author: Mays, J.,

text:
    Heberly v. Heberly et al.

      Edward D. Trexler, for plaintiff and rule.

      R. G. Bushong, for defendant Petterman.
    Dec. 8, 1928.
   Mays, J.,

Richard D. Heberly, one of the defendants, under date of July 23, 1923, executed a mortgage on certain real estate in the Borough of Kutztown, Berks County, in the sum of $6000, conditioned for the payment to plaintiff of the just sum of $3000, “in instalments of $100 annually, to be paid each and every year, if the mortgagee (the plaintiff) so requests, and, in addition, all taxes are to be paid by the mortgagor, these payments being in lieu of any interest payments on the principal or unpaid balance, and no interest is to accrue and become augmented to the principal sum of $3000 or balance thereof.” Then follows the provision that “at the death of Louise I. Heberly, the mortgagee, all payments shall stop and cease, and the mortgage and bond shall become null and void and automatically satisfy itself as a lien or obligation.”

The preecipe for the sci. fa. sets forth (1) a default in the payment of the sum of $100 due July 23, 1927, the payment of which was requested by the mortgagee from the mortgagor; and (2) a default in the payment of taxes for the year 1926, a sale of the personal property of the mortgagor and a deficiency claim of $17.49.

An affidavit of defense was filed by Clinton H. Fetterman, the real owner, in which, as to the first default, he denies that there was a demand for the payment of the instalment of $100 due July 23, 1927. As to the second default, he avers that there is no provision permitting the mortgagee to declare the whole amount of the mortgage debt due on account of a default in the payment of taxes; that no demand was made upon him previous to the bringing of the present suit for the payment of the sum of $17.49; that prior to the service of papers in the said suit he had no knowledge of the claim; and that, on Oct. 5, 1928, he tendered to the plaintiff the sum of $117.27, representing the instalment and the balance of taxes, which was refused by the plaintiff.

The plaintiff, on Oct. 18, 1928, entered a rule on the defendants to show cause why judgment should not be entered against them for the whole amount of the plaintiff’s claim, made up as follows: Balance due on principal, $2700, with interest from Sept. 20, 1928, at 6 per cent.; unpaid taxes for 1926, $17.49; attorney’s fees, $135.

The plaintiff, in the brief of argument filed, concedes that as to the first allegation of default there is an issue of fact which should be submitted to a jury. Plaintiff, however, asks for judgment on the second averment of default.

The question of law that is involved under the pleadings is whether a mortgagor’s failure to pay taxes on the mortgaged premises is a default which will make the mortgage debt become due and collectible immediately, where there is no such provision in the mortgage, but merely a requirement that the mortgagor pay the taxes.

In deciding this question, we should ascertain what was the actual intention of the parties at the time of the execution and delivery of the mortgage, and this should be our guide in construing their contract. If it can be ascertained, and is lawful, it must control. A careful reading of the mortgage leads to the discovery that there is no provision for a scire facias sur mortgage in connection with the non-payment of taxes. It should be noted that this is a rather unusual mortgage. A careful reading of its terms leads to the conclusion that the parties intended the payment of the principal or instalments as they became due to be the primary purpose of the obligation. The covenant to pay the taxes was collateral to the main purpose. Had the parties intended that the failure to pay taxes was to be such a default as to make the mortgage debt become due and payable, they would undoubtedly have provided therefor. What is said by Mr. Justice Paxson in Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393, 396, is quite significant: “With equal reason might a mortgagee complain of arrears of taxes which are sometimes allowed to accumulate on the property mortgaged. For the last few years this has been a more serious peril to mortgagees than the accumulation of water rents. The analogy between the cases is believed to be complete, for while, in the latter instance, there is the ordinance referred to for detaching the ferrules, yet, as before stated, that provision was intended solely for the benefit of the city and not for the water tenants or their mortgagees. Both evils may be avoided, in my opinion, by a provision in the mortgage, that at stated periods in each year the mortgagor shall produce to the mortgagee the evidence of the payment of taxes and water rents,'and that default in such payment shall make the mortgage debt become due and payable, with a scire facias clause, as in the case of the non-payment of interest on the mortgage. Indeed, I am informed that this is now done in many instances.”

The rule for judgment is discharged.

From Charles K. Derr, Reading, Pa.


source: Caselaw Access Project

author: Houck, J.,

license: Public Domain

text:
    Vuyovich v. Philadelphia & Reading Coal and Iron Company.

      Roger Dever, for plaintiff.

      John F. Whalen, George Ellis and B. F. Troutman, for defendant.
    March 18, 1929.
   Houck, J.,

The claimant in this compensation case was injured while at work at the defendant’s Beechwood Colliery on Nov. 23, 1927. His claim was resisted on the grounds that he was not injured while in the course of his employment and that the relation of employer and employee did not exist between him and the defendant company at the time of the accident. Nick Plemenatz was injured in the same accident, and both of the claims, apparently, were heard together. There is considerable testimony in the record bearing upon an alleged violation of the Anthracite Mine Law. However, this defense was not pressed in the case now under consideration and the argument was directed to the sole question whether or not the claimant was an employee of the defendant company at the time of the accident. This, therefore, is the only question now before us.

Nick Plemenatz was a miner in the employ of the defendant company at its Beechwood Colliery for some time prior to Nov. 23, 1927. He had a laborer named Bubovilky. These two men worked together on the Thursday or Friday prior to the date of the accident, and Bubovilky then quit. Plemenatz looked around for another laborer and finally located the claimant. He hired the claimant and the men went to work together on the afternoon of Nov. 23, 1927, their shift commencing at 2.30. When they arrived at the colliery, Plemenatz took the claimant into the office to report the fact that he had hired him. The only man in the office was Dick Cassins, a fire-boss in the drift. Cassins had nothing to do directly with the men employed in the part of the mine where Plemenatz worked. However, Plemenatz told Cassins that the claimant was his new laborer and Cassins wrote the claimant’s name on the board and gave the claimant a check which authorized him to enter the mine in the cage. When the two men reached the bottom of the shaft they found that the fire-boss had gone up. According to the rules, Plemenatz should have seen the fire-boss before entering his working place and should have notified the fire-boss that he had hired a new laborer. There is evidence to show that the fire-boss had examined the working place, had brushed some gas from it, and that it was in proper condition for the men to enter. There is also evidence to show that Plemenatz, finding that the fire-boss had left, told the loader-boss that the claimant was his new laborer; that all the fire-boss would have done, when notified that Plemenatz had hired the claimant, would have been to write the claimant’s name in his book; and that Plemenatz’s action in hiring the claimant as a laborer was perfectly proper. The claimant followed his miner into the working place and started to work. Within a short time there was an explosion of gas and both men were injured. The referee found that the claimant was in the employ of the defendant company at the time of the accident and awarded him compensation. The appeal raises the question whether this finding of fact is supported by competent proof.

If the referee’s findings of fact relative to the status existing between the claimant and the defendant company is supported by competent evidence, it is conclusive: Gailey v. State Workmen’s Ins. Fund, 286 Pa. 311. We have already indicated that there is competent proof to sustain the referee’s finding that the claimant was in the employ of the defendant at the time of the accident. On these underlying facts, the referee was fully warranted in concluding that the status existing between the parties was that of employer and employee. Section 202 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, provides, inter alia: “The employer shall be liable for the negligence of all employees while acting within the scope of their employment, including engineers, chauffeurs, miners, mine-foremen, fire-bosses; . . . and such employees shall be the agents and representatives of their employers, and their employers shall be responsible for the acts and neglects of such employees, as in the case of other agents and employees of their employers.” Section 203 provides that an employer who permits the entry upon premises occupied by him of a laborer or an assistant hired by an employee for the performance of a part of the employer’s regular business entrusted to such employee shall be liable to such laborer or assistant in the same manner as to his own employee. The manner in which the employer may escape such liability is provided for in section 302 (b). There is no contention in this case that section 302 (b) is applicable. The employer, acting through its agent, Cassins, permitted the claimant, who had been hired by the miner, to enter the premises for the performance of a part of the employer’s regular business entrusted to the miner. Under the plain terms of the act, the claimant is entitled to compensation. The defendant cannot say that Cassins had no authority to permit the claimant to enter the premises. He was the only representative of the defendant company in the office, and, acting as the defendant’s agent, he wrote the claimant’s name on the board and gave the claimant a check authorizing him to enter the mine. There is competent evidence to show that Plemenatz hired the claimant and that the claimant was permitted by the defendant to enter the premises. Hence, the claimant is entitled to compensation.

The award can also be sustained on the ground that there is competent evidence to show that the claimant was an employee of the defendant at the time of the accident. The inference is warranted that when Cassins, who was in charge of the office as the defendant’s agent, wrote the claimant’s name on the board and gave him a check authorizing him to enter the mine, the claimant became an employee of the defendant company. In any view of the case, the award of compensation must be affirmed. The referee’s findings of fact are all supported by competent proof and the law has been properly applied. Beyond that we are not to inquire: Labuck v. Mill Creek Coal Co., 292 Pa. 284; Johnston v. Payne-Yost Construction Co., 292 Pa. 509.

