Volume 73 — Pennsylvania Superior Court Reports

<p>Appeal, No. 2, April T., 1919, by plaintiff, from order of C. P. Indiana Co., September T., 1915, No. 38, distributing money paid to the sheriff in the case of Sherman Smith v. J. A. Rapp, Linus M. Lewis, Trustee in Bankruptcy, defendants.</p> <p>Exceptions to auditor’s report. Before Langham, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court sustained the exceptions and awarded the money, paid into court, to the trustee in bankruptcy of the defendant. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Insurance — Fire insurance — Executory contract — Farol contract to reinsure — Evidence.</p> <p>An executory contract of insurance in the future may be valid and binding, but the testimony to establish it must show clearly the subject-matter of the insurance, the amount and elements of the risk, including its duration in point of time, extent in point of hazard assumed, the rate of premium, and generally all the circumstances which are peculiar to the contract, and distinguish it from every other, so that nothing remains to be done but to fill up the policy and deliver it on the one hand and pay the premium on the other.</p> <p>Where an action is brought against insurance agents for the breach of an alleged oral agreement to renew insurance, and it appears that in the conversation relied on, no amount was named for the new policy, its terms were not given, the goods to be included were not mentioned or the amount of the premium, and the rate to be charged, the plaintiff must be held to have failed to establish his contract, and a verdict should have been directed in favor of the defendants.</p>

<p>Appeal, No. 146, April T., 1919, by libellant, from order of C. P. Crawford Co., September T., 1918, No. 88, refusing divorce in tbe case of Ernest Mark Breed v. Irene Bell Breed.</p> <p>Libel in divorce. Before Prather, P. J.</p> <p>The facts stated in the opinion of the Superior Court.</p> <p>The case was referred to B. B. Pickett, Esq., Master, who recommended a divorce for the reasons quoted in the opinion of the Superior Court. Subsequently the court entered a decree refusing to grant a divorce. Libellant appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 33, April T., 1919, by plaintiff, from judgment of C. P. Cambria Co., March T., 1918, in favor of defendant on case stated in the suit of Thomasine Holter v. The School District of the Borough of Patton. Action in assumpsit on a contract of employment, with an agreement in the nature of a case stated, submitted for judgment in the nature of a special verdict. Before Moser, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 105, April T., 1919, by defendant, from judgment of C. P. Lawrence Co., March T., 1911, No. 83, on verdict for plaintiff in case of H. S. Texter and H. N. Texter, partners trading and doing business under the firm name and style of H. S. Texter & Son, v. A. H. Wachs. Assumpsit on a building contract. Before Emery, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,469.18 and judgment thereon. Defendant appealed.

Appeal, No. 23, March T., 1919, by Charles S. Foltz, Complainant, from order of the Public Service Commission of Pennsylvania, Complaint Docket No. 2284, in the case of Charles S. Foltz v. Public Service Commission, on appeal, and Conestoga Traction Company.

Appeal, No. 121, April T., 1919, by respondent, from order of the Public Service Commission of the Commonwealth of Pennsylvania in the case of Elsino Damiani v. The Public Service Commission, on appeal. Complaint before the Public Service Commission that the respondent was operating an autobus as a common carrier at Lambert, Payette County.

Appeal, No. 47, Oct. T., 1919, by libellant, from order and decree of C. P. Northampton Co., July T., 1918, No. 14, in the case of Alice M. Koehler v. Wenselus Koehler. Libel in divorce and petition of libellant for alimony pendente lite and counsel fees. Before Stewart, P. J. The facts are stated in the opinion of the Superior Court. The court made an order directing the respondent to pay libellant $500 counsel fees and $12 per week allowance for her support, pendente lite.

<p>Appeal, No. 47, October T., 1919, by respondent, from order and decree of C. P. Northampton Co., July T., 1918, No. 14, in the case of Alice M. Koehler v. Wenselus Koehler.</p>

<p>Appeal, No. 145, April Term, 1919, by plaintiff, from order of the Public Service Commission of the Commonwealth of Pennsylvania, No. C-2355, in the case of Henderson Coal Company v. The Public Service Commission, on appeal, and American Express Company and American Railway Express Company.</p> <p>Complaint to the Public Service Commission that certain rules and regulations of the American Railway Express Company, operating the American Express Company, relative to the receipt of shipments of money, were unreasonable, unlawful and discriminatory.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The commission dismissed the complaint. Complainant appealed.</p> <p>Error assigned was the order of the commission.</p>

<p>Landlord and tenant — Lease—Privilege of renewal — Construction.</p> <p>The renewal clause in a lease which gave “the privilege to the tenant of five years after the expiration of said term at the same rental and on the same conditions from year to year” conferred upon the tenant the right to hold over after the expiration of the original term, from year to year, for a period not exceeding five years. Where the tenant held over under such option, he did not become bound for the full term of five years, but could terminate the lease at the end of any yearly period upon the giving of proper notice.</p>

<p>Appeal, No. 9, April T., 1919, by plaintiff, from judgment of C. P. Erie Co., September T., 1915, No. 1, In Equity, refusing to grant an injunction in the case of W. T. Ryman v. Borough of Girard.</p> <p>Bill in equity for injunction. Before Whittelsey, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the order of,the court.</p>

<p>Appeal, No. 69, April T., 1919, by defendant, from order of C. P. Mercer Co., January T., 1915, No. 431, refusing to reduce a municipal lien in the case of Borough of Sharpsville v. Ford Randall.</p> <p>Rule to file an affidavit of the amount of municipal claim and show cause why petitioners should not have leave to pay the money into court or enter security in lieu of the claim. Before McLaughey, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court discharged the rule. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 36, April T., 1919, by Commonwealth, from judgment of Q. S. Westmoreland Co., November T., 1917, No. 72, quashing indictment in the case of Commonwealth of Pennsylvania v. The Peoples Natural Gas Company, a Corporation.</p> <p>Before Orlady, P. J., Porter, Henderson, Head, Trexler, Williams and Keller, JJ.</p> <p>Indictment for maintaining a nuisance. Before McConnell, P. J.</p> <p>The facts are stated in the opinion of.the Superior Court. *</p> <p>On motion, the court below quashed the indictment. Commonwealth appealed.</p> <p>Error assigned was the order of the court quashing the indictment.</p>

