author: Gest, J.,

text:
    Jung’s Estate.

      William R. Newgeon, for respondent.
    March 21, 1930.
   Gest, J.,

— Karoline Jung died on Nov. 14, 1927, seised of premises No. 2537 Mutter Street, which she had acquired by devise from her husband, who died in 1894. The petitioner presented his petition to the court, under section 18 of the Fiduciaries Act, setting forth that he had been a tenant of the decedent for twenty years, paying rent therefor, and that about a year prior to her death the testatrix promised him, orally, that if the petitioner would make some repairs to the property, pay his rent regularly and remain her tenant until she died, she would devise to him said premises. The petitioner alleged that he had so continued as tenant until her death, paid his rent, made repairs to the property and, after her death, having found that the decedent had made no will in his favor, continued to pay his rent to the executor up to November, 1928. The petition prayed that the executor be directed to execute a deed of conveyance of the property to him and refund the rent paid by him for the year succeeding the decedent’s death. The executor and the residuary devisees, by their answers filed, denied, on information and belief, after due inquiry, the material averments in the petition. Their answers were filed respectively on Dec. 19, 1928, and Jan. 14, 1929. The petitioner filed no replication and did nothing further in the case, which was set down for hearing on petition and answer on the Argument List for March, 1930, when the learned counsel for the petitioner did not appear, and the case was argued by counsel for the respondent at the third call of the list, in accordance with Rule I, section 8.

We are all of the opinion that the petition should be dismissed. The respondents, in their answers, while stating that they have no personal knowledge concerning the allegations of the petition (which, naturally, they could not have), aver that they have made due inquiry concerning the same, of persons well acquainted with the decedent in her lifetime, and could obtain no information, and, therefore, denied, to the best of their knowledge, information and belief, the material averments of the petition. This is all that the respondents could do, arid is in accordance with our decisions: Davis’s Estate, 13 Phila. 407; Divinney’s Estate, 19 Dist. R. 361; Beach’s Equity Practice, § 339. Of course, where a case is heard on petition and answer, the responsive averments in the answer must be taken as true: Russell’s Administrator’s Appeal, 34 Pa. 258; Souder’s Appeal, 169 Pa. 249.

We do not consider it necessary to discuss the defenses which apparently exist on the merits of the case, but merely remark that it is settled that, in order to take a parol agreement to convey land out of the Statute of Frauds, possession must be taken in pursuance of the contract. The previous possession of the tenant will not have that effect: Christy v. Barnhart, 14 Pa. 260; Tressler’s Estate, 66 Pa. Superior Ct. 547. Here the petitioner remained as tenant for a year after the decedent’s death and paid rent to her executor.

It also seems to us that the petitioner’s remedy, if any he has, is an action at law for damages: Brown v. Hughes, 244 Pa. 397; Morrish v. Price, 293 Pa. 169.

The petition is dismissed.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Reilley v. Reilley.

      Wolf, Block, Schorr & Solis-Cohen, for libellant.

      M. J. McEnery, for respondent.
    Feb. 13, 1930.
   Smith, J.,

— The libel in divorce charges the respondent with cruel and barbarous treatment and indignities to the person. The master recommends that the decree be refused and the libel dismissed.

The libellant has filed exceptions to the master’s report.

A review of the testimony shows that the cruel and barbarous treatment involves two occurrences: one, where, after some constant quarreling between the parties, the respondent (the wife) took from a bureau drawer a revolver belonging to the libellant and said: “I am going to wind up everything and everybody.” The respondent’s version of this affair is that she said she was “going to end everything.” At any rate, the libellant took the revolver away from her before she could carry out any intention, whether it was suicide or harm to the libellant; the second occurrence, according to the libellant’s testimony, was the statement by the respondent: “Some day I will shoot you.” There is no evidence that at that time she had a revolver and no shooting ever occurred.

As to the indignities, the evidence is that on one occasion she called him a foul and obscene name; that she would not permit him to have intercourse at certain portions of the month; that she did not properly care for his personal belongings; and that, since he was out many evenings, she was jealous of his attentions to other women.

These people were married July 3, 1906, and the libellant left their home Aug. 1, 1924. In that time they had five children, two of whom are dead and the other three make their home with the respondent.

There was not sufficient evidence to justify the master in finding that the alleged threats constituted cruel and barbarous treatment.

The indignities, if true, were not sufficient to justify the granting of a divorce. In Platt v. Platt, 38 Pa. Superior Ct. 551, it was held (pages 552, 553):

“Viewing these alleged threats in the light of the other circumstances, we are unable to conclude that they were such as to create reasonable apprehension of personal violence. Nor are we able to conclude, satisfactorily, that her course of treatment of him, taken as a whole, was such as to endanger life or health and render cohabitation unsafe. . . .

“As to the allegation that the respondent refused to have sexual intercourse with the libellant, it is sufficient to refer to D’Aguilar v. D’Aguilar, 1 Haggard Eccl. 773, followed by our Supreme Court in Eshbach v. Eshbach, 23 Pa. 343, and the discussion of the question in the opinion of our Brother Morrison in Johnson v. Johnson, 31 Pa. Superior Ct. 53. These decisions are to the effect that it does not constitute ‘legal cruelty.’ ”

In Breene v. Breene, 76 Pa. Superior Ct. 568, Orlady, P. J. (page 572), said: “It is impossible to frame the definition of cruelty that will be of universal application. It has frequently been defined as actual personal violence, or conduct causing a reasonable apprehension of it, or such a course of treatment as endangers life, limb or health, and renders cohabitation unsafe.”

In Russell v. Russell, 37 Pa. Superior Ct. 348, Orlady, J. (page 354), said: “To warrant the granting of a divorce on the ground of the conduct on the part of either the husband or wife as to render the condition of the other party intolerable and life burdensome, where there is no proof of overt bodily harm actually inflicted or threatened, the evidence should be strong and convincing, the course of ill-treatment complained of must have been long continued and of a serious character.”

There is no doubt that these people fought continuously. The libellant admitted that he was often away from home at nights and on other occasions on business trips. This caused discontent and may have resulted in false imputations. There is, however, no evidence of any statements that impress the mind with fear and tend to imperil the life or seriously endanger the health.

The recommendations of the master are approved. The libel is dismissed and the decree in divorce refused.


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

text:
    Liquid Fuels Tax.
    Sept. 27, 1929.
   Schnader, Special Dep. Att’y-Gen.,

— We have your request to be advised with respect to the exemptions from liquid fuels tax which are allowable under Act No. 405, approved May 1, 1929, P. L. 1037, and Act No. 460, approved May 3, 1929, P. L. 1537. You ask specifically:

1. Whether Act No. 460 imposes the tax on kerosene, fuel oil and gas oil used in any vehicles which do not come within the definition of “Motor Vehicles,” appearing in section 102 of Act No. 403, approved May 1, 1929, P. L. 905.

2. Whether naphtha and benzine, used exclusively for dry cleaning purposes , are subject to tax; and

3. Whether liquid fuels sold to the Federal Government, to the Commonwealth of Pennsylvania, to school districts, counties, cities, boroughs, townships, State institutions, State-aided institutions and volunteer fire companies within Pennsylvania, are subject to tax.

1. What is the meaning of “motor vehicles” as used in Act No. 460?

Act No. 460, approved May 3, 1929, exempts from liquid fuels tax kerosene, fuel oil and gas oil, but after making this exemption, the act contains the following proviso: “. . . Provided, however, that kerosene, fuel oil and gas oil used in motor vehicles shall be included within the definition of ‘liquid fuels.’ ”

It is our opinion, and you are advised, that the term “motor vehicles,” as used in this proviso, includes only such vehicles as come within the definition of “motor vehicles,” contained in section 102 of Act No. 403, approved May 1, 1929 (The Vehicle Code).

Both Act No. 460 and Act No. 403 were passed by the same session of the legislature, and it must be presumed that when the legislature used the expression “motor vehicles” in Act No. 460, it was using it as defined in Act No. 403.

2. Are naphtha and benzine used for dry cleaning purposes exempt from tax?

Nowhere in Act No. 405, approved May 1, 1929, or in Act No. 460, approved May 3, 1929, did the legislature exempt from tax naphtha and benzine used exclusively for dry cleaning purposes. Only the legislature could provide such exemption, and the legislature having failed to provide it, your department is without authority to allow it.

Accordingly, we advise you that, no matter for what purpose naphtha and benzine are used, they come within the definition of liquid fuels as contained in Act No. 405, and are subject to tax.

3. Are liquid fuels consumed by the Federal Government exempt from tax?

Section 3 of Act No. 405 contains the following sentence: “Until the first day of July, one thousand nine hundred and thirty, a State tax of four cents a gallon, or fraction thereof, and thereafter a State tax of three cents a gallon, or fraction thereof, is hereby imposed and assessed upon all liquid fuels sold by dealers in this Commonwealth, except for the purpose of resale, and upon all liquid fuels used within this Commonwealth by consumers, when no such tax has been collected thereon by a dealer, except liquid fuels purchased, received or consumed by the United States, or any department, board, commission, or other agency or instrumentality thereof.”

The next sentence is: “Duplicate taxation is not intended, but the tax hereby imposed shall apply to all liquid fuels sold or used within this Commonwealth, excepting such transactions in interstate or foreign commerce as are not within the taxing power of the State.”

No other exemptions appear anywhere in the act.

