author: Lewis, J.,

text:
    Fitchthorne v. Barclay, Moore & Co.

      Victor Frey, for plaintiff; Layton M. Schoch, for defendant.
    July 10, 1930.
   Lewis, J.,

Averring that the defendants, with whom he carried a margin account, sold out 6300 shares of the stock standing in said account, “without proper and sufficient notice to the plaintiff that the margin was near exhaustion,” and “without reasonable notice of the intention to sell securities,” plaintiff seeks to recover damages for the conversion. In their affidavit of defense the defendants denied any impropriety in the making of the sale, set up an agreement by plaintiff waiving notice of an intention to sell, but alleging that in any event proper notice was given. Under the head of new matter in the affidavit, defendants related that their inability to notify the plaintiff of their intended action was due to his absence from the city and to his failure to follow an itinerary which he had left with them, and the various efforts they made to communicate to plaintiff the change which was taking place in the status of his account are detailed. Most of these are admitted in plaintiff’s reply to new matter. On the whole, there is less conflict in the pleadings and testimony than is usual in such cases. The main issues have to do with the contract or understanding subsisting between the parties, with particular reference to the amount of margin required in plaintiff’s account; and, everything taken into consideration, whether any notice of the sale of securities was required. A minor issue involves certain stock in plaintiff’s account which he says he authorized defendants to hold as additional marginal collateral but which they say it was understood was never included as margin. Plaintiff takes the further position that, conceding defendants’ right to have made a sale under the circumstances, the sale of 6300 shares was an excessive sale, and that a sale of one-half that amount would have brought his margin up to the customary point.

From the pleadings, testimony and numerous exhibits we make the following

Findings of fact.

1. Plaintiff opened an account with the defendant brokerage firm in 1914 or 1915, and thereafter carried a large but relatively inactive account.

2. In January of 1919 plaintiff signed an agreement authorizing the defendants to use any securities in his account in such manner as they might elect so long as he was indebted to them, and particularly giving his consent to a sale without notice of any securities purchased or held as collateral in the account should the security at any time be not satisfactory to defendants. The said agreement contained further provisions as follows:

“And I hereby authorize you whenever demand shall be made upon me by mail or otherwise for the payment of the full purchase price and accrued interest of the securities bought under this order, and said request is not immediately complied with, to sell them as hereinabove provided.

“It is further to be understood, and I hereby agree, that the above mentioned conditions shall apply to all future transactions between myself and the above named firm, whether orders are given verbally or otherwise.”

3. Subsequently, in the same year, the plaintiff closed out his account entirely with the defendants and did no business with them whatsoever for a period of more than two years. In September, 1921, he again began to trade through defendants, and continued so to do until the happening of the occurrences now to be related. At no time subsequent to September, 1921, did plaintiff sign a new agreement with defendants.

4. From time to time the defendant firm sent out notices to all customers announcing the margin which would be required for accounts. Prior to 1926 the margin required appears to have been 20 per cent, and in that year it was raised to 25 per cent., and in March, 1923, to 30 per cent.

5. There was no specific agreement between plaintiff and defendant as to the amount of margin which he would be required to maintain in his account, but in numerous margin calls sent out by defendants to plaintiff the rate of margin then being required by defendants in all accounts was invariably mentioned.

6. On or about June 7, 1928, the plaintiff started on an automobile trip to Canada, after having left with defendants a sketchy itinerary, in which he stated that on Friday, June 9th, his address would be in care of L. E. Fiehthorn, Southington, Connecticut; on Saturday or Sunday at Mt. Royal Hotel, Montreal, Canada, and on June 14th to 17th in care of H. Huer, No. 226 Wellington Road, Buffalo, N. Y. It was not stated in the itinerary where plaintiff could be reached between June 11th and 14th. On June 12th defendants received from plaintiff a letter dated June 10th from Quebec, Canada, stating that plaintiff would leave for Montreal on the 11th, and proceed from Montreal to Buffalo, where he could be reached on June 13th or 14th.

7. On June 7th plaintiff went to Hartford and while there decided to go to Quebec instead of Montreal and from Montreal to Quebec.

8. On June 9, 1928, there took place a sharp decline in prices in the stock market, and on the same day defendants telegraphed plaintiff that his account needed additional security. This telegram sent to Mt. Royal Hotel, Montreal, Canada, at which plaintiff was supposed to be according to the itinerary. Again, on Monday, June 11th, the defendants telegraphed to the same address that plaintiff's account needed still further security. These telegrams were received by plaintiff on Monday, June 11th, at 7 P. M.

9. On June 12th at various times during the day the defendants made several efforts by telegraph and telephone to communicate with the plaintiff, but were unable to reach him. The defendants called plaintiff’s brother at Southington, Connecticut, but plaintiff had left no address; defendants were informed that plaintiff might be reached at Quebec.

10. After a further fall in prices on June 12th, the defendants, at about 10 and 11 o’clock in the evening, sent telegrams to plaintiff at several addresses, notifying him that they would sell in the morning at the opening of the market certain specified stocks. This telegram was received by plaintiff on Wednesday, June 13, 1928, at about noon.

11. Meanwhile, on June 13th, at about 8 o’clock in the morning, the defendants had received from the plaintiff a telegram sent from Rochester, New York, reading as follows:

“Telegram received. Do not sacrifice anything. Will take care of matters as soon as I can get home. Will get in touch with you Wednesday from Buffalo.”

12. Orders to sell the stocks specified in defendants’ telegram of June 12th were placed by defendants shortly after 9 o’clock on the morning of June 13th, and at the same time plaintiff was wired that it was impossible to delay selling.

13. In accordance with the orders thus given by the defendants, the following stocks standing in the plaintiff’s account were sold at the mentioned prices:

500 shs. Lee Tire & Rubber..................17§ $4,343.00
2000 shs. Inspiration Copper..................19Í 19,500.00
500 shs. Granby Cons........................49i 12,281.00
500 shs. Texas Pacific Coal & Oil.............13J 3,281.00
300 shs. Magna Copper......................47 7,050.00
500 shs. Nevada Cons. Copper................21 5,250.00
500 shs. Mo., Kans. & Texas Ry...............301 7,656.00
500 shs. Anaconda Copper....................635 15,812.00
500 shs. Howe Sound.........................52 13,000.00
500 shs. International Mercantile Marine Pfd.. 36 9,000.00

14. On the same day, plaintiff was advised that the sale had taken place and immediately protested the same and called upon the defendants to reinstate the account by a repurchase of the sold stocks on or before June 18,1928.

15. Defendants refused to repurchase any of the stock unless and until plaintiff put up additional collateral. Plaintiff thereupon undertook to repurchase on the dates and at the prices listed below all of the stocks sold except 500 shares Granby and 500 shares Howe Sound:

500 Anaconda..................June 20..............$32,612.50
2000 Inspiration 'August 22 September 17 October 8 October 15 October 19 52,912.50
500 Inter. Mer. Mar.............June 20...............18,887.50
500 00 Lee Tire..................] ^ ........
300 Magna. .15,085.00 ]June 14 < June 26
500 Mo., K. & T.................June 14...............16,825.00
500 Nevada Cop.................June 27...............11,450.00
500 Tex. P. C. & O..............October 19.............8,400.00

16. If plaintiff had repurchased all of the said stocks within thirty days after June 18, 1928, he could have done so at the following outside prices:

2000 Inspiration at 221................................$45,250.00
500 Lee Tire at 201, would have been substantially what he actually did pay at a later date, to wit............ 10,025.00
500 Texas P. C. & O. at 145.......................... 7,438.00
500 Granby at 545................................... 27,438.00
500 Howe Sound at 601............................... 30,188.00

The other stocks, to wit, 500 Anaconda, 500 Inter. Mer. Mar., 300 Magna, 500 M. K. & T., and 500 Nevada Cop., were actually purchased within thirty days, and as to these the actual cost to plaintiff as set forth in finding fifteen should be taken.

17. On the basis of repurchases within thirty days after June 18th, the total cost to plaintiff would have been $215,199, which exceeded the proceeds of the defendants’ sale of $192,807.50 by $22,391.50.

18. The plaintiff’s margin with defendants during the days under consideration was as follows: June 7th, 29' per cent.; June 8th, 25.4 per cent.; June 9th, 25.2 per cent.; June 11th, 21.3 per cent.; June 12th, 17.3 per cent.; June 13th, 31.8 per cent.; June 14th, 29.3 per cent.

19. The 2900 shares of American Ship & Commerce stock were held as collateral security by defendants for plaintiff’s indebtedness to them, but not as marginal collateral, because of the price at which said stock was selling, and so should not be included in any calculation as to plaintiff’s margin.

Discussion.

The first point to be determined is whether the customer’s agreement signed by the plaintiff in 1919 was in effect in June of 1928. Much space is devoted in the briefs of counsel to the effect of the change in the personnel of the defendant partnership during the period that the plaintiff had withdrawn his account. We think it unnecessary to decide the question on that ground, for we have come to the conclusion that the agreement regarding plaintiff’s contract rights with the defendants did not remain in force and effect after the relations between the parties had been altogether discontinued for a period of more than two years. It is true that the agreement contained the provision that it was to apply to all future transactions between the parties, but we are not convinced that this was intended to refer to transactions following a complete severance for two years of all business relations between the parties. Possibly the defendants were misled by the provision in the old agreement and were under the impression that it was in force and effect, but good business practice would dictate, under circumstances here present, the execution of another agreement.

