text:
    Taylor v. Penrose Motor Company et al.

      B. J. McCracken, for plaintiff; B. K. Wolfe, for defendants.
    July 8, 1929.
   Alessandroni, J.,

The plaintiff brings a bill of complaint to compel the defendants to file an accounting of the assets and liabilities of the Penrose Motor Company prior to Nov. 1, 19-25, and demanding that the plaintiff’s claim as a creditor be set forth in the accounting. It is demanded that the defendant, Esslinger, be commanded to pay the plaintiff such sum as shall appear owing to her by the accounting. Upon consideration of the bill, answer to the bill, answers to interrogatories taken before a commissioner and the testimony produced on the hearing, the court makes the following

Findings of fact.

1. The Penrose Motor Company is a corporation organized under the laws of Pennsylvania, engaged in the business of buying and selling automobiles and having a show-room and place of business at No. 3722. Walnut Street, Philadelphia, Pa., from some time prior to August, 1925, to May 12, 1926.

2. The defendant, George F. Esslinger, is president and treasurer of the Penrose Motor Company, owning one-half of the capital stock, and John F. Penrose is vice-president, owning the other half of the capital stock, and Benjamin N. Schwartz is the secretary. These individuals, have been the only officers, directors and stockholders of the Penrose Motor Company since some time prior to August, 1925.

8.On Oct. 29, 1925, the plaintiff started suit against the Penrose Motor Company on a contract alleged to have been made with one Curry as agent, upon which the defendants denied liability.

4. On or about Dec. 1, 1925, the defendants held a meeting of the stockholders and directors. It appearing impossible to continue the business at a profit, they resolved to gradually liquidate the business of the company, pay its debts and wind up its affairs. In pursuance of this resolution, the defendants proceeded to liquidate their assets and by May 12, 1926, had completed the liquidation and closed the business.

5. Just prior to December, 1925, the defendant Esslinger advanced $7000 to the corporation as a loan in order to facilitate liquidation and obtain better prices for the assets. By means of this advance, creditors were paid and more money realized on the liquidation.

6. All the creditors of the Penrose Motor Company, except the plaintiff, were paid the full amount due them. The defendants refused to pay or consider plaintiff’s claim, believing she had no legal right against them,

7. From time to time as the liquidation went on, advances made to the Pen-rose Motor Company by Penrose and by Esslinger were repaid in full. On Dec. 22, 1925, Penrose received $500. Esslinger received on account of advances made by him the following sums:

Dec. 16, 1925, $2000; Jan. 9, 1926, $1200; Jan. 15th, $400; March 15th, $100; March 30th, $750; April 12th, $25; April 15th, $25; April 16th, $70; April 21st, $50; May 12th, $350; May 28th, $30. Total, $5000.

8. On March 31, 1927, the plaintiff recovered a judgment in Common Pleas No. 1 of Philadelphia County, in her action against the Penrose Motor Company, in the sum of $1739.30, from which no appeal was taken and from which no appeal is now possible.

9. On June 30, 1927, the plaintiff issued a fi. fa. on the judgment against the Penrose Motor Company, which writ was returned by the sheriff, who stated that property of the Penrose Motor Company sufficient to satisfy the plaintiff’s judgment could not be found.

10. The plaintiff thereupon brought this bill, but as Penrose and Schwartz were out of the jurisdiction they could not be joined as defendants.

11. No application has ever been made for the legal dissolution of the Pen-rose Motor Company nor for the appointment of a receiver for that purpose, nor has its existence been brought to an end by quo warranto proceedings or by expiration of its charter.

Discussion.

The plaintiff contends that on the date when the officers and directors of the corporation resolved to liquidate the business of the corporation the Penrose Motor Company suffered “a legal death,” and that the assets of the company immediately comprised a trust fund which was available for pro rata distribution amongst the creditors; and that the preferences accorded the other creditors of the Penrose Motor Company and the officers of the corporation were void as to the plaintiff.

At the time the directors of the Penrose Motor Company resolved to liquidate the business, money was advanced by Esslinger in order to effect a saving in the liquidation. Even under these circumstances insufficient funds were realized to pay all claims against the Penrose Company. Under the authority of Mueller v. Fire Clay Co., 183 Pa. 450, insolvency is defined as follows: “Insolvency generally signifies insufficiency of assets when turned into money to discharge existing indebtedness.” Clearly, if by judicious liquidation the funds realized from the sale of the assets were not sufficient to pay existing indebtedness, liquidation of an immediate nature would have resulted in greater insufficiency. It is, therefore, concluded that at the time liquidation was started the Penrose Motor Company was insolvent. The plaintiff has cited but one case in support of her contention that the Penrose Motor Company had suffered “a legal death,” which is Pocono Ice Co. v. American Ice Co., 214 Pa. 640. This case merely decides that under the Act of May 21, 1881, a corporation can maintain or defend a suit even though its charter has expired or its property franchise had been sold under execution.

Neither situation .appears here. The property of the Penrose Motor Company was still in the hands of its officers and its charter had not expired nor had it been sold. A mere resolution to liquidate a business does not cause its legal death. It is still existent and its officers are not precluded from exercising their authority.

Under the authorities in Pennsylvania, a corporation may prefer creditors the same way that an individual can. As stated in Cowan v. The Pennsylvania Glass Co., 184 Pa. 1: “As long as a corporation held possession of its property, that is, before the appointment of a receiver, it might prefer creditors the same as an individual, with this distinction, that if the preferred creditor was an officer, the burden was on him to show that the preference was in all respects fair and conscionable, and that it was not collusive, for the mere purpose of preference, but under the circumstances was just.” In the case of Mueller v. The Fire Clay Co., supra, it is stated: “It is the settled law of this Commonwealth, that an insolvent debtor, whether corporation or individual, may prefer bona fide creditors. .'. .” Accord, Morawetz on “Corporations,” § 787. The authorities are too numerous to quote to sustain the proposition that preferences given bona fide creditors are valid and legal. Therefore, as to the funds paid the bona fide creditors of the Penrose Motor Company, other than its officers, no objection can now be made by the plaintiff. She has no right to question such preferences, nor can she compel an accounting and share in such funds.

The real question involved in this case is found in the distribution of the remaining funds realized from the sale of the corporation’s assets to the officers. The defendants felt that their defense to the plaintiff’s action at law was reasonable and just and would result in a verdict in their favor. For that reason the claim of the plaintiff was not considered as an indebtedness of the Penrose Motor Company when its affairs were being settled. Unfortunately, this conclusion was erroneous and the judgment obtained by the plaintiff against the Penrose Motor Company firmly establishes her status as a creditor of the corporation at the time liquidation was started.

The-question, therefore, is, may the officers of a corporation, who are also its creditors,- prefer their claims to those of another creditor of the corporation? There is no doubt that Penrose and Esslinger acted in good faith in applying the balance of the funds realized to their accounts. As to the $500 obtained by Penrose, he is not made a party to this suit, and, therefore, cannot be compelled to account. There being no evidence of negligence or mala jtides on the part of Esslinger, he cannot be held liable to account for the $500 paid to Penrose. The sole question in this case is concerned with the $5000 paid to Esslinger on account of his advance. In the case of Hill v. Standard Telep. Manuf. Co., 198 Pa. 446, a factual situation almost identical to that involved in the case at bar arose. The directors voted to confess judgment to themselves and make payment by a conveyance of the property of the corporation. The directors were ordered to file an accounting, on the ground that the property was held in trust for all the creditors. In Pangburn v. The American Vault Co., 205 Pa. 83, the directors of a solvent corporation advanced money to the corporation for the purpose of paying an obligation of the company without any understanding or agreement that they were to be protected, and it was held that later, when the company was insolvent and they had knowledge of it, they could not secure a priority over general creditors. The directors of the corporation in that case relied on the authority of Cowan v. The Pennsylvania Glass Co., 184 Pa. 1, and were not supported. Esslinger in this case relies upon the same authority, but the Cowan case simply decided that where a director advanced money to a corporation on condition that his claim should be preferred, the preference will not be disturbed, although it afterwards proves that the corporation was insolvent at the time. The decision rests on the theory that a preference under such circumstances is fair.

In the case at bar, there was no such understanding and Esslinger had no legal authority or justification for preferring his claim to that of the plaintiff, regardless of the bona fides of the motive of Esslinger. He is simply a creditor of the corporation and under the authorities cannot prefer his claim. In Moller v. The Fibre Co., 187 Pa. 553, the directors of an insolvent corporation, by means of an assignment, preferred their claims to those of other judgment creditors. The court stated: “No case has come under our notice in which a director and creditor nf an insolvent corporation has been allowed by his own vote to obtain a preference for his claim over the claims of other creditors. The weight of authority in this country is certainly against such a preference.”

This view is supported by Mueller v. The Fire Clay Co., supra, and Kersteter’s Appeal, 149 Pa. 148, 154. The only exception to this rule that is found in the Pennsylvania authorities is the situation presented in Cowan v. The Penna. Glass Co., supra, and in that case, as shown above, the advance made was with the distinct understanding that the director so advancing the money was to receive a preference. No such understanding appears in this case, and the defendant Esslinger must, therefore, file an accounting showing the money due him and the money'repaid, so that he may share pro rata with the plaintiff. Any other decision would create a dangerous precedent.