Without specifically exempting liquid fuels consumed by the United States, or any agency thereof, such liquid fuels would have been exempt from the operation of the act under the decision of the Supreme Court of the United States in Panhandle Oil Co. v. Mississippi, 277 U. S. 218. In that case it was held that a dealer could not be taxed by a state for the privilege of selling gasoline to the United States; and the reasoning upon which the decision was based would, in our judgment, prevent Pennsylvania from imposing a tax upon gasoline consumed by the United States.

It is, therefore, clear that your department must exempt from the payment of liquid fuels tax liquid fuels purchased, received or consumed “by the United States, or any department, board, commission or other agency or instrumentality thereof.”

4. Are liquid fuels consumed by the Commonwealth itself exempt from tax?

On the one hand, it may be argued that the language used by the legislature is all-inclusive, except as to liquid fuels consumed by the Federal Government, and that by specifically exempting fuels consumed by the Federal Government without exempting those consumed by the State, the legislature indicated an intention to have the tax paid on liquid fuels consumed by the State.

On the other hand, there is a strong presumption that the taxing power in the enactment of tax legislation did not intend to tax itself. This presumption is so strong as to be overcome only if the tax legislation specifically expresses the intention not to exempt the taxing power from the payment of tax. See Jones v. Tatham, 20 Pa. 398; Directors of the Poor v. School Directors, 42 Pa. 21; Erie County v. City of Erie, 113 Pa. 360; Pittsburgh v. Subdistrict School, 204 Pa. 635.

In the present instance, a large portion of the liquid fuels consumed by the Commonwealth is consumed by the Department of Highways, all of the expenses of which are paid out of the Motor License Fund. The proceeds of the liquid fuels tax are payable into the Motor License Fund. For collecting the tax compensation is payable to the dealers who do the collecting. It would be utterly ridiculous to pay compensation to dealers for collecting tax paid out of the Motor License Fund, which is forthwith repayable to the Motor License Fund, less the compensation paid.

Accordingly, we are of the opinion that, without expressly providing such an exemption, the legislature intended to exempt from tax all liquid fuels used by the Commonwealth of Pennsylvania and its agencies, and paid for out of State moneys, in whatever fund of the State Treasury they may be segregated. However, in our opinion, this exemption applies only to liquid fuels for which payment is made by the Commonwealth itself, and does not apply to liquid fuels consumed by any agency of the Commonwealth if paid for otherwise than by the Commonwealth. For example, liquid fuels consumed in automobiles owned by the State Workmen’s Insurance Board are not exempt from tax, because the expenses of this board are not paid by the Commonwealth but out of the moneys paid into the State Workmen’s Insurance Fund by the holders of policies issued by the board.

5. Are liquid fuels consumed by political subdivisions of the Commonwealth exempt from tax?

Under date of Dec. 21, 1921, the Attorney-General rendered an opinion to the Auditor General, holding that liquid fuels consumed by political subdivisions of the Commonwealth were not subject to the tax imposed by the Liquid Fuels Tax Act of May 20, 1921, P. L. 1021.

The reasoning upon which this exemption was held to exist was that: “. . . If . . . the tax be collected upon gasoline sold to a municipality for use in motor vehicles operated by it in the exercise of its public functions, it is paid by the municipality out of public moneys raised by taxation only to be paid out again in taxes to the Commonwealth.”

We are of the opinion that liquid fuels consumed by municipalities, counties, school districts and other political subdivisions of Pennsylvania are subject to tax. While all of these political subdivisions are supported out of revenue raised by taxation, the sources of tax from which they derive their revenue are entirely different from the sources from which the Commonwealth derives its revenue; and, in any event, the proceeds of the collection of the tax on liquid fuels are not, under present legislation, intermingled with the general revenues of the Commonwealth, but are held separate and apart to be used exclusively for highway work.

It is true that in the cases cited in discussing the exemption of the Commonwealth from tax on liquid fuels consumed by it and its agencies, the Supreme Court held that there is a presumption that the legislature intended to exempt from tax property owned by a municipality and used for public purposes, as well as property owned by the Commonwealth. All of these cases involved the legislature’s intention in the enactment of legislation taxing or authorizing the taxation of property. There is no case decided by the courts of this State holding that there is a presumed like exemption from a tax on-sales or a tax on consumption; and, in our judgment, the principle upon which exemption from a property tax is presumed does not apply in the case of the tax on liquid fuels.

As already stated, in Act No. 405 the legislature expressly provided that “the tax hereby imposed shall apply to all liquid fuels sold or used within this Commonwealth, excepting such transactions in interstate or foreign commerce as are not within the taxing power of the State.”

The imposition of a tax upon liquid fuels sold to or consumed by a political subdivision of the State is within its taxing power; and we cannot find any justification for presuming that the legislature, notwithstanding the all-inclusive statement quoted, intended to exempt from taxation liquid fuels used by municipalities, counties, school districts and other political subdivisions.

6. Are liquid fuels consumed by State-owned institutions exempt?

All of these institutions are conducted either by departments or by departmental administrative boards and commissions of the State government under the provisions of the Administrative Code of 1929 (Act No. 175, approved April 9, 1929). All of them are supported entirely out of State appropriations. Any liquid fuels consumed by them are, therefore, consumed by the Commonwealth and are exempt from taxation for the reasons already stated under subdivision 4 of this opinion.

7. Are liquid fuels consumed by State-aided institutions, Pennsylvania State College and volunteer fire departments exempt from tax?

Only the legislature could exempt State-aided institutions and volunteer fire companies from liquid fuels tax. It has not done so specifically, and there is no presumption of exemption as in the case of the Commonwealth itself. Accordingly, you cannot allow exemptions in these cases.

Under date of Feb. 7, 1929, this department, in an opinion addressed to Hon. Virgil E. Bennett, Deputy Auditor General, reached the conclusion that Pennsylvania State College is not a State institution.

As a State-aided institution, Pennsylvania State College is subject to liquid fuels tax, just as all other such institutions are subject to tax.

8. To summarize, we advise you:

1. That within the meaning of Act No. 460, approved May 3, 1929, “motor vehicles” refer to those vehicles which come within the definition of motor vehicles contained in Act No. 403, approved May 1, 1929.

2. That naphtha and benzine used exclusively for dry cleaning purposes are subject to tax.

3. That the only liquid fuels exempt from tax under Act No. 405, approved May 1, 1929, are those consumed by the United States or any department, board, commission or other agency or instrumentality thereof, and those consumed by the Commonwealth of Pennsylvania and paid for out of State funds.

From C. P. Addams, Harrisburg, Pa.


author: Biddle, P. J.,

text:
    Danner v. Gates.

      Reiff, Bowman & Reese, for plaintiff; J. P. MeKeehan, for defendant.
    July 30, 1929.
   Biddle, P. J.,

— This is an action of assumpsit brought by the plaintiff to recover from the defendant the amount of the purchase money of a tract of land in East Pennsboro Township which the plaintiff, on Nov. 23, 1927, contracted in writing to sell and convey to the defendant for the sum of $5500. It is, in substance, therefore, an action to compel specific performance of his contract for the sale and conveyance of land, and must be decided on the principles applicable to a proceeding of that nature. The contract in question provides, inter alia:

“That the said part ... of the first part hath this day agreed to sell unto the part ... of the second part, his heirs, executors, administrators or assigns, the following described tract or lot of land situate in the village of South Enola, county of Cumberland and state of Pennsylvania, to wit:

“All that certain house and lot situate in South Enola adjoining . . . Eslinger, fronting 69 feet, more or less, on State road and 147 feet deep, more or less, including shelving and counters in store. Party of first part reserves loose lumber on the property as contained in the auto shed and elsewhere.

“Together with all hereditaments and appurtenances thereunto belonging, but subject to all legal highways. Possession thereof to be delivered to second part ... on or about November 30th, 1927.

“And the said second part . . . does hereby agree to pay to the said part . . . , his heirs, executors, administrators or assigns, for the land aforesaid, the sum of fifty-five hundred ($5500) dollars, payable as fellows': One ($1) dollar on the execution of this agreement, the receipt whereof is hereby acknowledged, and balance consideration as soon as title papers and deed is prepared and title passed by attorney of party of second part, which time is to be on or about November 28th, 1927.”

The agreement was signed by Evert W. Danner, the plaintiff, and by Daniel Gates, the defendant. The plaintiff’s statement of claim alleges that a proper deed for the property was prepared and executed by Evert W. Danner, the plaintiff, and Katie, his wife, and that it was submitted for examination and approval to the defendant’s attorney; that tender of it was subsequently made to the defendant, who refused to accept it or to complete his contract.

To the statement of claim the defendant, on April 2, 1929, filed a statutory demurrer, in which it is suggested that the statement of claim is insufficient in law, first, because the agreement does not describe the land with the certainty necessary to locate it; second, that the wife of the plaintiff had not signed the contract of sale; third, that the statement alleges possession of the defendant on and after the date of the agreement under the terms of said agreement, whereas the agreement itself provides that possession should be delivered to second part on or about Nov. 30, 1927; and, fourth, that the consideration was payable “as soon as title papers and deed is prepared and title passed by attorney of party of second part,” but that the statement does not aver that the title was ever passed by the defendant’s attorney.

