author: Fleming, P. J.,

text:
    Laurelton State Bank v. Boeger.

      John G. Love, for exceptants, mechanics’ lien claimants.

      N. B. Spangler and Ivan Walker, for plaintiff mortgagee, contra.
    Jan. 16, 1929.
   Fleming, P. J.,

Exceptions have been filed to the return of the sheriff, wherein it is generally contended that the plaintiff is not entitled to any part of the proceeds derived from the sale of the defendant’s real estate under writ of levari facias to No. 29, May Term, 1928, but that such moneys belong in toto to the exceptants by virtue of their respective mechanics’ liens filed.

The parties have been accorded a hearing and testimony has been taken. Further, a stipulation has been filed, in which all parties concur, and which has been approved by the court and followed in our disposition of the exceptions filed.

No requests for findings of fact or conclusions of law have been made by any of the parties concerned. The court, however, in order to properly reach the necessary conclusions to dispose of the exceptions, has arrived, at the following

Findings of fact.

1. The plaintiff is a banking institution, doing a general banking business, and is incorporated under the laws of the Commonwealth of Pennsylvania, having its place of business at Laurelton, Union County, Pennsylvania.

2. The defendant was the owner of real estate in the Borough of State College, Centre County, Pennsylvania, and resided, when last heard from, in the State of New Jersey, his exact address being unknown to any of the parties hereto.

3. The exceptants, Homan & Hafer, Klinger & Hafer and Harry Gunter & Son, are workmen and materialmen, who supplied labor or materials to a building erected‘upon real estate of the defendant in the Borough of State College aforesaid.

4. That the exceptants, Harry Gunter & Son, filed their mechanic’s lien against the defendant and against the real estate described in the plaintiff’s mortgage, hereinafter mentioned, to No. 105, February Term, 1927, M. L. D., in the sum of $409.90, with interest from Oct. 21, 1926, the date of such filing being Feb. 1, 1927, a lien being claimed from June 19, 1926, “the date of visible commencement upon the ground of the beginning the work of building.”

5. That R. B. Taylor, not an exceptant in this proceeding, filed his mechanic’s lien against the defendant and against the real estate described in the plaintiff’s mortgage, hereinafter mentioned, to No. 107, February Term, 1927, M. L. D., in the sum of $187.22, with interest from Dec. 15, 1926, the date of such filing being Feb. 4, 1927, a lien being claimed from June 19, 1926, “being the date of the visible commencement upon the ground of the work of building.”

6. That the exceptants, Homan & Hafer, filed their mechanics’ lien against the defendant and against the real estate described in plaintiff’s mortgage, hereinafter mentioned, to No. 3, December Term, 1926, M. L. D., in the sum of $2835.40, with interest from Oct. 28, 1926, the date of such filing being Nov. 9, 1926, a lien being claimed from June 19, 1926, “being the date of visible commencement upon the ground of the beginning of the work of building,” upon which lien scire facias was issued in due form and judgment obtained against the defendant to No. 263, September Term, 1927, in the sum of $2835.40, with interest from Oct. 28, 1926.

7. • That the exceptant, Klinger & Hafer, filed their mechanics’ lien against the defendant and against the real estate described in the plaintiff’s mortgage, hereinafter mentioned, to No. 4, December Term, 1926, M. L. D., in the sum of $430.60, with interest from Oct. 14, 1926, the date of such filing being Nov. 13, 1926, a lien being claimed from June 19, 1926, “being the date of visible commencement upon the ground of the beginning of the work of building,” upon which lien a scire facias was issued in due form and judgment obtained against the defendant to No. 264, September Term, 1927, in the sum of $430.60, with interest from Oct. 14, 1926.

8. That the plaintiff was the mortgagee named in a certain indenture of mortgage, given by the defendant, as mortgagor, in the sum of $3000, said mortgage being dated Nov. 4, 1926, and recorded on the same date in the office for. the recording of deeds, etc., for Centre County, in Mortgage Book, vol. 53, at pages 111 and 112.

9. That the said mortgage mentioned in the preceding finding became in default and scire facias was issued in due form for the foreclosure of the same, and judgment thereupon was duly entered on March 17,1928, to No. 57„ February Term, 1928, in the sum of $3396.50, with interest from March 17, 1928, upon which judgment a writ of levari facias was issued to No. 29, May Term, 1928, and the said premises described in said mortgage were sold, after due advertisement, by the Sheriff of Centre County, on April 14, 1928, to the Laurelton State Bank of Laurelton, Union County, Pennsylvania, the plaintiff herein, for the sum of $3700.

10. That the Sheriff of Centre County, by his deed dated Aug. 1, 1928, and recorded on the same day in the office for the recording of deeds, etc., for Centre County, in Sheriff’s Deed Book, vol. 1, at page 266, conveyed said real estate to the plaintiff herein.

11. That the Sheriff of Centre County made his return of said sale, pursuant to the Act of Assembly approved June 4, 1901, P. L. 357, wherein distribution is reported as follows, to wit:

For costs............................................. $104.55
Charles E. Williams, Collector (taxes).................. 71.56
Laurelton State Bank, mortgage........................ 3403.30
Homan & Hafer, judgment............................. 120.59
$3700.00

12. That the date of the visible commencement upon the ground of the beginning of the work of building was June 19, 1926.

13. That Park R. Homan, one of the partnership of Homan & Hafer, exceptants herein, has, since the filing of exceptions herein, become deceased, and The First National Bank of State College, Pa., the executor of the last will and testament of such deceased exceptant, has been duly and regularly substituted therefor in these proceedings.

14. That the work begun on said real estate on June 19, 1926, continued until, at least, Nov. 4, 1926.

15. That all of said mechanics’ liens herein concerned were filed within the statutory period.

Upon these facts as found, together with the stipulation filed herein, we must consider and dispose of the exceptions filed. We, therefore, proceed to the following

Discussion.

We infer from the remarks of counsel at hearing that the exception based upon the fact that the mortgage given by the defendant to the plaintiff, and upon the foreclosure of which the sheriff’s sale was had, did not contain the certificate of residence of the mortgagee, as required by the Act of April 29, 1909, § 1, P. L. 289, is not to be pressed, and we, therefore, shall omit consideration of the same entirely.

The question for our determination is, in brief and plain words: Do the mechanics’ lien claimants have preference in the distribution of the proceeds of this sale, or is the proposed application of such proceeds, as noted in the 11th finding of fact, correct?

This is a case where the work was begun before the plaintiff’s mortgage was recorded. In the following cases the mechanics’ lien claimants were held to be entitled to priority in distribution over the holders of the mortgages, because in each instance the mortgage was not recorded until after the visible commencement upon the ground of the work of building the structure liened: American Fire Ins. Co. v. Pringle, 2 S. & R. 138; Hahn’s Appeal, 39 Pa. 409; Parrish & Hazard’s Appeal, 83 Pa. 111, 121; Lombaert v. Morris, 2 Del. Co. Reps. 457; Pennock v. Hoover & Myers, 5 Rawle, 291; Reynolds v. Miller, 177 Pa. 168; Kaufmann v. Engel, 60 Pitts. L. J. 763; Ketcham v. Land Title and Trust Co., 257 Pa. 391; Citizens Bank of Palmerton v. Lesko et al., 277 Pa. 174, 178; Trexler Lumber Co. v. Butterweck, 10 Lehigh Co. L. R. 220.

Further, we find that mechanics’ liens have priority, in the distribution of the proceeds of a sheriff’s sale, over a mortgage which was recorded after the visible commencement of the work upon the ground even though the mortgage was delivered before the commencement of the work: Kaufmann v. Engel, 60 Pitts. L. J. 763.

There is no denial that the work was begun visibly on the premises of the defendant on June 19, 1926, and continued, at least, up to the time when the plaintiff’s mortgage was executed and recorded. Sundry workmen and materialmen, as is evidenced, in part, by the number claiming here, were working upon or delivering materials to defendant’s building. That plaintiff had no actual notice of such cannot be conceived, and no attempt to introduce evidence to that effect was attempted at the hearing held hereon. A mortgagee who has had actual notice of the commencement of a building on the land to be encumbered before the mortgage is recorded is bound the same as by an unrecorded mortgage of which he had actual notice: Reynolds v. Miller, 177 Pa. 168.

Nor is there any evidence here that any of the lien claimants sought in any way to mislead the plaintiff as to the likelihood of such claims being filed. If such evidence existed, the exceptants would be estopped from claiming priority: Gromo v. McCamic, 70 Pitts. L. J. 569. The evident fact is that the plaintiff accepted the defendant’s mortgage after the exceptants had extended their credit to him in labor and materials and while a full and complete opportunity existed to plaintiff to ascertain the likelihood of such liens being filed. It assumed the risk of prior claims existing and is responsible to itself alone for any loss which may be sustained herein.

The validity of the several liens filed by the exceptant has not been attacked in any way, nor do we find that such an attack could be sustained if made. The statutory requirements have been fully met.

The last direct utterance of our appellate courts on the question before us appears in Citizens Bank of Palmerton v. Lesko et al., 277 Pa. 174, wherein it is clearly held that under section 13 of the Act of June 4, 1901, P. L. 431, 437, a mechanics’ lien takes effect as of the date of the visible commencement on the ground of the work of building the structure or other improvement, while under the Act of May 28, 1915, P. L. 631, the lien of a mortgage takes effect as of the date it is recorded. We, therefore, reach the following

Conclusions of law.

1. That the liens filed by the exceptants herein are valid liens.

2. That the liens filed by the exceptants herein are effective as of June 19, 1926.

3. That the lien of the plaintiff’s mortgage is effective as of Nov. 4, 1926.

4. That the liens filed by the exceptants are entitled to priority of payment in the distribution of the fund in the hands of the Sheriff of Centre County arising from the sale of the defendant’s real estate under writ of levan facias No. 29, May Term, 1928.