All of the seventeen requests for findings of fact presented on behalf of the plaintiff are affirmed. Of the eight requests for conclusions of law presented on behalf of the plaintiff, the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th are affirmed. The 6th is refused.

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

Conclusions of law.

1. A corporation has the right to prefer its creditors the same as an individual, and, therefore,-the preferences given to the creditors of the Penrose Motor Company were proper and according to law.

2. Officers of a corporation who are general creditors of a corporation may not prefer their claims to those of the corporation’s general creditors.

3. The plaintiff was a creditor of the corporation at the time liquidation started and has a right to share with the officers of the Penrose Motor Company in the balance of its assets which were applied on account of the balance due Esslinger.

4. The sum of $5000 repaid to Esslinger comprises a trust fund in which Esslinger and the unpaid creditors of the Penrose Motor Company must share pro rata.

5. That Esslinger is liable to account individually to the plaintiff for her proper share of the assets of the Penrose Motor Company.

6. That the defendants pay the costs of this proceeding. '

It is ordered, adjudged and decreed that George F. Esslinger file a full, just, complete and true account of the assets, liabilities, receipts and disbursements of the said Penrose Motor Company, commencing at the last financial statement made by its treasurer prior to Nov. 1, 1925, in which the claim of Thalia C. Taylor shall be included, the amount of the judgment obtained by her, together with interest and costs to the date of such account. That, upon the ascertainment of the amount due the said Thalia C. Taylor, as aforesaid, the said George F. Esslinger is hereby ordered and directed to pay forthwith such sum as in said account shall appear to be due her. It is further ordered that the said account be filed within thirty days from the entry hereof.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Commonwealth v. Salyards.

      Stewart M. Cunningham, for plaintiff.

      Charles B. Prichard and John C. McGinnis, for defendant.
   Gray, J.

The relator seeks to have the respondent ousted from office as a councilman of the Borough of Pitcairn. The suggestion alleges that the respondent, when he was a councilman of the Borough of Pitcairn, became one of a number of sureties on the bond of the treasurer of said borough, and the relator, therefore, asserts that under section 66 of the Act of Assembly of March 31, 1860, P. L. 400, respondent has forfeited his office of councilman. Section 66 of said act of assembly reads as follows:

“Incompatible offices — Officers not to be interested in contracts. It shall not be lawful for any councilman, burgess, trustee, manager or director of any corporation, municipality or public institution, to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom, or be the surety of such officer, nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality or institution, and his office or appointment thereunder, and shall be held guilty of a misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars: Provided, that nothing in this section contained, shall prevent a vice president of any bank from being a director of such bank, or of receiving a salary as vice president.”

The suggestion does not contain an averment that the treasurer of the borough receives a salary therefrom, and it may be inferred from the briefs of counsel that it is a fact that the treasurer on whose bond the respondent became one of the sureties did not and does not receive a salary.

The respondent demurs for a number of reasons, the chief one being that the suggestion does not allege that the treasurer of the borough receives a salary from the borough, and the demurrer alleges that he did not receive a salary. The demurrer also sets out the reason that the respondent is only one of a number of sureties and not the surety, and the suggestion does not allege that he was a paid surety.

We are of opinion that all the reasons mentioned in the demurrer are insufficient except the first; that is, that the suggestion is insufficient because it does not aver that the treasurer received a salary. We think this reason is .sufficient, and the demurrer must be sustained on that ground.

Counsel have referred us to but two cases construing section 66 of the Act of March 31, 1860. One of these is Com. v. Allen, 70 Pa. 465, in which case a councilman of a city was ousted from his office because he had become one of a number of sureties on the bond of the city treasurer. There is nothing in the report of this case to show that there was any allegation in the suggestion as to whether the city treasurer received a salary or not, but it may be presumed that he did, and that fact was accepted in making the decision. While the Supreme Court used rather sweeping language declaring the act of assembly in question made it unlawful for any councilman of any corporation or municipality to be the surety for the treasurer of any municipality, we do not think that case rules the present one, for the reason that the facts are dissimilar.

The other case referred to us is Com. v. Krickbaum, 199 Pa. 351, in which the Supreme Court declared that this act is highly penal and cannot be extended beyond its precise meaning.

The case turns on the construction of the section of the act of assembly referred to, which declares it shall not be lawful for any councilman of a municipality “to be at the same time a treasurer, secretary or other officer, subordinate to the president and director, who shall receive a salary therefrom, or be the surety of such officer.” Counsel for the relator contends that these words mean that a councilman of a borough cannot be surety for a treasurer or secretary of the borough under any circumstances, whether the treasurer or secretary receives a salary or not, and that the words “who shall receive a salary therefrom” refer only to other officers of the borough, subordinate to the president and director, and that these words do not apply to the treasurer or secretary at all; that is, that these words of the act create two classes of officers for whom a councilman cannot be a surety; that is, a treasurer or secretary in one class, and other officers of the borough who receive a salary therefrom in another class. Counsel for the respondent maintains that the words “who shall receive a salary therefrom” refer to a treasurer and secretary as well as to other officers, and we have concluded this is a correct construction of this portion of the section of the act in question. In our opinion, the plain meaning of the words involved is that a councilman of a borough cannot lawfully become the surety for a treasurer, secretary or other' officer of a borough, subordinate to the council, who receives a salary from the borough, and that this prohibition extends to all such officers alike. It seems to us that the grammatical setting of the words makes such a conelusion necessary, and that otherwise the words “or be the surety of such officer” would not apply to a treasurer or secretary at all, but only to other officers subordinate to the council and receiving a salary from the borough. Manifestly this is not what was intended. It may be true that a limitation of the act to the case of officers mentioned who receive a salary from the municipality defeats its purpose to some extent, as declared in Com. v. Allen, supra. There is perhaps as much reason why a councilman should not be surety for a treasurer who does not receive a salary as there is that he should not be surety for one who does receive a salary, but we are limited to a strict construction of the act, and if the legislature saw fit to limit the prohibition against a councilman being a surety to officers who receive a salary, we must limit the act accordingly, and we think the legislature did so limit it, and will, therefore, sustain the demurrer.

Order.

And now, to wit, July 13, 1928, the demurrer of the respondent to the suggestion of the Commonwealth is sustained unless the relator, within fifteen days from the date of this order, amends the petition to aver that the treasurer for whom the respondent was one of the sureties received a salary from the borough. Prom William J. Aiken, Pittsburgh, Pa.


author: Wickersham, J.,

text:
    Rudy v. H. H. Butler Stores, Inc.

      Oscar G. Wiclcersham, Sumner S. Bowman and Lynn M. Irvine, for plaintiff.

      Samuel Levin and Beidleman & Hull, for defendant.
    Feb. 7, 1929.
   Wickersham, J.,

This is an action brought by Mary Rudy to recover damages because of a malicious prosecution brought against her by a man by the name of Sloane. After counsel for plaintiff closed her case, counsel for defendant moved for a compulsory non-suit, claiming it was shown that the information in the ease was made by one not an executive officer of the defendant company; that there was no testimony in the case which shows any authority on the part of the manager to bring a prosecution; that the evidence itself does not raise any such presumption; that there is no testimony of any knowledge on the part of the executive officers of this company that they knew the manager had proceeded in this case criminally, nor that he had any authority so to do, and that not being shown, a verdict against this company could not stand. Whereupon a compulsory non-suit was granted. In stating the case to the jury, we carefully reviewed all the facts which appeared from the testimony of the plaintiff; they need not be repeated in this discussion.

In the motion to take off the compulsory non-suit, three reasons have been assigned which may be grouped together as they raise one question of law, to wit, the right of the plaintiff to establish an implied agency arising from a course of conduct as between the defendant and its agent from which the jury might have found that the defendant ratified the alleged unauthorized act on the part of its agent in the bringing of the prosecution against Mary Rudy, or at least showing silent acquiescence in the bringing of numerous prosecutions covering a long period of time, and the effect of the defendant’s receiving the fruits of such prosecutions.

The law governing a case such as this is well settled. In the absence of proof of express authority, an implication thereof can arise in the case of a subordinate agent only when an arrest is made for the protection of the principal’s property in danger, for its recovery or to prevent a crime at the time being committed: Rossman v. American Express Co., 70 Pa. Superior Ct. 525. Undoubtedly, a principal may be held liable for the act of his agent in instituting a malicious prosecution, but the act of the agent becomes that of the principal only when expressly authorized or when his authority to act may fairly be inferred from the nature and scope of the employment. Generally, the duty of superintendence does not carry with it the duty to arrest or prosecute. The inference of authority to do either does not arise from the mere fact of the agency. The authority may be implied when the arrest is made by the agent in the absence of the principal for the protection of property that is in danger, and in some cases it has been inferred when the arrest'was to recover the property back or where the crime was at the time being perpetrated. But where the act is done for the punishment of the supposed criminal or for the vindication of the law, it is not the act of the principal and does not subject him to liability. This principle has been uniformly recognized in the decisions on the subject, and whatever lack of harmony there is in the cases has resulted in the difficulty of applying it to the particular facts. On the other hand, the trend of decision is against holding the principal liable when the arrest has been made after the supposed crime had been committed, and not for the protection of his property or interests. In such cases, the agent has been presumed to have acted on his own account for the vindication of justice: Per Fell, J., in Markley v. Snow, 207 Pa. 447, 451, et seq.

