author: Broomall, J.,

text:
    Rhamstine Radio Specialty Company v. Sherman.

      E. Wallace Chadwick, for plaintiff; Frank S. Morris, for defendant.
    Nov. 25, 1927.
   Broomall, J.,

This is an action in assumpsit, based upon a judgment recovered by the plaintiff against the defendants in a suit instituted in the City Court of New York, State of New York, an exemplified record of the proceeding and judgment in that «court being made a part of the statement of claim and the basis of the action. The defendants filed an affidavit of defense, in which they aver that: “By the laws of New York, in which judgment was obtained, which is the cause of action in this suit, a suit cannot be maintained on such judgment unless, before bringing suit, the court in which the suit was brought made an order granting leave to bring the suit on the judgment. The order has not been made, as defendant believes.”

The plaintiff entered a rule for judgment for want of a sufficient affidavit of defense, which is before us for disposition.

The defendant relies entirely upon the suggestion that the present action could, not be brought without leave having first been obtained from the court of New York in which the original judgment was obtained. In support of this, there are cited the cases of Hinman v. Hare, 13 W. N. C. 251; Skelding v. Harris, 17 W. N. C. 238, and McClean v. Keener, 8 Lanc. Law Rev. 313.

It is possible that these three cases sustain the present contention of the defendant, although it is difficult to be certain of this. In each of the cases the defendant raised the same point that is raised here, in each of those cases the court discharged the rule for judgment, but in no one of the cases was there the slightest discussion of what was involved, nor was any reason whatever for the action of the court stated. In the first and second cases cited, the opinion of the court merely reads: “Eo die, rule discharged.” In the third case, that from 8 Lanc. Law Rev. 313, the court filed an opinion, saying: “On the authority of Hinman v. Hare and Skelding v. Harris, this rule must be discharged.” In spite of the respect that we have for the learned jurists who made the three decisions cited, their determination would be much more convincing had they seen fit to give any reason for the determinations. We have not been referred to any decision by the appellate courts of this State on the subject, nor have we been able to find any. The principle involved has been discussed in a number of cases outside of this State, and in every instance, so far as we have been able to trace them, the determination has been against the position now urged by the defendant, and the courts have ruled that if the law is as suggested in the affidavit of defense, it is intended merely to apply to procedure in the courts of the State of New York and is not controlling on any court outside of that state: Weber v. Yancy, 34 Pac. Repr. 473; Phelps v. O’Brien Co., 2 Dill, 518; Union Trust Co. v. R. & P. R. R. Co., 29 Fed. Repr. 609.

We feel from what was said in those opinions that the provisions of the law of the State of New York in question, if it exists as alleged, is one which does not limit the force of the judgment but relates merely to a remedy thereon, and as such would have no force outside of the State of New York. In addition to this, we feel that the provision invoked, if it exists, is not sufficiently pleaded. If there is such a law, it is the duty of the defendant to set it out specifically and to state where the statute, if it is a statute, could be found, or, if it depends upon decisions of the courts of New York, to refer us to those decisions: Boughton v. American Exchange Nat. Bank, 9 W. N. C. 519, so that in this aspect, too, the affidavit of defense is insufficient.

And now, Nov. 25, 1927, the rule for judgment for want of a sufficient affidavit of defense is made absolute and the prothonotary is directed to enter judgment in favor of the plaintiff and against the defendant for the sum of $1383.80, with interest thereon from June 5, 1925.

From William R, Toal, Media, Pa.


source: Caselaw Access Project

author: Groff, J.,

license: Public Domain

text:
    Steinman & Steinman v. Lenig.

      C. N. Berntheizel and Charles W. Baby, for rule; J. Andrew Frantz, contra.
    March 24, 1928.
   Groff, J.,

The defendant above has entered a rule on the plaintiff to strike off his statement on the following grounds:

1. That the plaintiff’s statement is in violation of section 5 of the Act of May 14, 1915, P. L. 483, in that the statement alleges more than one material allegation in each paragraph.

2. That said statement is in violation of section 9 of the above act, in that it does not state whether the contract therein alleged was an oral one or a written one.

In section 5 of the Practice Act of May 14, 1915, P. L. 483, we find that every pleading . . . shall be divided into paragraphs numbered consecutively, each of which shall contain but one material allegation.

In reading the plaintiff’s statement, we cannot find the plaintiff has violated this portion of the act. Each paragraph of the plaintiff’s statement seems to us to contain but one material allegation, but more than one expression in reference to that allegation.

We, therefore, feel that the statement should not be stricken off on account of the first reason assigned by defendant.

As to the second reason, it has been decided in Raub Supply Co. v. Forrest, 5 D. & C. 678; 39 Lanc. Law Rev. 196, that in action on a book account it is not necessary to allege in a statement whether the contract is oral or written.

For the reasons stated, we discharge the defendant’s rule. Rule discharged.

Prom George Ross Eshleman, Lancaster, Pa.


author: Lewis, J.,

text:
    R. C. Clement Building Association v. Ortenz.

      A. S. C. Millar, for plaintiff; Summerfield & Mirarchi, for defendant.
    Oct. 5, 1928.
   Lewis, J.,

On April 14, 1925, the defendant borrowed from the R. C. Clement Building Association $400, and assigned his twenty shares of stock as collateral security for the repayment of the loan. The value of his stock at that time exceeded the amount of the loan. He then executed a note, which, in form, is as follows:

Following the making of the loan, the defendant paid dues on his stock, amounting to $20 per month, with interest on the loan, amounting to $2 per month, on eight separate occasions.

On Aug. 24, 1926, Peter G. Cameron, Secretary of Banking of the Commonwealth of Pennsylvania, under the authority vested in him by the provisions of the Banking Act of 1923, took possession of the business and the property of the R. C. Clement Building Association, and, acting through his special deputy and agent, William R. Smith, made demand upon the defendant for the repayment of the sum of $400, together with interest thereon. Upon defendant’s refusal to pay, the present suit was instituted.

The defendant maintains that in settling and adjusting the matter, he was legally and equitably entitled to set off against the original amount of such loan the withdrawal value of his twenty shares of stock; that by the terms of the note which he executed in favor of the building association, he determined that the instalments paid upon the stock should be applied against the sum borrowed by him, and, further, that the express terms of the note operated as an appropriation of the payments on the stock to the extinguishment of the loan.

On behalf of the plaintiff, it is asserted that the defendant, in continuing to pay dues on his stock, as well as interest on his loan, clearly indicated the relationship between himself and the association to be that of lender and borrower; that in paying the dues on his stock he continued to recognize his ownership of the stock, and by paying interest on his loan he continued to recognize his debt to the association.

The principal object of a building and loan association is to create a loan fund for the benefit of its members, the underlying idea being that by means of the system of small periodical payments provided, people of limited means will be enabled to become the owners of homes, and thrift, economy and good citizenship will thereby be promoted. The general plan upon which building and loan associations are organized places a borrowing member in a dual relationship to the association; as a stockholder, he is a member of, and, in theory at least, participates in the management of the association. In that capacity he shares the expenses of the business,'the losses and profits, as would a stockholder of any other corporation. As a borrower, he simply receives an advance on the par value of his stock, agreeing to pay the legal interest during the time that he has the money of the association, with the expectation that his stock will reach par value or “mature about the time fixed for the payment of the loan.” To state it differently, a borrowing member of a building and loan association, in his capacity as borrower, is a debtor; in his capacity as shareholder, he is a member of the corporation; what he pays as interest is paid in his character as debtor on his loan; what he pays as stock dues is paid in his character as a stockholder. The two are separate and distinct and must be dealt with as such.

Each monthly payment made by a borrowing stockholder consists of three parts, and is so credited on the books of the building and loan association, to wit, interest, premium and dues. “Dues are ordinarily credited as payment on stock, interest and premium going to the general fund, and constitute the earnings of which a member’s stock gets its pro rata share, after expenses of the association and losses, if any. The insolvency of an association puts an end to its business operation, at least so far as future performance is concerned, and to a certain extent also ends the contract between it and its members respectively.” See 4 Ruling Case Law, 386.

What is the basis or mode of settlement between the association and its borrowing members in case of its insolvency before the maturity of its stock? Where a building association becomes insolvent, three views, respectively known as the Maryland, Pennsylvania and Illinois rules, have been advanced in regard to the relative rights and obligations of the borrowing and non-borrowing stockholders. For a discussion of these rules, see 9 Corpus Juris, 981, and the “Law of -Building and Loan Associations” (2nd ed.), by Joseph H. Sundheim, Esq., of the Philadelphia Bar, page 129. The Pennsylvania rule is that the borrowing stockholder is entitled on insolvency to be credited on his loan for the amount of his premium and interest paid. He is not entitled, however, to credits on the loan for payments made as dues. He is required to pay what he actually received, with interest. The amount paid by the borrowing stockholder as dues on stock stands to his credit on the books of the association until the time for final adjustment, when he and all other stockholders, borrowers and non-borrowers, will be paid pro rata from the fund for ultimate distribution.

The rule in Pennsylvania, however, recognizes the “appropriation” by the borrower of dues or payments on account of the loan toward the repayment of the loan when such “appropriation” is made prior to insolvency; but unless there is some evidence of appropriation by the borrower, stock payments are not applied to the repayment of a loan. The President Judge of the Court of Common Pleas No. 5, in Broad and Erie Building and Loan Ass’n v. Steward, 4 D. & C. 341, says: “The borrowing of money by a stockholder of a building and loan association establishes two relations, that of borrower as well as that of stockholder, and the decisions of the courts seem to be uniform that where stock is assigned by a borrower to secure his loan, payments upon the stock may be applied upon the loan by the association, but in the absence of such application, they are not to be deemed payment upon the loan. This was the effect of Erthal v. Glueck, 10 Pa. Superior Ct. 402, and Bier v. Keer, 70 Pa. Superior Ct. 570. It is just as firmly established, however, that the stockholder can, by his assignment of his stock, direct how the instalments payable upon the stock shall be applied, whether upon the sum borrowed by him or not. In other words, the terms and provisions of the assignment govern the application of the payment upon the stock so assigned:” Franklinville B. & L. Ass’n v. Silberman, 10 D. & C. 757 (1928). The borrower will also be given credit for dues paid on stock, when the bond provides that all money paid by him into the association or stock held by him “shall be taken and considered as payment on and in liquidation of this bond.”