In the absence of such an agreement affecting the situation so far as defendants’ right of sale of securities held in the account is concerned, the defendants clearly had no right to sell except upon notice given of the intention to do so. It is not sufficient that defendants should call for additional margin and allow a reasonable time for furnishing same, but they must also give reasonable notice of intention to sell: Diller v. Brubaker, 52 Pa. 498; Esser v. Linderman, 71 Pa. 76; Learock v. Paxson, 208 Pa. 602; Berberick’s Estate, 257 Pa. 181; Sanger v. Price, 114 App. Div. 78. Here it is admitted that the first notice given by defendants of their intention to sell was sent out late in the evening of June 12th. The notice, moreover, was sent to Buffalo, despite the fact that defendants had received, earlier on the same day, a telegram from plaintiff at Rochester. We lay no emphasis, however, on the matter of places to which defendants sent notice, for, as will be discussed hereafter, most of the blame in this regard rests on the plaintiff because of the careless manner in which he handled the situation. Even if plaintiff had been in Buffalo, the place to which the notice of intention to sell was directed, he would not have received the telegram until nearly midnight, assuring it would have been delivered to him at that time; the probabilities are that it would not have been delivered to him until the next morning. This would have given him perhaps less than one business hour within which to protect himself. After careful consideration and an examination of the cases in Pennsylvania, we have reached the conclusion that this was not the reasonable notice of intention to sell to which the plaintiff was entitled.

On the other hand, it is clear that all of the confusion regarding the plaintiff’s exact whereabouts was due to his change of plans. The defendants took every possible means of communicating with him, particularly on June 12th. While there is no evidence that they intended, had they located him on that day, to communicate to him their intention to sell if he did not immediately furnish further margin, we think the situation somewhat different from the usual one in which brokers proceed to a sale without notice. These defendants were hampered in their communications with the plaintiff because of the situation which the plaintiff himself had created. This should, in our view, be taken into account in considering the matter of damages.

At the trial and in his brief, plaintiff made the contention that he is entitled to receive, as damages, the difference between the highest price at which the stocks sold between the date of the sale and the date of trial and the actual proceeds received from the sale. This would bring the damages to very large figures indeed — in fact, to two and one-half times the amount of his claim as contained in the pleadings. All of plaintiff’s actions point clearly to an election on his part to reinstate his account. He repurchased many of the stocks within a few weeks of the sale, and within several months replaced all he ever did replace. His'claim, as contended in his statement, would appear to be one based on the loss which he sustained by reason of having to repurchase the stocks.

Chief Justice Mosehzisker has given us in Gervis v. Kay et al., 294 Pa. 518, not only a characteristically thorough opinion on this general subject, but one which we think is particularly helpful here. In that case the sale by the defendant brokers occurred as a result of a misunderstanding and was altogether without wrongful intent; under these circumstances, it was felt that the usual rule of allowing as damages the highest market value prevailing between the date of conversion and the date of the trial “did not reach the justice of the situation presented by the evidence.” The court applied, therefore, what it referred to as the New York rule that upon being informed of the sale the customer had the right to disaffirm it and require defendants to replace the stock, failing or refusing which the customer could do it himself and charge them with the loss reasonably sustained in doing so; the advance in the market price of the stock from the time of the sale up to a reasonable time to replace it, after plaintiff received notice of the sale, would afford a complete indemnity.

We are well aware of the usual rule in this jurisdiction as to damages for conversion by a broker of stock belonging to a customer; a splendid discussion of it is to be found in 77 University of Pennsylvania Law Review, at page 682, in which the conclusion is reached that while the decision in Gervis v. Kay is expressly limited to conversion by honest mistake, the rule should be extended to all cases involving conversion of shares of stock. Indeed, this has now been accomplished through the Act of April 10, 1929, P. L. 476— which, however, does not apply to this proceeding. As in Gervis v. Kay the court took into consideration the fact that the sale came about through an honest misunderstanding, so here we think it should be kept in mind that the plaintiff was in part responsible for the situation, in that he did not undertake to keep the defendants informed of his address. Such neglect, however, did not altogether excuse the defendants from sending out a notice a reasonable time before the intended sale. Instead, they wired him at a time which gave the defendant less than one hour in which to safeguard himself, and this as a matter of. law is insufficient.

Plaintiff called upon defendants to replace the stocks at or before noon of June 18th. They did not do so. He immediately began to replace them himself. We have concluded that thirty days would have been sufficient for this purpose, in that it would have given him sufficient time within which to consult counsel, study the market and determine the best time and price to make the purchases. On such a basis he could have made the repurchases for the prices given in the findings of fact above, and we believe that justice will be done in this case by allowing him damages in that amount. Plaintiff contends that the several months during which he actually was reacquiring the stock should be taken to be the reasonable time contemplated by the lav/, but with this we cannot agree. We are of opinion that thirty days would have been ample. See Colt v. Owens, 90 N. Y. 368.

In the Gervis case, the Chief Justice said (page 525) :

“The customer is not obliged to reacquire like stock, but he is obliged, as in other cases, to minimize his damages, and if he can do this by again purchasing stock of the kind converted, the ease must be treated as though he had, at the proper time, followed that course, and thereby put himself in a position to reap the benefits of such ownership.”

Under the authority of the same case, the plaintiff is entitled to interest on his loss as compensation for delay.

The trial judge was somewhat impressed at the time of the hearings with the contention that the defendants sold an excessive amount of stock. At that time it appeared from some of the values as though the sale resulted in bringing plaintiff’s margin up to more than 40 per cent. A further study of the values shows that the margin was increased to something between 31 per cent, and 35 per cent. In view of the unstable condition of the market, we now doubt whether the sale was excessive, but in any event we prefer to place all of the stock in the same category as above outlined.

Conclusions of law.

1. The customer’s agreement signed by the plaintiff in 1919 did not remain in force and effect when plaintiff resumed relations with the defendant firm in September, 1921, in view of the lapse of more than two years and the changed personnel of the brokerage firm.

2. The plaintiff was entitled to reasonable notice of the defendants’ intention to sell stocks standing in his account.

3. The notice sent out to plaintiff late in the evening of June 12th, of an intention to sell at the opening of the market the following day, was not reasonable notice under the circumstances, and the sale of plaintiff’s stocks held in accordance with said notice was accordingly wrongful and one which rendered the defendants liable in damages to the plaintiff.

4. The plaintiff having undertaken to repurchase the stocks, he should receive as damages the difference between the highest prices at which he could have reacquired the stocks within a reasonable time after notice of the wrongful sale and the actual proceeds of the sale held.

5. Under the circumstances of this case, thirty days after the date of defendants’ final refusal or failure to repurchase the stock was a reasonable time within which plaintiff could himself have made the repurchases.

6. The plaintiff is entitled to interest on his loss as compensation for delay.

7. The plaintiff is entitled to a judgment in the sum of $22,391.50, with interest thereon from July 18, 1928, amounting to $2627.25.

Notice of the above decision shall be forthwith given by the prothonotary to the parties or their attorneys, and if no exceptions thereto are filed in the proper office within thirty days after service of such notice, judgment shall be entered thereon by the prothonotary.


source: Caselaw Access Project

author: Van Dusbn, J.,

license: Public Domain

text:
    Fisher’s Estate.

      Hymen Ruben, for exceptant.

      Walter Lee Sheppard and William D. Harkins, contra.
    July 3, 1930.
   Van Dusbn, J.,

If the assignment here asserted had been given after the right accrued to the assignors to the war risk insurance money, it may be conceded that it would have passed this money to the assignee. But when the assignment was made the assignors had no interest of any kind whatever in this fund. It was payable in instalments to a named beneficiary who was living and who was in fact the assignee in the assignment. The right of the assignors arose out of an Act of Congress, enacted some years later and made retroactive, whereby the commuted value of the unpaid instalments, in case of the death of the beneficiary, was made payable to the estate of the soldier. No one could know that this would be the law, and it is as certain as anything can be that the parties did not have this item in actual contemplation.

Existing rights are prima facie assignable at law, but the assignment of a right which is to arise in the future is good only as a contract to assign the right when acquired, and enforceable in equity when given for a valuable consideration: 5 Corpus Juris, 852. A right presently existing but only to come into possession upon a contingency is assignable at law; but a mere expectancy, a right which, while it may grow out of present circumstances, has no present existence, does not pass by a voluntary assignment; as, for example, an interest in the estate of a person who is still living: Lennig’s Estate, 182 Pa. 485. And rights growing out of circumstances which do not yet exist are not assignable at all, even for value, for there is no subject-matter on which to operate; as, for example, wages to be earned in an employment not yet begun and not yet contemplated: Lehigh Valley R. R. Co. v. Woodring, 116 Pa. 513. As the assignment here asserted was given without a valuable consideration, it was ineffective to pass a right which was not only after-acquired but after-created.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: MacDade, J.,

text:
    Ridisy Park Boro. School Dist., to use, v. Seaboard Surety Co.

      Ledwcurd & Hinkson, for plaintiff; Robert B. Greer, for defendant.
    July 19, 1930.
   MacDade, J.,

On or about June 13, 1929, the School District of the Borough of Ridley Park entered into a written contract with the JonesRedditt Company, a corporation, whereby the latter undertook to erect and complete a school for the former, called the Barker Street School, in said borough. In accordance with the provisions of the Acts of March 28, 1929, P. L. 106, May 6, 1925, P. L. 546, and May 10, 1917, P. L. 158, the school district aforesaid accepted the penal bond of the defendant in the amount of $15,456, which the Jones-Redditt Company gave to it. Subsequently, the Jones-Redditt Company completed the building for the school district as contemplated by the contract, except that it failed to pay certain claims for labor and materials, including the claim of the use-plaintiff in the sum of $383.75, together with interest. The use-plaintiff was a sub-contractor which had contracted to provide all the material and perform all the work for the sheet metal work, &c., which work it performed and which materials it furnished. It is conceded that said sum is now due and owing by the general contractor or principal in said bond, the Jones-Redditt Company, and for it the latter gave to the use-plaintiff and sub-contractor, when the latter completed its work on Oct. 14, 1929, a check eo die for the said amount. There were no funds in the bank to meet the check, and, consequently, M. D. Gould, Inc., the use-plaintiff herein, did not receive its money. The defendant was notified, as required by the bond, and, after requesting this use-plaintiff to wait a while until it had all the figures, it became apparent that this defendant did not intend to pay; hence this suit.