The burden is on one alleging agency to prove the fact and its extent: Dobbs v. Zink, 290 Pa. 243. And the fact cannot be proven by the declarations of the alleged agent nor by his acts done without the knowledge or authority of the principal: Central Penna. Telep. and Supply Co. v. Thompson, 112 Pa. 118.

Applying the above stated well established principles of law to the contention of counsel for the plaintiff that we erred when we sustained objections to certain testimony which was offered to prove or establish the liability of the defendant corporation for the act of its manager of the Harrisburg branch of its stores, the evidence discloses that the defendant is a corporation with its principal office in the City of New York; that Sloane was the manager of its branch store at Harrisburg. It also appears from the evidence that some one, on June 29, 1926, purchased a dress from the Harrisburg store of the defendant on what is known as a sale contract, who made a small payment on account and received the dress and signed a contract to pay for it in a certain way by certain instalments. The name signed to the contract was Ruth Ream. That on Aug. 23rd, in the same year, Sloane, the manager of the store, made an information against the plaintiff, alleging she was the party who bought the dress, and charging her with larceny by trick, artifice or device. She was arrested, imprisoned, tried afterwards in the Court of Quarter Sessions and acquitted.

Counsel for the plaintiff, in order to establish authority on the part of Sloane, the manager of the Harrisburg branch of the defendant corporation, to bring criminal prosecutions in order to collect the bills of the corporation, offered to prove his record of a number of criminal prosecutions brought before Alderman Gladfelter of the City of Harrisburg against the customers of the Butler Stores, Inc.; that in a number of these eases defendants prosecuted settled the cases; to be followed by other proof that the defendant in this suit, upon settlement of these prosecutions, received from J. W. Sloane, the manager and agent, the proceeds or benefits from such prosecutions — this for the purpose of showing a course of conduct between Sloane and the defendant in this suit from which the jury might infer that Sloane was acting within the scope of his employment. This offer was objected to because it did not show any evidence from which it could be inferred that the defendant company had any knowledge of any of the proceedings. The employment as manager does not presume to imply the ability to bind the company by swearing to an information in a criminal prosecution from the fact that it may have occurred more than once. Unless it is accompanied with knowledge of the company, it would not be competent. We sustained the objection.

Counsel for the plaintiff further offered to prove that Sloane told Mrs. Wallace, the mother of plaintiff, that he had full authority from his employer to bring criminal prosecutions; this to be followed by testimony showing that the same manager subsequently brought a large number of criminal prosecutions against other customers of the Butler Stores, and that the Butler Stores,' Inc., had notice of these other prosecutions and that they received the benefits from these prosecutions. We asked counsel for the plaintiff how he expected to show the fact that the company had notice, to which he replied:

Mr. Wickersham: “We expect to show that statements were made as a result of these criminal prosecutions and we propose to call this man Sloane and have him testify that he returned that money from time to time to the company.” Mr. Hull: 1 “That would not show the fact.”

Mr. Wickersham: “Showing at least silent acquiescence on the "part of the principal in alleged unauthorized acts on the part of the agent.”

We suggested counsel for the defendant had better call Sloane first, which he did. Counsel for the plaintiff then stated what he expected to prove by this witness, which was objected to by counsel for the defendant. After some discussion, we sustained the objection to the offer of proof on the part of counsel for the plaintiff. Furthermore, counsel for the plaintiff made an offer to prove a course of conduct on the part of Sloane, the manager. Objection being made to this evidence, we sustained the objection, quoting from Markley v. Snow, supra.

We have given our rulings in this case most careful consideration. We have also examined the authorities cited by counsel for plaintiff in support of his contentions. We fail to discover that we erred in the rejection of evidence offered by the plaintiff. We think the plaintiff has failed to sustain the burden of proof placed upon her to show the implied authority of the manager, J. W. Sloane, to bring the criminal prosecutions. Counsel for the plaintiff, in his offer, purporting to link the acts of the manager with knowledge of the corporation, explicitly stated that he could not show by any evidence that J. W. Sloane, the manager, or any other employee of defendant corporation, had brought to the notice of the corporation and its executive officers at its home office in New York City any knowledge of any such criminal prosecutions, but based his offer to prove the knowledge of the defendant corporation solely upon the number of prosecutions and the alleged fact that the defendant corporation knowingly received benefits therefrom. There was no proof that the manager or any other employee of the corporation notified the home executive office at New York of the bringing of any prosecutions by the Harrisburg manager. It cannot be said that the corporation should have known of said prosecutions by reason of public repute, since the reports and accounts of their manager contained no intimation thereof, and the location, 200 miles away from the scene of the activities of the manager, could not possibly bring any intimation by public report or otherwise of said actions.

We think, further, that the defendant corporation could not be said to have knowingly received any benefits from the manager’s acts by reason of the fact that he had brought previous criminal prosecutions and had thereby collected debts and settled accounts and received money therefrom. It was incumbent upon the plaintiff to show to the satisfaction of the trial judge by means of his offer what evidence he intended to introduce later to independently prove the agency in question in order that the court may determine whether or not such proof would be satisfactory and would justify the admission of the acts and declarations of the agent. The plaintiff failed to do this. To allow incompetent evidence to be introduced without being sustained by the party introducing it, with proof, would unalterably prejudice and influence the minds of the jurors and seriously and permanently damage the defendant’s case. Such introduction of evidence would raise collateral issues and confuse the minds of the jurors: Heron v. Phipps, 246 Pa. 294.

For the reasons we have given, the plaintiff’s motion to take off the non-suit must be denied. From Homer L. Kreider, Harrisburg, Pa.


author: Landis, P. J.,

text:
    Smith v. Patton et al.

      Charles W. Baby, for plaintiff and rule; II. Edgar Sherts, for defendants.
    Jan. 19, 1929.
   Landis, P. J.,

This was an action for malicious prosecution, wherein the court, on trial, directed the jury to render a verdict in favor of the defendants. The facts were uncontradicted, and the question to be determined is whether, under them, the plaintiff was entitled to go to the jury.

It appears that the defendants lived in the village of Rawlinsville, in Martic Township, this county. About 11 o’clock on the night of April 30, 1926, two automobiles, with a number of men in them, came to the said village. Mr. Patton said they were shooting and swearing, and a half-gallon measure was thrown through his window. They then went farther up the road. Mr. Campbell, who lived iñ that direction, heard some shots fired near his place and one more after they left. They threw stones at his house, one of which went through the window and back through the side room against the organ. Another hit the second-story window, but did not go through the glass, and others went against the house and porch. When these men got to the Zell house, which was across the road from Campbell’s, but a little farther down, they stoned the. house. One big stone broke a window-pane and the blind, and about seven stones were thrown on the roof, which was covered with slate,' breaking several • of them. Mr. Patton recognized some of the men — the Rankins and a man by the name of Addison Trimble, and he also saw a big man behind one of the automobiles whom he could not positively recognize. Mary Huber, .who lived near the Patton house, heard one of the men call out, “Al, Ho! Al.” She said that Albert Smith frequently traveled with the Rankins. She told the defendants what she had heard, and that she thought one of the men was Albert Smith, though she was not sure.

On May 3, 1926, John M. Patton and John K. Campbell-made a complaint before Alderman O. E. Herr, of Lancaster City, against Edward Rankin, Edward H. Rankin, Jr., Lloyd Rankin, Addison Trimble, Albert Smith and George Kiphom, charging them with malicious mischief. The case was returned to September Term, 1926, No. 91, and a true bill was found by the grand jury. It came on for trial before the late Judge Hassler, and Judge John M. Groff, who was then practicing law, together with the assistant district attorney, represented the Commonwealth. When the testimony on the part of the Commonwealth was all presented, Judge Hassler intimated that the defendants could not be convicted of malicious mischief, but might be liable for riot. The Commonwealth thereupon, with the consent of the court, entered a nol pros.

With the knowledge of all the facts elucidated by the testimony, Judge Groff, with the present defendants, who were his clients, went before Aider-man John F. Burkhart and made a complaint against the parties above named, and also against William Rhoads and John Kohler, for riot. The complaint was made in the presence and by the advice of Judge Groff. A hearing was had and the alderman dismissed the complaint against Smith and some of the others and made a return to the Court of Quarter Sessions against the three Rankins and Trimble. The ground of the dismissal of the case against Smith was that the witnesses did not positively identify him. Smith then brought this suit for damages. There was no dispute in the testimony on the part of the defendants or the plaintiff as to the facts, and it especially was brought out in the plaintiff’s evidence that the complaint was made in the presence of Judge Groff and by his direction.

It will not be disputed that in cases of this character the basis of the action must be want of probable cause and malice. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party is guilty of the offense: Robitzek v. Daum, 220 Pa. 61. Every public prosecution is presumed to have been instituted upon probable cause, and the'burden is at first upon the plaintiff in an action for malicious prosecution to prove want of probable cause: Walter v. Sample, 25 Pa. 275. However, proof that the plaintiff has been discharged by the examining magistrate is prima facie evidence of want of probable cause and is sufficient to shift the burden of proof upon the defendant: Barhight v. Tammany, 158 Pa. 545. The question of probable cause is a mixed question of law and fact. Where the facts in the institution of the criminal proceedings raise a presumption of malice, the case is to be determined by the jury; but since probable cause is a complete defense, where that is shown to exist, the question of malice is unimportant and there can be no recovery: Jones v. Matheis, 17 Pa. Superior Ct. 220; Lipowicz v. Jervis, 209 Pa. 315.