Whereupon the following decree is made:

Decree.

And now, Jan. 16, 1929, it is ordered and decreed that the exceptions filed herein be and are hereby sustained, and the Sheriff of Centre County shall forthwith compute the amounts due the several exceptants herein and R. B. Taylor, being lien claimants, upon the respective liens as herein found, interest to be computed from the date mentioned in the respective liens to April 14, 1928, being the date of the sale of the defendant’s real estate; that he shall pay the sum necessary to satisfy all record costs herein, the taxes due upon the said real estate, and the fund remaining shall be prorated and paid by him to and among the exceptants herein and R. B. Taylor, lien claimants, as their several total claims shall appear.

From S. D. Gettig, Bellefonte, Pa.


source: Caselaw Access Project

author: Patterson, P. J.,

license: Public Domain

text:
    Keith v. Keith et al.

      W. I. Woodcock, for petitioners.
    July 11, 1929.
   Patterson, P. J.,

By agreement of all parties interested in the estate of William Keith, late of North Woodbury Township, Blair County, Pennsylvania, deceased, the court is requested to enter a declaratory judgment construing a provision in the will of Thomas Keith, late of said North Woodbury Township, deceased, dated Oct. 3, 1993, and duly probated in the office of the Register of Wills in Blair County in Will Book, Vol. L, page 425.

Thomas Keith was the father of William Keith. William Keith died testate on March 15, 1999, leaving to survive him as his sole heirs-at-law his wife, Mary Keith, and an only child, Florence Keith, the will giving to the daughter, Florence Keith, the major portion of all testator’s property. The widow, Mary Keith, refused to take under the will and demanded her share of the estate of the said William Keith under the Intestate Law. The question before us is whether William Keith, son of Thomas, was vested by the will of Thomas with an estate in fee or an estate limited for a term during his lifetime, the clause of said will under discussion being as follows: “I give and bequeath to my son, William Keith, that farm situated in North Woodbury Township, Blair County, Pennsylvania, known as the ‘Upper Farm,’ to have and to hold during his natural lifetime, after his death the said farm shall go to his legal heirs. Should he die without leaving a child or children of his own, the farm shall go to the next legal heir. It is my will that the farm should not go to any adopted child or children.”

The widow, Mary Keith, contends that this clause in the will vested the said William Keith with an estate in fee simple, while the daughter contends that her father, William Keith, had but a life estate in the property and upon his death it became, by the terms of the will of the said Thomas Keith, vested in her absolutely.

This case comes within that class of cases governed by the Rule in Shelley’s Case, which our Supreme Court has in many cases defined in the following language: “When, by deed or will, an estate in land is given to one for life, and at his death the remainder to his heirs in fee, the estate of the life-tenant is enlarged to be a fee. The two estates are merged in one and the first taker takes it all:” Gernet v. Lynn, 31 Pa. 94.

And in Hahne v. Meyer, 173 Pa. 151, the Supreme Court held: “A devise of a lot to a son ‘to have and to hold during his natural life, and from and immediately after his death I give, devise and bequeath the same unto his heirs and assigns forever,’ gives the son a fee in the lot.”

This rule of law is also sustained by Stout v. Good, 245 Pa. 383; Swank’s Estate, 270 Pa. 395; Martin v. Grinage, 289 Pa. 473, and many others.

We are of opinion, therefore, that William Keith became vested of an estate in fee simple in the property in question by the provisions of the will of his father, Thomas Keith.

From Robert W. Smith, Hollidaysburg-, Pa.


author: Koch, P. J.,

text:
    Bachert et ux. v. Tamaqua Borough Water Commissioners.

      B. J. Duffy, for plaintiffs.

      A. L. Shay and J. A. Noecker (now deceased), for defendants.
    Feb. 25, 1929.
   Koch, P. J.,

The plaintiffs live on West Railroad Street in the Borough of Tamaqua. The street is ungraded; its width at the northern end of the square in which the plaintiffs’ houses stand is only about ten feet and at the southern end it is only four feet wide. The street ends at steps leading down a hill. It has been used as a street for many years, but the Borough of Tamaqua has done very little, if anything, to maintain it as a street. There are a number of other houses fronting on this street, but all of them receive their water supply from the main which lies along Washington Street, which is immediately west of and parallel with West Railroad Street. The plaintiffs formerly obtained their water from a connection in the cellar of the next door neighbor, having no independent connection themselves with the main on Washington Street. They declined to pay their water rent, claiming that the water supply was deficient, and the Water Commission severed the connection in the cellar of the plaintiffs’ neighbor in the year 1926. The plaintiffs now seek to compel the defendants to supply them with water by making a connection with the water-main which lies on Elm Street, which intersects Railroad Street at right angles about 154 feet north of the plaintiffs’ property. The plaintiffs’ lot does not extend to Washington Street, and the only way of directly connecting it with a water-main is by tapping the Elm Street main. The other lot owners on West Railroad Street need no such water service, because they get water from the Washington Street main. Their lots extend all the way from West Railroad Street back to Washington Street.

The exceptions filed by the plaintiffs were argued before the court in banc. There are six exceptions to findings of fact, four to conclusions of law and one to the judge’s decree nisi against the defendants, but the plaintiffs’ argument concerned mostly the law of the case, the contention of the plaintiffs being that the defendants are bound, as a matter of law, to supply them with water, a thing that the defendants are entirely willing to do if the plaintiffs will pay for laying a service pipe-line from the main on Elm Street, or will pay the interest on the cost thereof. The findings of fact to which exceptions have been filed are supported by the evidence in the case. But the plaintiffs claim that they have no right to dig up any street and that it is the business of the defendants to bring the water service to the curb (although there is no curb on West Railroad Street). That argument, however, falls in the light of the defendants’ offer to do the work at the plaintiffs’ cost or under an agreement with the plaintiffs that they pay 5 per cent, on the cost as well as the regular water rents from time to time. Under the rules of the defendants, all customers pay the cost of carrying the service pipe from the main to the curb. It must not be forgotten that all the houses referred to in the argument are within the square which is bounded on the east by West Railroad Street, on the south by West Union Street, on the west by Washington Street and on the north by Elm Street, and that the said houses all front on West Railroad Street, and that only the plaintiffs seek a connection with the main on Elm Street. The plaintiffs’ case alone presents the contingency calling for a connection with the Elm Street 10-inch main. The plaintiffs did have water and caused their own predicament. They should, therefore, be willing to pay the cost of getting out of their predicament.

We do not think the defendant officials have abused their discretion in refusing to put in a pipe-line at the expense of the borough alone. And, unless they have abused their discretion, we have no right to issue the writ prayed for. The act under which the defendants operate the water-works of the borough gives them the power to establish the “conditions upon which water will be furnished to applicants.” Now, since all other customers in the borough paid for their service lines, the plaintiffs are obliged to do the same. “Where a consumer desires service, which a city can supply only by the installation of apparatus at a substantial expense not entailed in furnishing service to others, the special expense thereof must be borne by the consumer:” 20 Corpus Juris, § 30, page 337. The defendants have not discriminated against the plaintiffs.

A street ten feet' wide at one end and then tapering to but four feet at the other end can hardly be called a public street, and until it has been clearly established that it is a street over which the borough exercises control, it becomes merely a private street and the defendants have it within their discretion to say whether or not they will provide water service on such a street: Boswell v. City of Philadelphia, 15 Pitts. L. J., N. S., 153.

The cost of putting in a service pipe would be around $600, whereas the gross return would be but $11 a year. In Horst v. Heidelberg Township Water Co., 15 Pa. Corp. R. 264, the defendant ¡refused to extend its main 316 feet at a cost of $500 to serve two properties from which the returns would be $29.20 per year, and the plaintiff’s petition was dismissed because the demand was unreasonable. In Fritz v. Allegheny Water Co., 15 Pa. Corp. R. 265, a like disposition was made of the cost because the extension required was 372 feet from the main at a cost of $800, with a return of only $14.

We think the plaintiffs have laid no sufficient ground to invoke the remedy they here seek.

The exceptions are dismissed, and judgment is entered in the defendants’ favor and against the plaintiffs. From M. M. Burke, Shenandoah, Pa.


author: Martin, P. J.,

text:
    Skibinzewski et al. v. Newhouse.

      B. D. Oliensis, for plaintiffs; R. E. Erwin, for defendant.
    July 26, 1929.
   Martin, P. J.,

An action of trespass was instituted by plaintiffs against defendant. The writ and statement of claim were served personally on defendant June 26, 1923. No appearance was entered or affidavit of defense filed. The case was tried May 4, 1927, in the absence of defendant. Verdicts were rendered against him in favor of the plaintiff, Stanley Skibinzewski, for $10,000, and for the plaintiff, Joseph Skibinzewski, in the sum of $1500. Judgment was entered on the verdicts; a writ of ft. fa. issued, which was returned nulla bona. An attachment sur judgment was served on Joseph F. Newhouse, garnishee, executor of the estate of Mary A. Newhouse, deceased.

On Aug. 1,1927, the defendant, Andrew Newhouse, filed a petition, averring that he was born July 22, 1904, and did not arrive at the age of twenty-one years until July 22, 1925; that on June 19, 1923, when the summons issued, he was a minor; that he had no guardian of his person or estate and no guardian ad Utem was appointed; that he did not have knowledge of the institution of the suit, and for that reason did not cause an appearance to be entered by counsel or attend when the case was called for trial on May 12, 1927; that his first knowledge of the suit was on or about July 9, 1927, when he was informed that his interest in the estate of his mother had been attached under the judgment. A rule was granted to show cause why the judgment should not be struck from the record.

A similar petition was filed, and a rule was granted to show cause why the judgment should not be opened.