The defendant admits the above, but raises the defense that it became surety; that the use-plaintiff has not been paid; that the use-plaintiff performed its contract and took all proper and necessary steps to bring suit upon the bond, but that it cannot collect its money because when it received the worthless check it had signed a release of liens to the school district for the building and premises, thus waiving the right to file a lien against the school building, which admittedly is a “public building.” A copy of this release of liens is attached to the amended affidavit of defense filed in this cause. It is the ordinary release of liens and releases the right to file a lien against the premises, and that alone. It releases no party, either contractor or surety.

This is really an action in assumpsit on an additiorial bond given by a contractor and a surety to a school district, under the provisions of the 1st section of the Act of May 10, 1917, P. L. 158, as amended by the Act of May 6, 1925, P. L. 546, and the Act of March 28, 1929, P. L. 106, which section is, in substance, as follows:

“Be it enacted, &c., That it shall be the duty of all counties, cities, boroughs, towns, townships, school districts and poor districts in the improvement of lands, or in the erection, alteration, addition or repair of roads, bridges, edifices and public buildings of any kind, in said districts, to require of the contractor or contractors employed in or about said improvements an additional bond, with sufficient surety or sureties, providing for the payment of all labor and material entering into the said improvements, and all machinery used on such improvements.”

The defendant gave the additional bond on June 13, 1929, as required by law, for the general contractor to the school district, conditioned that the said Jones-Redditt Company, a corporation, and the general contractor aforesaid “. . . shall and will promptly pay or cause to be paid to any and all persons any and all sum or sums of money which may be due for labor or materials, or both, furnished, done, performed or supplied upon, in or about the said additions or alterations or work . . . and will and shall comply with all the provisions of the School Law of the State of Pennsylvania. . . .”

The use-plaintiff entered a motion on June 20, 1930, and reasons therefor, for judgment for want of a sufficient affidavit of defense, as follows:

“1. The allegation of the defendant that the use-plaintiff gave Jones-Redditt Company an alleged receipt is immaterial, because the alleged receipt, as shown on its face, is not a receipt of any kind, but merely a release of liens to the School District of Ridley Park, Delaware County, Pennsylvania, waiving the right to file a lien upon a school building when there was no legal right of any kind to file a lien against the same.

“2. Because the release of liens is not payment, does not admit payment and releases neither Jones-Redditt Company nor the Seaboard Surety Company, its surety, from the obligation to pay the indebtedness due the use-plaintiff.

“3. The affidavit of defense and amended affidavit of defense show upon their faces that the check which Jones-Redditt Company gave to the plaintiff was not cashed through no fault of the use-plaintiff and that there were no funds in the bank to meet the same.

“4. Because the obligation of the defendant was that it would promptly pay or cause to be paid any and all persons any sums which might be due for labor, materials, or both, and defendant in the affidavit of defense and amended affidavit of defense admits that the use-plaintiff was not paid for labor and materials which it had furnished for the operation covered by the bond of the defendant.

“5. Because the giving of the check by Jones-Reddett Company when there were no funds to meet the same was not payment in any sense.

“6. Because the affidavit of defense does not aver how or why it was prejudiced by the use-plaintiff in signing a release of liens, the same not acknowledging any payment and the use-plaintiff having no right to file a lien against a school building.

“7. Because the release of liens entered into the matter in no way whatever, because, under the law, a lien could not be filed against a public school building.

“8. Because the defendant does not aver any facts by which the use-plaintiff is estopped from setting up a claim upon the bond given by the defendant. The purpose of the bond was to guarantee payment to persons who furnished labor and material as the use-plaintiff did, and nothing is alleged either by way of payment or release of the Jones-Redditt Company or the defendant.

“9. Because the defendant admits that it has not fulfilled its obligation of the said bond and has not paid the use-plaintiff for labor and materials upon the operation for which the bond was given.

“10. Because the defendant admits the use-plaintiff has not been paid for labor and materials going into the operation for which the bond was given, and admits it was through no fault of the use-plaintiff that it has not received payment for the same.”

Therefore, we have a case where the use-plaintiff was not paid by the contractor for labor performed and material furnished for the erection and completion of the “Barker Street School.”

The bond given by the contractor and surety was the additional bond required by the Act of March 28, 1929, swpra, and the school authorities complied with the requirements of that act.

We hold that, inasmuch as the school district has its separate bond for completion, &c., the use-plaintiff, under the terms of the additional bond, is a party thereto, and that he is such a party as is entitled to recover thereunder such sum as is due and payable for work performed and materials furnished as a sub-contractor in and about the erection and completion of said school (public) building for the School District of Ridley Park: School District of Reading, Pa., et al. v. New Amsterdam Casualty Co., 98 Pa. Superior Ct. 221. This case holds that the additional bond required under the Act of May 6, 1925, P. L. 546, amending the Act of May 10, 1917, P. L. 158, is to assure the payment of the materialmen and laborers, as they are not protected in a bond given by the contractor for the faithful discharge of the covenants of the contract.

Subsequently, the Act of March 28, 1929, was passed amending these acts to include additional subject-matters.

This ruling is affirmed in Eddystone Borough School District et al. v. Lewis et al., 98 Pa. Superior Ct. 227. See, also, for pertinent cases, Robertson Co. v. Globe Indemnity Co., 77 Pa. Superior Ct. 422; Com., to use of Fields, v. National Surety Co., 253 Pa. 5; Greene County v. Southern Surety Co., 292 Pa. 304.

This use-plaintiff dealt directly as a sub-contractor with the general contractor, and as such is entitled to the protection of the act, for its provisions cover those who perform the work or furnish materials under the contract with the general contractor: Eddystone, &c., v. Lewis, supra,.

The bond which we are considering was obviously given to carry out the provisions of the act above referred to. In it are incorporated the same provisions as are contained in the 2nd section of the act, that persons furnishing labor or materials not paid for may bring suit in the name of the school district to their use. The bond was an additional bond, an entirely separate and independent obligation, solely intended for the protection of those furnishing labor or materials to the school building, and in this the case is distinguished from School District of Reading, Pa., et al. v. New Amsterdam Casualty Co., supra. The materials for which payment is sought actually entered into the construction. This is alleged in the plaintiff’s statement and not denied by the defendant. The courts have insisted upon a literal application of the act, and have held that a mere engagement in a bond on the part of the general contractor and his surety to pay materialmen did not make the latter parties to the bond or give them a right to sue in their own name or as use-plaintiffs: Erie, to use, v. Diefendorf, 278 Pa. 31; City of Lancaster, to use, v. Frescoln and American Surety Co., 192 Pa. 452.

There is, however, no doubt that “when an additional bond is given in pursuance” of the above act, its provisions cover not only those who perform work or furnish materials under contract with the general contractor, but also those who deal with sub-contractors. This is settled definitely by Merion Township School District v. Evans, 295 Pa. 280. As was said in Eddystone, &e., v. Lewis, supra: “The bond being given for the sole purpose of protecting all the labor and material men, it will not be limited in its application. . . . The board, at its discretion, might insert in the contract such provisions as it saw fit, but the condition to be inserted in the bond, protecting those furnishing work and materials, is fixed by the act of assembly and the act is mandatory.”

Certainly it is a sufficient answer to this alleged defense to state:

Firstly. No lien could ever have been filed against the school building, and the release of liens meant absolutely nothing.

Secondly. A release of liens waiving the right to file a lien against certain premises (in this case there' being no such right) would not relieve any individual. It merely releases the premises.

Thirdly. The release of liens, even if it had any bearing at all, would not be good, if procured by the giving of a worthless check.

It will be noted that defendant in its first affidavit of defense alleged the use-plaintiff had given Jones-Redditt Company, the contractor, “a receipt in full showing payment of all its claims.” This is not correct, and the fabric of this defense becomes disintegrated when it is shown that such is not the fact and this defendant defends solely upon that hypothesis. No receipt was given but a release. The authorities cited by defendant upon the matter of the giving of receipts under certain circumstances have no bearing here and the facts are dissimilar. Giving a release of liens affecting the premises only and the building was a vain thing, for no mechanic’s lien can be filed against a public building, and certainly defendant’s rights were not disturbed or prejudiced. When executing the release — a sham — the general contractor gives his check in due course (which in this case was only collateral for the debt and not accepted as payment) to the use-plaintiff in payment of labor and material due on the job, and then the check is not paid upon presentation at the bank where payable. Now, the surety expects to escape liability for this reason. This would mean for us to condone a palpable fraud by finding for this defendant, whose duty is fixed by the act of assembly protecting those furnishing work and materials, and the act is mandatory. The defendant cannot thus escape its plain duty to pay, and it must in the case at bar. The amended affidavit of defense shows it was a mere release of liens.

The defendant further alleges that, because the Ridley Park School District paid Jones-Redditt Company some money which was owing to Jones-Redditt Company, the use-plaintiff cannot maintain its action, although it was not a party to the payment and knew nothing of it. Apparently the contention is that when Jones-Redditt Company produced to the school district a release of liens, which had no legal effect at all, and which was signed by the use-plaintiff because of a “bad check” being given to it, the school district paid JonesRedditt Company some money it had in its hands. How is either the use-plaintiff or the defendant involved or interested in this? The use-plaintiff did not tell the school district to pay Jones-Redditt Company and it knew nothing at all about the money in the hands of the school district. Then, again, how is defendant interested in that, so far as the use-plaintiff is concerned? Its bond was to “promptly pay” the use-plaintiff. There was nothing in the bond about any moneys in the hands of the school district being part of the bond.