.The defendant’s exceptions are dismissed, the award is affirmed, and judgment is entered for the claimant in the sum of $175.36, covering hospital services and compensation to Feb. 29, 1928, compensation payments to continue to the claimant at the rate of $12 per week from Feb. 29, 1928, until such time as there is a change in the claimant’s disability, it entirely ceases or he will have been paid the maximum amount of compensation for his disability.

From M. M. Burke, Shenandoah, Pa.


author: Alessandroni, J.,

text:
    Carroll v. Howlett.

      Frank H. Warner, for plaintiff; Soy Martin Boyd, for defendant.
    July 5, 1929.
   Alessandroni, J.,

The plaintiff, a practicing attorney of the City of Philadelphia, brought this action against the defendant for $10,000, the alleged value of professional legal services rendered the defendant. The defendant filed an' affidavit of defense denying that the plaintiff had ever been engaged as counsel by the defendant, and averred that the plaintiff tendered his services for about five months as a friend of the family, and that other attorneys were engaged to handle the legal work, with whom the plaintiff acted as associate counsel. The affidavit of defense concludes with an allegation that such services as were rendered were not worth more than $500. Both parties waived a jury trial. Upon consideration of ihe testimony produced at trial, the court makes the following

Findings of fact.

1. The plaintiff, on March 1, 1921, was, and still is, a practicing attorney admitted to all the courts in Pennsylvania and the United States, except the Supreme Court of the United States.

2. On Sept. 21, 1921, the defendant’s husband, Michael P. Howlett, died, leaving a will in which his wife was named as one of the executors and under which the defendant was given a life interest in a property located at No. 2303 North Broad Street and the sum of $500 per month for life.

3. The net value of the estate as evidenced by. the executors’ account amounted to $539,263.53.

4. On or about March 1, 1921, the defendant called the plaintiff, asking him to come to her home; from then until June 9, 1922, the plaintiff was continually called by the defendant or her agent, her son, Joseph, regarding her individual and personal matters. After June 9, 1922, practically the only services rendered the defendant were with reference to the widow’s exemption in the estate.

5. The plaintiff advised the defendant regarding an agreement she had signed with Frederick McOwen and Charles C. Norris, Esqs., attorneys for the executors, the terms of which she was not fully acquainted with, and arranged for the rescission of this agreement.

6. The plaintiff, during the above-mentioned period, advised the defendant regarding jewelry left by Michael P. Howlett, and particularly with regard to a ring alleged to have been given to Joseph Howlett before the deceased’s death, and with regard to debts due to creditors, so that those justly chargeable to the estate were properly paid.

7. During this period the value of the estate was not definitely determined, and, after investigation, the plaintiff advised the defendant to take against her husband’s will, so that she received an estate of approximately $180,000 instead of the sum of $500 per month for life and the life estate in the Broad Street property, as provided by the terms of the will.

8. During this period the plaintiff advised the defendant regarding the preservation of the name of Michael P. Howlett, because of its intrinsic value-in the stevedoring business, and with regard to the purchase of the business from the estate, so that it could be continued by her son, Joseph Howlett. As a result of this advice, he proceeded to create two corporations, one in Pennsylvania and one in New Jersey, so as to perpetuate the name of Michael P. Howlett with relation to the stevedoring business in which he had been engaged. This necessitated numerous conferences with Owen J. Roberts, Esq., and other attorneys, and was contested by the estate. The costs actually expended by the plaintiff in such corporations amounted to $148.10.

9. During this period of employment one Gertrude Sprague claimed to be the widow of the decedent by a prior marriage and threatened to put in her claim against the estate as the lawful widow of Michael P. Howlett. This, of course, questioned the legitimacy of the defendant’s children. The plaintiff engaged in conference with other attorneys and was instrumental in settling her claim.

10. The plaintiff advised the defendant with regard to inheritance taxes and the purchase of the Michael P. Howlett stevedoring business from the estate.

11. From March 1, 1921, to June 9, 1922, the plaintiff was continually called and consulted by the defendant and the defendant’s son, Joseph, with regard to the aforementioned matters, as well as other less important allied questions.

12. The plaintiff secured, on behalf of the defendant, the services of Owen J. Roberts, Esq., to assist in representing Mrs. Howlett’s personal interest.

13. Five reputable attorneys testified as to the reasonable value of the services rendered by the plaintiff, four of whom testified that the services were worth $10,000, and one of whom testified that a reasonable charge for the services would be anywhere from $7500 to $12,000.

Discussion.

The testimony produced at trial clearly indicates that the plaintiff was engaged by the defendant to represent her in her individual affairs, and that he was continually at the call of the defendant with regard to her interest for a period from about March 1, 1921, to June 9, 1922. The estate involved was of great value and the plaintiff devoted a great deal of time in the interests of the defendant. In the case of Hanley v. Waxman, 80 Pa. Superior Ct. 274, it was stated that: “The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and character of the services rendered, the labor, the time and trouble involved, the character and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession, to which may be added the general ability of the client to pay and the pecuniary benefit derived from the services.”

The value of the services is a question that is left to the discretion of the court. In the case of Scott v. Bergdoll, 270 Pa. 324, “plaintiff called ten witnesses, all of whom are reputable members of the Philadelphia bar, who testified that under the peculiar circumstances and in view of the standing of plaintiff in his profession and the amount of time devoted in behalf of the defendant, the amount claimed by the plaintiff and substantially allowed by the jury was fair and reasonable. Under all the testimony, there is ample evidence to support the verdict, and we cannot say the court below abused its discretion in allowing it to stand.” The question of the excessiveness of the verdict was held to be in the discretion of the court, and unless it was so grossly excessive as to shock the conscience of the court, it would not be set aside. Under these authorities, the question of compensation is solely a matter for the judgment of the court.

The following requests for findings of fact presented on behalf of the plaintiff are affirmed: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34. The following are refused: 33, 35, 36. Of the twelve requests for conclusions of law presented on behalf of the plaintiff the 1st, 2nd, 3rd, 4th, 5th, 9th, 10th are affirmed. The 6th, 7th, 8th, 11th and 12th are refused.

Of the sixteen requests for findings of fact presented on behalf of the defendant the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th, 11th, 13th, 14th, 15th and 16th are refused. The 8th and 12th are affirmed. Of the four requests for conclusions of law presented on behalf of the defendant the 1st is affirmed. The 2nd, 3rd and 4th are refused.

Conclusions of law.

1. The plaintiff was engaged by the defendant, on or about March 1, 1921, to represent her personally in a professional capacity, and the plaintiff so represented her actively until about June 9, 1922. Prom then until the early summer of 1923 his only services were with regard to the widow’s exemption in the estate of Michael P. Howlett.

2. That a reasonable charge for these services is $5000.

3. That plaintiff is entitled to reimbursement in the sum of $148.10 expended in behalf of the defendant.

4. That the plaintiff is entitled to the sum of $5148.10, together with interest from June 9, 1922.

5. The court finds for the plaintiff in the sum of $7331.46.


author: Martin, P. J.,

text:
    Delaware River Bridge. Petition of the City of Philadelphia.

      A. T. Ashton, City Solicitor, for petition.
    July 2, 1929.
   Martin, P. J.,

In the consideration of this question, attention must be given to a resolution proposing an amendment to the Constitution of the Commonwealth' of Pennsylvania and the certificate of its adoption, as follows:

Office of the Secretary of the Commonwealth of Pennsylvania.

No. 2.

A JOINT RESOLUTION

Proposing an amendment to article nine, section eight, of the Constitution of Pennsylvania.

Section 1. Be it resolved, by the Senate and House of Representatives in General Assembly met, That the following amendment to the Constitution of Pennsylvania be, and the same is, hereby proposed, in accordance with the eighteenth article thereof. . . .

That article ix, section 8, be amended to read as follows:

Section 8. The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as provided herein, and in section fifteen of this article, shall never exceed: seven (7) per centum upon the assessed value of the taxable property therein, but the debt of the City of Philadelphia may be increased in such amount that the total city debt of said city shall not exceed ten per centum (10) upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two (2) per centum upon such assessed valuation of property without the consent of the electors thereof at a public election in such manner as shall be provided by law. In ascertaining the borrowing capacity of the City of Philadelphia at any time, there shall be deducted from such debt so much of the debt of said city as shall have been incurred, or is about to be incurred, and the proceeds thereof expended, or about to be expended, upon any public improvement or in the construction, purchase or condemnation of any public utility, or part thereof, or facility therefor, if such public improvement or public utility or part thereof, whether separately or in connection with any other public improvement or public utility, or part thereof, may reasonably be expected to yield revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges thereon. The method of determining such amount so to be deducted may be prescribed by the General Assembly.