In an action for malicious prosecution, the question is not whether the person charged with crime is guilty, but what were the indications of his guilt. The test is the prosecutor’s belief of the existence of probable cadse based on reasonable grounds. Where there has been a failure to show .want of probable cause, it is the duty of the court to enter a non-suit or direct a verdict for defendant. But what is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court: Boyd v. Kerr, 216 Pa. 259; Robitzek v. Daum, supra; Brown v. Waite, 38 Pa. Superior Ct. 216; Roessing v. Pittsburgh Rys. Co., 226 Pa. 523. In Bernar v. Dunlap, 94 Pa. 329, it was held that plaintiff’s own evidence showed the existence of probable cause and that a non-suit was properly entered. In Cooper v. Hart, 147 Pa. 594, and Mahaffey v. Byers, 151 Pa. 92, judgments on verdicts for the plaintiffs were reversed without a venire, on the ground that the uncontradieted evidence established probable cause.

In Burgman v. Rosenstein, 22 Lanc. Law Rev. 235, a verdict was directed in favor of the defendant. It was shown that an anode of gold was missing from the silverplating establishment of the defendant. A few minutes after 12 o’clock it was taken from an electric bath and placed in a box in the same room near where the plaintiff, who was an employee, was eating his dinner. The plaintiff was left alone in the room a few minutes after 12 o’clock. The plaintiff’s attention had been previously attracted to the piece of gold and he asked one of his fellow-employees whether it was pure gold. At 1 o’clock of the same day the gold was missing and could not be found. The plaintiff said that he was not going to leave the room during the noon hour, that is, between 12 and 1 o’clock, when he was asked the question by the foreman. When questioned after the loss of the gold had been discovered, he denied having been out of the room during that hour; but when confronted by the statement of a person who saw him go out, he admitted he had been out for a few minutes. A very careful search was made for the gold in the building, but it was not found. These facts were all submitted to the defendant, who made a most thorough investigation, lasting until Oct. 31, 1903. He then submitted all the facts to his counsel, and, on the advice of his counsel, he directed that a complaint for lareeny be made against the plaintiff. The plaintiff was finally discharged, after he had been confined in prison from Nov. 4, 1903, the day on which he was arrested, until Nov. 11, 1903, the day of his discharge.

In McCoy v. Kalbach, 51 Pa. Superior Ct. 364, it appeared, by undisputed evidence, that Dr. A. B. Kalbach was conducting a lumber operation in Maryland, where he had in his employ, as a teamster, Thomas McCoy. One J. C. Stauffer, who resided in York, Pennsylvania, received a telephone message from Kalbach to the effect that his team of mules had been stolen in Maryland, and, in pursuance thereof, Stauffer made a complaint before an alderman against McCoy for larceny. McCoy was arrested while driving a team about two miles from York, which team he claimed as his own. Subsequently, after consulting counsel, who advised him that he had no case in Pennsylvania, McCoy was discharged on the ground of lack of jurisdiction. It was decided that Kalbaeh was not bound, before he caused the arrest, to determine whether the courts of Pennsylvania had jurisdiction; that probable cause was sufficiently shown and a verdict was properly entered for defendant, where it appeared that, after buying the mules from the plaintiff, the defendant employed him as a teamster in Maryland; that, soon after, he was informed that the plaintiff had started with the mules toward Pennsylvania, under suspicious circumstances, and caused his arrest in this State, but abandoned the prosecution on being advised by counsel that larceny, if any, had been committed in Maryland; that the defendant’s motives in such a case are not to be considered. This case was affirmed by the Supreme Court in McCoy v. Kalbach, 242 Pa. 123. See, also, McCarthy v. De Armit, 99 Pa. 63.

In Walter v. Sample, supra, it was held that if the prosecutor has fairly submitted to his counsel all the facts that he knows are capable of proof and has acted bona fide on the advice given, he negatives, if not the malice, the want of probable cause and is not liable to an action for malicious prosecution, even though the facts did not clearly warrant the advice and prosecution. And in Laughlin v. Clawson, 27 Pa. 328, it was held that, in an action for malicious prosecution, probable cause is a question of law, and if specific instructions to that effect are demanded, it is error not to give them according to the facts of the case; that such action cannot be sustained if an oificer of the State, appointed because of his legal learning, considers that a given state of facts is sufficient evidence of probable cause. See, also, Cole v. Reece, 47 Pa. Superior Ct. 212. In Barhight v. Tammany, supra, it was said: “The legal advice which constitutes a defense to an action for malicious prosecution must rest on an honest and full presentation- to counsel of all the facts within -the knowledge of the prosecutor, or which he has reasonable ground for believing he is able to prove.” In McClafferty v. Philp, 151 Pa. 86, the court said: “According to the undisputed evidence, Mr. Hays, a reputable member of the Venango County bar, had full knowledge of all the transactions out of which the prosecution grew, and it was under his advice that it was commenced and conducted until it was ended by the nolle prosequi. There was no evidence tending to show that his advice was not sought and acted on by the defendant in good faith. Nothing is better settled than that when the prosecutor submits the facts to his attorney, who advises they are sufficient, and he acts thereon in good faith, such advice is a defense to an action for malicious prosecution. Strictly speaking, taking advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause: McCarthy v. De Armit, supra; Emerson v. Cochran, 111 Pa. 622.”

In the present case, the advice of Judge Groff was not based upon the statements made to him by his clients. He, being in court at the trial for malicious mischief, heard all the witnesses and was fully acquainted with the facts. It would have been futile for the defendants to have informed him the extent of their proof before he advised them to make this complaint, because he was fully cognizant of any and all facts which they could convey to him. It seems to me to be clear, from all the undisputed facts surrounding the prosecution and also because the complaint was made by them in the presence and by the direction of their counsel, who had full information of all the circumstances of the case, that there was probable cause shown for the complaint, and that, therefore, the plaintiff was not entitled to recover, and the jury were properly instructed to that effect. For these reasons, the rule to show cause why a new trial should not be granted is discharged. Rule discharged.

Prom George Ross Eshleman, Lancaster, Pa.


author: Berkey, P. J.,

text:
    Commonwealth v. Rosenbloom.

      James B. Landis, District Attorney, and Norman T. Boose, for Commonwealth.

      H. G. Gress, for defendant.
    Jan. 28, 1929.
   Berkey, P. J.,

— The Town Council of the Borough of Boswell passed an ordinance, approved by the burgess, which reads as follows:

“Be it ordained by the Town Council of the Borough of Boswell, Pennsylvania, and is hereby ordained by the authority of the same, that from and after the passage of this ordinance, all hawkers, venders, peddlers, sellers or persons who canvass from house to house soliciting orders, for the sale by sample or otherwise, of nostrums, medical compounds, patent medicines, wines, beer, or liquors of any kind, or of any other foreign or domestic wares, goods or merchandise of any description whatsoever, shall, before engaging in such business, first procure from the Burgess a license permitting them to do so, and shall pay for every such license the sum of not less than one ($1.00) dollar and not more than fifty ($50.00) dollars for each day.”

The undisputed testimony discloses that the defendant, whose place of business is in the City of Johnstown, visited Boswell Borough, going from house to house selling bread from a wagon. In July last, while so engaged, he was charged before the burgess for violation of the ordinance by the conduct above referred to, convicted and fined. The defendant appealed. The question here is whether the ordinance is legal. The legality thereof requires the court to determine (1) whether it is equally directed against all persons; and (2) whether the fees required to be paid are reasonable.

A prohibition of unlicensed peddling which operates impartially and without distinction between classes, or residents of different subdivisions or of different states, is held to be a proper exercise of the police power of the State: Com. v. Brinton, 132 Pa. 69; Com. v. Gardner, 133 Pa. 284; Com. v. Harmel, 166 Pa. 89; North Wales Borough v. Brownback, 10 Pa. Superior Ct. 227; Chambersburg v. Porter, 82 Pa. Superior Ct. 421.

In this State, boroughs may enact such regulatory ordinances under the police power: Sayre Borough v. Phillips, 148 Pa. 482, 488, and Chambersburg v. Porter, 82 Pa. Superior Ct. 421, 423; and by the General Borough Act are specifically empowered, inter alia, to regulate peddling: Act of May 4, 1927, art. XII, § 1202, cl. 27, P. L. 575.

The ordinance is within the rule laid down by the Supreme Court in relation to ordinances enacted by boroughs, but the matter as to the reasonableness of the fees, when considered in the true light, must be regarded as a prohibition of trade and not a regulation thereof within the meaning and intent of the law. The ordinance concludes with the provision, that “for every such license the sum of not less than one dollar and not more than fifty dollars for each day” shall be paid by the licensee. Assuming there are 300 business days in a year, it provides for an annual license fee of not less than $300 and not more than $15,000. The court takes judicial notice of the last decennial census, which gives the population of Boswell Borough as being 2168. The ordinance professes to prohibit all persons from engaging in the business of peddling or selling goods from house to house without a- borough license, and it fixes the price of the license at a figure that makes, as it evidently was intended- to make, the ordinance amount to prohibition. The ordinance as a whole does not prohibit an injurious business, but injures competition: Sayre Borough v. Phillips, 148 Pa. 482, 489. It cannot be sustained, and, therefore, the court enters the following

Decree. — Now, Jan. 28, 1929, judgment reversed.