It is a well settled rule that a surety upon a bond is not relieved because the sub-contractor takes a negotiable instrument from the contractor, the principal in the bond. The presumption is that the negotiable instrument is merely collateral to the main debt: Hummelstown Brownstone Co. v. Knerr, 25 Pa. Superior Ct. 465; Philadelphia v. Howell, 19 Pa. Superior Ct. 76.

Upon the general proposition that the accepting of a negotiable instrument does not affect the right of the party by whom it is received to pursue any other remedy he has, see American Car & Foundry Co. v. Water Co., 221 Pa. 529; Shaw & Leigh v. Church, 39 Pa. 226; Odd Fellows’ Hall v. Masser, 24 Pa. 507.

This bond was given under the provisions of the Act approved March 28, 1929, P. L. 106, supra, and it was the clear purpose of that act and the acts it amends to see that all bills for all labor and materials going into the erection of a school (public) building should be paid. One of the reasons for that legislation was to insure to labor and materialmen prompt payment for their services and materials, and thus secure favorable bids for a public work. If the argument of defendant can prevail, then all of the work of the Legislature means absolutely nothing, and labor and materialmen are in the same position as before the original legislation along that line which was enacted in 1917.

Therefore, for the reasons aforesaid, the use-plaintiff is entitled to judgment and, in natural sequence, we make the following

Order.

And now, July 19, 1930, the above matter coming on to be heard by the court in banc, upon a motion for judgment in favor of the plaintiff for want of a sufficient affidavit of defense, together with oral arguments and briefs, after due consideration, the court doth order and decree that judgment be and is hereby entered in favor of the plaintiff and against the defendant for want of a sufficient affidavit of defense, and the prothonotary is hereby directed to assess the plaintiff’s damages upon presentation of the usual praecipe therefor.

From 'William R. Toal, Media, Pa.


author: Hildebrand,, P. J.,

text:
    Rudolph Wurlitzer Company of Pennsylvania v. James et al.

      William McElwee, Jr., and E. M. Underwood, for plaintiff.

      Clyde Gibson and John S. Powers, for defendants.
    July 31, 1929.
   Hildebrand,, P. J.,

On the trial of this action in replevin the jury, under the direction of the court, returned a verdict in favor of the plaintiff and determined the value of the piano, which was the subject of the suit, to be $250, fixing plaintiff’s damages at $29. The intervening defendant, Clyde Gibson, presented his motions for judgment non obstante veredicto and for a new trial, which motions were argued before the court in banc.

On Dec. 20, 1924, plaintiff leased a piano to Mrs. John James for a period of thirty months at an agreed monthly rental of $22.50. Mrs. James defaulted in the payment of rent prior to May 14, 1927, at which time the writ of replevin was issued. Prom April 1, 1926, until Jan. 24, 1927, Mrs. James and her husband, John James, were tenants of Prank Carmen. Plaintiff had given Carmen no notice that the piano was held under lease by Mrs. James. In the daytime on Jan. 24, 1927, the house rental having been paid for that month, and the term of the lease not expiring until April 1, 1927, Mr. and Mrs. James removed part of their goods from the house of Carmen. Their lease with Carmen provided that:

“Any removal or attempt at removal of any goods or chattels from said premises by the tenants while any portion of the rent for the full term shall be unpaid shall be deemed a fraudulent and clandestine removal, and the whole rent for the entire term shall fall due and be collectible at once, and all goods and chattels so removed may be followed for the space of thirty days and seized for the collection of the same by landlord’s warrant.”

On the day of the removal a constable, under a landlord’s warrant, levied upon the piano on the premises and also upon certain household goods of the tenants which had been removed from the premises. On the same day a proper notice of the distress was left on the piano on the premises.' After levy, the plaintiff company took possession of the piano and removed it from the premises. Upon being informed that a levy had been made upon the piano on the premises before its removal, plaintiff company surrendered the piano to the landlord and his constable, who, on Peb. 5, 1927, after appraisement and advertisement, sold the piano to John C. Sickafuse, by whom the piano was sold to Clyde Gibson, the intervening defendant.

The intervening defendant contends that his present motion for judgment n. o. v. should prevail, for the reason that plaintiff, having had notice of the distress, failed to bring its action of replevin within five days in accordance with the Act of March 21, 1772, 1 Sm. Laws, 370, section 1 of which reads as follows:

“Where any goods or chattels shall be distrained for any rent reserved and due, upon any demise, lease or contract whatsoever, and the tenant or owner of the goods so distrained shall not, within five days next after such distress taken, and notice thereof, with the cause of such taking, left at the mansion-house or other most notorious place on the premises charged with the rent distrained for, replevy the same, . . . the person distraining shall and may . . . cause the goods and chattels so distrained to be appraised, . . . and after such appraisement shall or may . . . lawfully sell the goods and chattels so distrained,” etc.

On the other hand, plaintiff urges that there was no right of distraint, there being no affirmative proof of the statutory requirements for the sale, while irregularities appear therein, and that plaintiff’s right of action was not questioned in the pleadings, and that, therefore, plaintiff is entitled to judgment upon the verdict.

As stated, the rent for the current month was paid previous to the disstraint. The removal having taken place in the daytime, the plaintiff urges that this did not constitute a fraudulent and clandestine removal, citing Grace v. Shively, 12 S. & R. 217; Grant & McLane’s Appeal, 44 Pa. 477; and that a tenant cannot by agreement, as against the goods of a stranger, make a removal clandestine that is not clandestine under the law, citing Walsh v. Philadelphia Bourse, 32 Pa. Superior Ct. 348, and Harrop v. Lutz, 53 Pa. Superior Ct. 195. These principles, however, have no application in the present case. The contract here provides that any removal of goods from the premises while any portion of the rent for the full term was unpaid “shall be deemed a fraudulent and clandestine removal and the whole rent for the entire term shall fall due and be collectible at once.” By their contract the landlord and tenant had agreed that, on any removal of goods from the premises by the tenant, the whole rent for the entire term should fall due. The right of distress arose immediately upon the removal, and whether the removal was fraudulent or clandestine becomes immaterial. This is the law as laid down in Goodwin v. Sharkey, 80 Pa. 149, 153, which distinguishes Grant & McLane’s Appeal, supra.

In Brumbaugh v. Feldman, 47 Pa. Superior Ct. 10, where the lease contained a provision identical with that of the present lease with reference to the rent for the entire term becoming due and collectible upon any removal or attempted removal of goods from the premises, the provision was held enforceable against not only the tenant but against a stranger whose goods were upon the premises under a contract of bailment, the court there saying:

“He who permits his goods to be and remain in the hands of a tenant on the demised premises does so at the risk that they may be distrained when rent becomes due, as stipulated in the lease. It is the lease which fixes the time when rent becomes due, and it is the maturity of the rent which creates the liability.”

It is clear that there was a removal of goods from the premises by the tenant, and, by the terms of the tenant’s contract with the landlord, the balance of the rent for the full term immediately became due and collectible. The landlord, therefore, had the right to distrain all goods upon the premises, whether they were the property of the tenant or the property of a stranger.

It is true that the plaintiff’s right of action was not questioned by the affidavit of defense on the ground that replevin had not been instituted within five days after notice of distress. Defendant’s evidence of notice to plaintiff of the landlord’s distraint of the piano was admitted without objection. The defendant’s present position was disclosed at the close of the case, when he presented his point for binding instructions. If objection had been made to the evidence offered on this point, defendant would have been entitled to amend. The plaintiff, having taken its chance of a favorable disposition of the case with the evidence in without objection, raises the question now too late to be of any avail. That which was amendable without injury to the adverse party will be treated as amended: Stuart v. Line, 11 Pa. Superior Ct. 345; Elder Township School District v. Pennsylvania R. R. Co., 26 Pa. Superior Ct. 112; Kirchner v. Smith, 207 Pa. 431; Trainor v. Railroad Co., 137 Pa. 148.

The testimony is clear that the levy was made on Jan. 24, 1927, and that the sale took place Feb. 5, 1927. It also appears an appraisement was made by T. E. Smith and Harry Long. It does not appear that these men were freeholders. It does not appear when the appraisement was made. Plaintiff contends that the burden of proving affirmatively that all of the statutory requirements of the sale were complied with rested upon the intervening defendant who claimed under constable’s sale on a distress for rent. This position is sustained by Murphy v. Chase, 103 Pa. 260, where a plaintiff who failed to sustain this burden was barred from a recovery. He had not shown notice of the distress given to the defendant before the appraisement, nor had he shown advertisement made as provided by the act of assembly. That case and many others hold that the presumption that an officer of the law has done his duty and taken all the preliminary steps necessary to an official act has no application to a constable who distrains and sells goods under a landlord’s warrant, the constable there acting but as the agent of the landlord and not as officer of the law. These defects in the defendant’s case were pointed out at the close of the testimony when the plaintiff moved for a directed verdict. We think it proper to assume that defendant proved all that he was able to prove with reference to the regularity of the proceedings on the landlord’s warrant.

The defendant recognized the duty which the law casts upon him by setting up in his affidavit of defense an appraisement by two reputable freeholders after the expiration of five days from the time of distress and a sale following the appraisement and after six days’ public notice. Had he failed to plead compliance with these statutory requirements, judgment might have been secured against him without trial for want of a sufficient affidavit of defense: Ramsdell v. Seybert, 27 Pa. Superior Ct. 133.

The defendant, in order to have the protection of the statute under which the sale was had, must show an appraisement by two reputable freeholders, that five full days intervened between the distress and notice thereof and the appraisement, and that there was six days’ public notice of the sale.

He has done none of these things. He has, therefore, shown no title in himself and has wholly failed to establish his right to possession as against the plaintiff.

The defendant, however, contends that plaintiff, having failed to bring replevin within five days after notice, is now barred from recovery. Where the proceedings are regular, a plaintiff’s action must be brought within the statutory period. The rule appears to be different where the proceedings are irregular.