Answers to these petitions were filed on behalf of plaintiffs, denying that defendant had no knowledge of the institution of the suit or that he was ignorant of the proceedings, and averring that he was served personally with the summons and statement of claim; but it is not denied that he was a minor when the suit was instituted and when the writ and statement of claim were served upon him, and that he had no guardian and that no guardian ad litem was appointed. At the time of the trial, it is admitted that he was of full age and did not require a guardian.

The judgment is an adverse one and regular on its face: Yerkes v. Stetson, 211 Pa. 556.

There is no legal ground presented for striking it off. The rule to show cause why the judgment should not be struck off should be discharged.

No meritorious defense, either legal or equitable, has been presented in support of the rule to show cause why the judgment should not be opened. If it is in the power of the court to entertain, an application at this late day, after the expiration of the term in which the judgment was entered, the rule should be discharged.

The rule to show cause why the judgment entered in the above-entitled cause should not be struck off is discharged; and the rule to show cause why the judgment should not be opened and defendant let into a defense is discharged.


text:
    Hutchinson v. City of Philadelphia.

      M. T. McManus, for plaintiff.
    June 12, 1929.
   Martin, P. J.,

On Oct. 25, 1926, a jury of view was appointed to assess the damages accruing to the petitioner, Barbara L.- Hutchinson, by the change of grade of Sixty-ninth Street, from Chester Avenue to Regent Street. On April 15, 1929, a report was filed awarding damages to Barbara L. Hutchinson in the sum of $2761 and to Edna B. Whealton, administratrix of the estate of Analey L. Whealton, $1615.

On May 16, 1929, separate appeals were filed by the City of Philadelphia from the awards to Barbara L. Hutchinson and Edna B. Whealton, administratrix.

On May 24, 1929, a rule was granted to show cause why the appeal as to Barbara L. Hutchinson should not be struck off on the ground that it had not been entered within thirty days from the date of filing the report, in accordance with the Act of April 2,1903, P. L. 124.

The report of the viewers was filed in the prothonotary’s office and was stamped by the prothonotary as of the date of April 15, 1929, and entered in the docket as having been filed on that date.

At the argument of the rule to show cause why the appeal should not be struck off, counsel for the City handed to the court an affidavit made by a stenographer in the employ of the Board of Viewers, in which it is statéd that “he did, on April 16, 1929, file in the Prothonotary’s office the report of the Board of View.”

The affidavit of the stenographer is no part of the record and cannot be accepted by the court to overthrow the official stamp of the prothonotary and the entry in the docket.

The appeal, not having been taken within thirty days from the date of filing the report, should be struck from the record.

And now, to writ, June 12,1929, the rule to show cause why the appeal from the award of the jury of view made to Barbara L. Hutchinson should not be struck from the record is made absolute; and the report of the jury of view as to Barbara L. Hutchinson is confirmed.


text:
    Progress Finance Company v. Hunn et al.

      J. Blank, for plaintiff; David Feldman, for defendant.
    June 28, 1929.
   Martin, P. J.,

Judgment was entered on a note signed by defendants containing a warrant of attorney to confess judgment. Damages were assessed and execution issued against the defendant, Rose A. Hunn.

A petition was filed by her, alleging that she is a married woman; that her maiden name was Rose A. Hunn, and her married name is Rose H. Katz; that she was married at the time the note was signed by her, and executed it as surety and accommodation endorser for the defendant, Joseph Brookman.

A rule was granted to show cause why the judgment should not be opened and the defendant, Rose H. Katz, be allowed to interpose a defense.

An answer was filed on behalf of plaintiff, which denied that the note was executed by petitioner as surety for a loan made to the defendant, Joseph Brookman, and averred that plaintiff’s check was delivered and made payable to both defendants and was collected by Rose A. Hunn.

Depositions were taken, by which it appears that the application for the loan was made by the defendant Brookman, a brother-in-law of the defendant, Rose H. Katz, and that when plaintiff required that he obtain an endorser, he suggested his sister-in-law, the defendant; but plaintiff refused to accept her as endorser; that at the request of the defendant, Brookman, she joined in the execution of the note; that, although plaintiff’s check was made to the order of both defendants and deposited by the defendant, Rose A. Hunn, she paid the entire amount to the defendant Brookman.

The depositions disclose that the arrangement which resulted in Rose H. Katz signing the note was made by the parties for the purpose of evading the law which protects a married woman endorser, by presenting the appearance that she was a principal in the transaction.

In Sibley v. Robertson, 212 Pa. 24, 27, Mr. Justice Mestrezat, quoting, said: “Her liability is not determined alone by the form of the obligation. If the object was to evade the disability created by the statute, the fact and not the form, will determine her liability.”

This language is applicable to the present case: “The whole transaction was a transparent device, adopted by the plaintiffs and the husband, to evade an express statutory enactment; to create, by form, a liability, where by law none in fact existed. As she received no benefit, as the plaintiff was in no way deceived, she was under neither moral nor legal obligation to pay, and there should have been no verdict against her.”

And now, to wit, June 28, 1929, the rule to show cause why the judgment should not be opened and the defendant, Rose A. Hunn, allowed to interpose a defense is made absolute.


author: Bluett, J.,

text:
    The Agnes Irwin School v. Turnbull.

      MacCoy, Evans, Hutchinson & Lewis, for plaintiff.

      J. McMullan, for defendant.
    May 31, 1929.
   Bluett, J.,

The sheriff in the execution of a writ of fieri facias has been directed to levy upon the contents of a safe-deposit box rented by the defendant from the Corn Exchange National Bank. Naturally, the sheriff, not having access to the deposit box, could not seize its contents, nor could he compel the defendant or the bank to turn over the contents to him. In this situation, the plaintiff has taken a rule upon the defendant, the Com Exchange National Bank, and the sheriff to show cause why the sheriff should not open the box, take physical possession of the contents and dispose of the same under the execution.

Usually safe-deposit boxes are held under lease agreement, the renter having the right to use the same under joint control as to accessibility. As between the lessor and lessee, the former has no right or privilege to permit others to open the box and remove the contents. Almost a similar situation occurred in the case of Trainer v. Saunders, 270 Pa. 451. There a rule was entered against the defendant to compel him to open the safety box. The court decided that there was no authority to compel the defendant to give access to the sheriff in the furtherance of the execution. In its well considered opinion, the court, however, reviewed the law from every angle and concluded :

(a) That the trust company was a bailee of the contents of the box.

(b) That, under the Act of June 16, 1836, § 23, P. L. 755, 776, the contents of the box were subject to seizure under a writ of fieri facias.

(c) That the contents of the box were subject to levy even though they were not in physical view of the sheriff.

(d) That “necessary information as to the contents might have been obtained by bill of discovery under the Act of [June 16] 1836, ■§§ 9 and 18, P. L. 755, or by supplementary proceedings under the Act of May 9, 1913, P. L. 197, but further steps are required before the box is actually opened.”

(e) When the levy is made, reasonable opportunity should be given to the safe deposit company to assert any special right which it may possess as bailee, but if there is a refusal to permit the opening of the box without proper excuse, the right may, under the law, be enforced.

(f) “The box held by the trust company may be opened, if refusal to permit such action on its part is made.”

(g) The aid of the court can be secured, upon proper showing, if there is wrongful resistance to the execution of a valid writ.

(h) The interest of the bailee is protected by the Act of June 13, 1874, § 2, P. L. 285.

The decision clearly intimates that upon a proper showing the court has the power to direct the opening of the box.

While the court indicated in the above case that the contents of the box were subject to seizure under a writ of fieri facias, it undoubtedly holds that whenever an examination is refused a writ may, under the law, be enforced. As there was a fieri, facias issued in the present case and a refusal by the bank to allow an examination, this would seem to be a “wrongful resistance to the execution of a valid writ.” A rule to show cause why the examination of the box should not be made, therefore, would seem to be the proper method in this case for procuring an order of examination.

See, also, United States v. Graff, 67 Barbour, 304, and Tillinghast v. Johnson, 34 R. I. 136, wherein the reviewing court approved the action of the lower court in directing the safety boxes to be opened. Rule absolute.


text:
    Commonwealth v. Williams.

      E. J. Thompson, for rule.

      John G. Love, District Attorney, for Commonwealth.
    Jan. 3, 1929.
   Fleming, P. J.,

We have before us the defendant’s motions for a new trial and for arrest of judgment. The first reason assigned in support of the motion for a new trial is our sustaining of the Commonwealth’s objection to the question asked the Commonwealth’s chief witness,Deo Schnarrs, by the counsel for the defendant, as follows, to wit: “Q. Mr. Schnarrs, how much were you paid for going out to make this purchase?” (Notes of Testimony, page 5.) The second reason assigned is the admission in evidence of the Commonwealth’s Exhibit No. 1, consisting of the liquor alleged to have been purchased from this defendant. The third reason pertains to an alleged failure of the court to correct an alleged statement of the district attorney.

We see no merit in the first reason assigned. There was no contention on the part of the defendant that Mr. Schnarrs, the Commonwealth’s witness, was to have been financially rewarded in the event a conviction was procured. There was not even a scintilla of evidence to show bad faith on the part of this witness. The question was immaterial and irrelevant and bordered closely on the facetious under the record as it then stood. Very likely the. rejection of this evidence would have inured to the defendant’s favor had his testimony and that of his witnesses been such as to cause the jury to believe his alibi, subsequently sought to be established. He could not have been prejudiced thereby in any manner.