Mrs. Daryle R. Heckman, Somerset, Pa.


author: Holland, P. J.,

text:
    Wentz’s Estate.

      H. Gordon McCouch, for accountant.
    March 4, 1929.
   Holland, P. J.,

Daniel B. Wentz died on Feb. 8, 1926, having made his last will and testament bearing date April 9,1923, duly probated Feb. 13, 1926, wherein and whereby in the eighth item all the rest, residue and remainder of his estate, whatsoever and wheresoever situate, whether in his own name or held in trust subject to his power of appointment, or to which he should be in any way entitled at the time of his death, he gave, devised and bequeathed, limited and appointed to the trustees, their heirs, successors and assigns, in trust, nevertheless, for the following uses and purposes :

To let or demise the real estate (except his country place known as “The Orchard,” on Washington Lane, Chelten Hills, Montgomery County, Pa.), and to invest and keep invested all moneys and personal property in such manner as the trustees should deem proper, and the same from time to time to call in, sell, assign, dispose of and again invest as aforesaid, and to collect, receive and recover the rents, income and interest thereof, and, after deducting all proper expenses for the execution of the trust, to pay over, when and as received, and not by way of anticipation, the entire net income thereof to his wife, the said Louisa F. Wentz, for and during the term of her natural life and upon her death to convey, transfer and pay over the principal of said trust fund equally to and among his then living lineal descendants, per stirpes and not per capita. He made further provision in the event of his leaving no lineal descendants living at the time of the death of his wife, which provision, for the purposes of this adjudication, we deem it unnecessary to refer to.

In the ninth item he directed that out of the general income of the estate, before making the distribution provided for in the above section, the trustees were to pay all taxes, insurance of all kinds, water rent, repairs and such other charges as are necessary to maintain his country seat known as “The Orchard” in proper condition, and to permit his said wife to occupy the premises free of rent during the term of her natural life. He stated that he did not intend by this provision that the trustees should pay the household expenses, but only the cost of maintaining the property in good condition, and should his wife at any time desire to live elsewhere, she may request the trustees to lease the property, in which event the net income therefrom shall be by them paid over to her, and in the event of a sale of said property, with her consent, the proceeds thereof shall be invested and the net income paid over to his wife for and during the term of her natural life, the principal upon her death becoming part of the residuary estate.

In the tenth item he directed that all stock dividends or proceeds of sale of subscriptions to stock shall be treated for the purposes of the will as principal and not as income.

Testator was survived by his said wife, Louisa P. Wentz, and by issue two children, the said Daniel B. Wentz, Jr., and Mary Douglas Wentz. Said widow and children are still living. Mary Douglas Wentz is in her minority and the guardian of her estate is Girard Trust Company.

By schedule of distribution attached to the adjudication by this court upon the first account of the executors, entitled No. 24, November Term, 1927, there •was awarded to the testamentary trustees the corpus of the trust in unconverted investment securities and cash amounting to $749,965.63.

The account was filed Oct. 25, 1928, showing a balance of the principal of the trust $752,483.09, composed of unconverted investment securities set forth on pages 2 and 3 of the account carried at $738,736.89', and cash, and a balance of income, $52,432.75. The distribution income account shows that Louisa M. Wentz has received $52,932.75, leaving a balance due accountants of $500. ;In addition to the securities set forth on pages 2 and 3 of the account as composing the balance of principal, the trustees hold certain securities as set forth in a memorandum on page 7 of the account, which securities are considered worthless.

All parties presently interested in the estate have approved the account and request its confirmation by the court.

The transfer inheritance tax was paid at the time of the filing of the executor’s account.

By their agreement in writing submitted at the audit, Louisa P. Wentz, the widow; Daniel B. Wentz, Jr., the son, and Girard Trust Company, guardian of Mary Douglas Wentz, the minor daughter of testator, being all the persons having any interest, vested or contingent, in the estate, agree that at the time of the death of the testator, Peb. 8, 1926, he was the holder of 1874 shares of the stock of the Virginia Coal and Iron Company of the then book value of $223.12 per share, $418,126.88; that on June 26, 1928, the capital stock of said company was increased from $5,000,000 to $10,000,000 and a stock dividend of 100 per cent, was declared, the trustees here receiving 1874 shares, which are held in suspense account, as shown on page 5 of the account, until it be determined by the court how they shall be apportioned as between principal and income; that the book value of such shares of stock after the declaration of the dividends was $121,094, $226,930.16; that the number of additional shares necessary, therefore, to maintain the intact value of principal at the reduced book value of $121,094 per share is 1579, less $13.71, leaving 295 shares, plus $13.71, the disposition of which, in view of the tenth article of testator’s will, the court will determine; that market value has never exceeded book value.

The tenth clause of the will is as follows:

“Tenth. I direct that all stock dividends or proceeds of sale of rights of subscriptions to stock shall be treated for the purposes of this will as principal and not as income, but the proceeds from the sale of standing timber and royalties from oil or coal lands shall be treated for the purposes of this will as income and not as principal.”

The question is submitted whether under the agreed facts such provision is valid as to the excess of such dividend over and above what is necessary to keep the original holding of the stock intact as of the value at the time of the testator’s death as offending against the provisions of section 9 of the Act of April 18, 1853, P. L. 503, which reads as follows: “That no person or persons shall, after the passing of this act, by any deed, will, or otherwise, settle or dis-dispose of any real estate or personal property, so and in such manner that the rents, issues, interest, or profits thereof, shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or testator, and the term of twenty-one years from the death of any such grantor, settlor, or testator, that is to say, only after such decease during the minority or respective minorities with allowance for the period of gestation of any person or persons, who, under the uses or trusts of the deed, will, or other assurance directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests, and profits so directed to accumulate, and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void in so far as it shall exceed the limits of this act, and the rents, issues, interests and profits, so dirécted to be accumulated contrary to the provisions of this act, shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed. . . .”

The well-established rule in Pennsylvania is that “An extraordinary corporate dividend is presumptively payable to the party entitled to the income at the time the dividend was declared; but this presumption must yield to proof of the fact, and if it appears that by such dividend the corporate assets are reduced below their value at the time the trust began, the principal must be made good before anything is awarded to income:” McKeown’s Estate, 263 Pa. 78; Nirdlinger’s Estate, 290 Pa. 457, 468.

Under the agreed facts in the case and the above firmly-established Pennsylvania Rule of Apportionment, the 295 shares plus of the extraordinary dividend are undoubtedly income. If the direction of the will were given effect, this income would be changed to principal. Such a direction is a clear violation of the statute and cannot be sustained. The tenth clause of the will, in so far as it does attempt to vary the established rule of apportionment, is null and void. We have been unable to find a parallel case in Pennsylvania, but In re Megrue, 155 N. Y. Supp. 1059, affirmed 217 N. Y. 623, is in point. The accountants are accordingly surcharged in principal with 1579 shares, at the book value of $121.094 per share, of the extraordinary stock dividend declared by Virginia Coal and Iron Company, payable July 10, 1928, to stockholders of record June 26, 1928, less $13.71. They are surcharged in income with 295 of said shares, plus $13.71.

The net ascertained balance of principal for distribution is awarded back to the testamentary trustees for the uses and purposes of the trust.

• The net ascertained balance of income is awarded back to the testamentary tenant.

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


author: Alessandroni, J.,

text:
    B. F. Hoffman, Inc., to use, v. Cox and Brennan.

      Joseph W. Henderson, for plaintiff; Joseph A. Culbert, for defendants.
    July 9, 1929.
   Alessandroni, J.,

On Jan. 27, 1925, B. F. Hoffman, Inc., leased a Ford coupé to Cox. The lease was assigned to the Massachusetts Bonding and Insurance Company, which, in turn, assigned it to the Wagner-Taylor Company. The lease was for a period of twelve months, and provided for an initial rental payment of $218.73 and monthly payments of $36.43. At the expiration of the lease the car was to be surrendered back to the lessor, but if the lessee had complied with all the terms of the lease, he was given the option of purchasing the car upon a further payment of $1. There were certain provisions for insurance to protect the'lessor and for the securing of future rental payments by promissory notes. Application for a certificate of title was made by Cox, the application stating; the car was subject to encumbrances of $437.16 in favor of Wagner-Taylor Company. Cox defaulted on the instalment due May 27, 1925.

About July 30, 1925, Brennan, the added defendant, was introduced to Cox and purchased the car for $275. He was shown a certificate of title issued to Cox by the State Highway Department, and testified that in the place where encumbrances were to be stated there was a- hole immediately following the dollar sign. Subsequently, the car was found in Brennan’s possession and replevied.

At the trial, the presiding judge affirmed the plaintiff’s motion for binding instructions and directed a verdict in favor of the plaintiff on the ground that this was a bailment lease and no title had passed to Brennan.