In the present case it appears that the seizure by the landlord was regular. If, however, the seizure be regular and the subsequent steps are not in accordance with the statute, the landlord becomes a trespasser ab initio by his departure from the directions of the law, and a sale not in compliance with the provisions of the Act of 1772 is unlawful: Esterly Machine Co. v. Spencer, 147 Pa. 466; Murphy v. Chase, 103 Pa. 260; Snyder v. Boring, 4 Pa. Superior Ct. 196, 200; Brisben v. Wilson, 60 Pa. 452; Quinn v. Swartley, 240 Pa. 585.

While Bogert v. Batterton, 6 Pa. Superior Ct. 468, appears to be authority that a person whose goods have been improperly distrained upon by a landlord for rent due by a tenant who has notice of the distress and fails to bring replevin before sale cannot institute replevin against the purchaser of the goods at constable’s sale, it is to be noted that the question of the regularity of the proceedings was not considered in that case and that the affirmance of the judgment of the lower court was based upon the conclusion that the distraint was proper. This case is referred to in Lengert Co. v. Building & Loan Ass’n, 15 Pa. Superior Ct. 380, 382, where it was likewise held that it was the duty of the plaintiffs to bring replevin before the sale. However, the court there recognized and discussed the right of the person whose property was improperly levied upon to an action for damages, although replevin had not been instituted within the statutory period. The distraint was, however, held proper.

We are of the opinion that there appears in defendant’s own evidence an irregularity in the proceedings rendering the sale on the landlord’s warrant illegal and showing conclusively that defendant now has no title, and that plaintiff is entitled to its remedy in replevin. The levy was on Jan. 24, 1927. The sale was on Saturday, Feb. 5, 1927. It is clearly the law that five full days must be allowed within which the tenant or owner may bring replevin and that the appraisement cannot be had until after the expiration of that time: Davis v. Davis, 128 Pa. 100; Quinn v. Swartley, 240 Pa. 585; Ehrhart v. Esbenshade, 233 Pa. 18; Snyder v. Boring, 4 Pa. Superior Ct. 196, 200; Brisben v. Wilson, 60 Pa. 452. In computing this time the day of levy and notice and the day of appraisement must both be excluded. It is likewise well established that, in computing the “six days’ public notice” of sale required by statute, the day of notice is to be excluded and the day of the sale included: Whitton v. Milligan, 153 Pa. 376. Applying these rules to the time elapsing in the present case between the levy and the sale, the appraisement could not have been had earlier than Jan. 30th, and the first day of notice of the sale could not have been later than Jan. 30th. Since notice of sale could not be given previous to appraisement, the conclusion is irresistible that the appraisement and the first day’s'public notice of sale, in order to be in compliance with the statutory requirements, were made and had on Jan. 30th. Judicial notice is taken of the fact that Jan. 30th in 1927 fell on Sunday: Wilson v. Van Leer, 127 Pa. 371. It follows that the appraisement and notice were legally void and of no effect as being violative of the common law. If authority be needed to sustain this position, we think it is found in Rheem v. Carlisle Deposit Bank, 76 Pa. 132. Because of this irregularity in the proceedings, plaintiff is entitled to maintain replevin although the action was not instituted before the sale.

This same question is ably discussed by Hargest, P. J., in Pappas & Alex. Co. v. Pappas and Magaro, 31 Dauphin Co. Reps. 155, and he reaches a like conclusion. “Otherwise,” he says, “we have an illegal proceeding, goods in the possession of one who has no right whatever to them, and no remedy in the lawful owner to repossess them.” Support for the conclusion is found in Manegold v. Quinn, 45 Pa. Superior Ct. 482.

The plaintiff having shown title in itself, the intervening defendant having shown no title in himself and plaintiff being entitled to maintain the action, the plaintiff is entitled to recover, and defendant’s motion for judgment n. o. v. must be refused.

While various reasons are assigned for a new trial, none of them were pressed upon argument and an examination of them discloses no error warranting a new trial.

Now, July 31, 1929, the intervening defendant’s motions for a new trial and for judgment n. o. v. are severally overruled and refused, and the prothonotary is directed to enter judgment on the verdict on payment of the jury fee.


author: Newcomb, P. J.,

text:
    Prestendren v. Conaboy.

      T. A. Garvey, for appellant; no appearance for appellee.
    Dec. 16, 1929.
   Newcomb, P. J.,

The proceeding in question is that of an alderman of this city. In default of an appearance, defendant, a resident of Carbondale, suffered judgment in the sum of $169.

It is attacked, first, for want of proper service of the summons. The return is regular on it's face. It purports to have been made at defendant’s dwelling house by handing a copy to his “daughter, Rita, an adult member of his family,” The exception on this behalf is that the daughter is only twelve years old. But that is a question which cannot be litigated in this proceeding. If the return were ambiguous or otherwise irregular, it would be open to extraneous proof by way of explanation on this writ. But being prima facie regular, it can only be contradicted in a suit against the officer for a false return.

The other exception is that the summons was improperly directed to one Bell, constable of the Borough of Moscow, instead of the one “most convenient to the defendant,” as required by law: Act of March 20, 1810, § 2, 5 Sm. Laws, 161.

No doubt this statute is directory in the sense that it leaves to the judgment of the magistrate the question of such “convenience.” But his honest judgment is one thing; his mere whim or caprice another and very different thing. In other words, the question must be deemed to have been committed to his legal, not his merely arbitrary, discretion. The distinction is illustrated in a well considered opinion of Judge Landis in Smith v. Miller, 12 Dist. R. 374.

It would be a sinister reflection upon the legislative purpose to suppose that it intended to sanction such selection as that made in this instance.

Carbondale is distant sixteen miles from Scranton in one direction; Moscow is about the same distance in the opposite direction. Hence, a Moscow officer could have been selected on no possible theory of convenience to any one concerned, nor indeed on any other ground consistent with the due and proper use of legal process. It could serve only to unnecessarily multiply the costs and expenses of the litigation. That is repugnant to one’s instinctive sense of justice. It is believed to be unauthorized by the statute, and the judgment is, therefore, reversed.

From William A. Wilcox, Scranton, Pa.


author: Geoff, J.,

text:
    Dussinger v. Keemer.

      J. Andrew Frantz, for appellant.
    Jan. 18, 1930.
   Geoff, J.,

In this case it appears that J. G. Keemer, the defendant, whose business is pressing and cleaning clothing, and who is located on East King Street, in the City of Lancaster, Pennsylvania, accepted from the plaintiff a suit of clothes left with him for cleaning and repairs, which the plaintiff claims was destroyed by the defendant.

Suit was brought before A. K. Spurrier, an alderman for and in the City of Lancaster, and on Oct. 8, 1929, a summons was issued by the said alderman, commanding the defendant to appear before him on Oct. 15, 1929. On that day a hearing was had before the said alderman. The defendant failed to appear, and judgment was entered against defendant, after hearing the evidence of plaintiff, for $11.75 to compensate plaintiff for the injury done to her suit by the defendant. On Nov. 2, 1929, the defendant issued a writ of certiorari to the alderman and brought the record into this court. The exception he filed to the record is as follows: “The alderman’s docket in this case is fatally defective because, (1) although the summons was issued in assumpsit, nevertheless the testimony shows that the action is an action in trespass ‘for the damages to and the destruction of a suit of clothing left with defendant for cleaning and repairs.’ ”

This was a bailment in which the suit of clothes was deposited by the plaintiff, bailor, with the defendant, bailee, for the purpose of having it repaired.

“ ‘Bailment,’ says Sir William Blackstone, 2 Blackstone’s Comm. 451, ‘from the French bailler, to deliver, is a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee;’ or, as Mr. Justice Story has it, ‘for some special object or purpose, and upon a contract express or implied.’ All the writers, as also all the authorities on this head, concur in laying it down that every species of bailment is founded upon a contract, either express or implied.”

The presumption here is that the bailor would pay the bailee a reasonable compensation for his services, or even if the bailee would perform his duties without payment, there would be a presumption that the goods were to be returned to the bailor in good condition.

The damage claimed by the plaintiff in this case, as disclosed by the record, evidently grew out of a contractual relation between the parties, expressed or implied, hence, a claim for damages for breach of contract.

The alderman had jurisdiction in this action because the claim did not exceed the amount over which he had jurisdiction. The law on this subject is set forth in Murphy v. Thall, 17 Pa. Superior Ct. 500, 502: “Case and assumpsit are sometimes concurrent remedies, and a complainant may elect which he will adopt, yet if the subject of the action is based and dependent upon the existence of a contract, express or implied, the suit will be attended by all the incidents of an action ex contractu so far as jurisdiction is concerned. When the action is for the violation of a duty necessarily springing from contract alone, the action is quasi ex contractu, though the gravamen be laid in tortious negligence for breach of the duty.”

The whole subject is discussed in the case just cited, and it is concluded that: “When the plaintiff’s claim is founded upon a contract, other than those specifically excepted by the statute, and does not exceed the amount limited, it is within the jurisdiction of a justice of the peace, whether the action be in assumpsit or in case for a breach of duty imposed by the contract.”

It makes no difference what name an alderman gives to an action as long as he has jurisdiction, but in this particular case we conclude that the action being based upon an implied contract, the summons was properly issued in assumpsit The record here shows that judgment was publicly given for the plaintiff against the defendant for $11.75 and costs of suit on Oct. 15, 1929, at 2.40 o’clock in the afternoon. The suit, therefore, seems to have been properly brought, the judgment was properly rendered, after a hearing, and we, therefore, enter the following order:

And now, Jan. 18,1980, proceedings are affirmed, the exception to the record is overruled and dismissed, and the rule to show cause is discharged, at the costs of the defendant.

Prom Georg-o Ross Eshleman, Lancaster, Fa.


author: Henderson, J., Lamorelle, P. J., Van Dusen, J.,

text:
    Warne’s Estate.