On the argument of the demurrer only the first and fourth objections were urged, the other two apparently being abandoned. In any event, we do not think that they could be sustained. Chief stress was laid on the first objection, namely, that the description of the land in the contract of sale was not sufficiently certain to permit the land to be identified; and if this premise is correct, the conclusion urged by the learned counsel for the defendant necessarily follows, we think, namely, that specific performance of the contract could not be enforced either by bill in equity or by an action of assumpsit for the purchase money. But, in view of the determination of the Supreme Court in one of the most recent cases of this kind, Cohen v. Jones and wife, 274 Pa. 417, we feel unable to sustain this objection. In that case the appellate court recognized the rule contended for by the defendant, namely, that “The statute of frauds requires land conveyed to be described with such certainty and definiteness as to avoid the necessity of resorting to parol proof to determine the property the parties intended should be transferred.” But the court held in that case that the contract under consideration contained a sufficiently certain and definite description. In that case the description of the land was “a certain lot of land . . . situate on East Avenue, Worden Place, Harvey’s Lake, Lake township, Luzerne county, Pennsylvania, said plot being fifty feet in front on East Avenue and sixty-three feet, more or less, in depth, and improved with a small frame dwelling-house.” A comparison of this description with the description in the contract involved in the instant case shows that the two descriptions are almost identical, the only difference being that in the case of Cohen against Jones, the township, as well as the village, street and county, were mentioned and that in the earlier case the location on East Avenue was given as Worden Place, whereas in the instant case the location is given as on the State road “adjoining . . . Eslinger.” Of the two, we should say that the locality was more definitely fixed in the present case than it was in Cohen against Jones, because a definite adjoinder is given here, whereas no adjoinder was mentioned in the other case. Of the description in Cohen against Jones, the Supreme Court said: “In this case the description designates the property as a certain lot owned by the woman signer and is complete in description except as to the precise location on East Avenue, which is given as Worden Place, thus fixing the property at a definite part of the avenue. We have the precise locality thus confined within narrow limits. These facts distinguish the case from Mellon v. Davison, 123 Pa. 298, . . . and Weisenberger v. Huebner, 264 Pa. 316.” We feel bound by this determination of the Supreme Court to hold that in the instant case the description of the property was sufficiently definite and that the demurrer on this ground cannot be sustained.

It was further urged in connection with this same objection that there was some discrepancy between the description of the lot in the contract of sale and in the deed tendered; but, as it appeared in the statement that the defendant was in possession of the identical property at the time the contract was entered into and knew exactly what was intended, we think it would be decided here, as it was in Shattuck v. Cunningham, 166 Pa. 368; Feld v. Shapiro, 87 Pa. Superior Ct. 557, and Cohen v. Jones, supra, that a slight inaccuracy in the description of the land is not fatal where the intention of the parties clearly appears.

The fourth objection, however, is, as we view it, more serious. The contract of sale which is the basis of the plaintiff’s claim provides that the balance of the purchase money shall not be payable until the “title papers and deed is prepared and title passed by attorney of party of second part.” The statement of claim clearly sets out that the deed had been prepared and had been submitted to the attorney of the party of the second part, but it does not set out definitely and specifically that the title was ever approved by that attorney. It is true that the statement contains averments, including an exhibit purporting to be a letter written by the attorney of the defendant with regard to the land, from which it might be inferred that he had found the title satisfactory; but it is not sufficient, in our opinion, that this inference may be drawn by either the court or by the defendant in the instant case. If the title was passed by counsel for the defendant, that fact should be averred definitely and not argumentatively; and the inclusion of the letter, which is not the basis of the plaintiff’s claim, is, we think, a violation of the provisions of the Practice Act of May 14, 1915, P. L. 483, that the statement should not contain the evidence upon which the plaintiff depends to establish his case. Until the title was passed by the defendant’s attorney, we think that the plaintiff is not in position to maintain his action: 6 Ruling Case Law, 596; 13 Corpus Juris, § 771, page 679; Gilson v. Savings Bank, 62 N. E. Repr. 728; Church v. Shankin, 30 Pac. Repr. 789; Bashford v. Land Co., 295 Pa. 560, 566.

It does not definitely appear that the attorney for the defendant had not passed the title, and it does appear that he had ample opportunity and time to examine it and either approve or disapprove it. In his action in this regard he could not act capriciously so as to defeat- a valid claim of the plaintiff : Bashford v. Land Co., supra.

Nor could he defeat a recovery by the plaintiff by a refusal to examine the title: 13 Corpus Juris, § 774, page 681.

And it may well be that the plaintiff can show that the counsel for the defendant did in fact pass the title, or that, if he did not pass it, his refusal to pass it was capricious, or that his failure to pass it was due to a refusal to consider it at all; and in any of these three cases the plaintiff would be entitled to proceed with his action. We think, therefore, that the plaintiff should be given the right either to amend his present statement of claim or to file a new one which will meet this objection; and in disposing of the case, our determination will be without prejudice to the right of the plaintiff to do this.

And now, July 30, 1929, the fourth reason advanced in the defendant’s affidavit of defense in lieu of demurrer to the plaintiff’s statement of claim is sustained, without prejudice, however, to the right of the plaintiff, within fifteen days from this date, either to file an amendment to his present statement of claim or a new statement of claim which shall meet this objection. In default of such amendment or new statement of claim, judgment for the defendant shall be entered on the demurrer. Costs of the present proceeding to be paid by the plaintiff. From Francis B. Sellers, Carlisle, Pa.


author: Marx, P. J.,

text:
    Comito’s Estate.

      William Abbott Witman, Jr., for Berks County Trust Company, guardian of Mary Grazia Comito, a minor, petitioner.

      John P. Wanner, for respondent.
    July 6, 1929.
   Marx, P. J.,

— This matter comes before us upon petition and answer. From these pleadings we find facts as follows:

1. On Nov. 29, 1912, Elizabeth E. Palm conveyed to Francesco Comito and Maria Grazia Comito, his wife, in fee simple, the following real estate: All that certain lot or piece of ground, together with the three-story brick dwelling-house thereon erected, situate on the west side of North Third Street, between Penn and Washington Streets, and being No. 38 North Third Street, in the City of Reading, County of Berks and State of Pennsylvania, bounded on the north by property now or late of J. Allison Orr, on the east by North Third Street, on the south by property now or. late of Isaac Francis and the estate of John Buchanan, and on the west by Thorn Street, containing in front or width 30 feet and in depth 230 feet.

2. On April 6, 1915, Francesco Comito conveyed, by direct conveyance, in fee simple, to his wife, Maria Grazia Comito, “an undivided one-half interest” in said real estate. The wife did not join, as grantor, in this conveyance.

3. On Aug. 19, 1917, the said Maria Grazia Comito died, leaving a last will and testament, dated Jan. 23, 1913, and a codicil thereto, dated May 22, 1917, which were duly probated on June 18, 1918. Under the aforesaid will and codicil, testatrix gave unto her niece, Mary Grazia Comito, the sum of $500, to be paid on her arrival at the age of twenty-one years, or on the date of her marriage, whichever happened first.

4. The personal estate of Maria Grazia Comito, according to an inventory and appraisement filed, aggregates the sum of $100.

5. Subsequent to the death of Maria Grazia Comito, Francesco Comito married Maria Comito.

6. On Dec. 15, 1922, Francesco Comito and Maria Comito, his wife, conveyed the aforesaid real estate in fee simple to Charles Gison.

7. On the same day, Dec. 15, 1922, Charles Gison and wife conveyed, in fee simple, said real estate to Francesco Comito and Maria Comito, his wife.

8. On or about Oct. 19, 1928, Francesco Comito died, survived by his wife, Maria Comito.

9. The legacy of $500 to Mary Grazia Comito has never been paid; the personal assets of the testatrix are insufficient for payment of the same, and any interest which Maria Grazia Comito may have had in the aforesaid real estate at the time of her death was not specifically devised, and was the only real estate which said testatrix may have possessed.

Discussion.

The petition and answer raise two questions for consideration, to wit:

1st. Did Francesco Comito convey to his wife, Maria Grazia Comito, an interest in the premises described which survived the death of the said Maria Grazia Comito and which was subject to her testamentary disposition?

2nd. May a legacy, in default of sufficient personal assets, be charged upon real estate of the testator not specifically devised?

The petition by the Berks County Trust Company, guardian of Mary Grazia Comito, legatee under said will and codicil of Maria Grazia Comito, asks that said premises, No. 38 North Third Street, Reading, be charged with payment of said legacy of $500, with interest from Aug. 19, 1918.

In the eighth paragraph of the petition it is admitted that, by operation of law, Maria Comito, the second wife, became seized of the fee at the death of Francesco Comito. In the tenth paragraph of the petition it is again admitted that Maria Comito is at present the owner in fee of the described premises. In spite of these admissions, the petitioner argued that by virtue of the conveyance of April 6, 1915, Maria Grazia Comito died possessed of an indefeasible fee in said premises, or in a part thereof. For this reason, we deem it necessary to consider the first question proposed.

Under the conveyance from Elizabeth E. Palm, Francesco Comito and Maria Grazia Comito, his wife, held by entireties. This estate comes to us from the common-law and retains, unchanged, the common law characteristics of the relationship of husband and wife. Detailing and distinguishing the elements of an estate by entireties, our Supreme Court, in an opinion by Lewis, C. J., said in the leading case of Stuckey v. Keefe’s Exec’rs, 26 Pa. 397:

“A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit, but it is made up of indivisible parts. In the first case there are several holders of different moieties or portions, and upon the death of either, the survivor takes a new estate. He acquires by survivorship the moiety of his deceased co-tenant: In the last case, although there are two natural persons, they are but one person in law, and upon the death of either, the survivor takes no new estate. It is a mere change in the properties of the legal person holding, and not an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor, the same as it would continue in a corporation after the death of one of the corporators: Rogers v. Grider, 1 Dana, 242; Taul v. Campbell, 7 Yerger, 319. This has been settled law for centuries. The distinction may seem a nice one, but it is founded upon the nature of marriage and rights and incapacities which it establishes.”