In York Trust, Real Éstate and Deposit Co. v. Gallatin, 186 Pa. 150, the court held that such provision is an appropriation of the payments to the loan at the very inception of the contract and before any other persons’ rights have attached. The borrower, therefore, may at any time before insolvency of the association elect to have his payments apply directly on the debt. A similar provision in the assignment of stock, when it is being assigned as collateral at the same time the bond and mortgage are being given, will serve the same purpose.

In Kurtz v. Campbell, 31 Pa. Superior. Ct. 516 (affirmed in 218 Pa. 524), the Supreme Court made the following significant statement: “This case is clearly ^within the rule of York Trust, Real Estate and Deposit Co. v. Gallatin. ‘The majority of the court are of the opinion that on principle the case was erroneously decided, but as it has stood in the books for nine years, and many contracts have been made in reliance on it, the principle of stare decisis should prevail, and the authority of that decision should not now be disturbed.’ ”

Freemansburg B. & L. Ass’n v. Watts, 199 Pa. 221, the court, again referring to York Trust, Real Estate and Deposit Co. v. Gallatin, said: “That case stands on its own facts and it is not one to be reasoned from.”

The Superior Court, in Globe Mutual B. & L. Ass’n v. Schutte, 29 Pa. Superior Ct. 265 (1905), construed the following endorsement on the back of the bond which the borrowers had given to the building and loan association: “For value received by Henry Shutte, the within named obligor does hereby assign, transfer and set over unto the Globe Mutual Building and Loan Association of Pittsburgh the five shares of stock held by me in said Association as collateral security for the payment of the debt mentioned in the within Bond, and, further, I do hereby elect to treat all past and future payments of dues and premiums on said stock as credits on the within bond and mortgage referred to below, and I authorize and direct the officers of the said association to so appropriate and credit the same.” Smith, J., said: “This association was to be governed by the acts of assembly relating to building and loan associations, with like privileges and responsibilities of its members. Payments received from all sources go into the general fund of the association, to be periodically divided as profits among all the shareholders according to the amount of stock held by each. With the appointment of a receiver, the business of the association as such ceased; nothing then remained but to wind up its affairs in such a manner as to do equity to the creditors, and between the members themselves, according to their rights and liabilities respectively. In the present case the amount due the association was $1000, and Mr. Shutte, under his contract, was required to pay as other stockholders. As a borrower, he should be charged with his actual indebtedness, with interest, according to his contract, before participating like non-borrowers, and should bear his share of the losses. But to allow him credit for payments on his stock, as now contended for, would enable him to escape this responsibility and throw it wholly on the non-borrowers. In this common enterprise the stockholders must bear their share of the losses and profits according to their contract and respective holdings. Further, on this question, Judge Frazer, in the opinion overruling the motion for a new trial, very pertinently said: ‘While possibly, under the case of York Trust, Real Estate and Deposit Co. v. Gallatin, 186 Pa. 150, an appropriation of dues and premiums to a mortgage indebtedness might be sustained under some circumstances, those circumstances should be sueh as to leave no doubt whatever as to the assent of both parties to the agreement. In this case, while Mr. Shutte, by the endorsement upon his bond, elects to have his payments on account of stock credited to his indebtedness, we have nothing before us to indicate an agreement upon the part of the association to so treat such payments. . . . That the association did not treat the payments made by Mr. Shutte as payments on account of his loan is evidenced by the fact that such payments were credited in the books of the association, and also in his pass-book, as payments upon account of dues and premiums, and it also appears by both the books of the association and the pass-book that he was credited on the stock with the profit accruing to his shares. The pass-book in his possession showed these weekly credits and also the profits realized upon his stock, and having permitted these payments to be so appropriated and credited, and having received his dividends, it seems to us that such action upon his part was a ratification of the appropriation of his payments made by the association, and sufficient notice to him that the association did not recognize his election to have the payments appropriated to the loan in direct conflict with the requirements of the by-laws of the association.’ The Supreme Court quoted from Freemansburg B. & L. Ass’n v. Watts, 199 Pa. 221, as follows: ‘A member who borrows from the association remains a stockholder under a duty to pay the dues on his stock regularly, and subject to a penalty for non-payment. The payment of these dues is an indirect payment on account of the loan, as the payment increases the value of his stock, and thus adds to the collateral pledged, by means of which payment is to be made in the end. But if these payments are considered as direct payments, the result is that he has paid nothing on account of his stock, notwithstanding his obligation to do so; he has been charged with fines for non-payment when payment was not required; his instalments of interest have remained the same, although his debt has been reduced by regular payments; his stock, on which he has paid nothing, has participated in the profit which has accrued to all the stock alike; and in the case of insolvency of the association, we have the rank injustice that the burden of the whole loss is cast upon the non-borrowing members.’ If the defendant’s contention prevailed, Mr. Shutte would receive dividends upon the stock upon which he has paid nothing, and also the ‘rank injustice’ of his being relieved from his share of the burden of the association’s loss.”

The wording of the note in the case before us, together with the conduct of the defendant, clearly indicates defendant’s conception and understanding of the relationship between him and the building and loan association. The evidence shows that at the time the loan was made the value of the twenty shares of stock in the first series exceeded $400. If the contention of the defendant be adopted, it is apparent that on April 14, 1925, and after borrowing $400 from the association, defendant did not owe it any money whatsoever, because the value of his stock exceeded the amount of the loan. His subsequent conduct will then become absolutely inconsistent with his present contention.

There is no need to labor this point any further. It is perfectly obvious that the defendant, by continuing to pay dues on his stock and by paying interest on his loan, recognized his continued ownership of the stock, which, of course, is totally inconsistent with his present contention of “appropriation.” The stock was assigned as collateral security only.

It is settled that demands to be set off must be mutual and that debts accruing in different rights cannot be set off one against another. In view of the dual relationship of membership and debtor between the association and the borrowing stockholders, as above pointed out, the equitable doctrine of set-off as payment by the defendant stockholder is not applicable to this case.

The dues paid by the defendant were credited directly as payments on the stock and the interest went into the general fund and constituted the earnings, of which a member’s stock gets its pro rata share after the expenses of the association and losses, if any, are paid. The contract of the defendant in this case cannot be treated as one of simple loan, because by doing so the relationship of the defendant as stockholder would be mere fiction.

The insolvency of the association put an end to its business operations, and the defendant, being a borrowing member, will be compelled to pay up his loan at once. The purpose of the association having failed, the contractual obligations between the association and its members were dissolved except for the purpose of liquidation. Moreover, if the defendant should prevail, he would obtain an advantage over the non-borrowing members of the association. In spite of his conduct in recognizing the loan and paying interest thereon, he would be relieved of his share of the burden of the association’s loss. This, it seems to us, both on principle and authority, ought not to be permitted.

The court, therefore, enters a finding in favor of the plaintiff in the sum of $436.


author: Martin, P. J.,

text:
    Commercial Acceptance Corporation v. Uber et al.

      Ralph S. Croskey, for plaintiff; Edward W. Kirby, for defendants.
    June 21, 1928.
   Martin, P. J.,

Judgment was entered on a lease of a second-hand truck which was purchased by plaintiff from the Motor Service Company and rented by plaintiff to defendants by a bailment lease for a period of 125 weeks at a total rental of $1863.40, “due in advance,” but the lease provided that the rent “for the convenience of bailee, may ... be paid as follows: $15 a week for each and every week, commencing on March 10, 1923, until full payment;” and “should bailee fail to pay any of the rental payments at the time and place specified,” the lease stipulated that “the entire balance on this truck, less all rental payments already made by bailee, shall be due and payable forthwith, at the election of the bailor.” The bailee agreed to make the rental payments regardless of whatever loss or damage may happen to said motor-vehicle; and if the bailee failed to comply with any of the conditions of the lease, or made default, the entire unpaid hire forthwith became due and payable, without notice or demand, and the prothonotary was authorized to appear for and confess judgment against the bailee, in favor of bailor, for the amount of hire unpaid and costs, with an attorney’s commission of 20 per cent. No repairs could be made to the truck without the written consent of the bailor first had and obtained; and it was agreed that the lease contained all of the terms of the contract entered into between the parties, that nothing had been omitted therefrom, that there was no parol contemporaneous agreements between the parties, and that no special or collateral agreement of any sort or kind should bind either party unless written upon the face of the contract.

There was a statement in the lease signed by defendants:

“I acknowledge delivery of the car to me. I have read the foregoing agreement before signing and understand all the terms and conditions thereof, which have been fully explained to me. I understand that no agent is authorized to make any verbal terms differing from the above contract, and I have received a copy of said agreement. This automobile has been examined thoroughly by me and I am satisfied with its present condition in every detail. I acknowledge that neither the said automobile or any of its attachments or accessories have been warranted to me in any manner whatsoever.”

The lease was dated March 1,1923. The judgment was entered on April 22, 1923. No instalment of rent had been paid by defendants, and plaintiff claimed $1863.40, the full amount of the rent that would have become due at the end of the term. An attorney’s commission of 20 per cent., amounting to $373.68, was added, making the total assessment of damages $2236.08. Execution was issued on real estate belonging to the defendant, Uber.