      Bevan A. Pennypacker and Wm. Clarke Mason, for Fidelity-Philadelphia Trust Company, exceptant.

      Carlyle H. Ross, for Joseph Roy Vetterlein, exeeptant.

      Randolph Sadler, for administrators c. t. a. of estate'of Theodore V. Warne, deceased, exceptants.

      G. Herbert Jenkins, contra.
    July 11, 1930.
   Henderson, J.,

If the intent of a testator may be sought from the four corners of a will, we could want for no better illustration of the wisdom of the rule than in the instant case.

There is but one dispository clause in this will — the trust set up for the widow and two sons. Upon the death of the widow,- the income is given equally to the two sons, “so, however, that the same shall not be liable for their debts, contracts or engagements, nor to anticipation, attachment, assignment or alienation” Upon the death of the sons, the estate vested in their issue per stirpes; should either die without issue, it was given to the surviving son or his issue; and if both died without issue, then, upon the death of the survivor, he provided: “I direct that my estate shall go to such persons as would then be entitled under the laws of this State, if I had died intestate.”

This clause directs that those who are to take are to be ascertained upon the death of the last son: Wood v. Schoen, 216 Pa. 425.

The testator has carefully directed that the life estates to his sons shall be free from their debts, anticipation or assignment; and he further guards the remainder from their creditors by giving it to his heirs ascertained as of the date of the death of the surviving son. He has anticipated the Act of June 29, 1923, P. L. 914, by making the rule there laid down the rule of his will, to wit, the estate in remainder shall vest in his heirs ascertained as of the day of the death of the last life tenant — and thus he again prevents any distribution to the creditors of his sons.

By the two codicils he gives the sons powers of appointment under certain circumstances not now necessary to recite, and upon the failure of his provisions he directed the distribution of his estate “under the intestate law,” and, as worded in the second codicil, to his “next of kin and heirs at law.” And in both codicils he expressly added that in all other respects he confirmed his will.

It is argued that the phrases of these codicils would ascertain the heirs as of the date of his death and not as of the death of the surviving life tenant, as directed in the will. It is inconceivable that after the carefully drawn provisions of his will to prevent the creditors of his sons — either in their lifetime or upon their deaths — from getting any part of the estate that, without a word expressly modifying this direction, he intended to make so radical a change — to expose the estate to the creditors of the sons — and this in the face of his express direction ratifying the provisions of his will — “in all other respects.”

It would be hard to find a better illustration of the old saying — the letter killeth but the spirit maketh alive.

The application of the analytical method in the way attempted merely leads to an illusory certainty — to use an expression of Roscoe Pound.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J.,

dissenting. — I am of opinion that those who take are to be determined as of the date of the death of William B. Warne, Sr., which was May 25, 1894. They are his wife and his two sons; they take in the proportions fixed by the intestate law then in force. The fact that the trusts for the two sons were of spendthrift character has no bearing whatsoever: see McFillin’s Estate, 235 Pa. 175, and our own recent case of Whiteside’s Estate, 13 D. & C. 220.

In Tatham’s Estate, 250 Pa. 269, in a clear expression of opinion by our Supreme Court, Mr. Justice. Potter, for the court, said: “That the class described as testator’s ‘heirs,’ to whom a remainder or executory interest is given by a will, are to be ascertained at the death of the testator is admittedly the general rule. This is so well recognized that nothing but the expression of a clear intention to the contrary in the will can be allowed to alter the rule. In one of our latest cases in which the subject was considered, Bache’s Estate, 246 Pa. 276, Mr. Justice Mestrezat said (page 279) : ‘It is settled by a long line of decisions in this State that a devise of real estate to one for life, with remainder to the testator’s heirs, vests the remainder in those who answer such description at the time of his death, unless the will affords clear and unequivocal evidence to the contrary; and it is immaterial that the life tenant is one of the class who will take the remainder: Stewart’s Estate, 147 Pa. 383; Buzby’s Appeal, 61 Pa. 111.” See what seems to be the latest authority, Kidd’s Estate, 293 Pa. 56.

Such was the law when testator made his will — March, 1894 — and the codicils thereto in April and May, and also at the time of his decease.

The learned Auditing Judge followed the ruling in Wood v. Schoen, 216 Pa. 425, in reaching his conclusion that those entitled were to be ascertained as of the time of the death of the survivor of the two sons, Theodore V. Warne, Nov. 24, 1929. His decision is based on this wording of the will: “Should both of my sons die without issue, then upon the death of the survivor I direct that my estate shall go to such persons as would then be entitled under the laws of this State, if I had died intestate.”

To my mind, testator’s continued and continuous use of the word “then,” both in his will and codicils, would seem to show that the meaning he attached to the word was “in this or that event,” or “because of such fact.” But assuming, for the sake of argument, that there were no codicils and nothing calling for interpretation but the language of the will itself, Wood v. Schoen (supra) might have been an authority in point; but as there are codicils, what are we to do with them. They cannot well be ignored. The first of them was made ten days after the execution of the will, and it provided for two very important changes. It conferred upon the survivor of the two sons a general power of appointment by will, if both died without descendants, and in default of such will directed that “my said estate shall be distributed as my property under the intestate law,” followed by the significant clause, “I ratify and confirm in all other respects my said will.” It will not do to say that the codicil was made only for the purpose of conferring this power of appointment. It did more. It omitted or ignored the “then” entirely, so far as distribution is concerned, and in impressive and exact wording provides for another and a different scheme of ultimate distribution; it went further; in all other respects — not in but one respect — it confirmed the will as written.

In brief, it cut out entirely the original scheme and substituted another and different method.

Some forty days later and a very few days before his death, testator made his second and last codicil. In this he conferred a power of appointment on each son of that son’s one-half interest in the estate, and if neither sons leave wills nor children or descendants them surviving, provides that “then my estate is to be distributed to my next of kin and heirs at law.” This use of the word “then” does not harmonize with the second “then” in the will; it can have but one meaning “in such case” or “such event.”

In construing a will, the object of the courts is to ascertain, not the intention simply, but the expressed intention of the testator, i. e., the intention which the will itself, either expressly or by implication, declares: or (which is the same thing) the meaning of the words — the meaning, that is, which the words of the will, properly interpreted, convey.

Reading the will and two codicils as a complete whole, there can be no question that the date of testator’s death marks the time for the ascertainment of the heirs and next of kin who take, and the fact that those who take intermediate life estates are those same next of kin and heirs at law matters not. It is only by saying that testator meant nothing, and intended no force to be given, to the changed phraseology (which makes such a mighty difference in the destination of the fund), that we can go back to the will for the purpose of ascertaining the heirs under the circumstances which really happened. Surely in this particular there is a discrepancy between the will and codicil, and the codicil must prevail, whether or not we believe the testator would have so intended had it been brought to his intention. We are not to guess at his intention, but construe the very words he has used: Thomas’ Estate, 241 Pa. 290.

It is very easy, in the light of the events which have happened, to surmise that if the testator could have foreseen what has occurred, the desire on his part would have been to direct a certain method of distribution. We are not permitted to arrive at the testator’s intention by subsequent occurrences, but are limited to construing the words he used. We must construe his will as though none of the events its provisions were intended to cover had yet occurred. Being restricted, not to what he may have intended, but to the intention as disclosed by the words used, must we not give to the codicil that meaning which the words would have if the two instruments are read together, as suggested above?

As stated in Line’s Estate, 221 Pa. 374, the very purpose of a codicil is to make a different disposition from that made in the will, and where there is a deliberate purpose to change the will, the codicil is to be followed. The testator in both codicils keeps to a phraseology making his own death the time of ascertainment and does not repeat the phraseology of the will. Why did he not repeat these words? We do not know, but with this we are not concerned. As said by Mr. Justice Potter in Thomas’ Estate, supra,, speaking of a change made by codicil: “With the consistency or inconsistency of her [the testatrix’s] action, or with its reasonableness, we have nothing to do.”

In the case of Wood v. Schoen, 216 Pa. 425, relied upon by the learned Auditing Judge, we have a case simply of a will where testator gave a life estate to his wife and three daughters, with remainders to issue he might leave, and in default of such issue, then to those who would then be entitled thereto under the intestate laws of this State.

In the case of Houser v. Houser, 268 Pa. 401, Mr. Chief Justice Brown said: “The purpose of a codicil is to change the disposition or administration of a testator’s estate as directed in the will: Line’s Estate, 221 Pa. 374; and when the disposition of the whole or part of an estate is intended by the codicil to be different from that provided for in the will, the later expression of the testator’s intention must prevail.”

Testator’s later expression of intention was that the disposition of his estate should be of a time different from that disclosed by the will, and for this reason I would sustain all exceptions consistent with this dissent; direct a restated account, prepared in accordance with our rules and practice and have the same reaudited and the balances awarded to the estate of the wife and two sons, or in the discretion of the Auditing Judge, if feasible, directly to the persons entitled under their respective wills.

Van Dusen, J.,

dissenting. — The power of appointment created by the first codicil would be applicable to the circumstances which have occurred, except that it is to be exercised only after the death of testator’s widow. The power of appointment created by the second codicil is fully applicable. Even if both were applicable, the last should prevail. The purpose of a codicil is to make a change. The second codicil is complete and understandable, and the spirit of the testator’s last wishes is found therein. I think the error of the Auditing Judge is in saying that the purpose of the second codicil is merely to interject into the will and first codicil a power of appointment by each son over one-half of the estate held in trust for him. On the contrary, it goes over the whole ground; and it is not to be supposed that the word “survivor” in the first codicil was used more deliberately than the word “other” in the second.

And, if that point be passed, it is possible that the “thens” which are so plentiful in the will were inserted with as little thought as given to their omission in the second codicil.


author: Stern, P. J.,

text:
    Rickard et al. v. Feinstone et al.