“Coke tells us that ‘there can be no moieties between’ husband and wife: Co. Lit., 187 b; Thomas Coke, 855; 2 Yeates, 462. Littleton says that the reason is that they are one person in law: Id. Blackstone tells us that for that reason ‘they cannot take the estate by moieties, but both are seized of the entirety:’ 2 Bl. Com., 182; 2 Cruise Dig., 492. If they are ‘one person in law’ — if ‘there be no moieties between them’ — if ‘they cannot take by moieties,’ but both ‘must be seized of the entirety’ — the intention to create a tenancy in common is immaterial, for the rule is that the very same words which create such an estate between other parties create an entirety in husband and wife. The case of Green v. King was determined, not on any supposed intention of the parties to the conveyance, but on the sole ground of the absolute incapacity of the husband and wife, who are regarded as one person in law, to take, during coverture, separate estates: 2 BI. Rep., 1211.”

Being one person, husband and wife took per tout, and not per my or per my et per tout. The only estate which they could together hold, regardless of the words of the grant, came to them, and to each of them, as a whole, and in their hands and between them was and must remain indivisible.

Comito, by his deed of April 6, 1915, undertook to convey to his wife “an undivided one-half interest” in the premises held by them in entireties. Whether, believing his wife and he held by moieties, he intended to convey his moiety, thereby lodging both in her, or, believing he held the whole by a fee defeasible by his death, he intended to divide the whole and fix in his wife an absolute and an indefeasible fee in the moiety, we cannot say. In either event, he undertook to do what cannot be done — divide and convey in parts what is indivisible, an estate by entireties. In the case of Hetzel v. Lincoln, 216 Pa. 60, the facts were as follows: Reed conveyed land to Lincoln and wife “jointly” in 1874. In 1893, Mary A. Hetzel obtained judgment against-the husband for $2000. In 1894, the husband, Lincoln, conveyed “the undivided one-half,” his entire interest in the land, to his said wife. Within five years after the entry of the Hetzel judgment, a writ of scire facias was issued to revive the judgment against Lincoln, with notiee to his wife as terre-tenant. In 1898, judgment for want of an appearance was entered against both. . Lincoln died in 1901 and a scire facias was issued against his administrator on Nov. 7, 1902, with notice to the widow as terre-tenant. On the trial, a verdict was directed in favor of the widow. It was contended that, as the husband conveyed “the undivided one-half” to his wife, and they subsequently executed a mortgage on the land, in which there was a reference to the conveyance by the husband, there was evidence of an intention to hold as tenants in common. The Supreme Court held: “Whatever may have been the intention of the husband, the right of the wife was fixed by the deed from Reed. By it each held by an entirety, and upon the death of either the estate would vest absolutely in the other as the survivor.”

To the same effect, the Supreme Court, in Beihl v. Martin, 236 Pa. 519, say (page 527) : “The rights of the parties are fixed by the deed of conveyance to them, and by that instrument each took an entirety made up of indivisible parts. Any alienation by one, the other not consenting, of any interest whatsoever in the estate, if allowed, would be an abridgment pro tanto of the rights of the other. By their joint act they admittedly have the right to sell and dispose of the whole estate; by their joint act they may strip the estate of its attributes and create a wholly different estate in themselves; but neither can divest himself or herself of any part without in some way infringing upon the rights of the other.”

The nature of the interest of a tenant by entireties has not been abolished or altered by our so-called Married Women’s Acts. “. . . the various statutes enlarging the powers of married women and securing them control of their individual property, real and personal, have not altered the law as to the incidents and characteristics of an estate by the entireties. This point was ruled squarely by the Supreme Court as to the Act of April 11, 1848, P. L. 536, in McCurdy v. Canning, 64 Pa. 39; as to the Act of June 3, 1887, P. L. 332, in Bramberry’s Estate, 156 Pa. 628; and as to the Act of June 8, 1893, P. L. 344, in Hetzel v. Lincoln, 216 Pa. 60, and Meyer’s Estate, 232 Pa. 89:” O’Malley v. O’Malley, 78 Pa. Superior Ct. 10, 13. See, also, Gasner v. Pierce, 286 Pa. 529, 531.

It may be further noted that the deed from Comito to Maria Grazia Comito was signed by him alone. As already seen, conveyance of title or any interest in title by entireties requires the joint action of husband and wife. Under a similar statutory requirement, prior to the Act of June 3, 1911, P. L. 631, a married woman could not convey her real estate to her husband without his joining in the conveyance. The mere acceptance of such a conveyance by the husband was insufficient. The requirement of the statute was imperative and, in the absence of compliance thereto, the wife’s conveyance was void. See Wicker v. Durr, 225 Pa. 305.

Conclusion.

The deed of Francesco Comito to Maria Grazia Comito, dated April 6,1915, purporting and attempting the conveyance of an undivided one-half interest in real estate held by them as tenants by entireties, was ineffective to vest any higher or different estate in the said Maria Grazia Comito than what she already possessed as a tenant by entireties. This results from the inability of one tenant by entireties to convey to the other, both constituting one person in the sight of the law; from the inability of tenants by entireties to hold in any other way or by any other estate than per tout; from the indivisibility of their estate; and from the inability of the husband to convey, even to the wife, without the wife joining as grantor in the conveyance, where the premises to be conveyed are held by them in entireties.

Having reached the foregoing conclusion on the first question raised under these pleadings, consideration of the second question becomes unnecessary.

And now, July 6, 1929, the petition and citation are dismissed.

From Charles K. Derr, Reading, Pa.


author: Sherwood, J.,

text:
    Commonwealth v. Fry.

      Harvey A. Gross, for motion; Frederick B. Gerber, for Commonwealth.
    Dec. 16, 1929.
   Sherwood, J.,

This is a motion to quash a bill of indictment. A number of reasons were originally assigned, but at the argument the only reason urged was that the indictment is not covered by any act of assembly and the crime alleged is not a common law crime. The indictment is drawn under section 320 of the Act of May 17, 1921, P. L. 682, known as the Insurance Company Law of 1921. The defendant was the secretary of the Spring Garden Mutual Fire Insurance Company, a corporation incorporated under the Special Act of April 14, 1864, P. L. 419. Its powers are derived from the General Act of April 2, 1856, P. L. 211. Defendant’s contention is that the Insurance Company Law of 1921 does not apply to the Spring Garden Mutual Fire Insurance Company by reason of the following provision of section 103: “Nothing in this act shall be construed to interfere with the charter provisions or operations of any domestic mutual fire insurance company heretofore organized under any general or special law of this Commonwealth.”

Section 103 defines the scope of the act, “except as in this act otherwise provided, the provisions of this act, in so far as they are applicable, shall apply,” and then follows the enumerated classes. These words which open the section refer, in our opinion, to section 105, where the classes of organizations to which it shall not apply are enumerated. Domestic mutual fire insurance companies are not excluded in section 105. If the Legislature meant to make the Act of 1921 inapplicable to domestic mutual fire insurance companies, it seems to us that section 105 would be the place to insert such exclusion. If the Legislature meant by the closing sentence of section 103 to make the Act of 1921 inapplicable to domestic mutual fire insurance companies, there is no reason to suppose that it would not have done so. It seems to us that the Legislature would have said that the act shall not apply to any domestic mutual fire insurance company. What it does say is entirely different. It does not touch the subject of the applicability of the act to domestic mutual fire insurance companies, but merely says “Nothing in this act shall be construed to interfere with the charter provisions or operations of such compañíes.” The primary right of the Spring Garden Company under its charter was to write insurance. How can it be said that that right is in any way interfered with under section 320 of the Insurance Company Law? All that is required by the section is the report of its business and a statement of its financial condition. It seems to us that the only effect of the language above quoted is to prevent the act from interfering with the charter provisions or operations of domestic mutual insurance companies.

The defendant further asserts that the language of section 104 of the Act of 1921 confirms his contention. We quote the section: “Any insurance company heretofore organized under any general or special law of this Commonwealth to transact any of the classes of insurance authorized herein, and to which this act does not apply, may transact any one or more of the classes of insurance authorized by section two hundred and two (202) of this act to be transacted by any such insurance company, and becomes subject to the provisions of this act, by providing the capital and reserve required for such companies organized hereunder, and by filing with the insurance commissioner a resolution of the board of directors or trustees, approved by the stockholders or members at a meeting specially called for that purpose, accepting the provisions of the constitution and of this act, and agreeing to be governed thereby as fully as though organized hereunder. The charters of all insurance companies accepting the provisions of this act shall, after such acceptance, be repealed and of no effect in so far as the same may be inconsistent with the provisions of this act. Any domestic mutual fire insurance company or association may elect to adopt and become subject to the provisions of this act, in lieu of any act or acts heretofore governing such company or association, by resolution of its board of directors, duly approved by a majority of the members present at any annual meeting or special meeting called for that purpose, of which all members shall be given at least two weeks’ notice by mail. These resolutions and the vote approving them, duly certified to by the president and secretary, shall be filed with the insurance commissioner, and, when approved by him, the company shall then and thereafter become subject to the provisions of this act.”