In incurring indebtedness for any purpose, the City of Philadelphia may issue its obligations maturing not later than fifty (50) years from the date thereof, with provisions for a sinking fund sufficient to retire said obligations at maturity, the payment to such sinking fund to be in equal or graded annual or other periodical instalments. Where any indebtedness shall be or shall have been incurred by said City of Philadelphia for the purpose of the construction or improvements of public works or utilities of any character from which income or revenue is to be derived by said city, or for the reclamation of land to be used in the construction of wharves or docks owned or to be owned by said city, such obligations may be in an amount sufficient to provide for, and may include the amount of, the interest and sinking fund charges accruing, and which may accrue thereon throughout the period of construction and until the expiration of one year after the completion of the work for which said indebtedness shall have been incurred; and said city shall not be required to levy a tax to pay said interest and sinking fund charges as required by section ten, article nine of the Constitution of Pennsylvania, until the expiration of said period of one year after the completion of said work.

CLARENCE J. BUCKMAN,

President pro tempore of the' Senate. ROBERT S. SPANGLER,

Speaker of the House of Representatives.

Office of the Secretary of the Commonwealth of Pennsylvania.

Pennsylvania, ss.: Harrisburg, July 9, 1926.

I Do Hereby Certify, That the foregoing and annexed is a full, true and correct copy of a resolution of the General Assembly proposing an amendment to the Constitution of the Commonwealth, which was passed at the Sessions of 1917 and 1919 and submitted to a vote of the people at the General Election held on Tuesday, November second, 1920. The proposed amendment was adopted by a vote of 373,643 for the Amendment and 144,512 against the Amendment. On December seventh, 1920, the Governor issued a Proclamation declaring the adoption of the said Amendment by a vote of the qualified electors of the Commonwealth at the election held on Tuesday, November 2, 1920, as the same appears of record and remains on file in this office.

In Testimony Whereof, I have hereunto set my hand and caused the seal of the Secretary’s Office to be affixed, the day and year above written.

[Seal] GEO. D. THORN,

Deputy Secretary of the Commonwealth.

This amendment to the Constitution is contained in Pamphlet Laws, 1919, page 1238. In determining the borrowing capacity of the City of Philadelphia, it is therein provided:

In ascertaining the borrowing capacity of the City of Philadelphia at any time, there shall be deducted from such debt so much of the debt of said city as shall have been incurred, or is about to be incurred, and the proceeds thereof expended, or about to be expended, upon any public improvement, or in the construction, purchase, or condemnation of any public utility, or part thereof, or facility therefor, if such public improvement or public utility, or part thereof, whether separately or in connection with any other public improvement or public utility, or part thereof, may reasonably be expected to yield revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges thereon. The method of determining such amount so to be deducted may be prescribed by the General Assembly.

The Delaware River Bridge Commission, created by Acts of Assembly of the Commonwealth of Pennsylvania and the State of New Jersey, met in December of 1919 and proceeded to construct a Delaware River bridge connecting the Cities of Philadelphia and Camden. The bridge was opened to traffic on July 1, 1926. There has been expended, for its construction and the acquisition of the real estate necessary for its approaches, a sum total of $36,555,531.30.

From certain loan bills of the City, an aggregate in the sum of $10,315,-779.33, made up as follows, was for the Delaware River Bridge:

Loan Bill of 1920 $6,000,000.00— $250,000.00 for the bridge

Loan Bill of 1920 33,000,000.00— 500,000.00 for the bridge

Loan Bill of 1922 1,050,000.00 — 1,050,000.00 for the bridge

67.250.000.00 — 6,423,000.00 for the bridge Loan Bill of 1923

35.726.000.00 — 2,092,779.33 for the bridge Loan Bill of 1924

Out of these various loans of the City of Philadelphia for the construction of the bridge, there is an unexpended balance of $292,141.55, and, in addition thereto, there is the sum of $150,253.16 set aside as a reserve for property claims.

On July 2, 1926, the Bridge Commission started to collect toll. The City of Philadelphia has since collected the following share of the toll:

July 2nd, 1926, to December 31st, 19'26......$236,670.01

January 1st, 1927, to June 30th, 1927...... 215,999.01

July 1st, 1927, to December 31st, 1927...... 307,481.46

January 1st, 1928, to June 30th, 1928...... 266,201.16

July 1st, 1928, to December 31st, 1928...... 346,098.05

January 1st, 1929, to approx. June 30,1929...... 325,000.00

It is testified that the City of Philadelphia should receive approximately for the year 1929 the sum of $661,000 from the Delaware River Bridge. It is further testified that the business is growing; that last Sunday (June 23, 1929) there were 64,337 automobiles on the bridge; that the capacity is 110,000 automobiles and that if the portion of the bridge now reserved for trolley tracks be covered with concrete, it will almost double the carrying capacity of the bridge.

Each and every loan for the construction of the bridge contains a tax, which is levied contemporaneously with each loan, sufficient in amount to take care of the interest on the loan and the sinking fund charges. This is in aecordanee with, article xv, section 3, of the Constitution, which is as follows: “Every city shall create a sinking fund, which shall be inviolably pledged for the payment of its funded debt.”

Neither the constitutional provision nor the Statute of May 21, 1921, P. L. 1054, stipulates that the moneys invested in this bridge construction, and so to be deducted in computing the borrowing power of the City of Philadelphia, must be segregated for the extinguishment of the debt.

The tax heretofore levied is sufficient in amount to discharge the interest and sinking fund expense of each and every Delaware River Bridge loan as it accrues. That being so, it is not necessary that the proceeds of the Delaware River Bridge revenues, allocated to the City of Philadelphia, be segregated and set aside for the extinguishment of the debt.

And now, to wit, July 2, 1929, it is ordered and decreed that the total amount of loan money borrowed by the City of Philadelphia and invested in, or about to be invested in, the Delaware River Bridge, being the sum of $10,-784,662, may be deducted from the indebtedness of the said City of Philadelphia in ascertaining its borrowing capacity, as provided in section 8, article DC of the Constitution of the State of Pennsylvania; such deduction is to be in addition to, and not inclusive of, other deductions heretofore authorized to be made from the debt of the said City in calculating its borrowing power by reason of investments of borrowed money in other improvements from which net revenue is receivable sufficient to pay the interest and sinking fund charges upon the borrowed money so invested.


author: Hargest, P. J.

text:
    Strassburger et al. v. Johnson, Secretary of Commonwealth.

      John R. Geyer and Paml G. Smith, for plaintiffs.

      Leon D. Metzger, Deputy Attorney-General, and William A. Schnader, Special Deputy Attorney-General, for defendant.
   Hargest, P. J.

This ease is presented upon a petition for mandamus, a return thereto and evidence taken.

The questions raised are: (a) Whether the affidavit required of a candidate to a nominating petition may be made by an attomey-in-faet; and (b) whether, when so made, it may be amended by filing a photo radiogram of an affidavit by the candidate himself, to be followed by the filing of the original affidavit.

On March 3, 1928, petitions were presented to the Secretary of the. Commonwealth to have the name of Ralph Beaver Strassburger certified to the commissioners of the several counties of the Commonwealth to be printed upon the official ballot of the Republican Party as a candidate for the office of delegate-at-large to the National Republican Convention. These petitions contain the delegate’s statement and the candidate’s affidavit, signed “Ralph Beaver Strassburger, by Norman B. Wamsher, attorney.” Subsequently, a somewhat more amplified affidavit was presented to the' Secretary of the Commonwealth, signed in the same way. There was also presented to the Secretary of the Commonwealth an affidavit of Chester G. Burden, who says that he is the Secretary of the Commercial Cable Company; that said company maintains offices in New York and Paris, and that, on Feb. 29, 1928, there was received at the New York office from Paris a cable message whieh was quoted in full and whieh purports to be a power of attorney acknowledged before the Vice-Consul of the United States in Paris, reading, in part, as follows:

“I, Ralph Beaver Strassburger, . . . have made, constituted and appointed and by these presents do hereby make, constitute and appoint Norman B. Wamsher, Norristown, Pennsylvania, my true and lawful attorney for and in my name, place and stead, to sign each and all petitions of the qualified electors to have my name as candidate printed on the official ballot for the primary election to be held on Tuesday, April 24, 1928, for delegate-at-large to the Republican National Convention, and which petition shall be filed by March 5, 1928, in accordance with the primary statutes giving and granting unto the said attorney, Norman B. Wamsher, Norristown, Pennsylvania, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as he might or could do if personally present.”

There is also offered in evidence what is called by the expert on the subject a photo radiogram of an affidavit purporting to have been signed by Ralph Beaver Strassburger and sworn to before William N. Carroll, Vice-Consul of the United States at London, England. The offer of this paper is to be followed by the subsequent filing with the Secretary of the Commonwealth of the original affidavit.

It appears from the evidence that the plaintiff, Ralph Beaver Strassburger, is, and has been, in Europe since Dee. 11, 1926; that, prior to Feb. 17th, he was in telephonic communication with Mr. Wamsher in reference to his becoming a candidate as delegate-at-large to the National Republican Convention, but gave no definite instructions and took no definite steps toward that end until Feb. 28,1928, too late for him to be in the United States before March 5th, the last day for filing nominating petitions.

(a) The first question for our consideration is whether an affidavit of the character required of a candidate may be made by an attorney-in-fact.