<p>Appeal, No. 42, March T., 1919, by defendants, from judgment of C. P. Lackawanna Co., November T., 1918, No. 88, sustaining judgment of Justice of the Peace in the case of Anthony Mikulski v. Joseph Ziolkowski and Mary Ziolkowski.</p> <p>Certiorari to justice of the peace. Before Edwards, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the exceptions and affirmed the proceedings before the justice of the peace.</p> <p>Error assigned, was the order of the court.</p>

<p>Public Service Company Law — Public service companies — Water companies — Bates—Valuations.</p> <p>Establishing a schedule of rates or tolls that a public service company may lawfully demand is one of the most complicated and important' of all the many important tasks imposed by the legislature upon the Public Service Commission. The proper determination of such questions necessarily involves the consideration of many matters and things far removed from the atmosphere of an appellate court of law. It is, therefore, to be regarded as a settled principle that under such legislation, in an appeal from the order of the Public Service Commission, the inquiry of the court is not, whether the order is such as the court would have made in the exercise of administrative function, but whether the order was .a reasonable exercise of the discretion conferred upon the commission by the Statute.</p> <p>Where, on a complaint as to the reasonableness of the rates to be charged by a water company, there is ample evidence to support the findings of the commission, and where the rates complained of are fully warranted by the testimony of expert witnesses of the complainant, the Superior Court will not disturb the finding of the commission.</p> <p>Where the commission has determined a rate to be charged by a water company, an order of reparation will not be awarded to a municipality where the rate to be charged it has not been declared to be unjust and unreasonable by the commission although the rate charged individual consumers has been declared excessive. In such case the municipality is not entitled to reparation on its own rate. The mere fact that some of its inhabitants have paid a rate, in excess of that found to be just and reasonable by the commission does not give the right to the municipality to consider such excess payments as ground for refusing to pay the amounts due and owing by it to the water company. The question of reparation is not to be determined by the commission until presented to it in the manner prescribed by the Public Service Company Law and, in the absence of any petition for reparation by the individual consumers who might be entitled thereto, an order of the commission, refusing to make any order of reparation, will be affirmed.</p>

<p>Appeal, No. 68, April T., 1919, by defendant, from judgment of C. P. Butler Co., September T., 1918, No. 71, on verdict for plaintiff in tbe case of Edgar L. Cousins v. The County of Butler.</p> <p>Trespass to recover damages for personal injuries. Before Reiber, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $1,285 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal to enter judgment for defendant non obstante veredicto.</p>

<p>Appeal, Nos. 86, 88, 89, 90 and 91, from order of the Public Service Commission of the Commonwealth of Pennsylvania in the case of Rabe F. Marsh and John V. Stephenson, Borough of Jeannette, Borough of Youngwood, Borough of Irvin and Borough of Manor v. The Public Service Commission on appeal, and the Westmoreland Water Company, Intervenor.</p>

<p>Workmen’s compensation — Injury in course of employment — ■ Referee’s finding of fact — Act of June 2,1915, P. L. 786.</p> <p>Under the Workmen’s Compensation. Law of 1915 contributory negligence on the part of the workman is not a defense. The employer is liable for accidents in the course of employment, except for injuries “intentionally self-inflicted,” or caused by an act of a third person intended to injure the workman for reasons personal to him.</p> <p>Where a miner was injured while riding on a mine motor for the purpose of getting his dinner pail from another part of the mine, he was injured in the course of his employment and was entitled to compensation.</p> <p>Going after his dinner pail at the noon hour preparatory to eating his noonday meal is in the course of employment and the fact that the claimant chose to ride instead of walk would not deprive him of compensation, if he was injured on the way.</p>

<p>Appeal, No. 15, April T., 1919, from order of C. P. Allegheny Co., April T., 1918, No. 777, refusing an appeal from the County Court of Allegheny Co. in the case of Margaret White v. Rosenbaum Company.</p> <p>Petition to allow appeal from county court.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned, among others, was the order of the court refusing appeal from the county court.</p>

Appeal, No. 157, April T., 1919, by plaintiff, from judgment of C. P. Payette Co., June T., 1914, No. 347, on verdict for plaintiff in the case of Charles S. Boyd v. Baltimore & Ohio Railroad Company. Assumpsit on a written contract for the construction and maintenance of a railroad siding. Before Van Swearingen, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $80 and judgment thereon. Plaintiff appealed.

<p>Appeal, No. 274, Oct. T., 1918, by Consolidated Telephone Company, from order of the Public Service Commission, Complaint Docket No. 1960, dismissing complaint in the case of Consolidated Telephone Company v. The Public Service Commission, on appeal, and Palmerton Telephone Company.</p> <p>Application of Consolidated Telephone Company for an order establishing connections and through service over lines of Palmerton Telephone Company.</p> <p>The Public Service Commission dismissed the application.</p> <p>Error assigned was the order of the commission.</p>

Appeal, No. 229, Oct. T., 1919, by defendant, from judgment of the Municipal Court of Philadelphia, February T., 1919, No. 8, on verdict for plaintiff in case of Tony Land v. Automobile Finance Company. Assumpsit for breach of warranty in a bailment lease. Before Bonniwell, J. Verdict for plaintiff for $498.48 and judgment thereon. Defendant appealed. Errors assigned were various rulings on evidence and refusal of defendant’s motion for judgment non obstante veredicto.