      Stradley, Ronon, Stevens & Denby, for plaintiffs.

      H. A. Barton, for defendants.
    Sept. 10, 1930.
   Stern, P. J.,

This is an application for a preliminary injunction to restrain the erection and operation of a miniature golf course on premises adjacent to or in the neighborhood of the complainants.

In the opinion of the court, the complainants have not made out a case for relief by injunction at this time. There was evidence presented to the effect that the operation of such a golf course might and probably would be attended by noise, the congregation of idlers, the glare of lights, and a congestion of automobile traffic, all of which would be annoying and disconcerting to the neighbors. These miniature golf courses are a recent innovation in communal life, but from the extent to which they have been subject to observation they would not appear to be productive of the evils anticipated by the complainants, at least to such a degree as to justify the interference of equity. Of course, it is true that a property owner, especially in a fine suburban district, probably would not welcome a neighbor of this sort, but, in the absence of zoning regulations, and having in mind that such a golf course is in itself a legitimate venture, it would seem that any resulting undesirable features are of a nature that must be borne by a property owner in the absence of any restrictions or easements on his neighbor’s property.

A public garage in a residential neighborhood is a nuisance per se, but it can scarcely be held that such a golf course would necessarily be a nuisance irrespective of the manner in which it may be regulated and operated. If in fact it is conducted in such a manner as to bring about noise and dangerous traffic conditions, an injunction may properly issue to restrain such excesses. In other words, it is a case where the golf course if properly managed may and probably will turn out to be entirely unobjectionable, but if in fact it be not so managed, the complainants can get relief if and when the necessity for it may arise.

There was some evidence as to sickness existing in some of the neighboring homes, but there is not likely to be any noise in the laying out of the course, and if, as already stated, the operation of it should produce noises unduly disturbing those particularly entitled to quiet, a court of equity can grant relief accordingly.

The same observations apply to the complaint of the adjoining church that there may be interference with its religious services. If in fact the operation of the golf course does cause such an interference and disturbs the worshippers in their devotions, a situation will arise which will commend itself to equitable relief.

For these reasons the prayer for a preliminary injunction is refused, with the right, however, on the part of the complainants, or any of them, to renew their application if in fact evils result from the actual operation of the golf course to such a degree as to justify the interference of equity.


author: Davis, J.,

text:
    Central Trust and Savings Company et al. v. Mencke et al.

      Harold B. Beitler, for plaintiffs; Harry M. McCaughey, for defendants.
    Sept. 10, 1930.
   Davis, J.,

sitting in summer court,

Under all the evidence I am of opinion that the complainants are entitled to some relief. The operation of these so-called golf courses is not a nuisance per se. It all depends upon the location of the golf course, the manner of its operation, and the hours within which it is operated, if it is operated in a residential neighborhood. The operation of these golf courses comes within the requirements of the Ordinance of June 3, 1926, requiring a license for the operation of places of amusement. The enforcement of this ordinance is for the Department of Public Safety. There is a penalty for violation of the ordinance. That applies with equal force to' the operation of these golf courses on Sunday. I do not think that they should be operated on Sunday, and one of the proprietors of this particular golf course admits that he knows he is violating the law. The municipal authorities know that the operation of these golf courses on Sunday is a violation of the law, yet they countenance it by allowing the proprietors to march to the City Hall and pay their fine on Monday morning for violating a law of which they are cognizant.

The objection to the operation of this particular golf course is the fact that it is within nine feet of the wall or house line of the apartment house known as the Fairfax Apartments. Whilst the operation of a golf course in one section might not be a nuisance, in another it might be; and under the testimony in the instant case the operation of this golf course at night until 1 o’clock in the morning and later is an annoyance, and such a disturbance of the peace, quiet and comfort, as well as the health of the immediate residents of the neighborhood, and particularly those tenants of the apartment house whose rooms overlook the golf course, as to amount to a nuisance. Whilst it is not possible to fix a definite time within which these courses should be operated, or may be operated, at night, because, as I have already said, it depends to a great extent upon the location of the course, in the instant case the course is lighted by arc lights of unusual power, from 300 to 750 watts, which causes an extraordinary illumination in the bedrooms of the tenants in the apartment house.

As to the prayer of the bill restraining the defendants from operating the golf course under the name of the Fairfax, the complainants have not shown such a right to the exclusive use of the name Fairfax as to prevent its use by the proprietors of the golf course. I am convinced, however, that the complainants are entitled to relief to the extent that the course should not be operated after 9 o’clock in the evening. Of course, the question of controlling the persons who play is a police regulation, and if there is undue noise the complainants should notify the proper police authorities in order to suppress it. That cannot be suppressed by a decree in equity. A decree will be prepared restraining the operation of this golf course after 9 o’clock in the evening, standard time.

As to the use of the name Fairfax, the bill is dismissed. If the operation is conducted in such a manner as to be a nuisance during the day, that may be taken up at a later time.

The complainants may enter security in the sum of $200. As to the operation of the golf course on Sunday, I do not know that I can prohibit the operation of the course on Sunday, because there is an adequate remedy at law. Personally, I am satisfied that it should not be conducted on Sunday at' any hour.


author: Hargest, P. J.,

text:
    Fagan v. Fagan.

      Karl E. Richards, for libellant; William, S. Middleton, for respondent.
    Dec. 31, 1929.
   Hargest, P. J.,

The

libellant in this case seeks a divorce on the ground that the respondent was sentenced to undergo imprisonment in the Pennsylvania Industrial Reformatory at Huntingdon on the charge of larceny.

Whether a sentence to a reform institution is ground for divorce in this state has not, so far as we can find, been heretofore decided. The Act of May 1, 1909, P. L. 374, provides that a conviction and sentence by a competent court upon the charge of larceny and other heinous crimes mentioned therein, “to imprisonment for any term exceeding two years,” shall be ground for divorce. The sentence for larceny, under section 103 of the Act of March 31, 1860, P. L. 382, is a fine not exceeding $900 and imprisonment not exceeding three years.

Section 6 of the Act of April 28, 1887, P. L. 63, relating to the Huntingdon Reformatory, provides:

“Every setence to the reformatory, of a person hereafter convicted of a felony or other crime, shall be a general sentence . . . and the courts of this Commonwealth imposing such sentence shall not fix or limit the duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the Board of Managers of the reformatory, as authorized by this act; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced.”

The precise question is whether an indeterminate sentence for larceny to the Huntingdon Reformatory is a sentence to imprisonment for a term exceeding two years and, therefore, ground for a divorce.

In the case of Miller v. Miller, 30 Dauphin Co. Reps. 177, after examining the authorites of this and other states, we held that an indeterminate sentence of not less than eighteen, nor more than thirty-six, months to the penitentiary was ground for divorce under the Act of 1909. We are of the opinion that the reasoning of that case applies to this. A defendant may be kept during the period of three years by the Board of Managers of the reformatory. He may be discharged but put under parole for the balance of the maximum sentence and arrested for any breach of the parole during the period between the minimum and maximum term, just as in the case of an indeterminate sentence to a penitentiary.

Our investigation has disclosed two cases in other states in which it is held that an indeterminate sentence to a reformatory is not ground for divorce: Unsoeld v. Unsoeld (Mass.), 104 N. E. Repr. 462; Dion v. Dion (Minn.), 100 N. W. Repr. 4.

To authorize a divorce under the laws of Massachusetts, the person sentenced was required to be “committed at hard labor . . . for five years or more in a state prison, jail or house of correction.” In the first case above cited the court held that the reformatory was neither a “state prison,” “jail” or “house of correction,” and sentence to the reformatory was not a sentence to “commitment at hard labor,” and, therefore, not within the grounds for divorce.

In the second case (Dion v. Dion), the laws of Minnesota made a sentence “to imprisonment in the state prison” ground for divorce and the court held that the state reformatory was not a prison, and, therefore, the sentence to the reformatory was not sufficient grounds. Neither of these cases apply to the facts of the case before us.

For these reasons we adopt the findings of fact and conclusions of law of the master and will sign a decree on the application of counsel and payment of costs.

From Homer L. Kreider, Harrisburg:, Fa.


author: Stewart, P. J.,

text:
    Angle’s Estate.

      Frank P. McCluskey, for rule; Chidsey, Maxwell & Frack, contra.
    Jan. 13, 1930.
   Stewart, P. J.,

This was a rule on Emma I. Angle to show cause why she should not enter security for costs. She was a nonresident of Pennsylvania and at one time was the wife of the decedent. She claimed her share of the estate as widow and as a creditor, filing nine exceptions to the account, attacking sums paid for taxicabs, for damages, for tombstone, for premiums on the executor’s bond, for payment to the executor himself for compensation, and for payments to counsel, and for his refusal to pay the sum of $11,245 alimony due her under the decree of the Court of Chancery of the State of New Jersey, made on Nov. 5, 1884, which she alleged she had demanded of the executor. In the petition for the rule, the executor alleged that Emma I. Angle was not the widow of the decedent; that she was not a creditor. He admitted that she elected to take against the terms of the will, and that she had demanded her widow’s exemption, but he alleged that the decedent had been divorced from the said Emma I. Angle by a decree of the District Court of Monona County, Iowa, on Oct. 5, 1889; and that her claim was invalid on its face, and that she should not be permitted to litigate her claim ^without entering security for costs.