Defendants filed a petition, averring that the defendant, Uber, was advised by the duly authorized agent or representative of the plaintiff that it was unnecessary for him to sign certain papers as reference for the other defendant, Barry, and that he executed the papers induced by, and relying Upon, that statement, which was false; that he is a blacksmith and had no negotiations or transactions with plaintiff or any representative of plaintiff for the purchase or lease of a motor-vehicle of any kind, and never received any motor-vehicle .from plaintiff; that the execution of the lease by him was brought about by the false representations and statements made by, and on behalf of, plaintiff, by its duly authorized representative, that the motor-vehicle, the subject of the transaction, was a Republic truck in good running and operating condition; that this statement was false, untrue and fraudulent, and the entire transaction and execution of papers and documents were procured and induced by said representations; that the motor-vehicle was not an automobile, and would not operate and run under its own power; that, immediately upon being attempted to be driven from the garage by Edward J. Barry, or under his direction, it broke down and could not be operated; that immediately upon a load being placed upon the truck it broke down; that Barry from time to time informed plaintiff of the defective condition of the vehicle and endeavored to have it returned, but plaintiff failed and refused to take any action in the matter until the entry of the judgment.

A rule was granted to show cause why the judgment should not be opened and defendants let into a defense and the execution stayed.

Plaintiff filed an answer which denied that the execution of the lease was induced or brought about by false and fraudulent statements and representations, and averred that it was signed by defendants of their own free will and volition. It was denied that plaintiff represented it was necessary for defendant Charles Uber to sign certain papers as a reference for Barry, and averred that no such representation was made. It was further denied in the answer that the motor-vehicle was not an automobile or that it would not operate or run under its own power and that immediately upon the attempt to drive it from the garage by Barry it broke down and could not be operated; button the contrary, the answer averred that the automobile was in perfect mechanical condition and good running order and there were no mechanical or other defects in it of any kind or nature whatsoever; and that defendants signed a statement that the automobile had been examined thoroughly and they were satisfied with its present condition in every detail, and that neither the automobile nor any of its attachments or accessories were warranted.

Depositions were taken. A letter sent to the plaintiff by the defendant, Barry, was placed in evidence by plaintiff, which stated:

“I regret in not being able to meet payments on truck as I have been laid up with a bad attack of rheumatism and I only went to work Wednesday so that throws me back now. When I first got that truck I got jobs for it, but the truck fell down and I had to get another truck to haul it for me, and when it broke down it was very cold and that’s when I was taken sick. Now I to tell you that no one will hire that truck in the condition it is and the only than can be done is to replace a radiator, replace a water jacket, overhaul the transmission and clutch and also a new magneto disk, in fact I would have to overhaul the whole machine and I am in no position to do same now. If you can replace those parts you can add it on the bill, then I will work the truck steady and pay for it; so now it is up to you as I can’t do anything with it as it won’t haul a load, so if can’t help me that way, then I can’t keep it any longer as I don’t want a big bill, and if will take it back I will pay whatever is due on it now. The truck is at Deanley Ave. Roxborough. Hoping I will hear from you,

“E. J. Barry

c/o John Barry,

120 N. 21st.”

There was a long delay in completing the depositions by reason of the inability of the defendant, Uber, to secure the attendance of his co-defendant, Barry, for the purpose of being examined as a witness. Barry’s deposition was not taken.

On May 16, 1927, the rule to show cause why the judgment should not be opened was discharged for want of prosecution.

On June 21,1927, a petition was presented by the defendant, Uber, averring that the depositions had not been completed owing to the fact that the testimony of the defendant, Edward J. Barry, could not be obtained, as he could not be located and his attendance secured, but that Barry was now available and his testimony could be taken. A rule was granted to show cause why the order discharging the rule to open the judgment should not be vacated, the rule to open judgment be reinstated, and an order issued to stay proceedings. This rule was made absolute.

On Jan. 31, 1928, a petition was presented by plaintiff, averring that no depositions had been taken since the rule to reinstate the rule to open judgment was -made absolute, and that the status was the same as when defendants’ rule to open judgment was discharged for want of prosecution. A rule was granted to show cause why execution should not issue upon the judgment.

Charles Uber, one of the defendants, filed an answer to this petition, in which he averred that he had made diligent efforts to locate and secure the attendance of Edward J. Barry, but admitted that Barry had not been found and that no further depositions had been taken.

The defense is presented by the defendant, Uber, who testified that he had no interest in the leasing of the truck.

It appeared in the depositions that the price charged defendants for the truck, in the form of rent, was nearly double that which plaintiff paid for the truck, and that plaintiff knew that Barry was leasing the truck for the purpose of conducting a hauling business. It was of vital importance to him that the truck should be capable of carrying a load and was in running order. Although Barry did not appear as a witness, plaintiff placed his letter in evidence, which stated that the truck broke down and could not carry a load.

The lease calls for one “Republic truck automobile, model 31 ton;” and, notwithstanding the clause in the lease that there was no warranty, the case is governed by the law declared in Berwick Store Co. v. Zadyejka, 76 Pa. Superior Ct. 461, 463, in which “the question of fact submitted to the jury was whether the truck delivered met the requirements of the contract.” It was said by Henderson, J.: “The appellant contends that the term ‘two ton Reo truck’ is descriptive merely of the thing leased and could not be regarded as support for the theory of an implied warranty. There must be, however, some significance in the use of the words ‘two ton.’ If that is not descriptive of the weight of the machine, it must relate to its carrying capacity, and that it was intended to designate the latter quality we have no doubt. . . . The lease calling, therefore, for a truck having a capacity to carry two tons under ordinary conditions, a failure by the plaintiff to deliver such a truck would amount to a breach of the contract, and the defendants might assert a failure of consideration for their notes. Whether they brought an action for a breach of contract or defended against the payment of the balance of the rent, the questions of law involved were the same. It is an elementary principle that the plaintiff cannot recover under such circumstances if it made default in keeping its pledge. The defendants are not denying the execution of the notes. They are asserting that having given them in good faith in reliance on the plaintiff’s contract, they afterward learned that the thing they intended to lease, and which the plaintiff undertook to deliver to them, was not that which- they actually received, to wit, a Reo truck having the power and in the condition to carry two tons of freight. . . . From the day the truck was delivered, it was in a defective condition and continued so to be; ... it lacked power to move loads of less than two tons, and a question for the jury was therefore presented.”

There was no testimony to contradict the statements of Barry contained in the letter sent by him to plaintiff and which the plaintiff placed in evidence, and no effort was made by plaintiff to repair the truck.

In Callahan v. Gorson, 65 Pa. Superior Ct. 329, there was a provision in a lease that “This car is positively not guaranteed by this Company. This agreement constitutes the entire contract between both parties.” It was said by the court (page 333) : “If the contract was for the sale of a specific kind of car and of a defined quality to be used for a particular purpose as alleged, then there was a warranty and such contract may be enforced.”

In Hoffman v. Auto Co., 75 Pa. Superior Ct. 524, 527, it was said: “There was a total failure of consideration when the truck proved to be useless for the purpose for which it was purchased.” The court also used language applicable to the present case, saying: “We, however, think the plaintiffs show a sufficient state of facts to warrant the matter to be submitted to a jury. . . . The case resembles that of Land v. Automobile Finance Co., 73 Pa. Superior Ct. 116, in which our Brother Head said: ‘All of the circumstances surrounding this transaction seem to invite an investigation of it by a court and jury if the object of a trial be to endeavor to do justice between the parties.’ ”

And now, to wit, June 21, 19-28, the rule to show cause why execution should not issue is discharged; and the reinstated rule to show cause why the judgment should not be opened is made absolute.


author: Strouss, P. J., and Lloyd, J.,

text:
    Commonwealth ex rel. District Attorney v. Castetter.

      Unger & Sons and J. A. Welsh, for plaintiff; C. C. Lark, for defendant.
    Aug. 20, 1928.
   Strouss, P. J., and Lloyd, J.,

-The object of this proceeding is to test the right of Clyde Castetter to hold the office of Township Commissioner of Coal Township. It was instituted upon the suggestion of Edward Raker, district attorney of this county, representing:

1. That at a municipal election regularly held on Tuesday, Nov. 8, 1927, Clyde Castetter was a candidate for the office of Township Commissioner for the East District in the Township of Coal, County of Northumberland and State of Pennsylvania, and as such candidate received the highest number of votes cast, and was returned as elected commissioner for said East District of Coal Township.

2. That said defendant, Clyde Castetter, was not at the time of his said election a duly qualified elector of the Township of Coal, in that he had not within two years prior to said election paid taxes, as required by the Constitution and laws of the State of Pennsylvania.

3. That the said Clyde Castetter neglected and failed to pay any taxes in said Township of Coal for a period of at least four years prior to said election, and was not eligible for said office of Township Commissioner in the Township of Coal.

Upon this suggestion, a writ of quo warranto issued. The defendant answered, admitting the facts set out in paragraph 1 of the suggestion, but averring that he paid all of his taxes prior to the filing of this petition, and thereupon became a qualified elector and eligible to said office.

The fact that the defendant had not paid any taxes within a period of four years prior to his election, and that he had not paid them or any part of them until after he had assumed the duties of Township Commissioner of Coal Township, was admitted by the defendant at the hearing. He was, therefore, disqualified because of a statutory disability, and, not having removed his disqualification before assuming the duties of his post, is not now qualified to hold the said office: Mosby et al. v. Armstrong et al., 290 Pa. 517.

And now, Aug. 20, 1928, the writ of quo warranto is sustained, and it is hereby ordered, adjudged and decreed that judgment of ouster be entered against Clyde Castetter.

Prom C. M. Clement, Sunbury, Pa.


text:
    Commonwealth ex rel. District Attorney v. Snyder,

      Unger & Sons and J. A. Welsh, for plaintiff; C. C. Lark, for defendant.
    Aug. 20, 1928.
   Strouss, P. J., and Lloyd, J.,

The object of this proceeding is to test the right of A. L. Snyder to the office of Township Treasurer of Coal Township. It was instituted upon the suggestion of Edward Raker, district attorney of this county, representing:

1. That at an election held by the board of township commissioners on Feb. 27, 1928, Abe L. Snyder, defendant above named, was elected to the office of Treasurer of Coal Township.