The subject-matter of section 104 divides itself into two parts. The first portion of this section provides a manner in which companies to which the act does not apply may adopt it, and the second part provides a method by which any domestic mutual fire insurance company or association may adopt it. The first portion of the section covers all companies, stock and mutual. Why, then, the second part? Why provide how mutual fire insurance companies may adopt if a method is already provided in the first part? In answering this inquiry, it must be remembered that domestic mutual fire insurance companies divide themselves into two classes: those within the scope and those without the scope of the act.

A company is within the scope of the act when it falls within one of the classes enumerated in section 103 under a, b, «, [d] e, f, g, and h, and a company is without the scope of the act when not falling within one of said classes. Keeping in mind that these classes of corporations are within the scope of the act, but as to them it is conditioned that “Nothing in this act shall be construed to interfere with the charter provisions or operations of any domestic mutual fire insurance company heretofore organized under any general or specific law of this Commonwealth;” that is to say, while these classes of corporations are within the scope of the act, as to certain powers and operations they are subject to law outside the act. While the Legislature could constitutionally have subjected these classes of corporations to the act without preserving any existing rights or duties, just as it did with all other corporations within the scope of the act, for reasons as to which no profit would result from speculation to discover them, it placed them within the scope of the act and at the same time allowed them to remain subject to certain laws outside the act.

But the advantages of uniformity (and it is to be observed that the act is designed to secure general uniformity as to insurance company [law] — note its title — the Insurance Company Law of 1921) would naturally prompt the thought that these classes of corporations should not have the door closed to them against their breaking away from laws outside the act.

If the Legislature had stopped at the end of part one of section 104, there would have been no method provided by which these corporations could have broken away from these outside laws. The first of the section would not avail them. It is limited in its application to those companies which are not within the scope of the act. Section 104 thus furnishes convincing evidence of the meaning of the last sentence of section 103. If the meaning of this sentence is so interpreted as to entirely exclude domestic mutual fire insurance companies from the section, it throws section 104 out of harmony with the obvious tenor and effect of the act.

The Supreme Court, in Munhall Borough v. Mifflin Township, 210 Pa. 527, said: “It is an established rule in construing a statute that the intention of the lawgiver and the meaning of the law are to be ascertained by viewing the whole and every part of the act. One part of a statute must be so construed by another that the whole may, if possible, stand; and that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. If any section be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. In Coke on Littleton, 381», it is said that it is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers;” and in the same case, “A construction which would leave without effect any part of the language used should be rejected if an interpretation can be found which will give it effect.” In Umholtz’s License, 191 Pa. 177, “Statutes are to be construed as best to effectuate the intention of the Legislature, though such construction may seem contrary to the letter;” and in Turnpike Road Co. v. Montgomery County, 228 Pa. 1: “In construing an act of assembly, the pertinent rules of interpretation should be kept in mind and the effort should be to find a reasonable meaning for all of the words used and to give- force and effect to every part; the construction placed upon each part should be logical in itself and consistent with that given to every other.” In Folmer’s Appeal, 81 Pa. 133, the same authority said: “A proviso is defined to be something grafted upon a preceding enactment for the purpose of taking special eases-, out of the general enactment and providing specially for them. It is to be strictly construed; it takes no case out of the enacting clause which is not fairly within the terms of the proviso;” and, as pointed out by Endlich on Interpretation of Statutes, page 458, “it is quite possible that in the same statute both the strict and liberal construction may be applied.”

In the Insurance Company Law of 1921 we have a long act dealing primarily with civil matters, and as a part of the same act there are certain penalties provided. While section 320, which governs penal matters, is subject to the strict rules of construction, other matters contained in the act are subject to the ordinary rules of construction of statutes.

Applying the above rules of construction, we conclude that the Insurance Company Law of 1921 is applicable to the Spring Garden Mutual Fire Insurance Company, and that there is nothing in the requirement of section 320 as to reports of financial condition which interferes with the charter provisions or operations of said company, and that, consequently, section 320 is applicable to the instant ease. It follows that the indictment should not be quashed, as it is based upon law supporting the offense charged.

And now, to wit, Dec. 16, 1929, the motion to quash the bill of indictment in this case is overruled and refused. From Richard E. Cochran, York, Pa.


author: Groff, J.,

text:
    Fulton National Bank v. Dickinson.

      George T. Hambright and John E. Malone, for plaintiff.

      Harris C. Arnold and John A. Coyle, for defendant.
    July 6, 1929.
   Groff, J.,

On Feb. 20, 1929, the plaintiff, the Fulton National Bank of Lancaster, issued a summons in trespass against Anna R. Dickinson. The statement filed in the case alleges fraud and deceit, in that the defendant, together with her husband, I. Haines Dickinson, now deceased, made certain false and fraudulent representations in writing in the nature of financial statements submitted to the plaintiff, through which the plaintiff was induced to loan to the Quarryville Shoe Company, with the endorsement of the said I. Haines Dickinson and others, the total sum of $25,500. The said I. Haines Dickinson was the president and principal stockholder of the Quarryville Shoe Company, and Anna R. Dickinson was the vice-president.

The defendant, on April 6, 1929, moved to strike off the statement of claim filed in the above case for two reasons:

“1. The said statement does not contain, nor have attached to it, a copy or copies of the alleged fraudulent written statement upon which the plaintiff relies and bases its claim.

“2. The said statement does not contain, nor have attached to it, any copies of the promissory notes upon which it relies and bases its claim.”

Section 21 of the Practice Act of 1915 provides as follows: “The court, upon motion, may strike from the record a pleading which does not conform to the provisions of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct.”

This section was amended by the Act of May 23, 1923, P. L. 325, by adding the following: “Provided, that such motion to strike from the record any such pleading shall be filed and a copy thereof served upon the party filing such pleading, or his attorney, within fifteen days after a copy of such pleading shall have been served upon the opposite party or his attorney.”

Section 5 of the Practice Act of May 14, 1915, P. L. 483, among other things, provides: “Every pleading shall have attached to it copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the party pleading relies for his claim, or defense, as the case may be.”

Does the plaintiff rely for its claim upon the statements made in writing and submitted to it by the defendant and her deceased husband? We think not. These statements are only evidence to support the action brought by the plaintiff to recover its loss by reason of the representations of which the statements are only evidence. Neither do the promissory notes referred to in the statement, and purchased by the Fulton National Bank, constitute the basis of the action upon which the plaintiff relies, but they, too, are only evidence of the money parted with by the bank by reason of the fraudulent representations of the defendant.

In an action to recover damages for negligence, in Ellsworth v. O’Keefe, 26 Dist. R. 277, a motion was made for judgment for want of a sufficient affidavit of defense on the ground, among others: “(a) The plaintiff’s statement of claim fails to aver whether the agreement under which the goods were delivered to the defendant was written or verbal, and, if written, the failure of the plaintiff to set forth a copy of said agreement.”

The court said: “The objection that the plaintiff has failed to state whether the agreement under which the goods were delivered to the defendant was written or verbal, and, if written, that the plaintiff has failed to set forth a copy of said agreement, is not, in our opinion, well founded.”

And then, referring to paragraph 5 of the Practice Act, it says: “Yet it is quite clear that the plaintiff in his statement filed in this case does not rely upon any written or oral agreement, but that he is suing in an action ex delicto for the negligence of the defendant in failing to forward plaintiff’s goods with reasonable diligence,” which we think was the correct conclusion.

And in the case of Wm. Penn Motor Indemnity Exch. v. Elliott, 4 D. & C. 332, where a rule to strike off plaintiff’s statement was discharged for the reason that certain documents referred to were not attached, Baldrige, P. J., says: “The plaintiff in this case seeks to recover, not upon the policy of insurance, but on a written agreement which embraced the application for insurance, a copy of which agreement is attached to the plaintiff’s statement. Other documents which the defendant seeks to have attached are simply evidential and are not required to be attached to and made part of the plaintiff’s statement.” Section 9 of the Practice Act says: “The statement of claim shall be as brief as the nature of the case vrill admit. In actions on contracts, it shall state whether the contract was oral or in writing. . . .”

And section 5 of the Practice Act says: “Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim, or defense, as the case may be, but not the evidence by which they are to be proved. . . .”

A careful examination of this case leads us to the conclusion that the documents complained about by the defendant, if filed, would violate the provision of section 5 of the Practice Act, which we have quoted above, and would be in contravention of section 9 of the Practice Act, which requires a statement to be as concise as possible. The basis of the action, as alleged in the statement, is the deceit practiced by the defendant in obtaining the money from the bank. Nothing is sought to be recovered either on the notes given in the case, or on the financial statements filed.

We, therefore, discharge the rule to strike off plaintiff’s statement, and allow the defendant to file an affidavit of defense, if he so desires, within fifteen days from the filing of this opinion.

From George Ross Bshleman, Lancaster, Pa.


author: Martin, P. J.,

text:
    Sondberg et al. v. Eisenberg et al.

      D. A. Magaziner, for plaintiffs; H. Arronson, for defendants.
    Feb. 14, 1930.
   Martin, P. J.,

The plaintiffs sued on an alleged express contract to recover compensation for superintending the erection and the sale of seven buildings on land owned by defendants at 61st Street and Lebanon Avenue, in the City of Philadelphia. Plaintiffs claim a commission of 3 per cent, of the selling price of the buildings.

To the statement of claim defendants filed affidavits of defense denying that they employed plaintiffs or 'appointed them agents for the erection or sale of the buildings, averring that plaintiffs were authorized to finance the building operation at a cost not to exceed 10 per cent., but denying that plaintiffs secured any one to advance the necessary funds.