The Act of July 12, 1913, P. L. 719, regulates how nomination petitions, containing affidavits made as to the signatures of the signers, shall be signed, and provides, in section 6, in part, as follows:

“(h) Each candidate for any State, county or city office shall file, with his nomination petition, his affidavit stating his residence, with street and number, if any, and his post-office address, his election district, the name of the office for which he consents to be a candidate, that he is eligible for such office, and that he will not knowingly violate any election law or any law regulating and limiting nomination and election expenses and prohibiting corrupt practices in connection therewith.”

Section 8 of said act also provides, in part: “No nomination petition shall be refused or set aside except for (a) material error or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits; or (b) material alterations made after signing, without the consent of the signers; or (o) want of a sufficient number of genuine signatures of persons qualified, with respect to age, sex, residence and citizenship, to be electors. . . .

“If the matters objected to are such as are specified in subdivision (a) of this section, the court, upon hearing the case, may, in its discretion, permit amendments within such time and upon such terms as to payment of costs as the said court may specify.”

Upon the general proposition as to affidavits by attorneys-in-fact, the authorities seem to be conflicting. In 1 Ruling Case Law, “Affidavits,” § 4, page 762, the general rule is stated as follows: “Where a statute points out who may make a certain affidavit, it can be made by none other than those specified, even though there is nothing in the language of the statute to show that- its enumeration was intended to be exclusive. The mere designation itself excludes all others, and the general principle that what a party may do in person he may do by agent has no application here, for the making of an oath to a statement of facts cannot be delegated. Consequently, such statutes as do not in terms expressly authorize an affidavit to be made by an agent or attorney have generally been held to exclude them.”

But in 2 Corpus Juris, “Affidavits,” page 321, it is said: “In the absence of any statute or rule of court to the contrary, it is generally held that an affidavit may properly be made by an agent or attorney having knowledge of the facts sworn to.”

In Sleeper v. Dougherty, 2 Whart. 177, 178, construing the Act of March 28, 1835, P. L. 88, requiring affidavits of defense, it is held that where the act requires the defendant to file an affidavit of defense, it may be taken by some one, other than the defendant, having knowledge of the facts. The court said: “The terms of the act are most guarded. It directs that the defendant shall file, not that he shall make, as well as file, the affidavit.” The case just cited refers to the case of Bryan v. McCulloch, 1 P. & W. 421, where the Supreme Court held that the words of the act there under consideration “peremptorily require the affidavit to be made by the party,” and that, therefore, it could not be made by some one else. The Practice Act of May 25, 1887, P. L. 271, provides that the defendant shall “file an affidavit of defense on or before the return-day.” Such language does not exclude an affidavit by some other than the defendant. It clearly authorizes one having knowledge of the facts to make it: Hunter v. Reilly, 36 Pa. 509, 511; Burkhart v. Parker, 6 W. & S. 480; Griel v. Buckius, 114 Pa. 187, 190; Horsuch v. Fry, 23 Pa. Superior Ct. 509, 511; Safety Banking and Trust Co. v. Conwell, 28 Pa. Superior Ct. 237, 238; Citizens Natural Gas Co. v. Waynesburg Natural Gas Co., 210 Pa. 137. But the Act of 1913 provides that the candidate shall file “his affidavit,” and under the case of Bryan v. McCulloch, supra, we must conclude that the statute means what it says, and if there is any correction to be made the legislature must make it.

There is another reason why the affidavit required by the Act of 1913 cannot be made by an attorney-in-fact. Under this act, the affidavit contains not only the statement of facts as- to residence and eligibility, but also contains the personal promise of the candidate that he will not knowingly violate any election law or any law regulating and limiting nomination and election expenses and prohibiting corrupt practices in connection therewith. It is one thing to file an affidavit as to facts to prevent a summary judgment without trial; it is quite another thing to secure a personal privilege by a promise of moral conduct under oath. How could the attomey-in-faet in this case commit the conscience of his principal to any course of conduct and swear that the candidate will not knowingly violate, in the future, any election law or law regulating election expenses? Where affidavits are authorized to be made by some one other than the principal, they are limited to facts that are past, of which the affiant has knowledge, and not to future conduct. We have not been pointed to any case in which it has been held that such an affidavit can be made by a substitute. There is one ease which seems to clearly indicate that it cannot be so made: Haddon v. Larned, 10 S. E. Repr. 278 (Ga., 1889). In that state, the statute provided: “In all cases where claimants are unable to give bond and security, as now required by law, in claim cases, it shall and may be the privilege of such claimants to file, in addition to the oath now required, an affidavit as follows: ‘I, A. B., do swear that I do not interpose this claim for delay only; that I bona fide claim the right and title to the same; that I am advised and believe that said claim will be sustained; and that from poverty I am unable to give bond and security, as now required by law.”

We quote and adopt the language of that great jurist of Georgia, Chief Justice Bleckley, who has impressed himself upon the jurisprudence of this country, as follows: “By the terms of the statute, it is not the bona fides, the belief or the poverty of an agent that will suffice, but the bona fides, belief and poverty of the claimant; and these must be sworn to positively and not merely according to belief. How can an agent swear positively to the bona fides or belief of his principal? These are moral conditions — conditions of mind and consciousness which cannot be known beyond the limits of the consciousness under examination. This beneficent statute would be open to great abuse were it within the power of any and every claimant to decline swearing to his own mental state, and commit the exposition thereof to his agent, who might or might not be conscientious. The agent would be competent to swear to his own condition of mind positively. But that is not the thing on which the privilege granted by the statute depends. It is the condition of mind of the claimant; as to which the agent could have belief, but not certain knowledge.”

Would either the attorney-in-fact or the principal be guilty of perjury if the principal subsequently violated the election laws or the Corrupt Practice Act? Following the rule of strict construction of criminal statutes, we think they could not. We think it would be very dangerous in principle to stretch the plain language of that statute and hold that such an affidavit could be made by an agent or attorney as well as by the principal. Moreover, we may also say, in passing, that even if such an affidavit could be made by an attorney-in-fact, the proof of authority to make it was lacking and the Secretary of the Commonwealth was justified in refusing it. Where telegrams are relied upon to establish contracts, they must be proved in the same manner as other writings: Reininger v. Besley (Ariz.), 141 Pac. Repr. 574, 575; Oregon Steamship Co. v. Otis (N. Y.), 3 N. E. Repr. 485, 487; Reynolds v. Hinrichs (S. B.), 94 N. W. Repr. 694, 695; Cobb v. Glenn Boom and Lumber Co. (W. Va.), 49 S. E. Repr. 1005, 1008. The affidavit of Chester G. Burden, who says that he is Secretary of the Commercial Cable Company, does not say that Ralph Beaver Strassburger sent, or caused to be sent, the cable which contains a power of attorney; it simply says that what purports to be the power of attorney was received at the office of the Comimercial Cable Company in New York from Paris.

It follows that the Secretary of the Commonwealth was justified in refusing to file the nominating petitions.

(b) Are the petitions amendable? The Secretary of the Commonwealth contends they are not amendable because the statute provides no method of amendment except when objections are filed and that the court has no power to amend in proceedings in mandamus; that our only inquiry is whether or not the secretary was justified in refusing the papers at the time they were refused, and, if so, the petition for a mandamus must be dismissed. We think that construction is too narrow. The election laws must be administered in the interest of the electors.

In the case of Com. ex rel. Phelan v. Secretary of Commonwealth, 5 Dist. R. 662, in a proceeding in mandamus, this court, without discussing the question, permitted an amendment. When the matter is squarely before us in mandamus and we find nomination petitions have been refused for defects that are amendable, we think it is the clear duty of this court to permit such amendments; otherwise, we would not be enforcing the law regulating nominations.

But the question before us now is whether there is anything to amend. If the absence of the candidate’s affidavit is a material error or defect apparent on the face of the paper or “on the face of the appended or accompanying affidavit,” the court may permit the amendment; if it is not, then there is no power to amend. The power to amend has been somewhat liberally construed. Where the candidate has actually made an affidavit, but not exactly in the language of the statute, it may be amended: Abbott’s Nomination, 1 D. & C. 600, So, where the affidavits have been made to some, but not all, of the signatures (Hosenfeld’s Nomination, 23 Dauphin Co. Reps. 148; 29 Dist. R. 510, 620; Morin’s Petition, 19 Dauphin Co. Reps. 182; 26 Dist. R. 760; Lauler’s Petition, 19 Dauphin Co. Reps. 181); where the affidavit was actually made but was defective on its face (Hosenfeld’s Nomination, swpra)); where the attesting magistrate failed to fill up the blank (Com. ex rel. Phelan v. Secretary of Commonwealth, supra); or where the signature of the notary was blurred: Flynn’s Petition, 23 Dauphin Co. Reps. 96; 29 Dist. R. 486. The present case, however, presents no such material error or defect on the face of appended or accompanying affidavits. There is no affidavit made by the candidate. Therefore, there is nothing on the face of an appended or accompanying affidavit to amend.