Appeal, No. 202, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1915, No. 1448, in favor of defendant, non obstante veredicto, in the case of Crocker-Wheeler Company v. Chester Steel Castings Company. Assumpsit to recover damages for loss of personal property. Before Ferguson, J. The facts appear in the opinion of the Superior Court. Verdict for plaintiff for $1,279.

Appeal, No. 178, Oct. T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, November T., 1918, No. 89, in case tried by the court without a jury in the suit of Annie Markowitz v. David Sudjian and Hagop Sudjian, trading as Ararat Dye Works. Assumpsit. Before Bartlett, J., without a jury. The opinion of the Superior Court states the case.

<p>Appeal, No. 126, October T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia Co., September T., 1916, No. 3345, on verdict for plaintiff in the case of William Wood, trading as William Wood & Co. and as Pequea Mills, v. Merchants & Miners Transportation Company, a Corporation.</p> <p>Assumpsit for breach of contract for failure to deliver a case of merchandise. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $1,079.88, and judgment thereon. Defendant appealed.</p> <p>Error assigned was the refusal of the defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 181, Oct. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1918, No. 5522, on verdict for plaintiff in case of Charles Drebes v. A. Schneyer & Company. Assumpsit on verbal contract of employment. Before Rogers, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $274= and judgment thereon. Defendant appealed. Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.

Appeal, No. 156, Oct. T., 1919, by defendant, from judgment of O. & T. Philadelphia Co., Sept. Sess., 1918, No. 611, on verdict of guilty in the case of Commonwealth v. Louis Engle. Indictment for arson. Before Audenried, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

Appeal, No. 194, Oct. T., 1919, by defendant, from final decree of C. P. No. 1, Philadelphia Co., December T., 1916, No. 3917, in the case of W. Austin Thompson v. John W. DeLong, deceased, J. Wayne DeLong, Administrator c. t. a., substituted of record. Petition and rule for leave to pay into court for proper distribution to lien creditors, the amount of judgment, interest and costs, recovered in a prior suit between the parties.

Appeal, No. 117, Oct. T., 1919, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1917, No. 4009, on verdict for plaintiff in the case of Sheritt & Stoer Company, Inc., a corporation, v. Roberts Engineering Company, a corporation. Assumpsit for purchase price of grinding machine. Before Carr, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $785.42 and judgment thereon. Defendant appealed.

Appeal, No. 290, Oct. T., 1918, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1917, No. 2000, in the case of the Odd Fellows Home of Pennsylvania v. Hyman Velenchick and Samuel Velenchick, trading under the firm name of Velenchick Bros. Assumpsit to recover money alleged to have been wrongfully received. Before Rogers, J. The facts appear in the opinion of the Superior Court. The court directed a verdict for the defendants. Plaintiff appealed.

Appeal, No. 52, Oct. T., 1919, by defendant, from order of C. P. No. 3, Philadelphia Co., March T., 1918, No. 3365, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of the Bell Telephone Company of Pennsylvania v. William.P. Deakyne. Assumpsit on written contract for amount due for telephone service. The opinion of the Superior Court states the case.

Appeal, Nos. 192 and 202, Oct. T., 1919, by defendants, from judgment of Q. S. Sullivan Co., September Sess,, 1918, No. 15, on verdict of guilty in the case of Commonwealth v. William Wilston and Ephraim Wilston. Indictment for larceny. Before Terry, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendants appealed.

Appeal, No. 219, Oct. T., 1919, by defendant, from judgment of Q. S. Philadelphia Co., June Sess., 1917, No. 667, on verdict of guilty in the case of Commonwealth v. Samuel F. Wheeler. Indictment charging embezzlement as attorney-at-law. Before Martin, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. Error assigned was the charge of the court and refusal to grant a new trial.

Appeal, Nos. 206 and 207, October T., 1919, by defendant, from order of C. P. No. 1, Philadelphia Co., September T., 1918, No. 2535, discharging rule to strike off and rule to open judgment in the case of Harry Salus v. Paul Curzon. Rule to strike off judgment and rule to open judgment. Before Shoemaker, J. The opinion of the Superior Court states the case. The court discharged both rules. Defendant appealed. Error assigned was the order of the court.

Appeal, Nos. 185 and 186, October T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, April T., 1918, No. 581, on verdict for plaintiff in the case of Henry S. Bliss, by his mother and nest friend, Elizabeth B. Bliss, and Elizabeth R. Bliss, in her own right, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Knowles, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 110, October T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., December T., 1918, No. 4475, for want of an affidavit of defense in the case of John L. Bechtel v. Roman Automobile Company. Rule for judgment for want of an affidavit of defense. Before Rogers, J. The opinion of the Superior Court states the case. The court entered judgment in favor of the plaintiff for want of an affidavit of defense. . Defendant appealed.

Appeal, No. 172, October T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, October T., 1918, No. 135, on verdict for plaintiff in the case of Harry Freedman v. Joseph F. Wager and S. M. Karpeles, trading as Wager & Karpeles. Trespass to recover damages for personal injuries. Before Crane, J. The facts appear in the opinion of the Superior Court. Verdict for plaintiff for $1,113.30 and judgment thereon. Defendant appealed.

Appeal, No. 157, October T., 1919, by defendants, from judgment of Municipal Court of Philadelphia, April T., 1918, No. 402, on verdict for plaintiff in the case of Louis Margulies v. Hyman Gottlieb, Joseph H. Gottlieb, Louis A. Gottlieb and John J. Gottlieb, individually and trading as H. Gottlieb & Bros. Assumpsit to recover price of consignment, delivered contrary to instructions. Before Crane, J. The facts appear in the opinion of the Superior Court.