Likewise, it would require the imputation of acts savoring on a conspiracy against this defendant to sustain defendant’s second reason for a new trial. Commonwealth’s Exhibit' No. 1 is satisfactorily accounted for from the time of the purchase by the witness Schnarrs until admitted into evidence in these proceedings. Such exhibit was given on the night of the purchase and within a few hours after such purchase to County Detective Boden and by him carefully sealed in the presence of Justice of the Peace Hancock, and was, by the county detective and the justice of the peace, locked in a closet in the justice’s office. It was delivered to the county chemist with the seal unbroken. To assume that because the same was not personally guarded at all moments of the interval between the purchase and the trial, and that because it was not so personally guarded, that is likely to indicate that the alcoholic content Was increased so as to insure the conviction of the defendant, is to impute to the regularly chosen officers, sworn to obey the Constitution and to enforce the law, without any proof to support such imputation, that same depravity of conduct so frequently found among those seeking to evade such obedience and enforcement. The jury heard the history of the exhibit and were plainly and carefully instructed as to a reasonable doubt and its resolution in favor of the defendant. Quite evidently, the stress placed upon the custody of the exhibit in question by the counsel for the defendant was not sufficient to raise such a doubt in the mind of the jury.

The third reason advanced in support of the motion for a new trial has not been pressed by counsel for the defendant.

The motion for new trial is accordingly dismissed.

We proceed to the further consideration of the motion for arrest of judgment. After the indictment was found, but before plea was entered and the jury sworn, counsel for the plaintiff moved the quashing of the writ and the proceedings, assigning two reasons therefor, as follows, to wit: “First. That there is no information or complaint made in this matter upon which to base, or records necessary to support, a conviction. Second. That the proceedings are generally irregular and illegal.”

This motion was overruled and an exception noted and bill sealed for the defendant. This action is now assigned as a reason in support of the motion in arrest of judgment.

Without entering into the merits of the contention, we are of the opinion that the motion was too late. In Com. v. Brennan, 193 Pa. 567, in a per curiam decision, our Supreme Court says: “On the trial a motion was made to quash the indictment because it was not found after an information sworn to and subscribed before the committing magistrate. While the defendant. might have been heard on that subject upon a proceeding to be discharged from custody on the ground of an illegal commitment, it is certainly too late after indictment found upon the trial of the cause. The finding of the indictment cannot be invalidated for any such reason.” See, also, Com. v. Mallini, 214 Pa. 50; Com. v. Dingman, 26 Pa. Superior Ct. 615; York City v. Hatterer, 48 Pa. Superior Ct. 216; Com. v. Williams, 54 Pa. Superior Ct. 545.

The defendant might have taken advantage of any defects in the information on a writ of habeas corpus or on a motion to be discharged from custody. The defendant, however, appeared before the justice of the peace on July 18, 1928, and requested a continuance of his preliminary hearing until July 21, 1928, at which time he appeared with counsel, who then raised the same question as to the sufficiency of the information as was raised at the trial herein. He was committed, after hearing, by the justice and gave bail for his appearance at the September Sessions, 1928. No proceeding was instituted to try the sufficiency of the information, nor was the question raised until defendant was called for trial after indictment found. By such course of conduct he has waived all irregularities in his arrest and detention upon the information in this case. See cases cited above. Also, Com. v. McKay et al., 3 D. & C. 145; Com. v. Separito, 7 D. & C. 709, 714.

The motion in arrest of judgment is accordingly dismissed.

And now, Jan. 3, 1929, defendant’s motions for a new trial and' in arrest of judgment are dismissed and defendant directed to appear in this court on Wednesday, Jan. 9, 1929, at 10 o’clock A. M., for sentence.

From S. D. Gettig, Bellefonte, Pa.


author: Evans, P. J.,

text:
    C. Trevor Dunham, Inc., v. Pursel.

      H. G. Teel and H. M. Smith, for plaintiff ; E. J. Mullen, for defendant.
    Jan. 28, 1929.
   Evans, P. J.,

This matter comes before the court on petition, answer and depositions of both sides.

The judgment sought to be opened in this proceeding was entered by confession on July 17, 1926, upon a negotiable promissory note signed by Elmer Pursel (defendant), dated March 12, 1926, payable to the order of H. H. Merrion, and by the latter endorsed and transferred before maturity to C. Trevor Dunham, Inc., the plaintiff herein. The amount of the note is $1313.60, payable at the office of C. Trevor Dunham, Inc., at Philadelphia, in twelve equal monthly instalments, with a clause providing that in event of default in payment of any instalment when due, the whole amount remaining unpaid shall immediately become due and payable, and authorizing entry of judgment for such amount as remains unpaid, together with costs, collection expense and attorney’s fee of 15 per cent.

Accompanying the praecipe for judgment is an affidavit of default by the treasurer of the plaintiff corporation, with an itemized statement showing computation of balance due in the sum of $1309.63, for which sum, plus an attorney’s commission of 15 per cent., total $1506.07, judgment was entered.

The plaintiff, C. Trevor Dunham, Inc., at the time the note was given, was engaged in the automobile finance business, being the purchase by it from automobile dealers of negotiable promissory notes given by persons who desired to acquire an automobile on the instalment or deferred-payment plan. The defendant, Elmer Pursel, being desirous of acquiring an automobile upon such plan, purchased a Chrysler roadster from H. H. Merrion, a dealer in Berwick, Penna., on March 12, 1926. The price of the car delivered in Bloomsburg was $1740. The defendant, Pursel, paid the dealer, Merrion, one-third of the price of the car, viz., $580 in cash, and executed a bailment lease with Merrion, wherein the latter retained title to the car, for the balance of the purchase price, including interest and finance charges, payable in monthly instalments. Contemporaneously with the making and execution of the lease for the automobile, the defendant made and executed the promissory note above mentioned on which the judgment in the instant case was entered.

In order to finance the transaction, the dealer, Merrion, immediately sold and transferred to the plaintiff, the finance company, said promissory note, together with the bailment or rental agreement. The rental agreement or lease, together with the note, constituted one and the same transaction, the note being the primary obligation and the rental agreement containing the terms under which the automobile was pledged as collateral security for the payment of the note.

Because of default in payment of the instalment due May 12, 1926, the automobile was repossessed, taken from the defendant, Pursel, by the plaintiff’s agent on June 16,1926, and forthwith driven to Philadelphia and there placed on the floor of a salesroom for sale, and later sold for $550.

The judgment in the instant case having been entered July 17, 1926, execution was issued the same day to collect the total amount of the same, viz., $1506.07, together with interest and costs.

In the answer to the petition and rule to open the judgment, the plaintiff admits that the defendant, Pursel, is entitled to a credit on the judgment of $550 as of July 17, 1926, the date of the-entry of the judgment, being the amount received for the repossessed automobile.

The contention on the part of the defendant is (a!) that at the time plaintiff’s agent repossessed the car, the defendant understood that that was the end of the transaction and that his indebtedness upon the note was thereby canceled and extinguished; that said understanding was based upon statements to that effect made by the agent at the time of repossessing the car; (b) that at the time the car was repossessed its fair market value was $1400, or more than the amount due and owing on the note, and that such repossession, therefore, amounted to satisfaction in full of the note; and (o) that plaintiff could not, having repossessed the car, resort to the further remedy of entering judgment on the note and collecting the balance owing thereon.

With these contentions we cannot agree, for the contract of the parties provides otherwise. In the rental agreement or lease between the parties it is provided that, in the event of default in the payment of any instalment, the lessor (plaintiff) may repossess the motor-vehicle (paragraph 10) as follows:

“The right to take possession shall be contemporaneous with the right to recover a money judgment against the lessee for breach of this agreement, and shall not be impaired by the existence of a judgment obtained by the lessor or execution issued thereunder. The remedies of the lease are cumulative, not alternative. It is agreed that the lessor shall not be limited to action either upon the lease or upon the note, but that until the lessor shall have been repaid the principal due, together with all interest, costs, collection expenses and attorney’s fees, it shall have the right to avail itself of remedies both under the lease and under the note.

“Should the lessor take possession of the motor-vehicle, he may sell the motor-vehicle at public or private sale at any time thereafter without any notice to the lessee, and the said lessor may become the purchaser thereof, and if the proceeds thereof are insufficient to pay all sums remaining unpaid hereunder and the expenses caused by such repossession, removal, reparation, storage, liens and sale, including an attorney’s fee of 15 per cent, incurred in taking possession of said motor-vehicle, or in or about the sale thereof, or in collecting in any manner any sums which, may be due and owing hereunder, lessee agrees to pay any deficiency as damages for the use of said property.”

Pursel, the defendant in the instant case, failed to pay the instalment due on the note May 12, 1926, and the plaintiff repossessed the automobile, took it to Philadelphia- and sold it for the sum of $550, which amount has been credited on the judgment. This the plaintiff had a right to do, for the agreement provides that “should the lessor take possession of the motor-vehicle, he may sell the same at public or private sale at any time thereafter, without notice to the lessee, and that the said lessor may become the purchaser thereof.” This is precisely what the lessor did. Because of the default the lessor repossessed the automobile, drove it to Philadelphia and sold it without notice to the lessee, and credited the lessee with the proceeds of such sale. This is all the lessor can be required to do under the agreement.

The defendant’s contention that at the time the plaintiff’s agent repossessed the car he understood from statements made by the agent that the repossessing of the car was the end of the transaction and thereby extinguished and canceled the balance of the indebtedness would be a good defense, if true, providing the plaintiff’s agent had the power and authority to make such an agreement on the part of the plaintiff. The plaintiff, however, challenges and denies that its agent, at the time of repossessing the car, or at any other time, said or did anything that would warrant the defendant in concluding that the repossessing of the car ended the transaction and that the indebtedness upon the note was thereby canceled and extinguished, and, further, that its agent had no such power or authority. The burden to establish this contention is on the defendant. A careful reading of the depositions fails to disclose that the plaintiff’s agent had the power or authority to cancel or extinguish the balance of the indebtedness at the time of repossessing the automobile.'

A party who desires to avail himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted. The burden of proof lies on him to establish the agency and the extent of it: Hays v. Lynn, 7 Watts, 524, 525; Moore’s Exec’rs v. Patterson, 28 Pa. 505, 512; Relief Ass’n v. Post, 122 Pa. 579, 597; Smith v. Iron and Steel Co., 208 Pa. 462, 466.