In Emerick’s Petition, 23 Dauphin Co. Reps. 135, this court held that where the petition was not signed by the required number of qualified electors, there could be no amendment, because to allow an amendment in such a case would be legislation. In effect it would be permitting the filing of a petition subsequent to the last day fixed by the act of assembly for filing such petitions. We think the absence of an affidavit by the candidate is in the same category. There is the absence of an integral requirement to make a valid nomination petition. To supply that requirement after the lást day for filing such petitions would be supplementing the petition and not amending it.

There has been offered in evidence what is called a photo radiogram of an affidavit which purports to have been taken by Ralph Beaver Strassburger before William N. Carroll, Vice-Consul of the United States of America, at London, England, on March 7, 1928. The evidence shows the very interesting way in which the paper offered, purporting to be an affidavit, was taken and signed in London and reproduced in New York. But what is submitted, however refined and scientific we may be in our discussion of it, is nevertheless an enlarged photograph of the paper in London, reduced again for convenience by photographic process to its original size. The signature of Ralph Beaver Strassburger has been proven. What purports to be the signature of William N. Carroll, Vice-Consul, has not been proven or authenticated by any visible seal. There appears to be a very dense, round, black place on the photo radiogram which may have a seal impressed on it, but which does not appear from inspection or examination. In any event, the paper presented to us is in effect a photograph. We could not, under our present laws, receive in evidence a photograph of an affidavit made in Philadelphia if the original is in existence. So we think the photograph, although it may be scientifically called by another name, of the affidavit made in London cannot, under our law as it now is, be legally received.

Be this as it may, we do not base our decision upon the rejection of this paper, but upon the broad ground that the papers presented to the Secretary of the Commonwealth are void and not amendable because they contain no affidavit of the candidate, as required by the statute. It follows that the Secretary of the Commonwealth was right in not filing them.

It is for these reasons that we have heretofore refused the peremptory mandamus and dismissed the petition at the cost of the petitioner.

From Homer L. Kreider, Harrisburg, Pa.


author: Daer, P. J.,

text:
    Afton et ux. v. Hanley & Bird.

      George F. Whitmer, for plaintiffs; W. W. Conrad, for defendants.
    Feb. 23, 1929.
   Daer, P. J.,

This comes before us on an affidavit of defense raising questions of law. The facts material to a proper determination of this case are briefly stated as follows:

The plaintiffs and defendants entered into an oil and gas lease on Oct. 5, 1915, wherein the plaintiffs let and demised the oil and- gas under a tract of land situated in Rose Township, Jefferson County, Pennsylvania, containing 120 acres, more or less. The defendants entered into possession under said lease at the date thereof and remained in such possession until sometime in April, 1926, by and with the consent of the plaintiffs. At this latter date, defendants abandoned and removed from the premises. Under the lease the lessors were to receive for each gas-well producing in paying quantities $150 a year. Said lease provided that it “should become null and void unless operations shall be commenced on the premises and a well completed . . . within 60 days from the date hereof, or unless lessee shall pay at the rate of $120 per year, payable quarterly in advance, . . . for each additional year such completion is delayed; and the completion of such well, whether productive or not, shall entitle the lessee to make a further test, rent free, at any time during the term of this lease.” Said lease further provided “that one well shall release the rental on the one-half of the within leasehold and the second well release the balance from rental.” A well producing gas was drilled and completed on the north half of the 120 acres, but not in sufficient quantities to justify the payment of $150 a year. By agreement dated Oct. 18, 1916, it was agreed that the well so drilled and completed should hold the north half of the farm. Nothing was ever paid after said supplemental agreement was entered into for the postponement of the drilling of a well on the south half of said tract of land. In April, 1928, the lessee plugged the well on the north half of said tract of land and removed all their machinery, fixtures and other property from the said premises. On or about Oct. 2, 1928, the plaintiffs brought suit against the defendant, alleging the defendant was indebted to them for postponement or delay rental on the south half of said tract of land at the rate of $60 a year from Dec. 4, 1917, to April, 1928. We are indebted to defendant’s brief for a concise statement of the facts.

For the purpose of disposing of this case, we will treat the instrument as if it were a lease for the south half of the tract, as the plaintiffs are only seeking to recover rental for the sixty acres. The defendants in their affidavit of defense raising questions of law take the position that: “The lease attached to plaintiffs' claim, marked ‘Exhibit A,’ and made a part thereof, contains no covenants on the part of the lessees to pay rental or develop the lease; that the only penalty imposed upon them for failure to operate the lease or pay delay rental was a forfeiture of their rights under the agreement.” To sustain this position, defendant’s counsel cites the case of Glasgow v. Chartiers Oil Co., 152 Pa. 48. We would rule the case at bar on this authority were it not for the fact that the instant case contains an element which did not appear in the Glasgow case, that is, the element of possession.

Plaintiffs’ statement alleges in paragraph 7 that “the defendants entered into the possession of the premises described in the agreement of lease,” and in paragraph 8 that “the defendants, on the 18th day of October, 1915, until the-day of April, 1928, remained in possession of the premises.” These statements must be found as facts for the purpose of disposing of this affidavit of defense in the nature of a demurrer under the well settled principle that in a demurrer, or affidavit of defense in lieu thereof under the Practice Act, every fact and inference contained in a statement of claim must be taken most strongly against the party who raises such questions of law.

It is not denied that the defendants never drilled a well on the sixty-acre tract. Under these circumstances, after sixty days from the date of the lease and the entry into possession by the defendants, either party might terminate the lease whenever they saw fit to do so; the plaintiffs could have declared a forefeiture or the defendants might have surrendered their lease. Neither did so until April, 1928, so that from the date of the lease and entry into possession up until its surrender in April, 1928, the relation of landlord and tenant subsisted between the parties, the lessees being tenants at sufferance or at will, with this difference, that the lessees might have surrendered possession under the lease or the lessors might have declared a forfeiture.

It is well settled that where the lessee holds over with the consent of the landlord after the expiration of the term or the time when the forfeiture might have been declared, and the lease avoided, as in this case after sixty days, the relation of landlord and tenant continues under the terms provided in the lease. This being the case, the plaintiffs may recover the rental from the date of defendant’s taking possession up to the date of abandonment. In this connection, see Railroad Co. v. Egbert et al., 152 Pa. 53. Accordingly, after due consideration, we decide the questions of law so raised against the defendants.

And now, Feb. 23, 1929, after careful consideration, we decide the question of law raised in the affidavit of defense against the defendants, with leave to the defendants to file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days after the date of this decree, in accordance with section 20 of the Practice Act of 1915.

From Raymond E. Brown, Brookville, Pa.


author: Williams, P. J.,

text:
    Glaes v. Glaes.

      J. R. Evans, D. L. Evans and H. Bartman, for libellant.
    Dec. 13, 1928.
   Williams, P. J.,

The master was selected by authority of the Act of May 8, 1919, P. L. 164-7, Section One (1), P. L. 166, of which says: “. . . the court . . . may, upon motion of either party, appoint a master to take the testimony and return the same to the court, together with a report of the proceedings had before him and his opinion of the case . . .”

It is to be noted the quoted part of the statute is not mandatory; that is,' the court is not required to appoint a master.

The purpose of the ordainment of a master is to spare the judicial tribunal the time-consuming and patience-exhausting task of presiding at hearings and to give the body entrusted with the administration of justice the benefit of the opinion of one learned in law and devoid of interest in the ultimate outcome of the litigation referred to him. Judges do not' appoint masters by reason of motives of liberality or out of desire to help members of the bar secure special compensation. On the contrary, the sole object of the designation of a master in divorce is to insure the.taking of the necessary preliminary steps under the direct supervision of an officer in whom the court has full faith and special confidence.

Hence, it is well within the scope of appointment for a master to make his report in the order of logical sequence. While neither acts of assembly nor rules of court require the master to attach to his report the original papers, nevertheless, since from time immemorial it has been the practice of masters in this district so to do, it behooves every master, if his labor is to reach the aim of designation, to arrange his report in such a way that the statement presented by him may be perused from beginning to end with reasonable succession and continuity. Hit-or-miss compilation of the results of investigation increases the time and effort demanded of a judge for due consideration. The manner in which the instant report is put together suggests hurry and thoughtlessness, if not real carelessness, on the part of the master and defeats, in a measure, the very objective of his appointment.

A more basic and fundamental defect of the report is the complete overlooking by the master of the existence of one of the grounds for divorce set forth in the libel. The officer of the court advises the cause of divorce as alleged in the petition to be cruel and barbarous treatment. Obviously, here is an error of omission on the part 'of the master, who has ignored entirely the charge of indignities to the person contained in the petition. By way of recommendation, the master states the averment of the libel has been sustained. Surely, the recommendation cannot be the result of straight thinking, for the report is silent, both in findings of fact and conclusions of law, as to the ground of indignities to the person of the libellant.