Appeal, No. 158, October T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, October T., 1918, No. 395, on verdict for plaintiff in case of Charles Delafant v. Charles I. Shapiro. Assumpsit on written contract for sale of real estate. Before Knowles, J. The opinion of the Superior Court states the case. Verdict for plaintiff for $512.50 and judgment thereon. Defendant appealed.

Appeal, No. 246, October T., 1919, by defendant, from decree of C. P. Lancaster County, sitting in equity, Equity Docket No. 6, p. 271, in the case of Borough of Mountville v. Clarence H. Gable. Bill in equity for an injunction to restrain defendant from laying a curb over certain land situate in the Borough of Mountville. Before Hassler, J. The facts are stated in the opinion of the Superior Court. The court granted the injunction as prayed for. Defendant appealed.

Appeal, No. 179, October T., 1919, by City of Scranton, from order of the Public Service Commission, Complaint Docket Nos. 1687-1917 and 2351-1918, in the case of City of Scranton v. The Public Service Commission, on appeal, and Scranton Railway Company.

Appeals, Nos. 215 and 216, October T., 1919, by defendant, from judgment of Municipal Court of Philadelphia, January T., 1919, Nos. 564 and 565, on verdict for plaintiff in case of George B. Harris et al., and Reynolds D. Brown et al. v. Max Winelander. Trespass to recover damages for personal injuries. Before Knowles, J. The facts appear in the opinion of the Superior Court.

<p>Appeal, No. 6, March T., 1920, by City of Scranton, from order of the Public Service Commission in the case of City of Scranton v. The Public Service Commission, on appeal, and Scranton and Binghamton Traction Company.</p>

<p>Appeal, No. 130, October T., 1919, by plaintiff, from order of Municipal Court of Philadelphia, October T., 1918, No. 167, making absolute rule for judgment for want of a sufficient statement of claim in the case of Clara G. Whitaker v. Viola Richmon.</p> <p>Rule for judgment for want of a sufficient statement. Before Cassidy, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute the rule. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 224, October T., 1919, by defendant, from judgment of Q. S. Philadelphia Co., July Sess., 1918, No. 378, on verdict of guilty in the case of Commonwealth v. Solomon Spear.</p> <p>Indictment for the fraudulent conversion of 35 horses under Act of May 18, 1917, P. L. 241. Before Martin, J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were the admission in evidence of certain leases, referred to in the opinion of the Superior Court, and refusal to give binding instructions for the defendant.</p>

<p>Public Service Company Law — Common carriers — Operating . automobile as common carrier — Complaint—Mistaken name — Insufficient service.</p> <p>An order of the Public Service Commission, addressed to an owner of an automobile, holding him to be a common carrier and commanding him to cease from operation until he shall have obtained a certificate of public convenience in accordance with the provisions of the Public Service Company Law will be reversed, where the record shows that the party against whom the order was made had not been complained against nor served with a copy of the pleadings nor had an opportunity to answer before the commission, and there was no evidence that the respondent before the commission had ever operated an automobile in violation of the Public Service Company Law.</p>

<p>Appeal, No. 123, April T., 1919, by respondent, from order of the Public Service Commission in the case of William Piercely v. The Public Service Commission, on appeal.</p> <p>Complaint of Masontown Taxi Company before the Public Service Commission that the respondent was operating an autobus as a common carrier without a certificate of public convenience and in violation of Section 2, of Article III, of the Public Service Company Law.</p> <p>The commission, made an order directing the respondent to forthwith cease and desist from operating a motor vehicle as a common carrier until he should have obtained a certificate of public convenience in approval thereof, in accordance with the provisions of the Public Service Company Law.</p> <p>Error assigned was the order of the commission.</p>

Appeals, Nos. 125 and 127, April T., 1919, from order of the Public Service Commission of the Commonwealth of Pennsylvania in the case of Allen Ramsey and H. A. Johnson v. The Public Service Commission. Complaint of Masontown Taxi Company before the Public Service Commission that the appellants were operating autobusses as common carriers without certificates of public convenience and in violation of Section 2 of Article III of the Public Service Company Law.

<p>Appeals, Nos. 124, 126, 128 and 129, April T., 1919, from orders of the Public Service Commission of the Commonwealth of Pennsylvania, by Respondents in the cases of George Toth, Andy Solopek, B. T. Milan and Nick Brokovich v. The Public Service Commission, on appeal.</p> <p>Complaint of Masontown Taxi Company before the Public Service Commission that the respondents were operating autobusses as common carriers without certificates of public convenience, and in violation of Section 2 of Article III of the Public Service Company Law.</p> <p>The commission made an order directing each of the respondents to forthwith cease and desist from carrying on or engaging in the public service set forth in the complaint, to wit, operating a motor vehicle as a common carrier, until he should have obtained from the commission a certificate of public convenience in approval thereof, in accordance with the provisions of the Public Service Company Law. Respondents appealed.</p> <p>Error assigned was the order of the commission.</p>

<p>Appeal, No. 130, April T., 1919, by respondent, from order of the Public Service Commission of the Commonwealth of Pennsylvania, in the case of Charles Spontak v. The Public Service Commission of the Commonwealth of Pennsylvania, on appeal.</p> <p>Complaint before the Public Service Commission that the respondent was operating an autobus as a common carrier at Lambert, Fayette County. The commission made an order that the respondent cease and desist from carrying on or engaging in the public service set forth in the complaint, to wit, operating a motor vehicle as a common carrier, until he should obtain a certificate of public convenience in accordance with the provisions of the Public Service Company Law. Respondent appealed.</p> <p>Error assigned was the order of the commission.</p>

Appeal, No. 47, April T., 1919, by defendant, from judgment of Q. S. Allegheny Co., March Sess., 1918, No. 131, on verdict of guilty in the case of Commonwealth of Pennsylvania v. L. Rabinowitz, alias L. Robinson. Indictment for conspiracy to cheat and defraud. Before Sloan, P. J., 18th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

Appeal, No. 131, October T., 1919, by plaintiff, from order of C. P. No. 3, Philadelphia County, December T., 1917, No. 1190, awarding a new trial in the case of Mary H. Petitt v. Most Excellent Assembly of Artisans Order of Mutual Protection. Rule for new trial. Before Ferguson, J. From the record it appeared that at the trial of the case the plaintiff recovered a verdict against the defendant in the sum of $1,076.