2. That the election of said Abe L. Snyder as township treasurer is illegal and void, because

(a,) The meeting of Feb. 27, 1928, at which said election was held, was not a regular meeting of the board of commissioners, but a special meeting, called without due notice in accordance with law and the ordinances of said township.

(b) No proper notice setting forth the time, place and purpose of said meeting was given to all the Commissioners of said Township of Coal.

(o) Under the law and ordinances of said Township of Coal, the treasurer of the township can only be elected at a regular meeting of the board.

(d) Said Abe L. Snyder was elected to said office by commissioners who were not eligible or qualified to hold the office of township commissioners in Coal Township.

(e) Said Abe L. Snyder did not receive a majority of the votes of the Commissioners of Coal Township who were duly qualified and eligible to act as such commissioners.

(f) Said election was brought about by said Abe L. Snyder through fraud, illegal conspiracy, bribery and corrupt solicitation.

11. That, under the law and under the rule of public policy, the said Abe L. Snyder, who at the time of his election was solicitor for said Commissioners of said Township of Coal, was, and still is, ineligible for said office of treasurer. That the office of township treasurer and township solicitor are incompatible.

Upon this suggestion, a writ of quo warranto issued on July 18, 1928, returnable to July 23, 1928. On the said return-day the defendant answered, averring the legality of the election, denying the charges of “fraud, illegal conspiracy, bribery and corrupt solicitation,” admitting that he was then holding the office of solicitor of the Board of Commissioners of Coal Township, but denying ineligibility to the office of township treasurer by reason of such holding, and averring, further, that he had tendered his resignation as township solicitor and that the said resignation was accepted by the board of township commissioners prior to the filing of his answer.

We shall consider the several questions in the order in which they are enumerated in paragraph 2 of the suggestion, supra.

The first three assignments, (a), (b), (c), may be considered together. There is no ordinance of Coal Township and neither is there any law ordaining that the election of a treasurer of Coal Township can or must be made only at a regular meeting of the board of township commissioners. It was, therefore, within the power of the board to call a special meeting for that purpose and to effectuate the purpose by the election of a township treasurer: The Modern Law of Municipal Corporations, vol. 1, § 279, page 274. Pursuant to written notices stating the object of the meeting to be “for the purpose of electing a treasurer for the Township of Coal to fill the unexpired term of James P. McCormick, deceased,” and which were served upon all members of the board excepting such as had prior knowledge thereof, the special meeting was held. All members were present and participated in the said election. Whatever, if any, irregularities may have existed in the notices were cured by the presence and participation of the full board; for “no proof of notice is necessary when all members are present at the special meeting. When every member has actual personal notice, this is equivalent to written notice left at his residence:” 28 Cyc., 329.

As to the ground of complaint under section (d) of paragraph 2 of the suggestion, supra. It is admitted that Clyde Castetter, one of the township commissioners voting for the defendant, had not paid a State or county tax within two years prior to his election as such commissioner. He was elected at a general election by the electors of his district, qualified and was acting as commissioner, was in possession of the office and discharging the duties thereof when he voted for the defendant. His vote, together with six others, constituted the majority of the board, resulting in the election of the defendant to the office of township treasurer. What, then, is the legal effect of his vote?

That he was an officer de facto cannot be gainsaid. This being the case, his acts are “valid when they concern the public, or the rights of third persons who have an interest in the act done: The People v. Collins, 7 Johns. Rep. 554; King v. Lisle, Andrews’s Rep. 163. And this rule has been adopted to prevent a failure of justice. . . . The reason given for the rule is most satisfactory. That the act of an officer de facto, where it is for his own benefit, is void, because he shall not take advantage of his want of title, which he must be cognizant of; but where it is for the benefit of strangers or the public, who are presumed to be ignorant of such defect of title, it is good:” King v. Philadelphia County, 154 Pa. 160, 169.

As to the ground of complaint under section (f). This complaint may be dismissed with the observation that it is not sustained by the evidence.

As to the ground of complaint under paragraph 11 of the suggestion, supra. That the offices of township solicitor and township treasurer are incompatible is conceded. In considering the contentions and the arguments of counsel for the respective parties, however, a distinction which is fundamental must be noted between that class of cases in which a disqualification appears because of a statutory disability to hold a particular office and the class of cases in which a disqualification appears because of incompatibility in the offices sought to be held. A failure to keep in mind this distinction results in confusion of thought and in apparent conflict of the authorities when no such conflict exists. In the former, the disqualification arises because of personal ineligibility, while in the latter it arises merely because of incompatibility in the functions of the offices. In Mosby et al. v. Armstrong et al., 290 Pa. 517, 524, Mr. Chief Justice Moschzisker, having given due consideration to the case of Com. v. Pyle, 18 Pa. 519, 521, in delivering the opinion of the court, lays down the true rule for the former class of cases as follows: “It is sufficient if the candidate becomes qualified before the time arrives for him to assume the post in question.” While in the latter class of cases the true rule seems to be that the candidate must determine the office which he intends to hold, and, in the event of his failure to do so, the proper court will make the election for him. And this election by the candidate may be made at any time before judgment of ouster. This conclusion is sustained by the ease of Com. ex rel. Ryan v. Haeseler, 161 Pa. 92, wherein Mr. Justice Williams, presumably with the case of Com. v. Pyle, supra, before him (it being cited in the brief of the appellee of that case), and after reviewing the case of De Turk v. Com., 129 Pa. 151, said: “In this case, no election was made because, under the advice of counsel, it was believed that the offices were not incompatible. When that question was determined against him, we think the appellant should have been allowed to elect which of the incompatible offices he would resign. If he declined or neglected to make such election, it would have been the duty of the court to determine which he should be compelled to relinquish.” Similarly, in the ease of Com. ex rel. v. Bennett, 233 Pa. 286, the lower court entered a decree requiring the defendant “to elect forthwith which place he would hold, and that, upon such election, judgment of ouster should be entered accordingly, or upon neglect or refusal to make an election defendant should be ousted from the office of common councilman.” Upon appeal, the decree of the lower court was affirmed. And the Supreme Court then entered a decree “that the respondent, who has heretofore claimed the right to hold both of said offices at the same time, is required to elect forthwith, upon notice of this decree, which of said offices he will hold, and file his election with the prothonotary.” See, also, S. G. De Turk v. Com., 129 Pa. 151. Moreover, in the present ease the defendant, prior to the filing of his answer, had resigned his position as solicitor of the board of township commissioners. The case is, therefore, within the rule established in the case of S. G. De Turk v. Com., 129 Pa. 151, and reaffirmed in the ease of Com. ex rel. Ryan v. Haeseler, supra, where it was said: “In De Turk v. Com., 129 Pa. 151, this principle was recognized. De Turk was a postmaster. While holding the office he was elected to the office of county commissioner. The two offices were incompatible. De Turk made no election, but continued to discharge the duties of both offices until the writ of quo warranto was served upon him. He then elected to hold the office of commissioner, and accordingly resigned the post-office. In his answer he set up these facts, and we held that he had the right to elect, and, having made his election before judgment of ouster, he could rightfully hold the office of county commissioner.”

For the foregoing reasons, we hold that Abe L. Snyder is entitled to hold the office of Treasurer of Coal Township, and, hence, enter the following

Decree. — -And now, Aug. 20, 1928, the writ of quo warranto is hereby dismissed. Prom C. M. Clement, Sunbury, Pa.


text:
    Com. ex rel. v. Northumberland County Commissioners.

      C. C. Lark, for plaintiff; F. B. Moser, for Poor District.
    J. A. Welsh, S. F. Gribbin and Unger & Sons & McCormick, for defendants.
    Aug. 20, 1928.
   Strouss, P. J., and Lloyd, J.,

This proceeding was initiated upon the petition of Edward Raker, District Attorney of Northumberland County, representing that James P. McCormick was the duly elected Township Treasurer of the Township of Coal, a township of the first class; that he died on Feb. 24, 1928; that Abe L. Snyder was duly appointed treasurer by the Commissioners of Coal Township on Feb. 27, 1928; that he filed his oath of office and gave bond in the amount prescribed by the township commissioners, which bond was approved and filed by them; that the said Abe L. Snyder held the said office, performing the duties thereof from Feb. 27, 1928; that the said Abe L. Snyder had taken his oath of office and had filed the same, together with his bond to the Commonwealth of Pennsylvania in the amount of taxes charged and assessed in the State and county duplicates duly approved by the court in the Court of Quarter Sessions; that on April 1, 1928, he notified the respondents of his election and appointment as treasurer; that, thereupon, respondents placed the duplicates for the county and State taxes for the Township of Coal for 1928 in the hands of the said Abe L. Snyder, but have refused, and still refuse, to attach the necessary warrant authorizing and empowering the said Abe L. Snyder to collect the said taxes; that demand has been made for such warrant and has been refused; that he is without adequate remedy at law; praying a writ of mandamus in the alternative form requiring the respondents to draw, sign and issue said warrant for the collection of taxes or show cause why they should not do so.

Agreeably to the prayer of the petition, a writ of alternative mandamus issued.

To this writ respondents filed a responsive return, in which they admitted the election of the said Abe L. Snyder to the office of township treasurer, but denied the legality of such election, (d>) because one of the commissioners who voted for him illegally held his office, and (b) that at the time of his election he held the office of township solicitor, an incompatible office. Respondents deny that as Treasurer of Coal Township he is entitled to collect the county taxes, averring that a vacancy existed in the office of township tax collector, which was filled by the appointment, by the respondents, of Annie McCormick. The respondents admit having received a letter or notice from Abe L. Snyder that he was appointed Treasurer of Coal Township, and their refusal to deliver to him a warrant to collect the State and county taxes for the reasons above stated. To this return the petitioner filed a responsive reply, denying the allegations and averments of the answer and averring that there was no vacancy in the office of tax collector and that the appointment of Annie E. McCormick was without authority in law and null and void.