With regret, therefore, the report must be returned to the master. It is suggested he consider carefully the charge of indignities by the respondent to the person of his wife. It is suggested, also, the master report to the court when and by whom the words “and, therefore, forced her to withdraw from his house and family” appearing in the petition were lined out in ink. To say the least, such an informal method of amending a libel in divorce is a curiously interesting novelty. To say more but not necessarily the most, the attempted reformation of the pleading may have been highly improper.

And now, this 13th day of December, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The case is referred back to the master, who will proceed promptly to consummate the suggestions hitherto offered.

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


text:
    Pierce v. Pierce.

      B. A. Freiler and M. J. Byan, for plaintiff.

      B. P. Swank, M. M. Burke and James A. Noecker (now deceased), for defendant.
    Feb. 11, 1929.
   Houck, J.,

This case is now before the court in banc on exceptions by both the plaintiff and defendant to the action of the chancellor. The plaintiff and defendant were married Dec. 16, 1912. On July 5, 1921, certain real estate in Mahanoy City, Schuylkill County, was purchased for the sum of $23,000 and title was taken in the joint names of plaintiff and defendant as husband and wife. On April 14, 1924, on the defendant’s libel alleging adultery, plaintiff and defendant were legally divorced from the bonds of matrimony. On June 4, 1925, plaintiff applied to the Clerk of the Orphans' Court of Venango County for a license to marry Hazelle Fulton Cron, and in the application stated, under oath, that he had never married. After the divorce the defendant collected all the rents and profits derived from the real estate and appropriated them to her own use. The plaintiff’s bill prayed that the defendant be directed to file an account of all rents and profits received by her since April 14, 1924; that defendant be directed to pay over to plaintiff one-half of all rents and profits so received; and that partition and. division of the real estate be made in accordance with the act of assembly. The defendant contended that she paid the entire consideration money for the real estate and that she was induced by the plaintiff to place the title to the real estate in the names of plaintiff and defendant by a parol agreement made with her by the plaintiff that in the event of his proving unfaithful to his marriage vows, he would not make any claim at any time for any portion of, or any interest in, the real estate and would reconvey all his right, title and interest in said property to defendant. On these averments the defendant prayed, inter alia, that the plaintiff be directed and required to execute and deliver to her a good and sufficient deed conveying any and all right, title, interest, property, claim and demand of said plaintiff in said real estate. The chancellor dismissed the bill at the costs of the plaintiff.

The plaintiff filed exceptions to the chancellor’s 5th, 7th, 14th, 15th, 16th and 17th findings of fact; to the chancellor’s refusal to find plaintiff’s 4th, 11th and 13th requests for findings of fact; to the chancellor’s 2nd, 3rd, 4th, 5th and 6th conclusions of law; to the chancellor’s failure to answer substantially the plaintiff’s 2nd, 3rd, 4th, 5th, 6th, 7th and 8th requests for conclusions of law; and to the decree nisi.

The defendant filed exceptions to the failure of the chancellor to answer substantially defendant’s 5th and 6th requests for conclusions of law; to the decree nisi; and to the chancellor’s refusal to sustain defendant’s request for relief by directing the plaintiff to execute and deliver a deed for plaintiff’s interest in the real estate to the defendant.

The chancellor’s findings of fact excepted to by the plaintiff are to the effect that the defendant paid in full the consideration money involved in the purchase of the real estate; that the plaintiff at the time and shortly before the purchase of the property agreed with the defendant by parol that he would not make any claim for any interest in the property and would reeonvey all his interest to defendant in the event of his proving unfaithful to his marriage vows; that this promise was an inducing cause in placing the title of the property in the names of plaintiff and defendant; that plaintiff was not present at the time of the payment of the consideration money and the delivery of the deed; that he did violate his parol agreement respecting his fidelity to his wife; and that he did state, under oath, in an application for a marriage license on June 4, 1925, that he had “never married,” this answer appearing in the application in the space requiring him to give the date of death of his former wife and also in the space after “date of divorce and cause.” All of these findings of fact are fully supported by the evidence in the case. Therefore, the plaintiff’s 1st, 2nd, 3rd, 4th, 5th and 6th exceptions are dismissed.

The plaintiff’s 7th exception complains of the refusal of the chancellor to find plaintiff’s 4th request for finding of fact, as follows: “4. That on July 5, 1921, plaintiff and defendant purchased the premises described in the bill for the sum of Twenty-three thousand ($23,000.00) dollars, taking title thereto in their joint names as husband and wife.” The chancellor found that the consideration money was paid by the defendant; that the title was taken in both names; and that plaintiff and defendant took title by entirety. These findings are proper and state the real situation correctly. The plaintiff’s request is misleading, and we refuse to find the facts alleged. This exception is dismissed.

The plaintiff’s 8th exception is to the chancellor’s refusal to find plaintiff’s 11th request for finding of fact as follows: “11. That to purchase said premises, plaintiff and defendant, inter alia, borrowed Five Thousand ($5000.00) Dollars from Mrs. M. Seivert and Eight Thousand Five Hundred and Fifty ($8550.00) Dollars from Mrs. Christiana Knoblauch, giving their joint judgment notes therefor.” The evidence shows that of the consideration money paid for the real estate by the defendant, $5000 was lent to the defendant by her aunt, Mrs. M. Seivert, and $8550 was lent to the defendant by her mother, Mrs. Christiana Knoblauch. All of this money was deposited in the joint account of plaintiff and defendant, and the purchase price of the premises was paid by check out of the joint bank account. The chancellor has found this as a fact, and we refuse to find the plaintiff’s 11th request, since it does not correctly state the facts. The 8th exception is dismissed.

The plaintiff’s 13th request for findings of fact reads: “13. That the purchase price of said premises was contributed jointly by plaintiff and defendant.” This request is refused because the entire consideration money, as found by the chancellor, was paid by the defendant. The plaintiff’s 9th exception is dismissed.

The plaintiff’s remaining exceptions, which are directed against the chancellor’s conclusions of law and his failure to answer substantially plaintiff’s requests for conclusions of law and against the decree nisi, together with the defendant’s exceptions, all raise questions of law which in the final analysis are determinative of the issue here involved.

The chancellor has found as a fact, and also has concluded as matter of law, that plaintiff and defendant took title to the real estate as tenants by entire-ties. This finding and conclusion is not excepted to by either party. Having become tenants by entireties, it is immaterial, except as bearing on the other features of the case, how the consideration money was paid. The character of the tenancy became fixed at the inception of the title, and it can' scarcely be contended that the defendant did not intend to make her husband a joint holder of the property. Depositing the money in the joint account of plaintiff and defendant constituted a gift from the defendant to her husband: Blick v. Cockins, 252 Pa. 56; Gassner v. Gassner, 280 Pa. 313. It is quite apparent that this was the real intention of the parties at the time the transaction took place. The parties being tenants by entireties, thfe plaintiff contends (O’Malley v. O’Malley, 272 Pa. 528; Gasner v. Pierce et al., 286 Pa. 529) that the tenancy was not affected by the divorce (with which we agree), and that both parties are entitled to the rents and profits equally, and, further, that, under the Act of May 13, 1925, P. L. 649, the plaintiff is entitled to a partition and division of the proceeds of the sale of the real estate. The Act of 1925 cannot apply to estates created prior to its passage. If construed retroactively, it would be unconstitutional: Hetzel v. Lincoln, 216 Pa. 60; Cairns v. Spencer et al., 87 Pa. Superior Ct. 126, 128; Ebersole v. Goodman, 7 D. & C. 605; Clements v. Kandler, 9 D. & C. 310. Therefore, the Act of 1925 has no application in this case and the plaintiff is not entitled to a partition.

On the question of a division of the rents and profits, the theory of the plaintiff is that the division follows as a necessary incident to the tenancy by entireties and that evidence of a parol agreement made before and at the time of the execution of the deed, which agreement would virtually destroy the tenancy created, is immaterial and irrelevant. Hence, the plaintiff would have the court disregard the evidence of the parol agreement, and, as a natural consequence of the tenancy created, decree a division of the rents and profits. The theory of the defendant is that evidence of a parol agreement is admissible even though its effect is to destroy the tenancy created, and that, as a natural consequence of the chancellor’s finding that the agreement was in fact made and broken, the court should refuse to divide the rents and profits and should decree a reconveyance of plaintiff's claim and interest in the réal estate to defendant. The chancellor rejected both theories. He declined to aid the plaintiff by decreeing a division of the rents and profits, and he also declined to decree a reconveyance by plaintiff to defendant. We are convinced that the chancellor’s disposition of the case is correct.