A general power to collect or receive payment implies no authority, in the absence of the principal’s consent, to- assign or compromise the claim (Googe v. Gaskill, 18 Pa. Superior Ct. 39) or to waive or release his principal’s security without payment of the debt (Jones v. Vogel, 185 Pa. 1; Deacon v. Greenfield, 141 Pa. 467; Corr v. Greenfield, 134 Pa. 503) or to accept a partial payment of the obligation as full settlement.

Presumptively, an agent is employed to make contracts, not to rescind or modify them: Railroad Co. v. Egbert, 152 Pa. 53.

In Cain v. Marick, 91 Pa. Superior Ct. 129, where it was alleged that the plaintiff’s agent waived certain commissions due his principal and agreed to accept a smaller amount, the court said (page 135): “The burden was on defendant to show the authority of the agent to surrender his principal’s right to a commission, already earned, or to show a ratification by the principal of the agent’s act if unauthorized: W. J. Gilmore Drug Co. v. Goldsmith, 79 Pa. Superior Ct. 149; Marquette-Bailey Lumber Co. v. Gibboney, 87 Pa. Superior Ct. 243.”

■ The burden of proof of showing that a particular act was done by one person as the agent of another is upon the party who so alleges.

An agent is bound to obey the instructions of his principal to the letter; they cannot be enlarged or extended in any particular without the consent of the principal: Union Trust Co. v. Means, 201 Pa. 374, 377; Gorsuch v. Berman, 270 Pa. 8, 11; Dougherty Distillery Warehouse Co., Inc., v. Binenstock et al., 293 Pa. 566, 570.

A mere conflict of testimony as to what was said and done by the plaintiff’s agent, Kay, at the time the car was repossessed is not enough to justify the court in opening this judgment. Even if the defendant’s version as to what the agent, Kay, said at the time of repossessing the car is true, the defendant failed to show authority in the agent, either express or implied, to release his principal’s rights and accept in settlement an amount less than that which the agreement provided should be paid. It, therefore, follows that the rule to open the judgment should be discharged.

And now, Jan. 28,1929-, the rule is discharged.

From R. S. Hemingway, Bloomsburg, Pa.


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

text:
    In re Gasoline Tax.
    Feb. 6, 1929.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether you may lawfully comply with the resolution offered by Representative Talbot on Jan. 28, 1929, calling upon you to furnish to the House of Representatives “a complete list of all dealers in liquid fuels within the Commonwealth who are delinquent in the payment to the Commonwealth of tax collected by them on liquid fuels sold by them to purchasers thereof, together with the amount due from each such dealer in so far as the same can be ascertained or computed by the Auditor General.”

You call our attention to section 6 of the Act of April 14, 1927, P. L. 287, which is as follows: “The Auditor General, or any agent appointed in writing by him, is hereby authorized to examine the books and papers of any dealer or consumer, pertaining to the business made taxable by this act, to verify the accuracy of any statement or return made under the provisions of this act; but any information gained by the Auditor General, or any other person, as a result of the reports, investigations or verifications herein required to be made, shall be confidential, and any person divulging such information shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars nor more than one thousand dollars, or to undergo imprisonment of not more than one year or both.”

Section 6 of the Act of 1927 above quoted was unquestionably designed to prevent the Auditor General or any of his agents from disclosing to any one the detailed information which the act requires taxpayers to furnish on their reports or any detailed information which the Auditor General or his agents may obtain as the result of an examination of the books and papers of any taxpayer. It was not, however, in our opinion, the intention of the legislature to prevent the Auditor General from disclosing the names of delinquent taxpayers or the amounts which they owe.

The law provides for the collection by legal process of amounts of tax owing by delinquents. This cannot be done without making public the names of those whom it becomes necessary to sue and the amounts of tax claimed to be due. It is no more a crime for the Auditor General to give this information to the legislature than to furnish it to the Attorney-General for the purpose of enabling him to institute court proceedings to enforce payment of the tax due.

Accordingly, we are of the opinion that section 6 of the Act of 1927 does not prevent the Auditor General from furnishing to the Legislature or to either House thereof the names of delinquent liquid fuel taxpayers and the amounts which they owe, respectively, and we advise you that you may lawfully comply with the request made in the Talbot resolution.

Prom C. P. Acidaras, Harrisburg, Pa.


author: Dom, J.,

text:
    Harris-Boyer Company v. Gartmann et al.

      Barnhart & Bender and Porter & McConnell, for plaintiff.

      Bell & Bell and Lightcap & Lightcap, for defendants.
    Jan. 17, 1929.
   Dom, J.,

Findings of fact.

1. The plaintiff, Harris-Boyer Company, is a Pennsylvania corporation, having its principal office and place of business in the City of Johnstown, County of Cambria and State of Pennsylvania, and is engaged in the business of baking and marketing bread and similar products incidental to a general bakery business, and has, from and since Feb. 25, 1924, up to and including the present time, made and marketed a certain kind of bread under the trade name of “Butter-Nut” bread.

2. The plaintiff, in order to create a demand for and bring said bread to the public attention, has expended large sums of money from time to time in extensive advertising campaigns, such as newspaper, poster and bill-board advertisements and store displays, in Somerset Borough, Somerset County, and in that portion of Somerset County which is north of said borough, and in all other places where its products are marketed.

3. That by reason of said advertising and marketing of said “Butter-Nut” bread, a large, extensive and valuable demand for said bread has been established in and about the Borough of Somerset and in other parts of Somerset County north of said borough.

4. Customers in said territory where “Butter-Nut” bread has been established have become familiar with said trade name, “Butter-Nut,” as signifying a distinct type of bread and manufactured and marketed by the plaintiff.

5. That the territory known as the northern half of .Somerset County includes the communities or Boroughs of Somerset, Listie, Friedens, Jenner, Jennertown, Jenner No. 2 and Boswell.

6. The plaintiff commenced marketing “Butter-Nut” bread Feb. 25, 1925, and had established a demand for said bread in the said northern portion of Somerset County shortly thereafter, which demand has continued up to and including the present time.

7. The defendants are engaged in the general bakery business with their bakery in the Borough of Latrobe, Westmoreland County, and among their products they manufacture a loaf of bread which is marketed under the trade name “Butter-Nut.”

8. The defendants marketed their loaf of “Butter-Nut” bread in the said boroughs or communities in the northern portion of Somerset County on and after Oct. 20, 1927, which was subsequent to the time that the plaintiff had established a market for “Butter-Nut” bread in said places.

9. The defendants knew that the plaintiff had established a market for “Butter-Nut” bread at a time prior to their commencing to market their “Butter-Nut” bread in said northern portion of Somerset County.

10. The product of both the plaintiff and defendants at the time and places mentioned was marketed under the trade name “Genuine Butter-Nut Bread.”

11. Said bread is known to the trade and to dealers generally by the name “Butter-Nut.”

12. That customers ask for said bread by the name “Butter-Nut.”

13. The shape or type of loaf used by both plaintiff and defendants is similar, said type of loaf having an odd and unusual shape, in that the top of said loaf has a depression or cut running along the length and in the middle of the top of said loaf, which type of loaf is known to the trade as a “Split-top” loaf.

14. That the wrappers used by both the plaintiff and defendants have the following points of similarity: (d) Both are made of waxed paper; (b) both contain the words “Genuine Butter-Nut Bread;” (c) both have printed thereon the print of a child dressed in bakers’ apron and cap and carrying a “split-top” loaf of bread, which print is a distinctive cut or picture used exclusively on “Butter-Nut” bread wrappers and advertisements; (d) both have printed thereon a blue circular seal, with points around the circumference, bearing the words “Genuine Butter-Nut Bread” upon said seal.

15. That the wrappers of the plaintiff and defendants are sufficiently similar to deceive ordinary customers who buy the bread by sight.

16. That both the plaintiff and defendants have obtained licenses to manufacture “Genuine Butter-Nut Bread” from the Schulze Baking Company of Chicago, Illinois. That said licenses purport to give them the exclusive right to manufacture said bread in thé Borough of Latrobe as to the defendants and the County of Cambria as to the plaintiff.

Conclusions of law.

1. The plaintiff having established a market for its “Butter-Nut” bread in the boroughs and communities known as Somerset, Listie, Friedens, Jenner, Jennertown, Jenner No. 2 and Boswell, prior to the time that the defendants commenced to market their “Butter-Nut” bread in said places, and the plaintiff having continually marketed its product at said places, the plaintiff had and has the exclusive right to market “Butter-Nut” bread in said boroughs and communities.

2. The acts of the defendants in knowingly marketing their “Butter-Nut” bread in the boroughs and communities of Somerset, Listie, Friedens, Jenner, Jennertown, Jenner No. 2 and Boswell, at a time subsequent to the time which the plaintiff had previously established a market for said “Butter-Nut” bread in said boroughs and communities constitute unfair trade competition.

3. The fact that the defendants sold a similar product, that is, bread, under the same trade name, “Butter-Nut,” of the same style and shape, and in wrappers sufficiently similar to plaintiff’s to mislead the buying public in the belief that they were buying the product of the plaintiff in the territories where the plaintiff had previously established a market for its products is sufficient to constitute unfair trade competition on the part of the defendants; both the product of the plaintiff and defendants being sold under that trade name;

4. The fact that both the plaintiff and defendants had licenses from the Schulze Baking Company, which licenses purport to give them certain rights, is immaterial in this ease.

5. That the defendants are guilty of unfair trade competition and should be enjoined from marketing bread in the Borough of Somerset, or in any part of Somerset County north of the said borough, under the name of “ButterNut” or any variation of said name.

6. That the costs of this proceeding shall be paid by the defendants.

Discussion.