<p>Appeal, No. 55, October T., 1919, by defendants, from judgment of Municipal Court, of Philadelphia, October T., 1917, No. 260, on verdict for plaintiff in case of Mendel Blaustein v. Jacob Shapiro, Harry Fabian and Nathan Lieberman, Trading as Triangle Sewing Machine Company.</p> <p>Trespass to recover damages for the conversion of a cloth-cutting machine. Before Knowles, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $500 and judgment thereon. Defendants appealed.</p> <p>Errors assigned, among others, were answers to points, the refusal to grant a new trial, and refusal of defendants’ motion for judgment non obstante veredicto.</p>

<p>Appeal, Nos. 198 and 199, October T., 1919, by defendants, from judgment of C. P. No. 4, Philadelphia Co., December T., 1918, No. 3293, on verdict for plaintiffs in case of Bessie Fairman and Harry Fairman v. Joseph D. Dorney, Michael Dorney, John J. Trost and Thomas J. Flanagan, Individually and as Copartners, Trading as J. D. Dorney Company.</p> <p>Trespass to recover damages for personal injuries. Before Finletter, J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict for plaintiff, Bessie Fairman, for $300, and for plaintiff, Harry Fairman, for $400, and judgment thereon, Defendant appealed.</p> <p>Error assigned, was the refusal of the defendant’s motion for judgment non obstante veredicto.</p>

<p>Public service companies — Trolley companies — Routes—Rerouting — Charters—Forfeiture—Act of May 8, 1905, P. L. 879.</p> <p>Under the provisions of Act of May 3, 1905, P. L. 379, the local authorities of any city, borough or township may enter into a contract with any street railway company operating within the municipal limits to secure the removal, or prevent the laying, of tracks already laid Or to change the route of any street railway. The contract may not exceed fifty years and gives the local authorities and the street railway company the right to provide for the abandonment or modification of a charter route for that period. Such contract, when made, forms a part of the charter of the company with like force and effect as if the same were part of the original charter.</p> <p>An ordinance providing for a general authority to a Street railway company to relocate its line, without the formal consent of the municipality, as evidenced by a contract, is not in accordance with the provisions of the Act of 1905.</p> <p>Public service companies — Public service company law — Rerouting — Municipal consent — Certificate of public convenience.</p> <p>Under the terms of the Public Service Company Law the Public Service Commission must pass upon the question of the convenience or necessity to the public of any contemplated change in the facilities of a public service company. Its orders are administrative and, ■ since they are made from the standpoint of public convenience only, they cannot be made a substitute for a writ of quo warranto or other legal proceeding in which it may be judicially determined what franchises claimed by any chartered company are active and in full force. The commission may regulate the action of public service companies in the respects provided for in the Public Service Company Law, but it cannot expand their powers beyond the limits established by their charters.</p> <p>Public service■ companies — Charters—Forfeiture of charters.</p> <p>When the Commonwealth or a municipality becomes a party to the proceeding the obligations of the corporation under its charter and contracts are material to be considered, but when the plaintiff is an individual, having no interest different from that of the public, there is nothing in the statute which clothes him with the authority of the Commonwealth or the municipality to raise any question other than whether the determination of the commission is reasonable, “having regard to the general convenience and safety of the public.”</p> <p>A finding of the commission that the rerouting of certain street car lines, which is based entirely with a view to the general convenience and safety of the public, and which does not consider the charter rights of the public service company involved, is an administrative order only, and will not be disturbed by the appellate court.</p>

<p>Wills — Construction—Bemaindermen.</p> <p>Where a testator in his will provided that the income of his estate was to be paid to his son during his life, and upon his death to such children as he might leave, and in the event of the son dying without issue to be divided among testator’s relatives under the intestate law, upon the death of the son without issue, the estate vested equally in the mother and widow of the life tenant.</p>

<p>Negligence — Collision of automobile and trolley car — Towing-another autotruck — Contributory negligence — Nonsuit.</p> <p>In an action to recover damages for injuries to an. automobile resulting from a collision with a trolley oar, a nonsuit is properly. entered, where the evidence tends to prove that the plaintiff's-chauffeur, while driving a motor truck, which was towing another truck, failed' to observe- his customary precautions at a sharp curve in the road with which he was familiar, and that ■ notwithstanding the fact that he was towing a heavy, unwieldy truck, attempted to round the curve when a trolley car was approaching and the towed truck was sideswiped by the trolley car.</p> <p>In such ease the driver must be held to have been guilty of contributory negligence.</p>

<p>Bailments — Bailment lease of piano — Amount due — Trial by court without jury — Waiver of appeal.</p> <p>An agreement to submit the issue, as to the amount due under a bailment lease for a piano, to the judgment of the court, to be tried -without a jury, and waiving the right of appeal, is binding.</p> <p>Where, having submitted to such procedure, a judgment is given against the defendant the latter cannot afterwards appeal in contradiction to the stipulation entered into between the parties.</p>