To the rule, an answer was filed by Emma I. Angle, in which she alleged that she had never been a resident of Iowa, but had always resided in New Jersey, and that no personal service in the Iowa divorce proceeding had ever been made on her; and that the divorce granted in Iowa was void; and she further averred that prior to the Iowa divorce she had obtained a divorce in New Jersey a mensa et thoro, with a decree for the payment of $5 a week; and that the decedent had never paid any part of said amount. That constituted her claim against the estate. It is manifest that the questions as to the validity of the Iowa divorce, and whether the estate is liable for alimony from the date of the New Jersey decree to the date of the Iowa decree, or until decedent’s death, or whether the claim is in whole or in part barred by the statute of limitations, are not now before us for decision. Where claims are made in the Orphans’ Court, which on their faces are without merit, we have declined to appoint an auditor, but the questions arising from this claim are of a different character, and the sole matter for present determination is, has the executor a right to compel her to give security for costs? Section 54 of the Rules of Court provides as follows: “Where the plaintiff resides out of the state at the time of suit brought, or subsequently removes therefrom, the defendant on affidavit of a just defense to the whole demand, may have a rule of course on the plaintiff to enter security for costs within thirty days after notice of the rule, or show cause to the contrary, and in the meantime the proceedings shall stay; in default of compliance with this rule, judgment of nonsuit may be entered.” We have no rule upon the subject in the Orphans’ Court. Section 255 heads the Rules of the Orphans’ Court. It is as follows: “The foregoing rules of the Court of Common Pleas, mutatis mutandis, are hereby extended to this court as far as they are applicable and not in conflict with the rules in this schedule.” The learned counsel for the executor contends that section 255 makes section 54 applicable. That section was first introduced into our rules of court in the rules adopted by Judges Schuyler and Scott on Jan. 2, 1888.

We know of no case where the meaning of section 255 has been passed on by the judges of this court. The expression mutatis mutandis means “the necessary changes.” The implication is that the subject-matter is to be the same, but unimportant matters, like names, dates, &c., are subject to change when necessary. It would seem that the plain meaning of section 54 is to confine it to actions at law in the Common Pleas. The section refers to plaintiff and defendant, affidavit of defense, stay of proceedings and nonsuit. These things are not met with in the Orphans’ Court practice. In Buckwaiter’s Estate, 6 Pa. C. C. Reps. 20, a case in the Orphans’. Court of Chester County, the syllabus is: “In the absence of a rule of court requiring security for costs in the Orphans’ Court, a nonresident claimant, petitioning for a citation upon an administrator to file an account, will not be required to give security.” In that case there was a petition for a citation on administrators to file an account. The answer alleged that the petitioner was a resident of Iowa, that all the debts of the estate were paid, and that petitioner had no interest in the estate, and that the court should require him to give security for costs before acting on his petition. The rule of court in the Common Pleas of that county is almost the same as ours. The court discharged the rule for the reason given in the syllabus. In Lehman’s Estate, Register’s Court of Philadelphia, 4 Sept. 1847 (MS.), it was held that a nonresident heir, on an appeal from the grant of probate of a will, may be compelled to give security for costs (this has since been required by statute). In Rea’s Estate, 15 Phila. 578, a petition for order on contestants to enter security for costs, President Judge Hanna, of the Orphans’ Court of Philadelphia County, refused the application because it had not been made properly, and because some of the contestants resided in the state. Again, in McCullough’s Estate, 5 Pa. C. C. Reps. 87, the same learned judge said: “It is not customary to require a claimant, whether creditor, legatee or distributee, in the first instance, to enter security for costs. If he is successful, his costs follow the award and are paid by the estate. But if unsuccessful, he will, as a rule, be obliged to personally pay the costs.” This would seem to imply that Judge Hanna thought that, under proper circumstances, security for costs might be required. In the Appeal of St. Joseph’s Orphan Asylum, 38 Pa. 535, it was held: “The fees of an auditor are payable by the party at whose instance he was appointed, but may be taxed and collected from the losing party, as other costs are taxed and collected.” Mr. Justice Strong in that case said: “The ease of the appellants is a hard one, but that will not justify us in relieving them by casting an equal or greater hardship upon an officer of the court. It was at their instance that he was appointed an auditor, and that he performed the services for which they are asked to pay. That they are liable for his fees is beyond question. The Act of March 29, 1819, P. L. 267 (Stroud & Brightly’s Purdon, 68) [7 Sm. Laws, 228, § 5], provides that the fees of auditors are to be fixed by the court and to be paid and taxed as other costs. They are to be paid and they are to be taxed as other costs are taxed. Paid by whom? The court may compel the losing' party to pay them; but if they cannot be obtained from that course, the auditor is not to lose them. Indeed, the act of assembly seems to look as if they are to be paid before they can be taxed as costs against the losing party.”

The learned counsel for the parties have not cited any authorities upon this interesting question, and those that we have cited are such as we have found in a limited examination. The result of that examination seems to be that the estate in the first instance must pay the costs that necessarily follow the determination of a claim such as the present one; that the losing party would then be liable to the estate, and that the practice ought to be followed as above indicated of not appointing an auditor where the claim on its face has no merit. In the present case, however, the subject-matter of the exceptions should be adjudicated.

And now, Jan. 13, 1930, rule to show cause why security should not be entered is discharged.


author: Corson, J.,

text:
    Lux’s Petition.

      Frank J. Bradley, for petitioner; Harry T. Rotenbury, contra.
    Dec. 18, 1929.
   Corson, J.,

The petitioner in this proceeding seeks to be declared a feme sole trader, apparently under the provisions of the Act of May 28, 1915, P. L. 639, as amended by the Act of May 11, 1927, P. L. 971. The petition alleges a desertion by the respondent which might be relevant under the Act of May 4, 1855, P. L. 430, but which apparently is not necessary under the Act of 1915: Harper’s Petition, 288 Pa. 52 (1927).

The petitioner and her husband were married in 1909, and lived, apparently, more or less happily together, in Hartford, Connecticut, where their two children were born, until 1918, when the petitioner, her husband and their children moved to Rosemont, this county, where they lived in the home of the petitioner’s mother. The change was made apparently at the request of the petitioner. The respondent opened a branch office in Philadelphia of his Hartford company, and, so far as the evidence shows, contributed equitably and fairly to the upkeep of the common home. There is no evidence to substantiate the claim of the petitioner that respondent did not support her and the children in accordance with the respondent’s circumstances.

During the period from 1918 until Feb. 21, 1926, friction gradually developed between the respondent and the petitioner until it reached such a point that petitioner’s mother could no longer bear the constant quarreling between the petitioner and the respondent, and notified the respondent formally, in writing, to vacate the premises. We cannot say that there was any direct quarrel at any time between the respondent and his mother-in-law or that the mother-in-law was the cause of the quarrels between the petitioner and respondent. Mrs. Weeks appeared to us to be a most estimable and sensible woman.

Upon receiving the notice to vacate the premises, the respondent prepared to close his business in Philadelphia and to return to Hartford. He discussed with his wife the matter of her returning with him to Hartford, when he was told that the petitioner did not intend to leave her mother’s home and that she would not return with him to Hartford. Respondent then apparently consulted counsel and wrote his wife a letter to the general effect that whenever she was ready and willing to leave her mother and live with him, he would provide a home for her and the children. When he left on Feb. 21, 1926, he told his wife and her mother, Mrs. Weeks, that they could tell their friends that he was going back to Hartford for business reasons. This statement appeared to be relied upon by the petitioner as showing some intention to desert the petitioner, but it was explained by the respondent, and the explanation appears reasonable, that the statement was made for the purpose of covering up, as much as possible, the break that had taken place between the petitioner and the respondent.

The petitioner and the respondent have lived separate and apart since that time, and all marital relations between them ceased. The respondent has not supported the petitioner during this period, though he has sent presents and some money to his children. The petitioner has maintained herself and her children from her own estate.

While no desertion has been shown upon the part of the respondent, yet, under the wording of the Act of 1915, the petitioner would seem, as a matter of first impression, to be entitled to a decree. The appellate courts, however, have not construed this act as strictly in favor of the petitioners as a narrow construction of the words of the act might seem to require. The general tendency of the courts has been to hold that there must be some breach of duty on the part of the husband before the wife is entitled to a decree.

Where the wife deserts her husband under such circumstances as to make it impossible for the husband to support her, the courts have held that the husband cannot be penalized and the wife rewarded for her unjustified act. The Supreme Court has said: “In our opinion, the failure of the husband to support his family, contemplated by the act, must be such as to constitute a breach of duty on his part:” Graver’s Petition, 260 Pa. 186.

The reasoning of this ease, as to support, would seem to apply in the case at bar as to the living apart and the cessation of marital relations between the parties. We feel that the petitioner, under the evidence of the case, constructively deserted the respondent when she refused to go with him to Hartford in 1926 or to leave her mother’s home in Rosemont. Clearly, it was impossible for the respondent to live with his wife at the home of Mrs. Weeks after his eviction, and the petitioner refused to live elsewhere. The petitioner complains that the respondent was financially close and that he did not contribute sufficiently to the household expenses while he lived at Rosemont, yet, after he was put out by Mrs. Weeks, and there is evidence that this act of Mrs. Weeks was approved of by the petitioner, the petitioner never asked one penny of support from the respondent.

No case has gone so far as to award a decree to the wife where the wife has deserted her husband. Especially would this seem to be sound law where there are no substantial reasons to complain of the husband’s acts in carrying on his part in the marital partnership. The facts in this case are most nearly met in Ramsey’s Case, 270 Pa. 564, where the wife voluntarily left her husband, lived upon the income of her own separate estate, and made no demand upon her husband for support. Under such a state of facts, the court refused the petition and cited with approval Graver’s Petition, supra.

The respondent, by his testimony and manner and appearance upon the witness stand, made a favorable impression upon the court. We feel that we cannot deprive him of his possible interest in his wife’s estate because of his failure to live with his wife and maintain marital relations when it was made impossible for him so to do. We do not feel that we should penalize the respondent for his failure to support his wife under the circumstances of a constructive desertion upon her part and without any demand being made upon him for such support.

And now, Dec. 18, 1929, for the reasons stated, the prayer of the petition for a decree conferring the rights and privileges of a feme sole trader is refused, at the cost of the petitioner.

Prom Aaron S. Swartz, Jr., Norristown, Pa.