The questions involving the right of Abe L. Snyder to the office of township treasurer have been disposed of by us in an opinion filed this day in the quo warranto case, Com. ex rel. Edward Raker v. Abe L. Snyder, to No. 481, September Term, 1928 [11 D. & C. 224]. We there decided that Abe L. Snyder was the duly and legally elected and qualified Treasurer of Coal Township. His right to collect the taxes of the county is found in the 274th section of the Act of July 14, 1917, P. L. 840, at page 869’, which section is as follows:

“The township treasurer in townships of the first class, by virtue of his office as treasurer, shall be tax collector. He shall collect all State, county, township, school, poor and other taxes, within such township of the first class, levied by authorities empowered to levy taxes. He shall, in addition to the powers, duties and responsibilities enumerated in chapter eight, article one, have all the powers, perform all the duties, be subject to all the obligations and responsibilities, and receive the same compensation for collecting such taxes other than township taxes, as are now by law vested in, conferred upon, or imposed upon, or received by, collectors of the several classes of taxes hereinbefore mentioned.

“It is the purpose and intent of this section that no taxes shall be collected in any township of the first class except by the treasurer of the township.”

It is the contention of the respondents that the Act of May 28, 1907, P. L. 273, which was expressly repealed by the “General Township Act” of 1917, having contained the provision “that the office of township tax collector in townships of the first class is hereby abolished,” and, the repealing act, in its 274th section, not containing these words, the office of tax collector is no longer abolished in townships of the first class. With this contention we cannot agree. Without the words referred to, the provisions of the Act of 1907 abolished the office of tax collector in townships of the first class, and the statement of the effect of the act was unnecessary except to remove doubt, if any existed, and the provisions of the 274th section of the “General Township Code” are equally as effective. Again, in the 3rd section of the Act of 1917, the “General Township Code,” the following appears: “The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The repeal by this act of any Act of Assembly, or part thereof, shall not revive any act, or part thereof, heretobefore repealed or superseded, nor affect the existence' or class of any township heretobefore created. . . .”

It thus appearing that the office of tax collector in townships of the first class is abolished, it follows that the township treasurer is the collector of the State and county taxes by virtue of his office: “General Township Code,” 1917, § 274; Leedom v. Allen, 52 Pa. Superior Ct. 529; Cornman v. Hagginbotham, 227 Pa. 549. But it is the contention of the respondents that on the same day that Snyder was elected by the board of township commissioners to the office of township treasurer, the respondents elected, upon the petition of twelve citizens of Coal Township, Annie McCormick as township tax collector. Both appointments were made within four days of the death of the elected late incumbent. There is here no contention by the respondents that the appointment of Annie McCormick is valid if no vacancy existed, and, certainly, unless the 130th section of the “General Township Code” is nullified, there was no vacancy to be filled. Nor does the Act of Assembly of May 17, 1917, P. L. 221, under which the appointment was endeavored to be made, have reference to townships of the first class. For these reasons the writ must be sustained.

And now, Aug. 20, 1928, the writ is sustained, and it is ordered, directed and decreed that the defendants turn over to Abe L. Snyder, township treasurer, the necessary warrant for the collection of State and county taxes, to the end that the collection of the taxes may be proceeded with. The costs to be paid by the County of Northumberland. An exception is noted and bill sealed for the defendant. From C. M. Clement, Sunbury, Pa.


author: Koch, P. J.,

text:
    Leshefka v. Homa et ux.

      John Skweir and E. D. Smith, for plaintiff.

      P. B. Boads and George M. Boads, /or defendants.
    July 23, 1928.
   Koch, P. J.,

The bill was filed Nov. 2, 1925, and the defendants filed preliminary objections thereto on Dec. 3, 1925. The record so stood until March 16, 1926, when the defendants filed an answer to the merits of the bill. More than ten months later, the defendants presented a written motion, on Jan. 27, 1927, for leave to withdraw said answer on the merits and to have the bill heard on the preliminary objections thereto. The motion was dismissed Feb. 7, 1927, and the defendants were granted an exception. Such action is now made the first exception to the chancellor’s findings, conclusions and decree nisi. It has no proper place among those exceptions, and, if it had, we would say the ground thereof is not tenable. “One who seeks to avail himself of technical objections to pleadings must do so at the earliest opportunity. He cannot be permitted by his pleadings to raise an issue on the merits of the case and thereafter to attack the sufficiency of his opponent’s pleadings:” Boyle v. Breakwater Co., 239 Pa. 577, 590; Fritz v. McGeehan, 4 D. & C. 470. “Equity Rules 48 and 49 must be construed in the same way” as the Practice Act of May 14, 1915, P. L. 483: Gray v. Philadelphia and Reading Coal and Iron Co., 286 Pa. 11, 15.

Exceptions 2 and 3 are to findings of fact, which are clearly and well supported by the evidence. The defendants offered no evidence whatever save the record of the case on the common law side of this court by Leshefka v. Homa, entered to No. 285, May Term, 1924 [10 D. & C. 156]. And no evidence has been pointed out to us that contradicts any of said findings. They stand uncontradicted and must be permitted to stand.

Exceptions 4, 5, 6, 7, 8, 9 and 10 are all grounded on the chancellor’s nonaffirmance of as many requests by the defendants for findings of fact. The Equity Rules no longer require a chancellor to either affirm or negative such requests. He must, however, file them. Of course, he will carefully consider such requests when he comes to make up his findings. But his failure to adopt, refuse or modify them forms no basis for exceptions.

The same remarks apply to exceptions 11, 12 and 13, which refer to the chancellor’s non-affirmance of certain requests of the defendants for findings of legal conclusions.

The chancellor’s findings of fact, discussion and conclusions of law are ample for a decree in this case, and, in our opinion, vindicate the same.

And now, July 23, 1928, after hearing argument before the court in banc on all the exceptions filed by the defendants, and upon due consideration, it is finally ordered, adjudged and decreed that the defendants, Steve Homa and Helen Homa, his wife, shall within twenty days make, sign, execute, acknowledge and deliver to the plaintiff, Peter Leshefka, a mortgage in proper form, acceptable to him or his counsel, upon

“All that certain lot or piece of ground, situate on the Westwardly side of Second Street, in the Borough of Saint Clair, County of Schuylkill and State of Pennsylvania, being a portion of lots numbered thirty (30) or thirty-one (31). Bounded and described as follows, to wit: Commencing at a point on the Westwardly side of Second Street, thence westwardly along property of Robert F. Weaver, and at right angles to said Second Street, a distance of One hundred and seventy-two (172) feet, more or less, to a point two (2) feet east of the brick garage (the property of Robert F. Weaver), thence southwardly and parallel to said Brick Garage a distance of eight (8) feet to a point, thence westwardly on Second Street to said Brick Garage a distance of twenty-eight (28) feet, more or less, to a point on the Eastwardly side of Third Street, thence southwardly along the Eastwardly side of Third Street Sixteen and one-half (161) feet to a point, thence eastwardly along property now or late of Frank P. Post and wife a distance of Two hundred (200) feet to a point on the Westwardly side of said Second Street; thence northwardly along said Second Street a distance of Twenty-four and one-half (241) feet to the place of beginning,” to secure the payment to the plaintiff of $10,864.42, with interest from Nov. 20, 1924; and it is further ordered, adjudged and decreed that the defendants pay the costs, and that they be restrained from conveying or in any wise encumbering the said premises until at least one day after said mortgage has been executed, acknowledged, delivered and recorded, said mortgage not to be subject to foreclosure until three months after its date. All the exceptions are dismissed.

Prom M. M. Burke, Shenandoah, Pa.


author: Gray, J.,

text:
    Harden v. Scheib et al.

      Balfe O. P. Silverman, for plaintiff; Harry J. Schmitt, for defendants.
    Jan. 9, 1928.
   Gray, J.,

The action was begun before a justice of the peace. The transcript shows the issuance of a summons in trespass which was served in Allegheny County on a resident thereof by a constable. ■ A judgment for $71 and costs was entered for the plaintiff for damages caused in Allegheny County by an automobile collision in which defendants’ automobile was driven by an employee of the defendants.

An appeal was taken to the County Court, where there was a trial and verdict and judgment for the plaintiff. The defendants raised the question of the jurisdiction of the justice of the peace and asked for binding instructions and moved for judgment n. o. v., which was refused and judgment entered on the verdict.

The defendants, therefore, petition this court for leave to appeal on the ground that the justice of the peace had no jurisdiction, since the action was one of trespass on the case and not trespass vi et armis, and was not such an action as may be brought before a justice of the peace under the Act of June 30, 1919, § 36, P. L. 678, or the amendment thereof by the Act of June 14, 1923, § 30, P. L. 718. Aside from the Acts of 1919 and 1923, the jurisdiction of justices of the peace is confined to actions of “trespass vi et armis where the injury is immediate; their jurisdiction did not extend to injuries for the redress of which an action of trespass on the case was the appropriate and exclusive remedy. . . . Trespass is proper where the injury is by the direct act of the party, whether done wilfully or negligently. Force directly applied is the criterion:” Sprout v. Kirk, 80 Pa. Superior Ct. 514.

This jurisdiction of justices of the peace is under the Act of March 22, 1814,'§ 1, 6 Sm. Laws, 182, as amended by the Act of July 7, 1879, P. L. 194. It seems to be conceded that where the injury is done through the negligence of a servant of the defendant, the action is on the case and not trespass vi et armis, and that under the Act of 1814 a justice of the peace would have no jurisdiction of such an action. Numerous decisions of the Courts of Common Pleas of the State of Pennsylvania are cited to this effect and the rule seems to be generally recognized, although no decision of the Supreme or Superior Courts have been called to our attention. But it would seem to follow as a matter of course from the decision in the case of Sprout' v. Kirk, 80 Pa. Superior Ct. 514, and similar cases.