The evidence upon which the foregoing findings of fact are based is pretty nearly free from conflict and contradictions; and we justify our conclusions of law upon the principles applicable to the instant ease enunciated in the following authorities: Pennsylvania Central Brewing Co. v. Anthracite Beer Co., 258 Pa. 45; Wilson E. Schmick, trading as Hamburg Broom Works, v. West Reading Broom Works et al., 79 Pa. Superior Ct. 331; Klepser v. Furry, 289 Pa. 152; United Drug Co. v. Kovacs, 279 Pa. 132; Chas. H. Elliott Co. v. Skillkrafters, Inc., et al., 271 Pa. 185; Hub Clothing Co. v. Cohen et al., 270 Pa. 487.

The bill in this case was filed to restrain unfair trade and competition and to prevent irreparable damage to the plaintiff.

The testimony discloses that the plaintiff’s total volume of business in a year runs in the neighborhood of $1,000,000; that they did a business in the territory in dispute of about $65,000, of which about $40,000 was the return from “Butter-Nut” bread; that they advertised “Butter-Nut” bread in the said territory to the extent of thirteen or fourteen hundred dollars a year; that since the defendants came into the territory, the sale of “Butter-Nut” bread by the plaintiff has materially decreased and that they have suffered considerable of a loss from the sale of the defendants’ “Butter-Nut” bread.

At the time the defendants went into the territory they knew, or should have known, that the plaintiff had built up a substantial trade and that their own product was so similar to that of the plaintiff’s that it probably would result in deception and in the passing of the goods of the defendants for the plaintiff’s, or would bring about confusion of the product on the said market.

The defendants, in accordance with what they knew, or should have known, have brought about a condition of unfair competition which it is the duty of a court of equity to check.

A comparison of the appearance of the respective products discloses nearly exact identity as to shape and size and a marked resemblance in the type of wrapper.

It is not necessary that the similarity would mislead an expert — the test of likeness would seem to be memory and not visual comparison (Nims on Unfair Competition); it is not whether a difference might be recognized when the respective products may be placed side by side, but whether an average buyer is able to distinguish the packages from memory. We decide this case as we do because of the impressions created by the goods.

Decree nisi.

And now, Jan. 17, 1929, after argument and upon due consideration, it is ordered, adjudged and decreed that the marketing of “Butter-Nut” bread by the defendants as charged in the bill was and is unfair trade competition and to the injury of the plaintiff; that a perpetual injunction issue, enjoining and restraining the defendants, M. J. Gartmann and Adolph F. Gartmann, copartners, trading as the Keystone Baking Company, their servants, agents and employees, from any further marketing of bread in the Borough of Somerset, or in any part of Somerset County north of the said borough, under the name of “Butter-Nut,” or any variation of said name, and from any further use by them in the aforesaid territory of their trade wrapper, “Exhibit B” attached to the bill, or any other substantially similar thereto, and from any further use of any wrapper substantially similar to the plaintiff’s wrapper, “Exhibit A” attached to the bill; that the defendants pay the costs.

From William S. Rial, Greensburg, Pa.


author: Groff, J.,

text:
    Commonwealth v. Stetler.

      John E. Malone, for rule; S. V. Hosterman, District Attorney, contra.
    Jan. 19, 1929.
   Groff, J.,

This is a petition presented to the Court of Quarter Sessions asking that so much of the costs in the above suit as was imposed by the jury on R. N. Eby be stricken off. On the petition, a rule was granted to show cause why the costs imposed should not be stricken off, and we are now to dispose of the rule.

An examination of the laws shows us that the court, notwithstanding the statute, exercises a supervisory power over costs with respect to trials by jury.

In Com. v. Charters, 20 Pa. Superior Ct. 599, the power to set aside a verdict of acquittal, so far as it imposes costs on the prosecutor, is limited to cases where the prosecutor is a public officer.

The petition presented in this case shows that R. M. Eby, the party on whom the costs were imposed, is a special police officer for the City of Lancaster, and was appointed by the mayor thereof, in pursuance of the Act of June 7, 1901, P. L. 508, and was duly qualified thereunder. That act of assembly provides “that any corporation chartered under the laws of this Commonwealth as a street passenger railway and owning or operating the same in said Commonwealth may apply to the mayor of any city on the streets of which said railway is operated, ... to commission such person or persons as said corporation may designate to act as private policemen for said corporation.”

The said petitioner, therefore, being a private policeman, would not be entitled to have the costs stricken off as prayed for.

It was held, in Com. v. Ziegler, 17 Lanc. Law Rev. 149, that “there is no authority in the court to set aside a verdict imposing upon prosecutor costs in a prosecution for misdemeanor where prosecution is not by a public officer in performance of his duty.”

The complaint brought in the above case was by petitioner as the private officer of the Conestoga Traction Company, and, therefore, under the above decision and others which we have not cited, we must discharge the rule.

Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Potter, P. J.,

text:
    Wagner’s Case.

      Andrew A. Leiser, for petitioners.

      A. F. Gilbert and Jay G. Weiser, for respondent.
    May 24, 1929.
   Potter, P. J.,

On Dec. 10, 1928, a petition signed by thirty-four of the citizens and taxpayers of West Beaver Township was presented to us, asking for a rule to issue requiring Harry A. Wagner, one of the supervisors of public roads of said township, to show cause why he should not be removed from office because of his neglect and refusal to perform his official duties.

McClure is a fair-sized town situated in West Beaver Township. Within the past year a new township high school building has been erected and completed within the limits of this town and was ready for occupancy for school purposes when the school term opened in September, 1928. We gather that there was no public street or road leading to this building. Petitions were presented to us asking for the appointment of viewers to view and lay out two short streets leading to and from this building at different angles. The viewers were duly appointed, who went upon the grounds, viewed and laid out the two streets asked for in the petitions. These two reports were filed and confirmed nisi on June 4,1928, which were open to exceptions till Oct. 1st of the same year, being our next term of court. No exceptions being filed and no review being asked for, on Oct. 1, 1928, these two reports were confirmed absolutely and the streets were ordered to be opened.

The clerk of this court testifies that about Oct. 10th he mailed the order to the board of supervisors to open the streets. Mr. A. A. Clark was at that time the clerk of this board, consisting of Harry A. Wagner, the respondent, as president, and C. W. Foulke and F. A. Ewing as the other two members. Clark testifies he received the order to open these streets on or about Oct. 10th, and the next day he told Harry A. Wagner of its receipt and asked him if he wanted to call a meeting of the supervisors, to which Wagner replied “not necessarily,” that they could not build the road till next spring, that they had no money.

An order to open a public road is not to be performed when it suits the pleasure or convenience of the supervisor, but it is to be obeyed as soon as practicable.

At the next regular meeting of this board, held on Nov. 17, 1928, the clerk again presented this order to open these roads. And again there were no steps taken looking in the least towards obedience of the order. Over a month of fine weather went by with no results whatever. The keeping up of the public roads of our State is the first duty of a supervisor, and his own private duties come second.

We have testimony of various reputable citizens of McClure stating-that they heard Wagner say he would not open the roads, that he would fight it out in court, and that it was none of their business when he opened the roads and other remarks of a like import, coupled with an oath that he would not open the roads. Foolish remarks coming from an officer, a servant of the public who had elected him to his position to open and maintain the roads of this township. And there was nothing to fight out in court. We had ordered him to open these roads, which order was final, and his duty was to obey, so there was nothing about which to fight. Had there been any reason why these streets should not have been laid out, the proper remedy was by filing exception to the reports of viewers or petitioning for a review. But neither of these steps was taken. Nothing contra/ was done and the day for so doing is now long gone by. And regarding the plea of a lack of funds, the year previous we note in the auditors’ report that these same supervisors had borrowed quite a sum, as we surmise, to meet an emergency. Why could this not be done again to meet this exigency?

At this juncture we might say that these three supervisors had divided West Beaver Township into three road districts, as is provided by the Act of July 14, 1917, ch. 6, art. III, § 234, P. L. 865, the town of McClure being in Wagner’s district, and it seems the other two supervisors looked after the roads in their respective districts and expected him to do so in his.

Our December Term of court convened on Dec. 10, 1928. Shortly before this date, the petition for the rule before us was circulated for signers in and about the town of McClure. Then, and not till then, did Wagner begin to bestir himself, hired some men and teams, hauled some stone on parts of these two roads and covered them over with sawdust. We cannot refrain from observing that this is a new and novel method of building a public road; not lasting, however, and not such as is contemplated by the laws of this State. He, however, made no attempt to build these roads till he was informed of the petition circulating against him. He sat tight for about two months and did nothing, with no lawful way for scholars or adults to go to or from this new school building.

He attempts to explain this unwarranted delay, but his testimony is so garbled and contradictory that we cannot attach much, if indeed any, importance to it.

So the facts before us show that Wagner deliberately refused' and neglected to obey the order of this court in refusing and neglecting to open these two streets. There were about 260 children in attendance at this school, with no public highway by which to get to or from it. This fact alone should have spurred Wagner to prompt and immediate action, and from October to December, 1928, weather conditions were of the best for the building of these roads, which, in our judgment, were very necessary. He is said to have set up, as an excuse, the lack of funds. But when he began work on the roads, after he became aware of the petition against him in the forepart of December, this lack of funds had apparently disappeared and did not prevent action .on his part. And the lack of funds is no legal excuse, as he was wisely advised by his respected counsel. He was to open for public use these two streets as soon as practicable (Act of July 14,1917, P. L. 909), and it is nonsense to say that with fine fall weather it was not practicable to do any work on them till Dec. 10, 1928. We are led to believe the motive power that impelled him to move finally was the petition against him.