The defendant, Brennan, now moves for a new trial and for judgment n. o. v. on the grounds, first, that the instrument was not an instalment lease, but was in reality a conditional sale agreement; and, second, that the issuance of a title certificate by the Pennsylvania Department of Highways, together with the delivery of possession to Cbx, gave Cox an apparent ownership upon which Brennan, as a bona fide purchaser for value, could rely.

The defendant’s first contention is untenable. The instrument in question was in the form of a lease and all its terms were those used ordinarily in leases. Such bailment leases have been upheld in Pennsylvania. In the case of Leitch v. Sanford Motor Truck Co., 279 Pa. 160 (1924), the plaintiff delivered several trucks to one Nicholson (a truck dealer) under a bailment lease. Nicholson pledged the trucks to a bank and then defaulted in payment. It was held that the plaintiff could recover, the court saying: “Nor would the fact that the bailee put the truck on exhibition in a sales room, where he was engaged in buying and selling these vehicles, convert the bailment into a conditional sale, or estop the owner from asserting his title. The claim of property in the pledgee is at best no higher than that in the lessee; it was subject to the ‘bailment lease’ with the original owner. On the breach of the covenant to pay instalments of rent, the owner was entitled to immediate possession. The bailee could not defeat this right by pledging the machine to a third person.”

In Powel v Kahler, 86 Pa. Superior Ct. 419 (1926), a similar bailment lease of a truck was upheld. The case of Wilson v. Weaver, 66 Pa. Superior Ct. 599 (1917), again affirms the proposition that “Provisions for interest and promissory notes are recognized as being legitimate parts of a bailment contract in Pennsylvania.” These cases establish the validity of a bailment lease.

The cases cited by counsel for the defendant are clearly distinguishable on their facts, although the excerpts quoted are broad enough and sufficiently general to seem applicable to this case. The defendant quotes three cases to show that this lease is a conditional sale, but the distinctions between these cases and the case at bar are obvious. Root v. Republic Acceptance Corp., 279 Pa. 55 (1924), was a case in which A sold to B but retained possession. B only received the bill of sale and the storage receipt. B then executed a bailment lease to A, who was in bad financial condition. This was held not to be a bailment because “there can be no bailment if there was no sale; and the sale was void as to creditors. ... A sale of personal property leaving the vendor in possession and without doing anything to indicate a change of ownership is fraudulent as against creditors.” It is thus seen that B never received title to the subject of the lease and, therefore, was not in a position to issue a bailment lease. The court analyzed the transaction as really being a pledge. In the case of Com. v. One Oldsmobile Automobile, 8 D. & C. 169 (1926), the written agreement was marked a conditional sale and its terms were clearly those of a conditional sale. Of course, this has no application to the case at' bar.

In the case of Bank of Secured Savings v. Rudolph, 83 Pa. Superior Ct. 439 (1924), an agreement of sale was made whose terms were those of a conditional sale agreement. This instrument referred to a lease and the lease itself was a bailment lease. Naturally, the court construed the two instruments together, and finding that the agreement of sale was a conditional sale and that the lease used the words “buyer and seller,” “purchase price” and “to be used in- connection with time sales in Pennsylvania, New Jersey and Illinois,” it rightly construed the entire transaction as being a conditional sale. In the case at bar there are no such words in the lease and there is no conditional sale agreement. The defendant’s cases, therefore, are no authority for the decision of this case. The instrument here clearly comes within the Pennsylvania conception of a bailment lease, and the trial judge properly so held.

The defendant’s second contention that if this is a bailment lease, the plaintiff has so clothed Cox with the indicia of ownership as to raise an estoppel, is also without merit. The basis of this argument is that the granting of possession to Cox, together with the application for a certificate of -title in Cox’s name, resulting in the issuance of a clear certificate of title to Cox, made Cox appear as the owner. The issuance of certificates of title was made under the provisions of the Act of May 24, 1923, P. L. 425. This act is ostensibly for police regulation, and is not intended as a means for the issuance of muniments of title. This is indicated by the wording of the act. In section 1 it is stated: “The term ‘owners,’ as used in this act, shall include the person or persons having a motor vehicle in his or their possession, custody, or control, under a lease or contract of conditional sale or other like agreement.”

Section 2 states that an application for a title certificate “shall contain a full description of the motor vehicle, together with a statement of the owner’s title, and of any liens or encumbrances upon said motor vehicle, and whether possession is held under a lease, contract of conditional sale, or other like agreement.”

The assignment of title by B. F. Hoffman, Inc., and the application for title by Cox stated that the application for title “by purchase or lease” is subject to an encumbrance of $437.16. Such assignments and applications are made mandatory by the act, and, as indicated above, the certificates issued are not muniments of title.

Moreover, the mere fact that Brennan saw that there was a hole immediately following the dollar-mark, indicating encumbrances, should have put him on notice. Inasmuch as a certificate of title is not an indication of absolute ownership, and as the condition of the certificate itself was sufficient to put a man on notice, it cannot be said that Brennan relied on any indicia of ownership or was a bona fide purchaser for value.

The motion of defendant for judgment non obstante veredicto is overruled. An exception to this action of the court is hereby noted for the defendant. The rule for a new trial is discharged and judgment directed to be entered upon the verdict upon payment of the jury fee.


author: Martin, P. J.,

text:
    Orner v. Hurwitch.

      M. D. Hutkin, for plaintiff; H. Arronson, for garnishee.
    July 26, 1929.
   Martin, P. J.,

Judgment was entered on a contract under the terms of which plaintiff had the exclusive agency for the sale of a piece of real estate and the business conducted thereon. The contract was to remain in effect and be irrevocable for a period of three months from its date. Plaintiff was to remain the sole agent until after thirty days’ notice in writing of the revocation of his appointment was given. It was provided in the agreement that plaintiff was to receive “the sum of 5% commission, $625, upon the sale of the real estate or business,” which shall become immediately due and payable upon the making of any agreement for the sale or transfer of the real estate or business. The agreement also provided that the defendant empowered any attorney of any court of record of the United States or elsewhere to appear for and enter or confess judgment against him “for the above mentioned compensation, with or without declaration, with costs of suits, release of errors, without stay of execution, and an attorney’s fee of 10% for collection.” Damages were assessed at $689.90.

Defendant presented a petition, averring that: “. . . It appears from the face of the statement filed of record in the above entitled cause that the compensation therein mentioned is to be payable only in the event of a sale made as result of the efforts of the said Harry A. Ornér during the period mentioned in the said agreement;” it was averred that the record does not show that any attorney confessed judgment against the defendant, and that the prothonotary entered the judgment without authority; the prothonotary has no power to enter a valid judgment where the amount due and owing does not appear upon the face of the instrument, and the happening of the contingent event and the amount for which the judgment was to be entered cannot be ascertained from the face of the agreement; that there is no method of ascertaining from the agreement in this case what sum, if any, is due and owing unless resort is had to outside or extrinsic evidence; there is nothing on the face of the instrument to indicate that the condition upon which the confession of judgment was to become effective has been fulfilled by the plaintiff or that any indebtedness has been incurred under the terms of the instrument.

A rule was granted to show cause why the judgment should not be stricken from the record and the attachment issued thereon dissolved.

The agreement provided that plaintiff was to receive 5 per cent, commission upon the sale of the real estate or business described, compensation to become due upon the making of any agreement for the sale or transfer of the real estate or business. The figures “$625” were mentioned as the amount of commission calculated upon the price at which defendant held the property. But no indebtedness was to be created until a contract of sale was made, and that a sale had been made could be learned only from evidence outside of the written agreement.

In the case of Meyers & Joly v. Freiling, 81 Pa. Superior Ct. 116, 118, it was said: “. . . The statute [referring to the Act of Feb. 24, 1806, 4 Sm. Laws, 270] was evidently adopted to enable a creditor to obtain a judgment on an obligation for the payment of money without the expense of the intervention of an attorney. Obviously such judgment could only be entered for an amount appearing to be due by the terms of the obligation, and this is what the statute expressly declares. The judgment is to be entered for an amount which appears to be due on the face of the instrument. When this amount cannot be ascertained without a resort to evidence outside of the writing, the statute does not support the judgment. Where there is not a fixed and definite amount admitted to be due on the face of the instrument, the prothonotary has not authority to accept evidence on the subject and in the capacity of an arbitrator or referee ascertain facts not appearing in the instrument to which the warrant of attorney is attached. Justification for bringing a defendant into court and fixing his liability in the conclusive form of a judgment on a warrant of attorney must be found in the terms of the instrument containing the authority, and in the case of a prothonotary acting under the statute, is not to be extended beyond the definite power which the law confers. An inspection of the instrument supporting the judgment in this instance shows that it is not an obligation for the unconditional payment of a definite sum at any definite time. The claim is for a conditional payment arising on the sale of real estate and was contingent on the. occurrence of the sale. . . . The commission was to become payable to the plaintiffs ‘as soon as agreement is made to sell said place.’ . . . Evidently therefore no one could tell by an inspection of the instrument on the day when the judgment was entered what the rights of the plaintiffs and defendant were with respect to the contract. They could only be ascertained by an inquiry as to whether the conditions existed out of which a liability to pay would arise, and especially it could not be ascertained from inspection whether an agreement to sell had been made. ...”