There was evidence at the trial of a verbal agreement between plaintiffs and defendants for the development of property and erection of seven buildings; for superintending the operation and selling the buildings when completed, plaintiffs to be paid 3 per cent, of the price at which the properties were sold. Plaintiffs selected an architect, secured bids from sub-contractors, superintended the erection of the buildings and adjusted labor differences; but about the time of the completion of the buildings plaintiffs were “discharged,” and the properties were placed in the hands of another real estate broker for sale, by whom they were sold or exchanged. When plaintiffs protested against the employment of the other broker, they were assured by defendants they “would be taken care of.”

All the properties were sold or exchanged subsequently to the “discharge” of plaintiffs.

Defendants denied that there was any contract as claimed by plaintiffs and denied that plaintiffs rendered services in connection with the erection of the buildings.

The jury returned a verdict in favor of plaintiffs for $2500. Defendants having presented a motion for binding instructions at the trial have moved for judgment n. o. v. and entered a rule for a new trial.

Defendants contend that plaintiffs did not effect a sale and that they presented no testimony to entitle them to a commission as for a sale, and that any recovery of damages should be restricted to compensation for services they actually rendered and the expense they incurred; but having made no claim for service based on an implied contract and having declared upon an express contract, in the absence of the value of the services rendered, the verdict of the jury should be set aside and judgment be entered in favor of the defendants.

An agency for the sale of real estate is revocable unless coupled with an interest or made for a fixed and specified time and for a good and valuable consideration.

“Where one as agent for another contracts to sell the land of the latter in consideration of one-half the net proceeds of the sales, and there is no stipulation in the contract as to the duration of the employment, the principal has a right to determine it at any time and to discharge the agent from his service without notice:” Coffin v. Landis, 46 Pa. 426.

In Blackstone v. Buttermore, 53 Pa. 266, it was held that “the interest of the agent was only in his compensation for selling, and without a sale this is not earned. A revocation could not injure him. If he had expended money, time or labor, or all, upon the business entrusted to him, the power itself was a request to do so, and on a revocation would leave the principal liable to him on his implied assumpsit.”

In Jaekel v. Caldwell, 156 Pa. 266, it was held that “an agent employed to sell lands, whose authority has been revoked, may recover from his principal, upon a quantum meruit, the expenditures which he has been encouraged to make in effecting the sale and compensation for his labor and time.”

In Kifer v. Yoder, 198 Pa. 308, it was said that “it is always incumbent upon the broker seeking to recover a commission to prove either that the sale was made to the party whom he procured as a purchaser or that the purchaser was able and willing to buy and the failure to make an actual sale was through no fault of the broker or his customer; . . . real estate broker is employed as the agent of the vendor for the purpose of effecting a sale. Until he accomplishes the object of his employment, he is not entitled to his commission.”

Morrow v. Tunkhannock Ice Co., 211 Pa. 445, decided: “Where an ice company agrees in writing to give to an individual the right to sell all of its product for a term of five years on a commission of $1 per car for ice shipped from the company’s plant, the contract does not establish the relation of master and servant, but constitutes an employment to make sales on commission. If the sales agent thus employed makes no sale and is discharged before the end of his term, he can recover nothing from the corporation.”

In Turner v. Baker, 225 Pa. 359, a real estate broker with the exclusive right to sell was held not to be entitled to recover his commission “if the owner himself sells the real estate during the term of the broker’s employment and the broker did not produce a purchaser during the term of the contract ready, able and willing to purchase the property.”

In S. V. Thompson Co. v. Goldman, 41 Pa. Superior Ct. 209, the contract with a real estate broker provided for ten days’ notice of an intention to withdraw the sale from the agency of the broker, and the owner sold, without any aid from the agent and without having revoked the agency: it was held that the agent was “entitled to recover compensatory damages for money expended and time and labor devoted towards the accomplishment of the sale, even if he has not brought a purchaser to his principal;” but he could not recover the specific commission provided by his contract.

In the present case, plaintiffs declared on an express contract providing for payment of 3 per cent, commission based upon the selling price of the seven buildings erected upon the land of defendants. The evidence proved there was a revocation of the agency. This appears from the testimony of the plaintiffs themselves, and there is nothing to sustain the claim that plaintiffs earned the commission by the sale of the properties, and no evidence showing anything expended under the alleged contract or the value of services rendered by plaintiffs in connection with the contract. The claim set forth in the statement was not proved and there was no evidence submitted of the value of the services or expenditures. An amendment of the statement could not perfect the right of plaintiffs to recover damages.

The alleged contract was not one between master and servant. It was a contract of agency. The work of superintending the erection of the buildings might be an undertaking between master and servant, but the primary purpose of the contract alleged by plaintiffs was an agency for the sale of the buildings after the contemplated improvement was completed.

And now, Feb. 14, 1930, the motion for judgment n. o. v. is allowed and judgment is directed to be entered in favor of defendants. An exception to this action of the court is noted for plaintiffs. The rule for a new trial is discharged.


author: Ferguson, P. J.,

text:
    Graft’s Disbarment.

      William Clarice Mason, for petitioner.
    March 19, 1930.
   Ferguson, P. J.,

— A petition was presented to the Court by the Committee of Censors of the Law Association of Philadelphia, setting forth that a number of complaints have been received by that Committee with reference to the conduct of Max Graft, a member of the Bar of this County. These complaints are to the effect that Graft had received from complainants substantial sums of money, which were to cover the costs and expenses incident to proceedings for divorce which were to be instituted by him. These parties stated that they had tried to find Graft without success and that he had not commenced or concluded the proceedings for which he had been retained. The Committee thereupon, in accordance with its practice, wrote to Graft advising him of the charges. These letters were returned undelivered. The Committee then conducted an investigation and learned that after obtaining deposits of money towards the expenses in various divorce proceedings and other matters, Graft had, on or about Oct. 1, 1928, closed his office at Room 218, No. 1535 Chestnut Street, Philadelphia, and taken therefrom his entire equipment and had left no forwarding address, and that the Committee, despite its efforts, had been unable to discover his whereabouts.

The Court thereupon granted a rule upon the said Graft to show cause why he should not be disciplined. Notice of the rule was directed to be given to him by mailing a copy thereof to his last known office address, another copy to his last known home address, a third copy to be posted in the office of the Prothonotary, and an insertion of the notice in a daily newspaper and The Legal Intelligencer. On the return-day of the rule, Graft failed to appear personally or by representative, and the Committee presented proofs of service in accordance with the order of the Court.

When a member of the Bar receives substantial amounts of money from a number of clients for services to be rendered on their behalf and fails to render the services contracted for and disappears for eighteen months, leaving no address, he is no longer entitled to the confidence of the Court and should be denied the privileges of his office. An order of disbarment will be entered accordingly.

Order.

And now, to wit, this 19th day of March, A. D. 1930, it is ordered and decreed that Max Graft, a member of the Bar of this Court, be and he is hereby disbarred from further practicing as an attorney therein. Notice of this order to be given by the Prothonotary to the several Courts of Common Pleas and the Orphans’ Court of this County.


text:
    Criscillo’s Estate.

      Paul W. Knox, for exceptant; Adrian Bonnelly, contra.
    March 21, 1930.
   Gest, J.,

— The judge who presided at the hearing of this appeal from the decree of the Register of Wills awarded an issue of devisavit vel non. He carefully considered the testimony in the case, and we are of opinion that the issue was properly awarded.

If the case were submitted to a jury, and a verdict were found against the will, the verdict should be sustained by the court, and, therefore, despite the able argument of the learned counsel for the exceptant, the exceptions to the decree are dismissed.

Henderson, J., did not sit.


author: Fleming, P. J.,

text:
    Power Manufacturing Company v. Bellefonte Trust Company, Administrator, et al.
    J. K. Johnston (with him Philip H. Johnston), for plaintiff.

      J. C. Furst and W. D. Zerby, for defendants.
    July 16, 1929.
   Fleming, P. J.,

— This matter is before the court on an affidavit of defense raising questions of law. The rule for judgment entered by the plaintiff seeks the entry of judgment in favor of the plaintiff and against the defendant for want of a sufficient affidavit of defense. This is contrary to the purposes of section 20 of the Practice Act of May 14, 1915, P. L. 483, unless it be shown to the satisfaction of the court that a decision on the questions of law involved disposes of the whole or any part of the claim, which in this case it does not. In the event of a decision against the defendants, the act specifically accords them a right to file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days: Hannock v. Tope and Tope, 77 Pa. Superior Ct. 101. If the questions of law raised are to be decided in favor of the defendants and against the plaintiff, without prejudice, a new suit may be brought: White v. Aka, No. 2, 2 D. & C. 678. The Practice Act, however, leaves the right to amend the statement of claim after demurrer has been sustained to the discretion of the court: Levine v. Pittsburgh State Bank, 281 Pa. 477.