We are led, from all the testimony in this case, to the full conclusion that this supervisor grossly neglected and refused to perform his official duties, that he has refused to obey the order of this court and that he should suffer for his own errors and be removed from office. After an offense, public in its nature, has been committed, it is too late to be sorry for it. This may be well enough for future action, but it does not wipe out the fact of the commission of the offense or error. Public officers should at all times bear in mind that they are the servants of the people who elected them and should at all times strive to faithfully serve their constituents. Water can never rise higher than its source.

The default of Wagner in this regard cannot and should not be charged to the other two supervisors, and the petition was properly drawn with the omission of their names: Haagan’s Appeal, 294 Pa. 45.

And now, to wit, May 24, 1929, the rule is made absolute, and Harry A. Wagner, the respondent, is removed from the Board of Road Supervisors of West Beaver Township as of this date. Notice of his removal to be immediately sent him by the clerk of this court. An exception is noted for the respondent and a bill is sealed.


author: Appel, P. J.,

text:
    Schlotzhauer’s Estate.

      John E. Malone, for petition and accountant.

      Charles G. Baker, Harris C. Arnold and John A. Coyle, contra.
    March 28, 1929.
   Appel, P. J.,

The record in this case discloses a peculiar situation: Harry Schlotzhauer, the decedent, made a will disposing of his estate Feb. 11, 1908. A child, Robert Henry Schlotzhauer (hereinafter called the minor), was born to him Nov. 4, 1912. In May, 1913, he made a codicil to his will as hereinafter appears. Testator died Nov. 30, 1925, leaving personal and real estate. He is survived by his widow and three children, including the minor above referred to. The will and codicil were duly probated and letters testamentary were granted to the executrix named in the will. The widow elected to take under the will. The Farmers Trust Company of Lancaster was appointed guardian of said minor on the theory that he had an interest in the estate of his father by reason of his birth after the date of the will. On Jan. 14, 1926, the guardian presented a petition to the Orphans’ Court asking for an allowance of $100 per month for maintenance and support out of the income of the minor’s share, this share being estimated at approximately $30,000. This allowance was granted as prayed for. Jan. 6, 1927, the guardian by petition asked the court to revoke this order for maintenance and support, alleging the order was asked for under a misapprehension of the law, and admitting that, inasmuch as testator made a codicil to his will after the birth of the minor, he had no interest in the estate. This petition was signed by the guardian, by the minor himself, being then over fourteen years of age, and by his mother as next friend. The'same day the order of Jan. 14, 1926, was revoked as prayed for.

Oct. 6, 1928, the executrix filed a first and partial account. Nov. 27, 1928, exceptions to the account were filed by counsel for the guardian.

These exceptions indicate that the guardian has reverted to its first legal position as to the minor’s interest in the estate and now asserts a vested interest therein for its ward which justifies a legal right to file exceptions to the account.

Jan. 31, 1929, on petition of the executrix, the widow, and one of testator’s sons, a rule to show cause why the exceptions to the account filed by the guardian should not be dismissed was granted. To this an answer was filed on Feb. 27, 1929, by the guardian, in which it is averred “that by reason of the birth of the said Robert Henry Schlotzhauer on Nov. 4, 1912, after the execution of the will of Harry Schlotzhauer dated Feb. 11, 1928, the said Robert Henry Schlotzhauer has a vested interest in the said estate under the intestate laws of Pennsylvania.” It is further averred that the interest of the minor in his father’s estate was unaffected by the codicil of May, 1913, made after the birth of said minor.

Counsel for petitioners contend, on the other hand, that the decree of the court on Jan. 6, 1927, in which the order for maintenance and support made Jan. 14, 1926, was revoked, is conclusive as determining the rights of the minor in the estate, that the question of the interest of the minor in the estate of his father is now res adjudicata and the guardian has no legal status to file exceptions to the account. In answer to this contention, it may be said that nothing was involved or passed upon by the court in its decree of revocation except the question of the allowance, that being the subject-matter of the original order of Jan. 14, 1926. However contradictory and irreconcilable the present contention of the guardian may be, due to a reconsideration of the law, we think the guardian and its ward are entitled to a decision on the merits of the legal question involved. This we now proceed to discuss.

When testator made his will Robert Henry Schlotzhauer, his youngest child, was unborn and was unprovided for in the disposition of the estate. His birth after the making of the will, by operation of law, placed him within the provisions of section 21 of the Wills Act of June 7, 1917, P. L. 403, as amended by the Act of May 20, 1921, P. L. 937, and as to him the will had no effect, and testator is construed to have died intestate. The act is as follows:

“Section 21. When any person, male or female, shall make a last will and testament, and afterward shall marry, or shall have a child or children, either by birth or by adoption, not provided for in such will, and shall die leaving a surviving spouse and such child or children, or either a surviving spouse or such child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the surviving spouse or child or children bom or adopted after the making of the will, shall be deemed and construed to die intestate; and such surviving spouse, child, or children shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if such person had actually died without any will.”

As was said by Mr. Chief Justice Brown in Baum’s Estate, 269 Pa. 63, 66: “The moment the son was bom to the testator the law added a codicil to his will.” This gave him a share in his father’s estate as if he had made no will and died intestate. This was the legal status and his inheritance was secure and could not be challenged until May, 19T3, when testator made a codicil to his will as follows:

“I, Harry Schlotzhauer, the testator above mentioned, do make and publish this codicil to my last will and testament in the following manner, to wit:
“All of the interest I may have at the time of my decease in the business of C. G. Vollmer & Co., Limited I give and bequeath unto my dear wife Katharine absolutely.
“In witness whereof I have hereunto set my hand and seal this-day of May, A. D. 191'3.
“Harry Schlotzhauer [Seal].”

This codicil is not witnessed, but the signature of the testator was proven by competent witnesses and it was admitted to probate by the register of wills along with the will. Subscribing witnesses were not necessary. See section 2 of the Wills Act of June 7, 1917, P. L. 403.

The legal question to be determined is:

Is the codicil of May, 1913, such a republication of the original will of Peb. 11, 1908, as will defeat the inheritance of the minor given him by section 21 of the Wills Aet of 1917?

Counsel for the guardian and its ward contend that this question must be answered in the negative for the following reasons, namely: That the codicil nowhere mentions the after-bom son; that it does not contemplate a new disposition of the estate as a whole; that it does not indicate in any way that testator contemplated or had in mind his son; further, that testator’s only idea in making the codicil was to make an absolute gift to his wife of certain possible assets; that testator did not make any provision for his son and has not made it clear that the will or codicil should apply to him; that the codicil does not expressly confirm the will and does not show an intention to re-enact the will; that no revival of the will as of the date of the codicil can be presumed in the absence of a testamentary intent; and, finally, that the codicil does not in law amount to a republication of the will.

While these and many similar expressions may be found in opinions in the appellate courts in adjudicated cases and may seem to sustain the contention here made, we believe in the instant case the question propounded must be answered in the affirmative. The consensus of opinion, as indicated by the decisions in Pennsylvania and other jurisdictions, has settled the law that if a codicil is properly executed, and if it contains a sufficient reference to a prior will, it republishes such will as of the date of the codicil: Page on Wills (2nd ed.), § 509; Buchanan v. National Savings and Trust Co., 23 Fed. Repr. (2nd) 994, 996; Gilmor’s Estate, 154 Pa. 523; Kelly’s Estate, 236 Pa. 54. In the latter case, Mr. Justice Stewart said: “The will and codicil being in contemplation of law one testamentary act, the attestation of the latter is the attestation of the former, and saves the former from the operation of the statute which otherwise would defeat it, providing the attesting witnesses to the codicil are without interest in the will.” This case related to a gift to a charity in a will without subscribing witnesses, but where the codicil thereto was properly attested. The principle, however, is the same as applied to the instant case. It was held originally that a will could not be republished by a subsequent codicil unless it was re-executed or unless a subsequent codicil contained an express provision for republication. This view was subsequently abandoned, and it was held that reference in a codicil to a will which recognized the will as in effect was a sufficient republication. Any reference in a codicil to a prior will as in effect republishes it. “A codicil which recites the making of a will as a fact, such as a codicil which provides for the appointment of an executor, or which provides only for the distribution of one of the gifts in the will in case the devisee dies before testator, is a sufficient republication.” Page on Wills (2nd ed.), § 510; DeHaven’s Estate (No. 2), 207 Pa. 152. See, also, Kerr’s Estate, 255 Pa. 399, in which the codicil contained nothing except the appointment of an executor of the will.

“Any reference to a prior will which identifies it with reasonable accuracy is sufficient. The codicil must either be attached to the will physically or it must ‘furnish the means for identification, without resorting to any other testimony save to show that the document sought to be incorporated is identical with that referred to.’ If the will or codicil is written on the same piece of paper as the instrument which it seeks to incorporate, and if it refers to it as the ‘above’ instrument, the ‘foregoing’ instrument and the like, such reference is sufficient. If an instrument is headed ‘Codicil’ and is written on the same piece of paper as the will, such reference to the will is sufficient to incorporate it. . . . The identification is still clearer if the codicil is written on the same sheet of paper as the will and it purports to be ‘a codicil to the foregoing will,’ or if it recites that it is ‘hereunto annexed’ to a will and written on the same sheet of paper:” Page on Wills (2nd ed.), § 511.

In the present case the codicil is written on the same piece of paper as the will, and.its first sentence is: “I, Harry Schlotzhauer, the testator above named, do make and publish this codicil to my last will and testament.” The effect of this codicil is to bring down the will to the date of the codicil, thereby republishing the will as of that date. The will, therefore, speaks as of the date of the codicil. In the absence of any express intent to the contrary contained in the codicil, it re-enacts the will: Neff’s Appeal, 48 Pa. 501; Tyson’s Estate (No. 1), 47 Pa. Superior Ct. 108, 111, 112; Wilhelm’s Estate, 49 Pa. Superior Ct. 213, 214.