The question arises whether the justice of the peace acquired jurisdiction by virtue of the terms of the Act of 1919 or the Act of 1923 referred to. Section 36 of the Act of 1919 reads as follows: “All civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought in the county wherein the alleged damages were sustained, and service of process may be made by the sheriff of the county where the suit is brought deputizing the sheriff of the county wherein the defendant or his registered agent resides or where service may be had upon him under the existing laws of this Commonwealth, in like manner as process may now be served in the proper county.”

Section 30 of the Act of 1923, amending section 36 of the Act of 1919, reads as follows:

“Section 30. That section thirty-six of said act is hereby amended to read as follows:

“ ‘Section 36. All civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county where the alleged damages were sustained, if the plaintiff has had said damages repaired, and shall produce a receipted bill for the same properly sworn to by the party making such repairs or his agent, or said action may be brought in the court of common pleas of said county, and service of process, in either case, may be made by the sheriff of the county where the suit is brought deputizing the sheriff of the county wherein the defendant or his registered agent resides or where service may be had upon him under the existing laws of this Commonwealth, in like manner as process may now be served in the proper county: Provided, That no action involving more than one hundred ($100) dollars shall be brought before any alderman, magistrate or justice of the peace.’ ”

Does the Act of 1923 confer general jurisdiction on justices of the peace in actions of trespass' on the case arising from the use and operation of motor-vehicles, or does this act, if it does anything, simply give to justices of the peace jurisdiction to entertain such actions of trespass on the case where the plaintiff has had his damage repaired and produces a receipted bill for the same properly sworn to by the party making such repairs and where the defendant does not reside in the county where the damages were sustained?

No decision of the Supreme or Superior Courts deciding this question has been called to our attention. Counsel for defendant cites the cases of Sharp v. Boyer, 6 D. & C. 597, and Parson v. Downer, 7 Wash. Co. Reps. 28, 9 D. & C. 246, and on the basis of these cases and some other nisi prius cases cited contends that the Act of 1923, so far as it attempts to confer jurisdiction upon justices of the peace, is unconstitutional, and that the Act of 1919, as amended by the Act of 1923, if it is constitutional, only confers jurisdiction on justices of the peace in actions of trespass on the case where the defendant does not reside in the county wherein the damages were sustained, where it is necessary to make service on him elsewhere and where the amount involved is not over $100 and plaintiff has had his damages repaired and produces a receipted bill as specified in section 30 of the Act of 1923.

After careful consideration, we have come to the conclusion that the position of the defendants is correct, that the justice of the peace in this case had no jurisdiction, since the action is not of the character specified in section 30 of the Act of 1923.

Section 36 of the Act of 1919, which is a general act relating to and regulating the operation and use of motor-vehicles, confers no jurisdiction on a justice of the peace. The apparent purpose of this section is to permit an action which is cognizable in a Court of Common Pleas to be brought in the county where the alleged damages were sustained when the defendant did not live in such county, and it provides for service of process by the sheriff of the county where suit is brought through the sheriff of the county where the defendant or his registered agent resides, or where service may be had upon him under the laws of the Commonwealth. This was evidently to avoid the hardship of following a defendant to his own jurisdiction and putting upon the plaintiff the necessity of going to another county when he was injured by a non-resident of his own county. There is no enlargement of the jurisdiction of the Common Pleas Court as to the character of actions which could be brought in it; it was only as to the persons who could be brought within the jurisdiction of the court where an accident happened and where damages were sustained.

Section 30 of the Act of 1923 was also evidently enacted for the same purpose as section 36 of the Act of 1919, for the greater convenience of parties suffering damages at the hands of an operator of a motor-vehicle passing through a county, enacting that his action might be brought before a justice -of the peace as well as in the Common Pleas Court, where the amount involved was not over $100 and where the damages were repaired and a receipted bill produced. Therefore, this act did not generally enlarge the jurisdiction of a justice of the peace in actions of trespass to include trespass on the case generally, and, aside from the particular class of cases mentioned in this act, left the jurisdiction of a justice of the peace as it had been under the Act of March 22, 1814. We are of opinion that the construction put upon the Acts of 1919 and 1923 by Judge Stotz, of Northampton County, in Sharp v. Boyer, 6 D. & C. 597, gives a correct interpretation. Judge Stotz in his opinion said:

“Neither the Act of 1923 nor the Act of June 30, 1919, P. L. 678, which is amended by the Act of 1923, expressly repeals the Act of July 7, 1879, P. L. 194, which confers jurisdiction upon aldermen, magistrates and justices of the peace, in actions of trespass, where the sum demanded does not exceed $300. The manifest intention of this section of the Act of 1923 was not to modify the jurisdiction of aldermen generally in trespass cases arising out of the operation of motor-vehicles, but it was designed to give a simple, inexpensive and expeditious remedy where the injury was comparatively slight and the defendant had his domicile in a distant part of the State. It amounts to an exception to the rule as to where suit must be brought, provided that if suit is thus allowed to be brought before an alderman or justice of the peace, the amount involved must not be more than $100, with the further proviso that the plaintiff must exhibit a receipted bill for repairs, properly sworn to. . . . The Act of 1923 does no more than confer express jurisdiction upon aldermen, magistrates and justices of the peace in cases of this character, where defendant resides in some other county, and reduces the amount which may be involved to $100. By its very terms this section of the act has no application where defendant resides in the county where suit is brought.”

In Parson v. Downer, 7 Wash. Co. Reps. 28, 9 D. & C. 246, Brownson, J., came to the same conclusion as Judge Stotz in reference to the effect of the Acts of 1919 and 1923 on the jurisdiction of justices of the peace, and, in addition to this, held that section 30 of the Act of 1923 is unconstitutional. In reference to this latter subject, Judge Brownson said:

“It is clearly unconstitutional and invalid because not covered by the title of the amending act. That title recites the title of the act proposed to be amended and if it had stopped after doing so, all of the proposed amendment would have been valid as being germane to the subject-matter of that title (Philadelphia v. Railways Co., 142 Pa. 484, 491; Blanchard v. Township Supervisors, 286 Pa. 283), but after making that recital, the title of the Act of 1923 proceeds to give a list of the particular subjects which it was proposed to amend and the changes to be made therein and this list did not include the matters which the body of the amending act undertakes to insert into section 36, so that the title, so far as concerned the attempted amendment of that section, is a misleading title.”

We agree with Judge Brownson in his opinion as to the unconstitutionality of section 30 of the Act of 1923. There is nothing in the title of the act to indicate that any jurisdiction for violation of the act is conferred upon justices of the peace.

For two reasons, therefore, to wit, that the justice of the peace had no jurisdiction of this action under the Act of 1814 or the Act of 1919, as amended by the Act of 1923, even if the latter is constitutional, and because section 30 of the Act of 1923 is unconstitutional, we conclude that judgment should have been entered for the defendants in the County Court, and the record will be remitted to the County Court directing that judgment should be entered for the defendants.

Prom William J. Aiken, Pittsburgh, Pa.


author: Houck, J.,

text:
    Rix v. Rix.

      J. W. Moyer, for libellant.
    July 23, 1928.
   Houck, J.,

The ground of divorce alleged in the libel is adultery. The master has made fourteen findings of fact, but he has made no specific finding of fact respecting the establishment of the cause of divorce which is alleged in the libel. This is an absolute prerequisite to our consideration of his report: Dean v. Dean, 14 Schuyl. Legal Rec. 82; Hinks v. Hinks, 17 Schuyl. Legal Rec. 104. The master in his fourth conclusion of law states as follows: “ (4) The facts as produced constitute a clear inference as to the crime of adultery and are sufficient to entitle libellant to a divorce under the provisions of the Act of March 13, 1815, § 1, 6 Sm. Laws, 286.” Before this conclusion can be sustained, it is necessary for the master to make a finding of fact, definite and particularized, relative to the commission of the crime of adultery. It follows that this case must be remanded to the master.

This case is remanded to the master for such further action as he may deem proper, not inconsistent with the views expressed in this opinion.

Prom M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.,

text:
    Lancaster City School District v. Lancaster County.

      Robert Ruppin, John N. Hetrick and Charles G. Baker, for rules.

      George T. Hambright, J. Andrew Frantz, J. Roland Kinzer and John E. Malone, contra.
    Jan. 14, 1928.
   Landis, P. J.,

The facts of this case, as presented on the trial, are not disputed. By the Act of April 1, 1822, P. L. 110, it was provided that “the city and incorporated boroughs of the County of Lancaster shall be erected into a district for the purposes of this act, to be denominated ‘The Second School District of the State of Pennsylvania.’ ” Section 2 directed that the Court of Common Pleas should, at the regular term in April following, and thereafter, appoint twelve suitable citizens, residing within the City of Lancaster, to be directors of the public school or schools in the said city, which should be denominated “The First Section of the ‘Second School District.’ ” Section 7 authorized the said directors “to draw upon the county treasury for the money necessary in erecting, establishing and maintaining the school or schools within the said ‘First Section,’ ” and that “the order of the said directors upon the county treasurer made at any regular or special meeting for any sum or sums of money necessary for carrying this act into complete effect” should “be the said county treasurer’s authority for paying any such sum or sums to the person or persons mentioned in such order. . . .”