Parol evidence, the effect of which is to alter or modify a writing, may be, under some circumstances, admissible. Such evidence, however, is not admissible if its purpose is to show that the writing was a mere nullity or where its effect would be, not to vary the written instrument but to nullify and destroy it: Second National Bank of Reading v. Yeager, 268 Pa. 167; Evans v. Edelstein et al., 276 Pa. 516; First National Bank of Hooversville v. Sagerson et al., 283 Pa. 406. If the authorities stopped with this doctrine, the force of the plaintiff’s contention would be apparent. But there is another principle which we believe is applicable here. Where the writing is induced upon a promise given at the time and honestly intended to be kept, so that there was no fraud at the inception, the broken promise may be set up as a defense because the person attempting to use the writing in violation of his promise, without which the writing would not have been given, is guilty of a fraud: Gandy v. Weckerly, 220 Pa. 285. In that case, the Supreme Court said (page 291) : “The error into which the Common Pleas and Superior Court fell was in failing to distinguish the defense of this appellant on a broken promise which induced him to sign the obligation, and without which he would not have signed it, from that of an attempt to impeach a written instrument by showing a parol contemporaneous agreement varying and contradicting it, without allegation or proof of the omission of such parol agreement from the written one by fraud, accident or mistake. That the defense here made, if supported by proper proof, must prevail is not to be regarded as an open question.” To pave the way for such oral testimony it is not necessary to prove a party was actuated by fraudulent intent at the time of the execution of the writing. Although his original object may have been perfectly honest, if to procure an unfair advantage to himself he subsequently denies the parol qualification of the written contract, it is such fraud as will permit the reception of the evidence: Potter v. Grimm, 248 Pa. 440, 446. See, also, Croyle v. Cambria Land and Improvement Co., 233 Pa. 310; Excelsior Saving Fund and Loan Ass’n v. Fox, 253 Pa. 257; First National Bank of Pittston v. Lawall, 280 Pa. 407; Martz v. W. H. Wilcox Co., 57 Pa. Superior Ct. 169. Evidence of this character is admissible even where the writing in question is a deed: Perkiomen R. R. Co. v. Bromer, 217 Pa. 263.

In our opinion, evidence of the parol agreement between plaintiff and defendant, which induced defendant to have the title to the real estate placed in the names of plaintiff and defendant, was admissible, not for the purpose of reforming the deed but as a defense to the plaintiff’s claim for a division of the rents and profits. The chancellor has found, on competent evidence, that the parol agreement was an inducing cause in placing the title of the property in both names and that the defendant broke the parol agreement. Therefore, the defendant had a valid defense to plaintiff’s claim.

In O’Malley v. O’Malley, supra, an action in assumpsit between divorced parties for an accounting of the rents of a property which they held as tenants by entireties, the court said (page 534): “If a fund consisting of the rents of such a property was before a court for distribution . . . and no other equity intervened, the court would unhesitatingly divide the net rents between the former husband and wife in equal shares.” Other equities have intervened in the case at bar. In view of plaintiff’s oral agreement and his subsequent breach of that agreement, it would be manifestly inequitable to permit him to reap any benefit from the deed, which his promise induced, after he broke his promise. Such use of the deed would be a fraud. In addition to this, plaintiff does not come into court with clean hands. The maxim of clean hands should not be applied where an inequitable result would be reached, and is to be applied where the wrongdoing is in reference to the matter in dispute: Comstock v. Thompson, 286 Pa. 457. If the party has violated good conscience, good faith and fair dealing, he is not entitled to equitable relief: Schaeffer v. Jones et al., 293 Pa. 529. The evidence in this case shows that plaintiff agreed not to make any claim for any interest in the property if he was unfaithful to his marriage vows; that he proved unfaithful, and that a divorce was granted the defendant. It seems to us clear that plaintiff violated good faith and fair dealing in reference to the matter here in dispute, and his own conduct defeats his right to equitable relief.

The chancellor having determined that the plaintiff is not entitled to equitable relief, the defendant contends that equity should complete the circle and decree a reconveyance from plaintiff to defendant. The contention is that plaintiff is a trustee ex maleficio. We have already pointed out that the evidence relative to the parol agreement was admissible to establish a defense to the plaintiff’s claim, but not to nullify and destroy the deed. “It will be observed that the evidence was not offered for the purpose of reforming the contract between the parties. Had it been, it must have been rejected as wholly insufficient for the purpose. Admittedly, both parties knew exactly what the deed of release contained, and all that it contained, before it was signed and sealed. This left no possible ground for reformation:” Croyle v. Cambria Land and Improvement Co., 233 Pa. 310, 314. In order to make one a trustee ex maleficio, there must be fraud at the inception of the title. Fraud subsequently committed will not create a trust: McCloskey v. McCloskey, 205 Pa. 491; Seif v. Muse, 70 Pa. Superior Ct. 487. “True, trusts ex maleficio arise by implication or construction of law and are excepted out of the operation of the statute; but no rule is better established than that a trust ex maleficio can arise only at the inception of the title, from fraud when practiced in obtaining it:” Turney v. McKown, 242 Pa. 565. The only fraud attempted to be shown in this case is plaintiff’s breach of his parol agreement which occurred long after the inception of the title, and it is also contended that plaintiff is attempting to make fraudulent use of the deed which was induced by his promise, which he subsequently broke. Fraud of this character is not sufficient on which to base a decree for reconveyance by plaintiff to defendant. “Despite what was said in early Pennsylvania cases, it has been stated, and we now repeat, that a breach of faith or of an agreement regarding the doing or refraining from doing something in the future is not fraud, as that word is employed in the phrase ‘fraud, accident or mistake;’” First National Bank of Hooversville v. Sagerson et al., 283 Pa. 406, 411. See, also, Modern Baking Co. v. Orringer et al., 271 Pa. 152, and Fidelity Title and Trust Co. v. Garland et al., 291 Pa. 297. It follows that the chancellor did not err in refusing to decree a conveyance of plaintiff’s claim and interest in the real estate to defendant.

We conclude from the foregoing that the decree nisi is correct. All of the exceptions, plaintiff’s and defendant’s, are without merit, and, hence, are dismissed.

Final decree.

And now, Feb. 11, 1929, upon due consideration, it is finally ordered, adjudged and decreed that the plaintiff’s bill be dismissed and that the costs be paid by the plaintiff.


author: Groff, J.,

text:
    Harrisburg Specialty Company, to use, v. Reed Stores, Inc.

      Charles G. Baker, for plaintiff; K. L. Shirk, for defendant.
    Jan. 19, 1929.
   Groff, J.,

— This is an action of assumpsit brought by the Commonwealth Trust Company of Harrisburg, Pa., use-plaintiff, to recover from the defendant, Reed Stores, Inc., the sum of $2633.23 balance due on a book account, which was assigned to plaintiff by the Harrisburg Specialty Company by a writing dated March 27, 1928.

The defendant, instead of filing an affidavit of defense to the merits, files an affidavit of defense raising questions of law. We think there is no virtue in any of the questions raised by the affidavit of defense.

The principal question that defendant raises is in the second paragraph of his affidavit.

“Plaintiff’s statement avers an action by the assignee of a book account, claimed on an assignment, which is shown to be as collateral security for a loan, and avers that the assignment is as collateral as shown by Exhibit “E” attached to plaintiff’s statement, without any averment that recourse has been had against the principal debtor and the loan proven uncollectible.”

The assignment, a copy of which is attached to plaintiff’s statement and marked “Exhibit D,” shows that the assignment from the Harrisburg Specialty Company, Inc., to the use-plaintiff, is an absolute assignment, and whether it is or not could make no difference in this proceeding.

It has been the well-settled law in Pennsylvania for at least 100 years that the holder of collateral security for a debt may proceed to collect his debt from the collateral without first resorting for the payment to the original debtor: Lishy v. O’Brien, 4 Watts, 141.

In Provident Life and Trust Co. v. Gratz, 271 Pa. 133, in the opinion, at page 139, the court says this: “The holder of a collateral note may, at his option, sue upon the note without attempting to realize upon the collateral (Harper v. Lukens, 271 Pa. 144), or proceed upon the collateral without taking action upon the note: Lishy v. O’Brien, 4 Watts, 141. The agreement as to the collateral authorizes, but does not compel, the company to collect the loan out of the policy in case of default. ‘The collateral security stands by the side of the principal promise as an additional or cumulative means for securing payment of debt.’ ”

A book account is not like a chattel that is held as collateral security and which must be sold and the proceeds applied to the original debt, but it is such a chose in action that suit can be brought upon at once, and plaintiff, therefore, had a right to proceed in the collection of the same under the authorities above cited: Trust Co. v. Haser, 199 Pa. 17; Union Trust Co. v. Rigdon, 93 Ill. 458; Stegmaier v. Keystone Coal Co., 225 Pa. 221.

Whether the original debt was paid or not, assuming that this assignment is collateral, is not a question involved in this case, either directly or indirectly. Whether the plaintiff, if it should recover the whole amount of its judgment, should be permitted to retain the same is not a question that involves the defendant in any manner whatsoever. If the book accounts are held simply as collateral, and that was the understanding between the pledgor and pledgee, the plaintiff will have to account as trustee to the assignor or any other legal claimant for the surplus profits. This will be an entirely different proceeding if there is a liability to account.

We, therefore, decide the questions of law raised in the affidavit of defense against the defendant and direct it to file an affidavit of defense on the merits within fifteen days from the filing of this opinion.

Prom George Ross Eshleman, Lancaster, Pa.


author: Iobst, J.,

text:
    Grand Lodge Fraternal Order of Police v. Eureka Casualty Co.