The agreement in the present case does not authorize the prothonotary to enter judgment against the defendant, and the rule to strike off the judgment and dissolve the attachment should be made absolute.

It is ordered that the rule to show cause why the judgment entered in the above-entitled case should not be struck off and the attachment issued thereon dissolved is made absolute, and it is ordered that the judgment be struck off and the attachment be dissolved.


author: Lewis, J.,

text:
    Melnicoff v. Huber Investment Company.

      B. H. Levintow, for plaintiff.

      Edmonds, Obermayer & Bebmann, for defendant.
    May 13, 1929.
   Lewis, J.,

In July of 1927 plaintiff contracted to buy, under a lease plan, from the Huber Investment Company, defendant, a Studebaker sedan. The automobile was leased to plaintiff for a term of twelve months, “reserving for the hire and use thereof for said term the sum of $1685, itemized as follows:

“1. Basis Rental of Motor-vehicle, etc....................$1495.00
“2. Settlement Charge (including Stamps, Fire and Theft Insurance) ....................................... 190.00
“3. Additional Insurance................................. none
“4. Miscellaneous...................................... none
“Total.......................................$1685.00

which sum shall be payable as follows, viz.: Five Hundred Ninety Five Dollars now in hand, the receipt of which is hereby acknowledged, and the residue Ten Hundred Ninety Dollars in monthly payments on the 16th day of each month during the term of this lease.”

Plaintiff in this action seeks to recover the sum of $142, and in his statement of claim sets forth that the cost of fire and theft insurance for one year from July 16, 1927, amounted to $15, that there was properly chargeable, for interest at the rate of 6 per cent, and for fire and theft insurance, a sum not exceeding $48, and that, therefore, the collection by the defendant from the plaintiff of the sum of $190, as above set forth, represents a usurious charge in excess of the legal rate of interest in this Commonwealth of 6 per cent, per annum. It is insisted that the sum of $142, which is covered under the settlement charge of $190, is usury. To this statement of claim an affidavit of defense in lieu of demurrer was filed, and the question to be determined is whether the action is maintainable. The statement of claim is barren of any allegation that the transaction between the parties was one of a loan made by the defendant to the plaintiff. On the contrary, the entire structure of the statement is framed upon the theory that the transaction was one of bailment, wherein the lessee, the plaintiff, undertook to pay certain instalments as rental for the hire and use of the Studebaker sedan.

While it is true that $142 of the item of $190, above referred to, is denominated and called in the statement “usury,” nevertheless plaintiff has utterly failed to set forth the necessary facts indicating that there was a loan of money made by the defendant to the plaintiff or allegations from which the court might properly draw the conclusion or inference that the transaction was tainted with usury.

In determining whether a transaction is usurious, 27 Ruling Case Law, 211, lays down the general principles as follows: “No case is to be judged by what the parties appear to be or represent themselves to be doing, but by the transaction as disclosed by the whole evidence, and if from that it is in substance a receiving or contracting for the receiving of usurious interest for a loan or forbearance of money, the parties are subject to the statutory consequences, no matter what device they may have employed to conceal the true character of their dealings.”

And in 39 Cyc., 918, it is said: “In deciding whether any given transaction is usurious or not, the court will disregard the form which it may take, and look only to the substance of the transaction in order to determine whether all the requisites of usury are present. ... If all these requisites are found to be present the transaction will be condemned as usurious, whatever form it may assume and despite any disguise it may wear.”

In the investigation of a transaction to determine whether usury has been exacted, the law intends that a search should penetrate through form, device or makeshift to the very substance. The form in which the agreement is made and the more or less indubious phrases and clauses in which the contract, bailment lease or conditional sales arrangement has been worded are immaterial. As was well pointed out in Thompson v. Prettyman, 231 Pa. 1, “to carry into effect its [the Act of 1858] purpose to thoroughly and effectively protect the borrower against the rapacity of an avaricious lender, it is necessary that the courts should closely scrutinize the entire transaction. . . .”

It is essential, however, to closely keep in mind the definition of usury and what constitutes in law usury. Usury has, from early times, been associated with the lending of money as indicated by the definition given in 4 Blackstone’s Commentaries, 156: “An unlawful contract for a loan of money to receive the same again with exorbitant interest.”

¡In Bouvier’s Law Dictionary, it is defined: “An illegal profit which is required and received by a lender of a sum of money from the borrower for its use.”

In Struthers v. Drexel, 122 U. S. (1887) 487, the court held: “Unless there was a loan there can be no usury.”

Usury, therefore, is the exacting, taking or receiving of a greater rate of interest than allowed by law for use or loan of money. In order for a transaction to be usurious there must either be a loan at more than the legal rate of interest or the exaction of a greater than the legal rate for the forbearance of a debt or sum of money due. In order to constitute usury, there must be an express or implied loan; in the absence of a loan there can be no usury.

■ A loan may have the form and appearance of a purchase or a bailment transaction, but if there be a real and bona fide purchase or a lease not made as an occasion or pretext for a loan, the transaction will not be regarded usurious, even though the sale or lease be for an exorbitant price. The statute against the exaction of usurious interest forbids the receipt of more than a specified legal rate for the hire of money. There is no allegation in the statement of claim that the lease, which is the foundation of the action, was not made in good faith, neither is there any intimation that the transaction was not real or that it was pretended. From all that appears in the pleading, there is a bona fide leasing of a chattel at a price higher than the lessee would have to pay for the same for cash. It is difficult to see how a charge of usurious interest can be predicated in a case where the statement of claim shows an utter lack of the elements of lending or borrowing.

As was well said in 39 Cyc., 927: “A vendor may well fix upon his property one price for cash and another for credit, and the mere fact that the credit price exceeds the cost [cash] price by a greater percentage than is permitted by the usury laws is a matter of concern to the parties but not to the courts, barring evidence of bad faith. If the parties have acted in good faith such a transaction is not a loan, and not usurious.”

The defendant had a perfect legal right to dispose of its property on such terms as were agreed upon. The facts, as appear from the statement of claim, do not show this to be a case where property was sold at cash valuation and certain payments were deferred in consideration that a greater rate of interest than allowed by law was to be paid by the purchaser. The most that can be said in favor of the plaintiff’s position is that the bailment lease indicated a contract to pay a greater sum for the purchase price of an automobile on credit than would have been paid had the sale been for cash.

In recent years, companies like the defendant have sprung into existence in large numbers, due to the unprecedented demand by the public, in a good many cases against the best interests of the public, for automobiles, pianos, radio sets, refrigerators, heating equipment and household articles, which are purchased on the instalment plan. Houses are now wired on such arrangement. The extension of credit is worked out ordinarily by lease or conditional sales arrangement. Naturally, the risks are great. Cash would ordinarily purchase the article, chattel or service at a price or prices lower than the instalment or credit price.

In view of the importance of the question involved in this case, the court has examined a large number of cases bearing upon the subject, and has concluded the rule to be well settled that usury cannot be predicated upon the fact that property is sold on credit and at an advance of price over what would be charged in the case of a cash sale so long as it appears that the price charged is in fact fixed for the purchase of goods on credit with no intention or purpose of defeating the usury laws, although the difference between the cash price and the credit, if considered as interest, amounts to more than the legal rate.

As was said in one of the cases, a party “is not guilty of usury if the credit transaction is ‘on the level’ and not concocted indirectly to exact tribute for the extension of credit and it appears that it is immaterial that the price fixed for a credit sale is arrived at by adding a per cent, on the cash price in excess of the legal rate of interest:” Righter v. Philadelphia Warehouse Co., 99 Pa. 289; Rossmassler v. Spielberger, 270 Pa. 30.

The following cases and annotations may be examined with profit, as they deal with the rights of finance corporations to enforce conditional sales contracts where the credit price exceeds the cash price by more than the legal rate of interest: Commercial Credit Co. v. Tarwater, 110 So. Repr. 39; Commercial Credit Co. v. Shelton, 104 So. Repr. 75; General Motors Acceptance Corp. v. Taylor, 294 S. W. Repr. 386; McAnsh v. Blauner, 222 Appellate Div. 381; Annotations in 48 Am. Law Reps. Ann. 1442; 28 Law Reps. Ann. (N. S.) 102.

Summing up the matter, the law seems to be settled that usury can only attach to a loan of money or to the forbearance of a debt and that on a contract to secure the price or value of work, the labor done or to be done or property sold, the contracting parties may agree on one price if cash is to be paid and upon as large an addition to cash price as may suit themselves if credit be given, and it is wholly immaterial whether the enhanced price is ascertained by the simple addition of a lumping sum to the credit price or by a percentage thereof.

“In neither case is the transaction usurious; it is neither a loan nor forbearance of a debt, but simply the contract price for work and labor done and property sold, and the difference between the cash and credit in such cases, whether six, ten or twenty per cent., must be left exclusively to the contract of the parties, and no amount of difference fairly agreed upon can be considered illegal:” Webb, Usury, par. 72, 28.

In our case, it is apparent that the defendant, so far as the statement of claim discloses, did not lend the plaintiff any sum of money; the transaction was clearly one of bailment. It is true that the “settlement charge” exceeded 6 per cent, of the sum agreed to be paid, but this consisted in addition to the various instalments of rental which the plaintiff agreed to pay.