Since, then, the codicil republishes thewill and thewill speaks as of May, 1913, the contentions of the guardian must fall. It logically follows from the foregoing that Robert Henry Schlotzhauer, the aforesaid minor, has no interest in his father’s estate. His guardian, therefore, has no standing to file exceptions to the account of the executrix. That this conclusion of law is a hardship on the minor may be admitted. It may even be conceded that the father did not realize he was disinheriting his youngest child. The answer is that it was the father’s act, and if a father chooses to disinherit a child, who shall say he has not the right so to do? And it is the law of Pennsylvania that a father may do this inferentially and need not do it by words of disinheritance.

The rule is made absolute and the exceptions to the account are dismissed. Costs to be paid by the estate.

Prom George Ross Eshleman, Lancaster, Pa.


text:
    Weyl v. Mount Sinai Cemetery Association of Pennsylvania.

      Furth, Singer & Bortin, for plaintiff.

      Wolf, Block, Schorr & Solis-Cohen, for defendant.
    July 16, 1929.
   Martin, P. J.,

In the bill filed in this case plaintiff avers that he has been the owner of a lot in Mount Sinai Cemetery since 1913; that the cemetery association is a corporation organized on July 1, .1853, under the laws of Pennsylvania; that he paid $100 for the lot, has complied with all the rules and regulations of the association, and met all payments and assessments required; that his burial-lot has a capacity of four graves, that two persons are now interred there, but there is room for the burial of plaintiff and his wife; that his wife died April 27, 1928, and on the'following day plaintiff was informed by the officers of the defendant association' that the interment of his wife in the cemetery would not be permitted, because she did not possess the qualification required by the charter, which provides that: “The object of this corporation shall be to purchase and provide a proper and suitable place for a cemetery, to divide the same into lots, to sell and dispose of such lots to individuals, societies or congregations, to be used only for the interment of deceased human bodies of those who by birth, profession or public declaration shall have been of the Jewish faith, under such conditions, restrictions, rules and regulations as the association or board of officers may, from time to time, establish for the government of lot-holders, burial of the dead, and visitors to the cemetery;” that plaintiff stated to the officers of the cemetery association that his wife was by birth, profession and public declaration of the Jewish faith; that he was born of Jewish parents, and was married, forty-six years previously to her death, .by a Rabbi; that upon refusal of permission to bury her body in Mount Sinai Cemetery, plaintiff was obliged to purchase a lot and buried her in another cemetery; that the Mount Sinai Cemetery Association is not a religious institution or connected with any religious institution; it has always been conducted for profit, and the lots in the cemetery have greatly increased in value; that the plaintiff is deprived of the privilege of being buried by the side of his wife and of a son, who is buried in the cemetery.

The bill contains prayers for a mandatory injunction to restrain the officers and superintendent of the association from interfering with the interment of plaintiff’s wife in the lot which he owns in the cemetery.

Defendant filed an answer admitting ownership of the lot by plaintiff, the incorporation of the defendant association, compliance by plaintiff with the rules and regulations, and the payment of all charges and assessments required. It is admitted that the lot has a capacity of four graves, and that only two bodies are now buried there; that it was the intention of plaintiff to bury the body of his wife in the lot; that his wife was born of Jewish parents and had been married to plaintiff for a long time; that plaintiff buried the body of his wife in another cemetery, and that the cemetery association is not a religious institution. The answer also avers that the wife of plaintiff, at the time of her death and long prior thereto, had severed her affiliations with the Jewish faith and became a member of the Church of Christ Scientist; that the burial in this cemetery of a person not of the Jewish faith is contrary to the charter of the association and to its rules and regulations; that the constitution, by-laws, rules and regulations of the association have at all times been made to conform to conservative thought and opinions of the Jewish faith; and that the cemetery has from the time of its organization been so conducted that no person other than a person of the Jewish faith at the time of his or her death was knowingly permitted to be buried in the cemetery; that a person who became a member of the Church of Christ Scientist renounced and severed affiliation with the Jewish faith, even though born of Jewish parents; that this fact was known to plaintiff at the time he purchased the lot; that when he presented the request for permission to bury his wife in the cemetery, he was asked to sign a written statement that his wife was by birth of the Jewish faith and not affiliated with or a member of any other religious denomination or organization at the time of her decease; that he refused to sign the statement, and admitted that his wife was a member of the Church of Christ Scientist.

Findings of fact.

1. The defendant, the Mount Sinai Cemetery Association of Pennsylvania, is a corporation organized on July 1, 1853, under the laws of Pennsylvania. The charter provides that: “The object of this corporation shall be to purchase and provide a proper and suitable place for a cemetery, to divide the same into lots, to sell and dispose of such lots to individuals, societies or congregations, to be used only for the interment of deceased human bodies of those who by birth, profession or public declaration shall have been of the Jewish faith, under such conditions, restrictions, rules and regulations as the association or board of officers may, from time to time, establish for the government of lot-holders, burial of the dead, and visitors to the cemetery.” The association has always been under the exclusive management of persons of the Jewish faith, but is not connected with any religious institution.

2. On April 7, 1913, plaintiff purchased a lot in the cemetery and received a deed certifying “that Simon Weyl is entitled to lot number 3014, Section XVII, of the Mount Sinai Cemetery Association of Pennsylvania, subject to the rules and regulations and also to the payments and assessments thereon, and transferable only in person or by attorney at the Board of the Association.” The lot has a capacity of four graves. Two bodies are now interred in the lot.

3. The plaintiff is of the Jewish faith. His wife was born a Jewess, and they were married by a Rabbi. Some years before her death she joined the Church of Christ Scientist, and thereby repudiated her Jewish faith. The doctrines of the Church of Christ Scientist are at variance with those of the Jewish faith. She continued a member of the Church of Christ Scientist until her death, April 27, 1928.

4. Plaintiff was refused permission to bury his wife in his lot in the cemetery of the defendant association because of the charter provision. At the time of the application for a permit, a form of declaration was submitted for his signature, reciting that his deceased wife “was by birth of the Jewish faith, and was not affiliated with or a member of any other religious denomination or organization at the time of her decease.” This statement he refused to sign.

5. On May 24, 1928, the defendant association adopted a resolution that: “The following regulations are formulated and will govern, and interments shall be granted only to those (A) who by birth shall have been of the Jewish faith, upon the certification of their next of kin or other close relative or friend, conversant with the facts, that the decedent was not affiliated with any other religious denomination or organization at the time of his or her decease; (B) who, though not of the Jewish faith, shall have become a Jew or Jewess,, by formal acceptance into Judaism by an authorized Rabbi, according to the prescribed rabbinical rites. Evidence thereof must be submitted, either by a certificate of said Rabbi, to be lodged with this association, or by an affidavit or certificate of decedent’s next of kin or other close relative or friend, conversant with the facts, and attesting thereto.”

6. A son and a granddaughter of the plaintiff were buried in plaintiff’s lot, and the religious ceremonies at the burials were conducted by the Christian Science Church; but there is no evidence that the officials of the cemetery association had any knowledge of the affiliations of the deceased or of the religious ceremonies at these burials.

Discussion.

The rights of the parties in this suit cannot be determined by the opinions of witnesses as to how the Jewish church would interpret their rights, nor by action taken by the defendant association subsequently to the time plaintiff requested permission to bury his wife in his lot, but depend upon the provision in the charter declaring the purpose of the association and the rules and regulations adopted and in force at the time of the death of the wife of plaintiff. That this place of interment is a Jewish cemetery is apparent in its organization, in its management and by the purpose expressed in the charter. Any limitation upon the right of interment must be controlled by the charter, which provides for the interment of those who by birth, profession or public declaration shall have been of the Jewish faith. The words “shall have been” mean that the person shall have been of the Jewish faith at the time of death, and do not include persons who might have been of that faith for a time prior to death, but who were not of the faith when death occurred. The words “by birth, profession or public declaration” might be interpreted to extend to a person who had been born a Jew, or who had for a time professed or made public declaration of adherence to that faith; but in view of the declared purpose of the association and the intention to establish a cemetery for those of the Jewish faith, it is reasonable to presume that there was no intention to include as eligible for interment those who had at one time professed a belief in the faith, or who had been born Jews, but repudiated the faith prior to death. Interpreting the language of the charter in the light of the context and the spirit and reason of the words employed, it becomes apparent that a cemetery was established for the interment of persons born in the Jewish faith, or who professed or made a declaration of adherence to the faith and remained in the faith until death.

The purpose expressed in the charter cannot be enlarged or restricted by rules and regulations inconsistent with the charter purpose; but the statement submitted to plaintiff when he requested the permit to bury his wife was evidence that there was some regulation in force by the association interpreting the charter provision to limit the right of sepulchre to those who died in the Jewish faith. Plaintiff’s wife, by joining the Church of Christ Scientist and continuing in membership until her death, formally repudiated the Jewish faith; and plaintiff cannot compel defendant to permit her body to be buried in the cemetery of defendant if objection is interposed.

Conclusions of law.

1. The certificate giving plaintiff the right of burial in the cemetery was subject to the provisions of the charter and the rules and regulations of the defendant association.

2. The object of the association as expressed in its charter is to provide a place for the burial of bodies of the Jewish faith. #

3. The wife of plaintiff at the time of her death was not of the Jewish faith.

4. The defendant was within its rights in refusing to permit the burial of plaintiff’s wife in the cemetery.

5. Plaintiff is not entitled to an order to compel defendant to permit the burial of his wife in Mount Sinai Cemetery.

6. The bill of complaint should be dismissed.

7. Plaintiff to pay the costs.

Decree nisi.

It is ordered, adjudged and decreed as follows:

1. The prayer of the bill for a mandatory injunction to compel defendant to permit plaintiff to bury his wife in the cemetery of defendant is refused.

2. The bill of complaint is dismissed, at the cost of plaintiff.

3. The prothonotary is directed to give notice to the parties or their counsel of the filing of this decree nisi.