. Ulrich and Krebs & Koch, for plaintiff.

      R. J. Graeff and John F. Whalen, for defendant.
    Feb. 27, 1922.
   Berger, J.,

The defendant has demurred to the plaintiff’s bill for the specific performance of a contract to convey real estate. The fifth and sixth grounds of demurrer, alone, were pressed at the argument. The fifth is that the plaintiff has failed to describe the property he seeks to have conveyed to him. In the contract of sale the property is described as the “Hotel Property situate No. 109 on the north side of East Broad Street in Tamaqua, Pa.,” of George J. Carroll, the lessor or vendor. This is a sufficient description: Felty v. Calhoon, 139 Pa. 378; O’Connell v. Cease, 267 Pa. 288.

The sixth ground of demurrer is:

“6. The plaintiff has failed to aver in his bill that he tendered to the defendant the purchase money stated in the bill and the agreement attached thereto, marked ‘Exhibit A.’ ”

The allegation of tender in the plaintiff’s bill is thus stated:

“6. That in the month of July, 1921, and on or about the 5th day of October, 1921, the plaintiff notified the defendant, orally, that he wished to exercise his right and option to purchase said property, and was then, and is' now, ready and willing to comply with all and singular the clauses in said agreement on his part to be kept and performed; that he has been ready, and is now ready, with the purchase money.”

Therefore, the only question remaining for determination is whether the defendant’s above recited allegation of tender is sufficient to sustain the bill.

The agreement sought to be enforced by the bill created the relation of landlord and tenant between Carroll, the defendant, and Hannon, the plaintiff, with a conditional option on the part of the latter to purchase the property on or before Oct. 16, 1921, upon the payment of $20,500 to the defendant. Under the authority of Master v. Roberts, 244 Pa. 342, the tender, as alleged in the sixth paragraph of the plaintiff’s bill, was undoubtedly sufficient notice to the defendant of the plaintiff’s exercise of his option, and taking all the other allegations of the bill to be true, as we must on demurrer, it served to terminate the relation of landlord and tenant previously existing between the parties into that of vendor and vendee under the agreement. In the case just cited, however, the plaintiff, after he had converted his lease into an agreement of purchase and sale between himself and the owner, established affirmatively a refusal on the latter’s part to carry out his contract, by proving a refusal to convey and “to accept any offer” of purchase money: 10 Schuyl. Legal Rec. 77, 82.

In our opinion, though plaintiff’s notice to the defendant in July, 1921, and on or about Oct. 5, 1921, that he intended to convert his lease into an agreement of sale and purchase, was sufficient for that purpose; it was not equivalent to, and it did not relieve him from the necessity of, an actual tender of the purchase money due the vendor under the agreement as a prerequisite to the delivery of a deed to him or a decree of specific performance against him. See Johnston v. Glazier, 1 D. & C. 56. The present proceeding is one in affirmance of the contract of sale and purchase, not in disaffirmance of it, as was the case in Eberz v. Heisler, 12 Pa. Superior Ct. 388, cited by the plaintiff; hence, the purchaser was not relieved from the necessity of making tender. The demurrer must, therefore, be sustained and the bill dismissed.

And now, Feb. 27, 1922, demurrer sustained and bill dismissed, at the cost of the plaintiff.

From M. M. Burke, Shenandoah, Pa.


author: Hirt, J.,

text:
    Koehler v. Woodford et al.

      Capias — Fraud—When warrant will issue — Act of July 12, 1812.

    1. Where a plaintiff: has an election between an action ex contractu and an action ex cleUcto, capias will not lie.
    2. Under the Act of July 12, 1842, par. 3, P. L. 339, a warrant of arrest, where an obligation has been incurred through fraud, can issue only on an order of court after the production of satisfactory evidence in support of the allegations of fraud.
    Motion to discharge defendants. C. P. Erie Co., Feb. T., 1922, No. 315.

      Milloy & Gilson, for plaintiff; M. L. Davis, for defendants.
    Jan. 19, 1922.
   Hirt, J.,

We are of the opinion that the affidavit to hold to bail, at most, alleges that defendants fraudulently incurred the obligations respecting which suit has been brought. Under the allegations of this affidavit, defendants, in consideration of the payment to them by plaintiff of the sum of $2000, agreed to use the fund in the establishment of a selling station in Erie under the management of plaintiff, and further agreed in writing to repay the loan of $2000. Assuming that the representations regarding the value of the stock of National Tire Seal Company, deposited as collateral for this loan, were fraudulent and that this stock has no value, yet this and other alleged misrepresentations of existing facts resulted in a contract. And under the Act of July 12, 1842, par. 3, P. L. 339, a warrant of arrest, where an obligation has been incurred through fraud, can issue only on an order of court after the production of satisfactory evidence in support of the allegations of fraud. Cases of this nature are excepted from the Act of June 13, 1836, P. L. 572, by the Act of July 12, 1842, P. L. 339; and even though plaintiff elect to bring his action in the form of trespass, capias will not lie. It is clearly the law that where a plaintiff has an election between an action ex contractu and an action ex delicto, the defendant cannot, since the Act of 1842, be arrested on a capias. This conclusion is in line with the weight of authorities: Reynolds v. Lewis, 64 Pitts. L. J. 80; Bowen v. Burdick, 3 Clark, 226; Gallagher v. Norcross, 7 Phila. 623; Hammer v. Ladner, 17 Phila. 315; Buch v. Usner, 7 Pa. C. C. Reps. 292; Alexander & Co. v. Goldstein, 13 Pa. Superior Ct. 518.

The rule granted, therefore, Jan. 19, 1922, on motion to discharge defendants is now, to wit, Jan. 21, 1922, made absolute.

From J. M. Force, Erie, Pa.