<p>Appeal, No. 218, October T., 1919, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., June T., 1917, No. 1220, refusing to take off nonsuit in the case of Commonwealth to the use of Mayme Doughton v. United States Fidelity and Guaranty Company.</p> <p>Assumpsit against defendant on interpleader bond. Before Patterson, J.</p> <p>The court below, on motion, entered judgment of non-suit, which it subsequently refused to take off and filed the following opinion:</p> <p>This is a motion to take off a nonsuit entered on an action to recover on behalf of a third execution creditor who sued in assumpsit on a bond entered in a sheriff’s interpleader.</p> <p>The record discloses that at the trial of the case at bar, the plaintiff offered in evidence a certain other record of a suit in the municipal court as of December Term, 1915, No. 372. This municipal court record shows an entry of a nonsuit, a refusal to take off the same, two rules to secure the valuation of goods, but no judgment and no valuation of the goods.</p> <p>We are of opinion that the trial judge was right in entering the nonsuit, because no judgment had been entered, and no valuation of the goods had been found in the municipal court proceedings, as required by the Act of May 26, 1897, Sec. 13, P. L. 95. To entitle the use plaintiff to recover in a suit against a surety in a proceeding such as this, there must be a verdict and a judgment for the value of the goods: Act of May 26, 1897, Sec. 13, P. L. 95; Mann v. Salsberg, 17 Pa. Superior Ct. 280 (1901); Gain v. Steinberger, 36 Pa. Superior Ct. 303 (1908); Lowry v. Letzelter, 45 Pa. Superior Ct. 143 (1911); Saba v. McElwaine, 57 Pa. Superior Ct. 369 (1914); Com. v. McPhilips, 66 Pa. Superior Ct. 223 (1917).</p> <p>In the last cited case Judge Porter, in referring to the Act of May 26,1897, said (p. 229, et seq.) :</p> <p>“The 13th section provides that, upon the trial of the issue, if the title to the goods is found not to be in the claimant, when he has given bond and taken the goods, a verdict and judgment for the value of the goods shall be entered against the claimant and in favor of the defendant in the issue. It is thus made clear that it was the intention of the legislature that the value of the goods should be determined in the same proceeding in which the bond was filed, and the amount of the liability of the surety in the bond be thus definitely determined.”</p> <p>When, under the present statute, the claimant, gives bond, with approved surety, and received the goods from the sheriff, the property is then out of the custody of the law and the owner, whether the execution defendant or any other person, may at once proceed against the claimant who has wrongfully acquired possession of his goods. He cannot, however, proceed against the surety on the interpleader bond until the extent of the liability of that surety has been fixed in the interpleader proceeding. When the extent of that liability has been so determined, the value of the goods as found by the jury, is the limit of the liability of the surety.</p> <p>We deem it proper to say, in order to correct any misapprehension that may exist, that the express mandate of tbe statute is that tbe verdict and judgment, in sucb a case, must be for tbe value of tbe goods.</p> <p>As tbe record in this case fails to show that there was a verdict and a judgment in tbe first suit for tbe value of tbe goods, we concur in tbe ruling of tbe trial judge, and tbe motion to take off nonsuit is dismissed.</p> <p>Error assigned was tbe order of tbe court.</p>

<p>Appeal, No. 189, October T., 1919, by uespondeut, from decree of Municipal Court of Philadelphia, March Sess., 1919, No. 245, in the case of Commonwealth ex rel. Marion Eich, by her grandfather and next friend Frank J. Ryan, v. Mary Eich.</p> <p>Petition for writ of habeas corpus. Before Brown, P. J.</p> <p>The court awarded the custody of Marion Eich to her maternal grandparents, Frank J. Ryan and wife. Respondent appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals, Nos. 231 and 232, October T., 1919, by defendants from judgment of Q. S. Philadelphia Co., March Sess., 1919, No. 58, on verdict of guilty in the case of Commonwealth v. Frederick Bender and George Leon.</p> <p>Indictment for conspiracy to entice a minor for the purpose of prostitution. Before Ferguson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendants appealed.</p> <p>Errors assigned was the admission of the testimony of the minor child, her sister and mother.</p>

<p>Divorce — Indignities to the person — Insufficient evidence.</p> <p>In an action for divorce on the ground of cruel and barbarous treatment and indignities to the person, a divorce will be refused where the evidence in support of the libel discloses that most of the acts complained of had taken place some sears prior to the commencement of the proceedings and that they were of a trivial character. Where there is but little proof of any recent happenings of such nature as would furnish grounds for a divorce, a decree granting a divorce will be reversed.</p>