The directors were evidently appointed, and on June 19, 1822, ten of them entered into a written agreement with William Kirkpatrick, whereby the latter covenanted to convey “in such manner as may be adjudged legal and proper for the use of the public school in the said city, to be. established agreeably to the provisions of an Act of the General Assembly of the Commonwealth of Pennsylvania, entitled ‘An act to provide for the education of children at the public expense within the city and incorporated boroughs of the County of Lancaster,’ passed the 1st day of April, 1822, all that certain lot of ground situate on the corner of Prince and Chestnut Streets, in the said city, containing in front on Prince Street about 128 feet 9 inches, and extending in depth on Chestnut Street about 122 feet 6 inches.” A title to the premises and possession were to be given on July 1, 1822. It was further provided that the consideration of $1000 should be paid for the same, to be secured on the premises, and the interest should be paid annually to William Kirkpatrick, and the principal at any time the directors of said public schools might consider advisable within five years from the time of the execution of the title for said premises. The deed was not executed and delivered, as set forth in the agreement; but the yearly interest of $60 was paid until at least July 1, 1835. Who made these payments does not appear. A school building was, in the interim, erected on the land, and as the Act of 1822 provided that money for this and the general purposes of conducting the school should be paid on the warrant of the directors from the county treasury, and no other method was provided, it is fair to presume that the payments for the same came from this source.

By the Act of April 1, 1823, P. L. 270, it was enacted that “from and after the passage of this act, and until the 1st day of April, 1824, it shall not be lawful for the directors of the public schools in the First Section of the Second School District to draw from the treasury of the County of Lancaster any moneys except such sums as may be necessary for the payment of such contracts and engagements as shall have been entered into by them previous to the passage of this act, nor shall they be authorized in any year thereafter to draw from the treasury of said county any moneys except what may be absolutely necessary for the support and continuance of said schools, nor shall the amount which may be so drawn in any one year exceed the sum of $800.” And so much of the act to which this was “a supplement as” was “hereby altered or supplied, together with the 12th section of said act, be and they are hereby repealed.”

No other legislation of importance in this discussion was passed until “An act relative to Lafayette College and to public education in the City of Lancaster,” dated April 15, 1835, P. L. 289. Section 3 of the same provided that “the Commissioners of Lancaster County be and they are hereby authorized to pay to William Kirkpatrick, his heirs, executors, administrators or assigns, the purchase money for a lot of ground in the City of Lancaster, purchased from him by the directors of the First Section of the Second School District in said city, and to take a conveyance for the same and hold the same for the use of the Directors of the First Section of the Second School District in the City of Lancaster aforesaid, so long as the building erected on said lot of ground shall be used by the said directors for the purposes of education, and when the same shall cease to be so used, the said lot of ground and buildings thereon erected shall be vested in the Commissioners of the County of Lancaster for the use of the said county.” In pursuance of this act of assembly, William Kirkpatrick, on June 7, 1836, conveyed this lot of ground to Jacob McAllister, Adam Bare and John Long, Commissioners of the County of Lancaster, in consideration of the sum of $1000 paid by them to him. In its preamble, the provisions of the above-quoted act of assembly are recited and the habendum reads: “To have and to hold the said above-described messuage, lot, parcel or piece of ground referred to in the above-recited act or part of an act of assembly . . . unto the said Jacob McAllister, Adam Bare and John Long, commissioners as aforesaid, and their successors in office, for the purposes set forth and designated in the above-recited act or part of an act of assembly forever, except and subject to such ground rents as are now due thereon and as the said William Kirkpatrick held the same subject to on the nineteenth day of June in the year of our Lord one thousand eight hundred and twenty-two, at which date he agreed to grant and convey the above-described premises to the Directors of the First Section of the Second School District in the City of Lancaster for the education of children at the public expense.”

The school district and its successors, under the various school laws passed subsequent to this date, remained in possession and used the same for purely school purposes until 1909 or thereabouts. It was then altered and repaired by the school board and used as an administration building for the schools of the city until 1917. Since that, it has been used for the same purpose under a rental by an agreement with the United States Government. The Act of 1835 has never been specifically repealed, and I do not think it has been repealed by implication. Considerable doubt arises whether it could be, so as to vest the title in the school district. On the faith of it and in accordance with its terms, the County of Lancaster paid for this land, and that, I think, gave it such an ownership as could not be abrogated or taken away, at least without due compensation. However, that question does not here arise.

On Feb. 15, 1916, proceedings were commenced on the part of the United States, in the District Court of the United States for the Eastern District of Pennsylvania, for the condemnation of this land and the buildings thereon and other land, for a post-office site.' Viewers were duly appointed on April 6, 1916, and on May 15, 1916, they made their report to the court. On July 11, 1917, a decree was entered by the court in which there was awarded to the County of Lancaster, as the owner of Purpart B (the land now claimed by the plaintiff), the sum of $42,833. On Oct. 2, 1917, this money was paid to the Commissioners of Lancaster County and it is now in their hands. In the decree, it is stated: “It is further ordered, adjudged and decreed that upon the payment into the registry of the said court of the sum of $42,833, the amount awarded to the County of Lancaster, thp title to the land, estate and interest above specified as Purpart B, owned by the County of Lancaster and thus paid for, shall be and become vested in fee simple in the United States of America absolutely.” In the proceedings, no claim to the land was made by any one but the County of Lancaster.

On June 14,-1926, the plaintiff filed a bill of complaint against the defendant and its county officers, asking that a decree be entered whereby the defendants shall be ordered to state an account of these moneys and pay over the same to the Lancaster City School Board. Preliminary objections were made to the bill, and, after hearing the same, the court certified the case to the law side of the court for trial. This having been done, the ease in due order came on for trial. Upon the trial, a verdict was directed in favor of the defendant, and the plaintiff now moves for judgment non obstante veredicto, or that a new trial shall be granted.

The first proposition to consider is the right, if any, which the school district may have, as the successor of the First Section of the Second School District of the State of Pennsylvania, to hold the beneficial interest in this land. It may be true that, though the territory of the present school district is coterminous with the school district as afterwards established, it is not the same as the First Section of the Second District as created by the Act of 1822. I do not, however, think that, for that reason, the law should be construed as entitling the plaintiff to no interest under the Kirkpatrick deed, for the parties for almost 100 years construed for themselves its meaning that this ground should be used for school purposes under the control of said school district, and they so used it. No matter how the schools were controlled, I think, for the purposes of this case, the present school district can be said to have been legally in the occupancy of this property up to the time of its taking by the United States Government, and we will consider the main proposition from this standpoint.

The question which then arises is the effect of the deed from Kirkpatrick to the County of Lancaster. In Slegel v. Lauer, 148 Pa. 236, it is held that “an easement is a liberty, privilege or advantage which one may have in the lands of another without profit-. ... It cannot be an estate or interest in the land itself or a right to any part of it.” A base or qualified fee is a fee of which the duration depends upon the concurrence of collateral circumstances which qualify and debase the purity of the grant. The qualification must be found in the instrument itself; but no special or technical words are required to establish it. Where an estate is conveyed in fee for a special purpose “and no other,” the fee is a base fee determinable upon the cessation of the use of the property for that purpose. This general principle is modified to the extent that when land is conveyed for burial or school purposes and for no other purpose, but with no provision for a reversion or forfeiture, it may be sold and conveyed as a fee: Sapper v. Mathers, 286 Pa. 364. But upon the determination of a base fee, the property reverts to the grantor without any claim or act on his part, where it is determinable by limitation. This principle has never been denied in any of the cases, and the School Code of May 18, 1911, § 120, P. L. 314, provides that “all the public school property in this Commonwealth, real, personal or mixed, now held, owned or possessed by any. school district, sub-school district or ward school district therein, or that may be held, owned or possessed by any municipality for the use of any school district or for school purposes, is hereby transferred and assigned to and shall be owned by and vested in the proper school district . . . subject to all the trusts, conditions and liabilities legally applicable thereto.”

It must again be recalled that the First Section of the Second School District never had the legal title to this land. It is certain it never paid for the land, and there is no proof that it paid for the initial improvements. The land was to be held for the use of the Directors of the First Section of the Second School District as long as the building erected on said ground should be used by the said directors for the purposes of education, and here was a definite and fixed time for its use. But even under these conditions, had there been no agreement as to its disposal after that time, I think the fee could be considered as vested in the present school board and subject to its disposal. See Sapper v. Mathers, supra. The deed then proceeds to say: “And when the same shall cease to be so used, the said lot of ground and buildings thereon erected shall be vested in the Commissioners of the County of Lancaster for the use of the said county.”

In Methodist Episcopal Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. 608, it was said that “wherever words in a conveyance are relied upon as creating a condition subsequent, so as to create a base or determinate fee, they must not only be such as would of themselves create a condition, but must be so connected with the grant as to qualify or restrain it.” In Kirk v. King, 3 Pa. 436, a lot was conveyed “to the employers of a certain school” to hold the same for an “English school-house and no other purpose.” A schoolhouse was built upon the lot and occupied as such for some years, and was then discontinued for seven years, when the vendee of the original grantor entered upon the lot and removed the school-house. It was held that the “employers, &c.,” not being incorporated, were incapable of taking the fee and that the legal title remained in the grantor; that the purpose for which the lot was to be used was the substantial consideration, for the grant, upon the terms of which the nature of the plaintiff’s equity depended, and that the discontinuance of the school for seven years raised a legal presumption of abandonment. In Wright v. Linn, 9 Pa. 433, the land in dispute was conveyed to trustees and their successors to erect a school-house for the perpetual use of the parties to the deed and the inhabitants residing nearer to the schoolhouse than any other and such other person or persons as the inhabitants might see fit to admit. This was held to be a charity. Mr. Justice Bell, in commenting on the ease of Kirk v. King, supra, said: “It may be well enough also to observe that this case differs from Kirk v. King in another particular, upon which some stress was laid. There, the legal title remained in the original owner, the ‘school company’ having but an equity, which was thought to be dependent on the agreement to use the ground ‘for an English schoolhouse and for no other purpose.’ ” In Courtney v. Keller, 4 Penny. 38, a grant in fee to a school board provided “that in case the school law now in existence should be abolished and the public school cease to exist,” the land should revert. The school board subsequently purchased another lot, removed a portion of the school building, fitted up the remainder as a dwelling, and leased it to their janitor for a money rental. It was held, in ejectment by the assignee of the heirs of the grantor, that the design of the deed was not to enable the directors to raise a revenue by building dwellings upon the lot and renting them, but that the intention of the parties was fully interpreted and fulfilled when a school-house 'was erected and that when there was an abandonment of the use, the right ceased.