We are constrained to hold that the statement of claim is insufficient in law to sustain an action. A judgment is entered for the defendant.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    In re Compensation of Judges Assigned for Judicial Work in Other Districts.
    June 18, 1929.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether section 9 of the Act of May 16, 1929 (Act No. 585), supersedes sections 4 and 5 of the Act of April 27, 1911, P. L. 101.

The Act of April 27, 1911, P. L. 101, provides for the assignment of judges through the Prothonotary of the Supreme Court to assist in the judicial work of districts other than their own.

Sections 4 and 5 of the act are as follows:

“Section 4. Each judge so assigned, and presiding in said court as aforesaid, shall, at the end of the month in which he is so. engaged, make and forward to the Auditor General, on a blank form to be furnished for that purpose, the place or places where he presided as judge, the name of the court, number of cases heard, and nature of the same, that is, criminal, civil or in equity, and the number of days engaged.
“Section 5. The said judges, assigned as aforesaid, shall be paid as compensation for so presiding the sum of twenty dollars per day, and car-fare, and no more. No payment shall be made for days consumed in such service of more than expenses and car-fare, unless said judge, so assigned, actually presides in open court, either at argument, hearing, or trial; and no such judge shall preside in another district while an outside judge is sitting in his own district.”

The Act of May 16, 1929 (Act No. 585), increased the compensation of all of the judges of Pennsylvania. It is entitled “An act. to fix the salaries and compensation of the judges” of the several courts. This is its single subject and only purpose.

Section 9 of the act is as follows: “When any judge learned in the law is called in, as now provided by law, to assist the judge or judges of any other judicial district, such judge so called in shall be entitled to receive for each day he is actually engaged in the performance of such duty the sum of thirty dollars ($30) per day and car-fare.”

In effect, you desire to be advised:

1. Whether it is necessary for judges who serve outside of their own districts at the end of each month to make and forward to the Auditor General the report required by section 4 of the Act of April 27, 1911; and

2. Whether the restriction contained in section 5 of the Act of April 27, 1911, limiting the payment of per diem compensation to days when a visiting judge actually presides in open court, either at argument, hearing or trial, is still in force.

The Act of May 16, 1929, does not in any way supply, nor is it in any degree inconsistent with, section 4 of the Act of April 27, 1911, and, in our opinion, this section of the Act of 1911 is still in force.

Section 9 of the Act of May 16, 1929, deals with the same subject-matter embraced within section 5 of the Act of April 27, 1911, and, in our opinion, section 9 of the Act of 1929 repeals section 5 of the Act of 1911.

The Act of 1911 provided per diem compensation to judges for “presiding” and permitted them to receive “expenses and car-fare” on days when they served outside of their own districts, but were not presiding in open court. The Act of 1929, on the other hand, permits per diem compensation to be paid for each day that a visiting judge “is actually engaged in the performance of such duty,” and makes no provision for the payment of any expenses' other than car-fare.

However, in our opinion, the first four sections of the Act of April 27, 1911, when read with section 9 of the Act of May 16, 1929, limit the compensation to be paid to judges for serving outside of their districts to the days actually expended by such judges outside of their own districts. Section 9 provides compensation when judges are “called in, as now provided by law, to assist the judge or judges of any other judicial district.” The'compensation provided is for each day the visiting judge is “actually engaged in the performance of such duty.” The amount of compensation is $30 per day and car-fare.

In our opinion, a judge cannot be paid compensation, under the Act of 1929, for time expended in his own office, in his own district, on work resulting from a trial, hearing or argument outside of his district. He is entitled to be paid only for the days he actually expends in another district, but for such days he may be paid even though he does not preside in open court.

From C. P. Addams, Harrisburg, Pa.


author: Chase, P. J.,

text:
    Haire v. Hartford Accident and Indemnity Company.

      W. Albert Ramey, for plaintiff; Bell & Bell, for defendant.
    Jan. 18, 1929.
   Chase, P. J.,

This issue is before the court on a rule for more specific affidavit of defense, it being agreed between the parties that the same may be treated [as] in the nature of a demurrer to the affidavit of defense.

The plaintiff brought an action of assumpsit to recover for damage alleged to have been suffered by reason of an automobile accident, whereby judgment was secured against him for the sum of $150 and costs by the party with whom the accident occurred, and the plaintiff alleges that he had indemnity insurance against loss under such circumstances with the defendant company. Attached to the plaintiff’s statement as Exhibit “A? is the policy of insurance.

An affidavit of defense was filed, which alleges, under the eighth paragraph, as follows: “Defendant denies that on April 15, 1928, the policy aforesaid was in full force and effect, but alleges, on the contrary, that the said policy was duly canceled by the defendant on March 24, 1928, and was not, therefore, effective on April 15, 1928.”

The plaintiff files this motion requesting particulars as to the cancellation alleged to have taken place. Paragraph “H” of the policy of insurance sets forth, in so far as cancellation on the part of the insurance company is concerned, the following language: “This policy may be canceled at any time by the company by giving to the assured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the unexpired term, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand. Notice of cancellation mailed to the address of the assured stated in the application shall be a sufficient notice.”

The main objection to the affidavit of defense seems to go to the allegation there is a failure to set out how such notice of cancellation was served, and the plaintiff relies upon the case of Republic Foreign Products Co., to use, v. Southwark Foundry and Machine Co., 269 Pa. 522, to sustain his contentions that he is entitled to this information.

Section 5 of the Practice Act of May 14, 1915, P. L. 483, reads as follows: “Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved, or inferences, or conclusions of law,” etc.

In the instant case, the material fact on which the defendant relies to relieve from liability is cancellation of the policy prior to the time of the alleged damage suffered and which the defendant had provided against in the policy, and if this alleged cancellation is established by evidence, it would be a complete defense. It seems to the court that the allegation in the affidavit of defense as to cancellation is a fair demonstration of what the section of the act means when speaking of material facts, that is, setting out a fact which, if proven, would be material to the determination of the issue; that the request of the plaintiff as to date, time, place and manner of cancellation is what the act has in mind when it speaks of the evidence which the Practice Act expressly states shall not be set forth in the pleadings. It is much easier to demonstrate the distinction, possibly, between what is meant by a material fact, namely, cancellation, which, if proven, is a good defense. The proof of the cancellation which the plaintiff seeks in this motion to have set forth in the affidavit of defense is the evidence or that thing which must be established at the proper time in order to sustain the material fact raised in this issue by the affidavit of defense, namely, cancellation.

The case in 269 Pa., above referred to, holds nothing more than what section 5 of the Practice Act requires. In that case, as a matter of defense, the defendant set up certain conduct, which conduct was accomplished by a writing, and which alleged conduct in writing was a defense to the action. The court in that ease said that the requiring, of the filing of the written instrument on which the defense was based was not inconsistent with the Practice Act of 1915, or, rather, that there was nothing in the Act of 1915 which changed that requirement.

Section 5 of the Practice Act provides: “Every pleading shall have attached to it copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the party pleading relies for his claim, or defense, as the case may be.” As we interpret that clause of the Practice Act, the contract on which the defendant herein relies is the contract provided in clause “H” of the contract of insurance or policy, and that provides that cancellation must be in writing, and as that is the defense in this case, the Practice Act requires that a copy of the contract of cancellation must be attached to the affidavit of defense, because it is the writing which the clause in the policy referred to as providing the only manner of cancellation.

As we view the law, although the written instrument of cancellation is evidence, and ordinarily would not have to be set forth as part of the pleadings, nevertheless, section 5 of the Practice Act herein referred to expressly states that where the evidence on which the claim for recovery, or on which the defense is based, is in writing [and] is a contract, a copy thereof must be attached to the pleadings. And, as in this case, where the defense relied upon discloses that it is or must be established by a written contract or notice-, and, as we view it, the notice is a contract, the defendant must set forth a copy as an exhibit in compliance with section 5 of the- Practice Act.

As we view the purpose of the Practice Act, it is two-fold. First, to set out material facts so as to give notice to the opposition on what the contention is based and the issue raised thereby. Secondly, for the purpose of enabling the opposition to determine from the pleadings whether or not there is a good cause of action or a defense, determined from the pleading itself; and where a material fact to sustain a contention relies and must depend upon a writing, a copy of that writing must be attached to the pleading. Inability to do so, unless material facts are averred which relieve, would prevent the sustaining of the contentions of the pleader who relies on a written instrument.

We feel that the case referred to in 269 Pa. by the petitioner herein and the case of Bell Co. v. Monroe Hotel Co., 73 Pa. Superior Ct. 460, referred to by the defendant herein, are not inconsistent with the conclusions herein reached.

In accordance with the findings of the court, the court will make the following order:

Now, Jan. 18, 1929; this motion for a bill of particulars being treated [as] in the nature of a demurrer, the demurrer is sustained unless the defendant file within twenty days from this date a copy of the alleged notice served of cancellation, or set forth such reasons as would relieve from filing the same.

As to the other objections raised under this motion which is treated as a demurrer, the requests are overruled and the only requirement hereunder is as to the filing of copy of the alleged cancellation.

Exceptions noted and bill sealed to the plaintiff and the defendant.

From John M. Urey, Clearfield, Pa.