      Harvey H. Steckel and Daniel J. McCarthy, for plaintiff.

      Dillinger & Schneller, for defendant.
    March 18, 1929.
   Iobst, J.,

This is a petition for more specific statement of claim. Plaintiff brings its action on a policy of indemnity to recover the loss sustained by the fraud and dishonesty of its employee. In the policy plaintiff agrees that any failure on the part of the principal to account for moneys and property received by him and coming to the knowledge of plaintiff’s officials “will be immediately reported to the defendant company at its home office ... by registered letter;” and that “there shall be no liability on this bond for any act or acts of the principal committed after the executive officials . . . shall have become aware of any act which may be made the basis of a claim hereunder.” The plaintiff should set forth the exact date when it first learned of the failure on the part of the principal to account for moneys and property received by him belonging to the plaintiff; how much he fraudulently withheld at that time; and whether any further acts of dishonesty occurred after notice or knowledge thereof was had by plaintiff of the fraud practiced upon it by its employee. To this extent, the plaintiff is to amend his statement of claim. At the argument, counsel for plaintiff offered to amend paragraph four of its statement. This may be done.

Decree of Court.

Now, March 18, 1929, leave is granted to plaintiff to amend its statement of claim as indicated in the opinion, whereupon the defendant is to file his affidavit of defense within fifteen days after service thereof.

From Edwin L. Kohler, Allentown, Fa.


text:
    Haverford School District, to use, v. Jones-Redditt Co. et al.

      Kirchner, Mitchell & White, for plaintiffi; P. D. Zentmyer, for defendants.
    June 13, 1929.
   Martin, P. J.,

The defendant, Jones-Redditt Company, signed a written contract to construct a school building for the School District of Haverford Township.

John E. Krausse agreed in writing to furnish Jones-Redditt Company bricks for the construction of the building. The Southern Surety Company of New York executed a bond as surety for Jones-Redditt Company containing a condition that if Jones-Redditt Company, as “principal, shall pay for all labor and materials which may be furnished to said principal in and about, or for and toward, any and all work comprised by and necessary for the completion of said contract, or which may enter into the construction of the subject-matter of said contract, then this obligation shall be void and of no effect, otherwise to continue in full force and virtue.” It was expressly agreed in the bond that “any person, firm or corporation furnishing labor and materials as aforesaid and not paid therefor may sue on this bond in the name of the owner for his, their or its use.”

H. C. Carroll & Sons furnished to John E. Krausse bricks that entered into the construction of the school building. Jones-Redditt Company refused to pay H. C. Carroll & Sons for the bricks. Suit was instituted on the bond in the name of the School District, to the use of H. C. Carroll & Sons, against Jones-Redditt Company, principal, and the Southern Surety Company, surety.

The affidavit of defense in the nature of a demurrer filed by the defendants suggests that the statement of claim is insufficient because no copy of the agreement between Jones-Redditt Company and the school district is attached to the statement; that it is not alleged in the statement of claim that the bricks were delivered to Jones-Redditt Company; and that the bond created liability only when there was a failure of the principal to pay for all labor and materials furnished to the principal “in and about, or for and toward, any and all work comprised by and necessary for the completion of said contract, or which may enter into the construction of the subject-matter of said contract.”

This suit is by Carroll & Sons against Jones-Redditt Company and the Southern Surety Company of New York. There is no necessity for attaching to the statement of claim a copy of the contract between Jones-Redditt Company and the school district, or a copy of the agreement between Jones-Redditt Company and John E. Krausse.

The Practice Act requires a litigant to attach to his pleadings only such writings as he relies on for his claim or defense: Merion Township School District v. Evans, 295 Pa. 280.

The Act of May 6, 1925, P. L. 546, directs school districts, in the erection of public buildings of any kind, to require the contractor to give a bond providing for the payment of all labor and materials entering into the improvement.

The bond in the present case was executed by defendants in compliance with the requirement of the law. The obligation was to become void and of no effect if payment was made by the principal for all labor and materials furnished to the principal in and about, or for and toward, any and all work comprised by and necessary for the completion of the contract, or “which may enter into the construction of the subject-matter of said contract.” Otherwise the obligation of the bond continued.

In Merion Township School District v. Evans, 295 Pa. 280, the bond was conditioned that the contractor promptly pay, or cause to be paid to any and all persons, any and all sum or sums of money due for labor or materials done, performed or supplied upon, in or about the building or work. It was held that the bond inured to the benefit of those who furnished labor and materials which entered into the construction of the building, and that such persons had the right to sue in the name of the school district to their use.

The wording of the bond in the present case is different from that in the case of Merion Township School District v. Evans, supra, but the purpose of the bond in both cases was to protect those who furnished labor and materials that entered into the construction of the school building, whether furnished to the principal contractor or otherwise. '

And now, to wit, June 13, 1929, the affidavit of defense raising questions of law is not sustained. The defendant is given fifteen days to file a defense to the averments of fact in the statement of claim.


text:
    William Steele & Sons Co. v. Dairy Maid Confection Co.

      Wolf, Bloch, Schorr & Solis-Cohen, for plaintiff.

      G. T. Steeley, for defendant.
    June 7, 1929.
   Martin, P. J.,

Plaintiff agreed to prepare plans and specifications for a building to be erected by defendant, the plans and specifications to be submitted to defendant for approval, and, when approved by him, plaintiff was to procure estimates. If defendant decided to abandon the construction of the building after the plans and specifications were prepared and approved and estimates procured by plaintiff, it was agreed that defendant would pay plaintiff 5 per cent, on the total of the estimates submitted.

Defendant abandoned the project of erecting the building. Plaintiff demanded the commission. When defendant failed to pay, this suit was instituted.

A statement of claim was filed, to which was attached a copy of the written agreement.

It was averred in the statement of claim that plaintiff prepared a complete set of plans and specifications, procured competitive estimates for the work to be performed, amounting to $83,754, which were submitted to defendant, and, at his request, plaintiff procured a check-up on the contracts figured by reliable general contractors that proved the figures submitted by plaintiff were fair and reasonable; that defendant informed plaintiff the price was more than he wished to spend, and inquired whether the cost could not be reduced by designing a less expensive type of structure; in accordance with which request plaintiff designed another building and revised the estimates, reducing the cost to $57,000, which, when submitted to defendant, he “orally advised” plaintiff that he had concluded to do nothing and determined not to proceed with the matter further.

Plaintiff claims $4187.70, being 5 per cent, of the estimates submitted to defendant.

An affidavit of defense was filed, averring that the statement - of claim is insufficient; that it is vague and indefinite; that it does not allege that the plans and specifications were delivered to defendant and approved by him, or that they were completed and approved by defendant before plaintiff procured the estimates; that the statement fails to allege a valid verbal agreement tp revise the plans and specifications, or that the revised plans and specifications were completed by plaintiff and accepted by defendant; that there is no averment of an agreement to compensate plaintiff for the plans and specifications prepared under the oral contract; that the claim should have been based upon $57,000, instead of $83,754; and, generally, that the statement of claim does not set up a legal cause of action.

After the plans and specification were completed and approved by defendant, plaintiff was to procure competitive estimates and the lowest responsible bids, together with the estimates for the work to be done by plaintiff, were to be submitted to defendant as a total lump sum contract figure; and upon completion of the plans and specifications, and after the submission of the contract figures to defendant, if defendant desired, plaintiff was to procure a complete check-up on the contract figures from a reliable general contractor, and if the checked figures were lower than the contract prices submitted, plaintiff was to be compensated by 5 per cent, commission on the lower -figures.

There was no provision in the agreement requiring plaintiff to deliver to defendant the plans and specifications, but they were to be approved by him, and after the plans and specifications had been approved, the plaintiff was to procure the competitive estimates.

It is averred in the statement of claim that when the estimates were submitted, defendant orally “advised” a representative of plaintiff that the price was more than he wished to spend, and “inquired” as to whether the cost could be reduced by designing a less expensive type of structure; and that, in accordance with “that request,” plaintiff designed another building' and revised the estimate to cost about $57,000; and when submitted to defendant, he orally “advised” plaintiff he had concluded to do nothing at that time and determined not to proceed with the matter further.

The agreement to pay plaintiff 5 per cent, commission on the estimates submitted to defendant if the project was abandoned was not superseded by the preparation of the second set of plans. Neither set of plans was accepted by defendant. After the plans and specifications had been completed and approved by defendant, plaintiff was to procure competitive estimates and submit them to defendant “as a total lump sum contract figure.”

It is not alleged that the estimates were procured after the plans and specifications had been approved by defendant. The payment to plaintiff of a 5 per cent, commission on the total amount of the estimates submitted related to estimates procured after plans and specifications had been approved by defendant. The estimates obtained by plaintiff were not upon plans approved by defendant. Plaintiff failed to comply with the terms of the contract. The statement of claim does not set out a legal cause of action that entitles plaintiff to a commission based upon the estimates he obtained.

And now, to wit, June 7, 1929, the affidavit of defense raising questions of law is sustained. Plaintiff is granted leave to file an amended statement of claim within fifteen days.