In the case before us, the title was made to the County Commissioners of the County of Lancaster. The right of the original school directors was contingent upon the use of the land for school purposes. The right of the plaintiff can rise no higher. When the use ceased, the county commissioners were entitled to receive the land for county purposes. When the United States Government took it, the use for school purposes necessarily ceased, and that being so, the title vested in the county, freed from all conditions in this respect. If this be true, then the damages were properly awarded to the county and the school board has no right to claim them, unless some other good reason is advanced for its claim.

The next question raised is whether the plaintiff acquired, because of long user, a title by prescription. The positions advanced by it — first, that it holds under the deed of Kirkpatrick, and, second, that it has a title by prescription — are not harmonious. Assuming, as I do, that it obtained this land as the successor of the First Section of the Second School District, which entered by virtue of the deed, it seems to me that no title by prescription has been made out. It is a maxim of the law that “prescription is a title by authority of the law, drawing its force from use and time.” It is an implication which presumes a grant. But when the entry is permissive, deriving its authority from an agreement between the parties, and the occupancy is limited and under certain specified conditions on the happening of which the occupancy is to cease, there can be no adverse possession. In Landis’s Appeal, 102 Pa. 467, where a grant was made to trustees for the benefit of the Mennonite Congregation of Colebrookdale, and a schism arose in the church, whereby part of the congregation seceded and formed themselves into a new congregation, and by agreement both parties worshipped in the meeting-house for a period of twenty-nine years, it was decided that the seceders could not acquire a title by prescription, as tbe occupancy was permissive and they were at best tenants by sufferance. In this case, I think the same principle applies. Originally, the First Section of the Second School District of Pennsylvania retained the property under a distinct agreement that when it ceased to be used for school purposes, “the said lot of ground and buildings thereon erected shall be vested in the Commissioners of the County of Lancaster for the use of the said county.” As the successor of this district, the plaintiff was bound by that agreement; and without showing a clear and distinct purpose to hold adversely, which it has, in my judgment, not done, it cannot now rest upon a title by prescription.

The sole remaining question is whether, in any event, the plaintiff’s claim is barred by the statute of limitations. The plaintiff asserts that, as the title rested in it and the defendant claimed and received the condemnation money for the land, it has a right in this action to recover it. No authority of the courts of this State has been cited to us to sustain this proposition; but that point is not at this time involved. This proceeding has been certified to this court as a court of law. The statute of limitations provides that claims of this character — that is, actions of debt (now assumpsit) grounded upon any lending or contract — shall be commenced within six years after the cause of such action or suit and not after. In this case, as I have already stated, the condemnation proceedings were had in 1916, and the money found to be due thereon was paid in 1917. Therefore, as the suit was commenced by bill filed on July 14, 1926, nearly nine years intervened between the time the plaintiff was entitled to receive the money and the time it brought this suit. It would for this reason seem to me that the statute itself bars a recovery. I, however, prefer to place this decision on the former ground that under the deed the County of Lancaster was the owner of this land and was entitled to receive, as it did, the valuation money fixed by the viewers.

I am of the opinion that the verdict was properly directed in favor of the defendant, and, because of this, the motion for judgment non obstante veredicto is denied and the rule to show cause why a new trial should not be granted is discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Cummins, J.,

text:
    Valentour et al. v. Gregory.

      Witherspoon & Devore for plaintiffs; Donnan & Miller, for defendant.
    Feb. 10, 1928.
   Cummins, J.,

On Feb. 21,1927, plaintiffs, August Valentour and Mary C. Valentour, entered into a written agreement with defendant, Constantine Gregory, wherein plaintiffs agreed to sell to defendant certain real estate situate in the City of Monongahela, Washington County, Pennsylvania, and for which defendant agreed to pay plaintiffs the sum of $25,000 in the following manner, to wit, $500 upon the signing of the agreement, and' at the same time to execute and deliver to plaintiffs judgment notes aggregating $10,000, payable one year from March 1, 1927, and further payment of $500, beginning one month from the date thereof, and thereafter monthly until twelve consecutive monthly payments of $500 each had been paid, and defendant agreed to assume and pay the mortgage on said premises in the sum of $25,000, held by the Monongahela City Trust Company.

It was further understood and agreed between plaintiffs and defendant that in case of default of payment of any sum of principal or interest so agreed to be paid for the space of sixty days after same became due and payable, then the whole of said principal sum would, at the option of plaintiffs, forthwith become due and payable, and that in such case of default defendant authorized and empowered any attorney of any court of record in the State of Pennsylvania to appear for him and confess judgment against him for the whole principal sum and interest remaining unpaid thereon, with 5 per cent, attorney’s commission or fees, waiving all right of exemption and inquisition or extension and condemnation, so far as the premises agreed to be sold were concerned.

On July 9, 1927, defendant was in default for more than sixty days in the payment of several instalments of said principal debt due and payable under said article of agreement; and plaintiffs, pursuant to the said power of attorney so contained therein, elected to treat the whole of the remaining indebtedness and interest accrued thereon as' due and payable forthwith, and accordingly caused to be confessed against defendant a judgment therefor at above number and term, and later caused to be issued thereon an execution.

The execution defendant, on Sept. 30, 1927, secured a rule upon plaintiffs to show cause why the judgment so entered should not be stricken from the record for the following reasons: First, that no statement of claim or declaration was filed by plaintiffs showing defendant’s default or the amount thereof; and, second, that there was not produced to the prothonotary a certificate signed by the judgment creditors, or their attorney or agent, setting forth the residence address of the plaintiff creditors, as required by the provisions of the Act of March 31, 1915, P. L. 39.

Plaintiffs’ answer to defendant’s rule admits failure to file a former creditors’ residence certificate, but alleges a substantial compliance with the provisions of the Act of March 31, 1915, and admits that no statement or declaration was filed at the time of the confession of judgment showing defendant’s default, and asks for leave to file both nune pro tune.

The power of attorney itself, pursuant whereof this judgment was confessed, did not require as a condition precedent thereto the filing of an affidavit of default; hence, none was required: Spiese v. Shee, 250 Pa. 399. True enough, section 3 of Rule 23 (page 54) of our court rules provides that “no judgment by confession shall be entered in any amicable action unless there be filed a specific statement of the cause of action signed by the parties or their attorneys;” but the entry of judgment without such affidavit or statement of default does not in any case render such judgment void, but only voidable; and such defect may always be cured by the filing of such default statement or affidavit nune pro tune: Fox v. Boorse, 81 Pa. Superior Ct. 211, 213. And see Dickinson Township Road, 23 Pa. Superior Ct. 34; Woods v. Woods, 126 Pa. 396.

As to the certificate of the creditors’ residence required by the Act of March 31, 1915, we are convinced that Deibert v. Rhodes, 91 Pa. Superior Ct. 23, does not rule this case, for in that case there was “a total failure to comply with the provisions of the act,” while in the instant case there was at least a complete substantial compliance therewith; plaintiffs not only attempted to fill out a formal certificate, which, through an error, proved abortive, but they also attached thereto and produced to the prothonotary the written instrument itself authorizing the confession of judgment, signed by the judgment creditors themselves, wherein is set forth fully and distinctly the precise residence address of said creditors, which same was filed at the same number and term as the judgment. This was such a compliance with the act as prevents the judgment from being stricken off: General Finance Co. v. Wasilowski, 5 D. & C. 274, 275.

If there had been no substantial compliance with the Act of March 31, 1915, under the rule of stare decisis, we would, of course, be obliged to follow Deibert v. Rhodes as ruling this case, although we feel that the conclusion therein reached by the majority of the court is unsound. We are inclined to believe that by the term “enter any judgment,” as used in the phrase “that the prothonotary ... is hereby directed not to enter any judgment, . . .” the legislature did not refer to the exercise by the prothonotary of the authority vested in him by the Act of Feb. 24, 1806, 4 Sm. Laws, 278, but only to the ministerial act of indexing and making the docket entries of judgments either already confessed or ripe to be entered on verdicts rendered; otherwise the Act of March 31, 1915, would not include judgments entered on verdicts or confessed by attorneys, as to which the entries made by the prothonotary are purely of a ministerial character; and yet the very purpose of this legislation was to effect a delivery to the county commissioners of a complete list of all judgments for the purpose of taxation. A judgment entered upon a verdict, where no certificate of residence has been filed, might be voidable, but certainly not void. The securement and filing of this certificate then is for a collateral purpose and is no part of the judgment itself; hence, no defect therein ought to vitiate the judgment itself. In connection with judgments already confessed, the act requires of the prothonotary the discharge of certain additional ministerial acts to aid in the levying of taxes, but for the prothonotary’s failure to discharge the duty imposed, no penalty is imposed by the act on the judgment creditor. But whether correct in these conclusions or not is immaterial, for in the case at bar there has been a complete substantial performance of the requirements of the act. While we have concluded, therefore, to discharge defendant’s rule to strike off, yet the necessity for this rule resulted from the existence of defects for which plaintiffs alone were responsible; it would, therefore, be inequitable to place upon the defendant the costs incident to this proceeding to strike off.

Decree.

And now, to wit, Feb. 10, 1928, plaintiffs’ statement of default and certificate of judgment creditors’ residence is directed to be filed nunc pro tunc as of the date of the entry of said judgment, and defendant’s petition to strike off is discharged, upon payment of the costs of said petition to strike off by the plaintiffs.

NOTE. — Since the writing of this opinion, we find that Deibert v. Rhodes was, on Jan. 3, 1928, reversed by the Supreme Court [291 Pa. 550]. CUMMINS, J.

From Harry D. Hamilton, Washington, Pa.