W. I. Miller and M. J. Miller were brothers and copartners, engaged in the lime business, under the firm name of “Valley View Lime Kilns.” On Nov. 14, 1927, such partnership, through W. I. Miller, now deceased, entered into a written contract with plaintiff for the purchase of one Primm Oil Engine with fixtures and pipe for the sum of $2475. By the terms of the contract, the acceptance of the contract by the plaintiff was essential to make it effective. This acceptance was made on Nov. 23, 1927. The contract contained, inter alia, the provision, inserted in typewriting, that “this contract is subject to cancellation in 60 days if the business outlook for 1928 is not satisfactory.” It also contained, inter alia, in clause 16, in printing, the provision that “this contract is not subject to cancellation except upon the payment of 25 per cent, of the purchase price herein stated.” W. I. Miller, one of the partners, died on March 16, 1928, and the Bellefonte Trust Company is his administrator. M. J. Miller, one of the partners, wrote plaintiff on Feb. 17, 1928, requesting plaintiff not to ship the engine for at least six weeks, “as it would be impossible to. handle such heavy equipment under the existing conditions such as we are having now.” The engine was not shipped, and before the expiration of the requested six weeks’ period, W. I. Miller died, and M. J. Miller, surviving partner, wrote plaintiff, “owing to the sudden death of my brother last week, I am compelled to ask you to cancel your contract with us for the 45 H. P. Primm Engine.” Plaintiff sues in assumpsit to recover the sum of $618.75, with interest from March 21, 1928, such sum being 25 per cent, of the purchase price as per clause 16 of the contract. The defendants, by affidavit of defense, raise the question as to whether the provisions of clause 16 of the contract constitute a penalty or liquidated damages, and contend that it is the former and that plaintiff should declare, prove and recover, if at all, only such damages as it can properly show have been sustained by defendants’ failure to receive and pay for the engine which is the subject of the written agreement. It is this question which we must now consider.

Mr. Justice Fell, in Kunkel & Jordan v. Wherry, 189 Pa. 201, has indicated the manner of determining questions of this sort. He says:

“The rule that in actions ex contractu, where the breach of an agreement admits of compensation, the recovery may be limited to the loss actually sustained, notwithstanding a stipulation for a penalty, is founded upon the principle that one party should not be allowed to profit by the default of the other, and that compensation and not forfeiture is the equitable rule. Equity will regard a penalty or forfeiture as intended to secure the fulfillment of a contract, and it may preclude the injured party from recovering more than a just compensation, or from obtaining a collateral advantage: Notes to Peachy v. Duke of Somerset, 2 Lead. Cases in Eq. 2044; Bispham’s Eq., 178. Whether a sum named as compensation for the breach of a contract is to be considered as a penalty to secure its fulfillment, from which equity will relieve, or as damages liquidated by the parties themselves, is a question which cannot be answered by the application of any general rule. The question is always one of construction, and any rule upon the subject is a mere guide to the intention of the parties. The grounds upon which each case is to be considered and determined are clearly stated by our Brother Mitchell in Keck v. Bieber, 148 Pa. 645: ‘The general principle upon which the law awards damages is compensation for the loss suffered. The amount may be fixed by the parties in advance, but where a lump sum is named by them, the court will always look into the question whether this is really liquidated damages or only a penalty, the presumption being that it is the latter. The name by which it is called is of but slight weight, the controlling elements being the intent of the parties and the special circumstances of the case.’ And he quotes with approval March v. Allabough, 103 Pa. 335: ‘The question ... is to be determined from the words of the whole contract, examined in the light of its subject-matter and its surroundings; and in this examination we must consider the relation which the sum stipulated bears to the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages and such other matters as are legally or necessarily inherent in the transaction.’ From the nature of the case, the actual damages which would result from a breach of contract would not readily be susceptible of ascertainment, and it seems to us that it was the manifest intention of the parties not to leave them to the uncertain estimate of a jury but to fix them by express agreement. ‘Uncertainty as to the extent of the injuries which may ensue’ was said in Powell v. Burroughs, 54 Pa. 329, and Wolf Creek Coal Co. v. Schultz, 71 Pa. 180, ‘to be a criterion by which to determine whether it is a case of liquidated damages or a penalty.’ The damages named were for the breach of a single stipulation, and were not disproportionate to the loss which would probably result to the defendant from the failure of the plaintiffs to complete their work in time.”

Let us review the contract in the instant case in the light of the words of Mr. Justice Fell and the eases relying upon the same.

The matter of cancellation was in the minds of the parties at the time of the execution of the contract, for they expressly stipulated, by inserting the typewritten provision, that “this contract is subject to cancellation in 60 days if the business outlook for 1928 is not satisfactory.” Construing such statement most favorably to the defendants, we conclude that, had the defendants elected to cancel the contract within such period of sixty days, no liability would have attached to the defendants. Hence, the provision in clause 16 means, in effect, that unless the contract is canceled within sixty days from its approval by the plaintiff, it cannot be thereafter canceled without the payment of 25 per cent, of the agreed purchase price. Was such a provision made to prevent, if possible, the cancellation of the agreement by the defendants? Or was it a sum predetermined by the parties as damages likely to be suffered by the plaintiff in the event of such cancellation? If the latter, is the predetermined sum disproportionate to the loss which would probably result to the plaintiff thereby?

It is to be noted from the agreement that there are several stipulations, differing in degree as to importance, for the payment of liquidated damages on default, all of which differ. The defendants agree to deliver to the plaintiff collateral notes evidencing the payment of the several instalments, and it is provided that in the event defendants fail to do so, the plaintiff may retain the sum paid down on the contract as liquidated damages for such failure. That nothing was paid down in the instant case does not affect the fact that the parties stipulated specifically as to the amount of liquidated damages payable for each distinct breach. Other provisions are found in the agreement expressly providing as to what shall be the rights and remedies of the parties in the event of a breach of a particular stipulation. Such rights and remedies are specifically applied in proportion to the importance or peculiar application of the breach specified. None are provisions covering breaches of different degrees of importance.

After covering these several items of possible breach, the parties turn in their agreement to the question of cancellation and solely and specifically provide that cancellation can be had only on payment of 25 per cent, of the purchase price. This provision as to payment covers one condition only, and in the instant case was modified by the agreement of the parties to provide that cancellation could be had within sixty days of the acceptance of the contract by the seller without liability to the buyer. The provision for the payment of 25 per cent, of the purchase price does not extend to several matters of different degrees of importance. If it did, the cases of Keck v. Bieber, 148 Pa. 645; March v. Allabough, 103 Pa. 335; Shreve v. Brereton, 51 Pa. 175; York v. York Rys. Co., 229 Pa. 236; Emery v. Boyle, 200 Pa. 249, and Gross v. Exeter Machine Works, Inc., 277 Pa. 363, would apply and the provision mentioned would be held to be a penalty and not liquidated damages. It extends solely to cancellation after a period of sixty days from the date when the contract became effective. In the language of Justice Pell, in Kunkel and Jordan v. Wherry, supra, it is for “the breach of a single stipulation,” and if we find that the damages named are “not disproportionate to the loss which would probably result” from such cancellation, we must, under this established rule, find that such a provision constitutes the sum agreed to be paid as liquidated damages and not as a penalty.

To effect the sales of its products, the plaintiff, as do all other manufacturing concerns of like nature, is compelled to maintain a sales organization and to send salesmen into the field to interview prospects. This was done in this case. The salesmen are usually provided with a drawing account, and are paid salaries, commissions and expenses. In addition thereto, there are other overhead charges to be met. The seller is required to invest large sums in plant and equipment, advancing payrolls and maintaining such plant and equipment at all times. The seller is, in addition thereto, entitled to a fair return on its investment and advances. This is commonly called profit. To separate and determine the proportion thereof applicable to the transaction between plaintiff and defendant would be difficult if not impossible. It is quite evident that there would be an uncertainty as to the extent of the plaintiff’s injuries which ensued from defendants’ cancellation of the contract. It was the manifest intention of the parties not to leave such damages to the uifcertain estimate of a jury, but to fix them by express agreement. That it is not specifically designated as liquidated damages is of but slight weight.

In the automobile industry commissions equaling or at least closely approaching the percentage named in the stipulation which we are considering are paid for the sale of automobiles and, in addition thereto, the agent or dealer carries the costs of selling. Here the costs of selling were borne by the plaintiff and its profit is what remains from such percentage after the selling costs, interest and other overhead charges are deducted. We are of the opinion that the sum is not disproportionate to the damages likely to be suffered by the plaintiff by reason of defendants’ breach in canceling the contract.

Having found that the stipulation in the instant case pertains to hut one specific matter, to wit, cancellation, that the damages of the plaintiff are uncertain and difficult to exactly ascertain, and that the sum designated is not disproportionate to the damages which would probably result to plaintiff from defendants’ breach in canceling the contract, we conclude that the provisions of clause 16 do not constitute a penalty but constitute liquidated damages as agreed to by the parties. We must, therefore, decide the point of law raised in defendants’ affidavit of defense in favor of the plaintiff and against the defendants and enter the following order:

And now, July 16, 1929, after argument and careful consideration of the brief filed, it is held that the provisions of clause 16 of the written agreement entered into between the parties provide for liquidated damages and not for a penalty, and it is further ordered that defendants file a supplemental affidavit of defense to the averments of fact of plaintiff’s statement within fifteen days.

Prom S. D. Gettig, Bellefonte, Pa.


author: Saylok, Dep. Att’y-Gen.,

text:
    Christmas Clubs.
    Dec. 17, 1929.
   Saylok, Dep. Att’y-Gen.,

— We have your request to be advised whether or not what are popularly known as “Christmas Club,” conducted by individuals, associations and incorporated institutions in this State, come within the provisions of the Banking Acts. We understand that it has been the practice for some years past for department stores, manufacturers and other large employers to receive from their employees deposits from week to week during the year, to be held by the employers or deposited by them in banking institutions for payment back to the employees at Christmas time. In some cases this activity has taken the form of a fund operated by an unincorporated association of individuals elected from the employees of the employer concerned, and in other cases it has been carried on by corporations acting directly with the employee. You ask for an opinion as to whether or not such Christmas funds are legally operated.