<p>Appeal, No. 166, October T., 1919, by John Mosebach, from decree of O. C. Philadelphia Co., July T., 1905, No. 151, dismissing exceptions to adjudication in estate of John Mosebach, deceased.</p> <p>Henderson, J., filed the following opinion dismissing the exceptions:</p> <p>John Mosebach died in 1901, leaving a widow and five children, of whom his son, John, then thirteen years of age, was one; three of these were children by a former wife (including John) and two were by his second wife, his widow.</p> <p>[By his will the testator gave one-third of his estate to his widow, and all the rest, residue and remainder to his friend, Andrew Schimmel, Jr., in trust for his children, and he also appointed Mr. Schimmel guardian of the minors.]</p> <p>The trust for John, whose account is now before us, is in the following words:</p> <p>“One-fourth part or share thereof I give, devise and bequeath to my friend Andrew Schimmel, Jr., in trust for my beloved son John Mosebach, the income of which is to be used for his maintenance and support until he reaches the age of 25 years, and then his one-fourth part or share in my estate is to be paid to him for his own use and benefit absolutely forever.”</p> <p>To the action of the auditing judge, John has filed nine exceptions, the first six of which alleged the auditing judge erred in not surcharging the trustee with John’s share of the income, which the trustee paid to his stepmother for his support during the period before he reached the age of twenty-five years. The next two exceptions allege that the auditing judge erred in not surcharging the trustee with a fair net rental value of premises No. 1131 North Eighteenth street, which belonged to the decedent and where he died, and in which the trustee permitted the widow to reside and raise the family. Another exception alleges that the widow rented ont one room in this home of the family and that she should account to John’s estate for two-fifteenths of the value thereof, or for the sum of $57.60. The remaining exceptions allege error on the part of the auditing judge in refusing to disallow the accountant’s commissions.</p> <p>It is evident from the terms of the will that the accountant was charged with the proper support of the minor children until each should reach the age of twenty-five years. [The theory of the exceptants seems to be that it was the duty of this trustee to have disintegrated this home upon the death of the father, and in some unsuggested way disposed of the custody of these minors for their alleged greater benefit. It is true that John was not the son of the widow, but a son by a former marriage. She, however, stood toward him in the relation of a mother and at least had occupied this relation to the satisfaction of the father for several years prior to his decease. We know of no principal of law which would have required this trustee to receive these wards into his own family: Trickett, Law of Guardians, section 277. We agree with the auditing judge that he did perfectly right in permitting these children to remain with the widow, their mother and stepmother.]</p> <p>It is evident that upon the death of the father his earnings were no longer available for the support of the home and the family. Thereafter, the widow struggled to bring up the children in the way in which they had theretofore lived, and sought to remain in the home provided by the father in his lifetime. It was only with the utmost effort that the widow could do this, and the trustee and guardian cannot be called to account for paying over to her this minor’s share of the income for his support until he should reach the age of twenty-five years. The findings of the auditing judge as to the facts relating to such proper support will not be disturbed except for clear error: Patterson’s Estate, 237 Pa. 24.</p> <p>[But, regardless of the provisions of the will under which the duty of the trustee was discharged, we believe the payments to have been justified. From 1904 until 1907 the minor did nothing, being too young to be employed, and during this time the guardian paid for his support about $75 a year. After he went to work the minor turned his wages over to his stepmother, and out of these and the income received from the trustee she maintained him, paid an occasional doctor’s bill, his lodge dues, provided him with pocket money and started him with a saving fund account. The minor admitted that his stepmother treated him as if he were one of her own children. (Notwithstanding that the trustee paid the mother for the support of these minors, their income from this trust estate, she was unable to make both ends meet and actually spent several hundred dollars of her own money in the effort.</p> <p>The seventh exception has to do with the small amount of rental which the widow derived from subletting a room in the house, and it is alleged the minor’s share of the same would amount to $57.60. But we have already seen that the income of this widow was totally inadequate for the maintenance of the home, and after spending hundreds of dollars of her own money to keep this family together we cannot see but what she did right in applying the rent from this room towards the maintenance of the home.)]</p> <p>The last two exceptions allege error in the auditing judge in refusing to surcharge the accountant with his commissions. It appeárs that the accountant is engaged in the real estate business and it is likely that the testator confided these trusts to him because his estate was largely composed of real estate. There was no direction in the will that the real estate should be converted, and the accountant cannot be blamed because he continued to hold that which the testator had placed in the trust.</p> <p>It appears, however, that the accountant did not maintain any separate account of this trust and that the funds of the trust were mingled with those of the accountant. It certainly was the duty of this accountant to have kept books of account of the trust and he should also have maintained a bank account devoted to the trust. [We cannot find that the accountant sought in any way to profit by these irregularities, or that he was guilty of any fraud in the handling of this trust.]</p> <p>The management of real estate is not as simple as that of personalty; the transactions in reference thereto are multitudinous, and the accountant probably permitted the items relating to these pieces of real estate to go upon the books of his real estate office just as if their management had been committed to him by the decedent in his lifetime. In the first instance we can see no objection to this, but the items of this trust should, at stated intervals, have been transferred to a set of books relating solely to the trust, and the balances placed in a bank account to the credit of the trust estate. Real estate dealers, acting as fiduciaries, too frequently keep their accounts in this way. The practice is condemned and should not be followed. As this accountant is trustee for the other children he should forthwith improve his method of handling the estate.</p> <p>It was claimed that the trustee had invested principal in his own name and in other than legal securities. He did not register securities in his own name, but without advice purchased coupon bonds of an issue in which he believed he had authority to invest. When he was advised of his error he took them off the hands of the estate at cost, although they had depreciated.</p> <p>While the administration of this trust during all these years has been conducted with integrity, we find it necessary to condemn the mingling of the trust funds with the personal funds of the accountant; and having condemned this practice we believe this accountant should be punished. As was said by this court in Everett’s Est., 19 D. R. 477:</p> <p>“With the utmost good faith and with the belief that the money will be safe in his own account, yet a fiduciary has no right to mingle trust funds with his own, especially, as was not the case in Parker’s Est., 64 Pa. 307, he is in business, and the fund is subjected thereby to the vicissitudes of their business. Moreover, by reason of combining with his own deposit account money not Ms own, a fictitious credit is established and maintained, and thus, indirectly, at least, the fiduciary is benefited by this use of trust funds. As was said in that case: ‘It was improper and unlawful for the accountant to mix the funds of the estate to any extent with his own. However clear it may be that it was without any dishonest intention of making gain to himself, such a practice ought never to come before a court without being in some way marked with its disapprobation.’</p> <p>“The basis for this rule is that commissions being paid for the faithful performance of the trust, where the trust has been so administered that the fund is put in jeopardy, the trustee has failed in part of Ms duty, and cannot therefore be compensated. The rule, however, is not so unbending that it shall be necessary to deprive Mm of all compensation. It is enough if the court show in some unmistakable manner its disapprobation of his act, and punish Mm in some way for Ms negligence. If we were of the opinion that the accountant had placed this money in his bank account for the purpose of gain, we would enforce the rule in its strictest form; but, believing it was done through carelessness, or at least through a want of knowledge of its illegality, we think our disapprobation will be sufficiently expressed by reducing Ms commissions from five to three per cent.” See also Ahl’s App., 129 Pa. 26-48.</p> <p>Under the facts of this estate it would not be right to deprive the accountant of all commissions; we believe he will be sufficiently punished by cutting down his commissions from five to three per cent. With this modification, in which the auditing judge concurs, the exceptions are dismissed and the adjudication is confirmed absolutely.</p> <p>Error assigned was the decree of the court dismissing exceptions.</p>