A particular example of this activity which has been brought to our attention by your department is that of a company conducting an unincorporated association in charge of individuals who are employees and possibly officers of the employer company. They receive deposits from the employees and place them on deposit in a bank, drawing from such deposit account from time to time for the purpose of loaning the money to their company employer and receiving such money hack in time to make payment thereof to the employee depositors at such time as they desire to withdraw such deposits, particularly shortly before Christmas of each year.

The Private Banking Act of June 19, 1911, P. L. 1060, as amended by the Act of April 5, 1927, P. L. 106, and the Act of April 26, 1929, P. L. 813, provides as follows: “That, except as provided in section eight (8), no individual, partnership, or unincorporated association shall hereafter engage, directly or indirectly, in the business of receiving deposits of money for safekeeping or for the purpose of transmission to another, or for any other purpose, without having first obtained from a board, consisting of the State Treasurer, the Secretary of the Commonwealth, the Secretary of Banking— hereinafter referred to as the ‘Board’ — a license to engage in such business.

Section 8 provides for various exceptions, such as corporations authorized to do a banking business, hotel keepers, certain public service corporations, individuals complying with the requirements for the filing of bonds as private bankers with the Commissioner of Banking, those lawfully conducting a brokerage business, and those engaged in business as private bankers for a period of seven years prior to the approval of the act, etc.

Organizations such as that above referred to do not come within these exceptions. They are transacting a business of receiving deposits of money for safe-keeping and for the purpose of transmission to another, or for some other purpose, and by collecting such funds they violate the Private Banking Act.

There is no question that the collecting of such funds for the purpose of conducting a savings account comes within the terms of that act. In Com. v. Bilotta, 61 Pa. Superior Ct. 264 (1914), the court, deciding that the Act of June 19, 1911, P. L. 1060, was constitutional, stated the following: “The business of receiving deposits is so manifestly germane to and so universally associated with the business of banking that a general statute which in its title declares a purpose to provide for the licensing and regulating of private banking naturally suggests to the mind that the statute will make provision for the protection of those who deposit money in such banks. The receiving of deposits is a part of the business of such banks. The provisions of this statute which relate to the conditions upon which private bankers may be permitted to receive deposits are germane to the general subject of regulating the business of private banking expressed in the title of the statute. . . .”

You have called to our attention the practice of a certain loan company which, under a charter granted by the Commonwealth of Pennsylvania, is limited in purpose to the loaning of money to the public and to purchasing and selling various kinds of securities in connection with the conduct of said loan business. Under the guise of selling subscriptions to those bonds by weekly payments of small amounts on account of such purchase, this company is actually conducting a Christman Club and is not primarily endeavoring to sell its bonds. Such a proceeding has no connection with its loan business and is merely a subterfuge for transacting a private banking business. In its contract with the depositor it agrees to return the amount of the subscription at any time upon proper notice, and it does not insist at the end of the subscription payment upon delivering its bond to the subscriber, but gives him the opportunity to accept cash in lieu thereof, which, we understand, is the usual practice. Obviously, a corporation without banking powers cannot engage in such an undertaking. To do so it must have its charter amended and thereby come directly under the control of the Department of Banking. Its present practice of conducting what is generally known and is advertised as a “Christmas Club,” under whatever guise, is illegal.

Prom C. P. Addams, Harrisburg-, Pa.


author: Houck, J.,

text:
    Commonwealth v. Silliman et al.
    Before Koch, P. J., and Hicks and Houck, JJ.

      N. A. Watkins, Assistant District Attorney, for Commonwealth.

      C. E. Berger, M. A. Kilker and C. M. Palmer, for defendants.
    Nov. 11, 1929.
   Houck, J.,

— The indictment in this case charges that the defendants, maliciously intending to injure the good name and reputation of “the members of the Grand Inquest sitting for the March Sessions, 1929,” naming eighteen persons, did, on March 22, 1929, unlawfully compose and write a certain false and defamatory libel “of and concerning them, the said members of the Grand Inquest sitting for the March Sessions, 1929.” This is followed by a statement of the alleged libelous matter. We shall quote only a portion of the article. It is entitled “Prosecution or Persecution (Editorial),” and continues; “The Grand Jury assigned especially to the investigation of the escape from prison of Alvarez Miquel, convicted of murder, having completed its work, its acts now become a proper subject for comment. . . . But comment is permitted on the action of the Grand Jury. It was wholly in sympathy with the political terrorism that has prevailed in this county for several years; a terrorism that has behind it but one thing — political aggression. This Grand Jury passed upon matters that have, for obvious reasons, been held from several grand juries. It would appear that never did it fail to respond to the spur and whip. It condemned all the employees of the jail; it condemned, among others, a keeper who is noted for his bravery; a keeper who a few years ago fought a desperate criminal and shot him; a keeper who has been held by several administrations because of his efficiency. But all the men employed in the prison are affiliated with the major party in the County of Schuylkill, the regular Republican organization, which excludes from its rank certain men for certain reasons. Let us take the matter of Commissioner Walton. The Grand Jury avers that he accepted one thousand dollars from Warden Haertter for appointing Haertter to his position. . . . His case, if case there is, did not properly come under the scope of the Grand Inquest, so that we are entirely free to criticize it. We consider it to be an outrageous imposition, a scandalous, malignant utterance and one for which somebody should be held accountable. . . . All of the employees pf the jail have been branded and why? Because in all cases they are affiliated with a different party than that which is constituted in the forces that were behind the Grand Jury inquiry. Most of these men have done no wrong.and they should be retained in their positions. Those against whom there is evidence should be given a fair trial, and if they are found guilty, they should be punished adequately and without compunction.” The indictment then charges that the defendants printed and published the alleged defamatory libel in a newspaper entitled “The Pottsville Journal,” thus exposing the members of the grand inquest sitting for the March Sessions, 1929, to public hatred, com tempt and ridicule, contrary to the form of the act of the general assembly in such case made and provided.

The defendants moved to quash the, indictment, assigning five reasons, to wit: (1) The indictment does not charge any indictable offense. (2) It is fatally defective, in that it does not connect the grand inquest sitting for the March Sessions, 1929, with the alleged libel. (3) It is fatally defective, in that it does not aver that the grand inquest sitting for the March Sessions, 1929, was the grand jury assigned especially to the investigation of the escape of Alvarez Miquel. (4) It is fatally defective, because it does not aver that the grand inquest sitting for the March Sessions, 1929, is the grand jury referred to in the alleged libelous article, and no extrinsic facts are averred connecting that grand inquest with the alleged libel by way of inducement and colloquium; and (5) the indictment is fatally defective, because the article set forth therein is not libelous or defamatory per se, and there are no averments in the indictment, by way of innuendo, to show that said article has or can be given a libelous or defamatory meaning.

The proper form of an indictment charging libel was explained at length in Com. v. Swallow, 8 Pa. Superior Ct. 539. In that case the court said: “When language of the character described in the statute is applied to a person by name, there can be no question of its meaning or application. . In such case, it is only necessary, in an indictment, to identify the prosecutor as the person named by an averment that the language was published of and concerning him. But where the language does not necessarily tend to blacken character, or expose to public hatred, eontempt or ridicule, or where the person to whom it refers is not named, it becomes necessary to so frame the indictment as to show the defamatory meaning of the language and its application to the prosecutor.” When the publication does not bear the defamatory meaning ascribed to it, or indicate the person at whom it is aimed, it is necessary to set forth the requisite extrinsic matters in a prefatory way, which is designated as the inducement. Then follows a statement of the matters necessary to connect the language with the extrinsic circumstances and to show that it was published of and concerning the person mentioned in the inducement. This is designated as the colloquium. Lastly, the defamatory meaning, which is alleged to attach to the language, is set forth, and this interpretation is called the innuendo.

The publication here in question refers only to “the Grand Jury assigned especially to the investigation of the escape from prison of Alvarez Miquel.” There is nothing whatever in the indictment to show that this grand jury is the grand inquest sitting for the March Sessions, 1929. The indictment does mot even identify the grand inquest as one assembled in Schuylkill County. No individual member of the grand jury is named in the alleged libelous article. Hence, since the article does not name the particular grand jury alleged to have been defamed, or any of its members, it is quite clear that an inducement and colloquium are necessary. There is neither in this indictment. The indictment charges a libel on the grand inquest sitting for the March Sessions, 1929. The publication refers to the grand jury which investigated the escape of Miquel. Unless it be shown in the indictment that these are one and the same, the indictment is defective under the principles referred to above.

The indictment does not contain a single innuendo. In our opinion, the words of the alleged publication are not libelous or defamatory per se. They do not charge directly, nor by necessary implication, any scandalous or criminal action on the part of any member of the grand jury. If the language used is susceptible of an interpretation rendering it libelous or defamatory, this interpretation or meaning should be set out by way of innuendo. The language is susceptible of several meanings, and, if it can be so interpreted as to be libelous, this interpretation must appear in the indictment. In the absence of inducement, colloquium and innuendo, the indictment must be quashed.

The first reason assigned in support of the motion to quash is that the indictment does not charge any indictable offense. In the absence of any innuendoes indicating wherein the language is libelous, we are unable to determine whether or not the article is, in law, libelous and sufficient to support an indictment. On this point we express no opinion.

The indictment is quashed.

And now, Nov. 11, 1929, an exception is allowed the Commonwealth and 'bill is Sealed. From M. M. Burke, Shenandoah, Fa.