<p>Petition for writ of habeas corpus.</p>

<p>Appeal, No. 2, October T., 1919, by defendant, from the judgment of C. P. Berks Co., October T., 1918, No. 27, on verdict for plaintiff in case of Clara M. Ranck and the Mutual Fire Insurance Company of Berks County, as Intervening Plaintiff, v. Township of Robeson.</p> <p>Trespass to recover damages for destruction by fire of plaintiff’s wagon shed. Before Wagner, J.</p> <p>Tbe facts are stated in tbe opinion of tbe Superior Court.</p> <p>Verdict for plaintiff for $879.63 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Public Service Commission — Jurisdiction—Appeals—Insufficient record.</p> <p>An order of the Public Service Commission will be reversed when the record is not sufficient to sustain the order.</p> <p>Where the Public Service Commission made an order concerning a bridge between two boroughs, and the jurisdiction of the commission is questioned in the appeal, the order will be reversed and the case returned to the commission with instructions to proceed according to law, where the record before the appellate court is incomplete and cannot furnish a basis for the final disposition of the case.</p>

<p>Grimes — Disorderly house — Charge of court.</p> <p>In a prosecution for keeping a disorderly house, the charge of the court was without error, when it 'fully and adequately submitted to the jury the defendant’s contention as to the character of the persons who visited the house and their conduct while there, and also explained the degree of proof required in such cases.</p>

<p>Judgments — Opening of judgments — Insufficient evidence — Laches.</p> <p>A rule to open a judgment 17 years old -will be discharged, where the only evidence in support of the petition is given by an interested witness: when the responsive, answer of the plaintiff to the defendant’s original- allegation would be sufficient to defeat the application and where the original defendant has since died, and the plaintiff is, by operation of law, denied the opportunity of testifying. Under such circumstances, in view of the lapse of time, laches is a bar to relief.</p>

Appeal, No. 113, Oct. T., 1919, by Reuben Katzen, from judgment of Q. S. Phila. Co., January Sessions, 1919, No. 188, on verdict of guilty in case of Commonwealth v. George Barrett and Reuben Katzen. Indictment for larceny and receiving stolen goods. Before Shull, J. The opinion of the Superior Court states the case.

Appeal, No. 220, Oct. T., 1919, by defendants, from judgment of Municipal Court of Philadelphia, Dec. T., 1918, No. 332, on verdict for plaintiff in case of William S. Wilson, Paul J. Startzman and George Fox, copartners, trading as the Philadelphia Casket Hardware Company. Assumpsit on contract of employment. Before Knowles, J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $617.34. Defendant appealed.

<p>Justices of the peace — Judgments—Appeals nunc pro tunc — Insufficient reason.</p> <p>A petition for leave to enter an appeal nunc pro tunc from the judgment of a justice of the peace will not be allowed, where the only reason advanced in the petition is that the transcript of the justice of the peace was lost while in the custody of defendant’s agents. Such a reason is not sufficient to warrant a court in granting an appeal nunc pro tunc, as it is but an admission of the negligence of the defendant’s own employees.</p>

<p>Appeal, No. 236, Oct. T., 1919, by plaintiff, from judgment of C. P. Chester County for defendant non obstante veredicto in case of Brentwood Realty Company v. Oliver E. Moses.</p> <p>Assumpsit on contract for sale of real estate. Before Landis, P. J., Second Judicial District, specially presiding.</p> <p>The court directed a verdict in favor of the plaintiff for $890.70 conditional that the plaintiff transfer to the defendant the lots named in the statement by legal deed of conveyance. Subsequently, on rule for judgment non obstante veredicto, the court made absolute the rule and judgment was entered in favor of the defendant. Plaintiff appealed.</p> <p>The facts are stated in the following opinion of the court below:</p> <p>The facts out of which this controversy arises are practically all in writing and are undisputed. On August 26, 1915, a written agreement was entered into between the Brentwood Realty Company by W. C. Sacks, its agent, and the defendant, Oliver E. Moses, whereby in consideration of the sum of $750, of which $10 was to be paid on the execution of the contract and $20 each month thereafter, the Brentwood Realty Company agreed to convey to the defendant “lots numbered 48-49 in block 205 in Brentwood Park, at Brentwood, Suffolk County, Long Island, N. Y.” Written at the bottom of the agreement was the following clause: “Mr. Moses agrees to visit property within sixty days and if dissatisfied all money paid to be refunded,” and in the body of the agreement was a provision that “This instrument expresses the entire agreement between the parties hereto, and there are no independent, collateral or other agreements, covenants, conditions or terms whatsoever, either open or secret, and undisclosed between the parties hereto.” There were at the time two copies filled out, one of which was signed by both parties and sent by Mr. Sacks to the company for approval, and the other was signed by Mr. Sacks and given to Mr. Moses. Thereupon Mr. Moses paid the $10 as provided by the agreement.</p> <p>Upon the receipt of the agreement by the company, a copy identical in its provisions was filled out by some one for it, except that in front of the words “in Brent-wood Park” was interlined the word “addition,” with an endorsement of acceptance thereon, and on August 28, 1915, this was sent to Mr. Moses. On September 27, 1915, he requested a friend, M. F. Baringer, of Philadelphia, to write to the company for him, and the letter written by Mr. Baringer contained, inter alia, the following: “His (Moses’s) understanding was that the ten dollars he paid was all the obligation he assumed, but .from the duplicate of the contract it appears that before he can recover that or any further money he may pay, it will be necessary for him ‘to visit the property within sixty days and if dissatisfied all money to be refunded.’ If necessary to recover what he has paid, Mr. Moses will go to Brentwood, but he is dissatisfied without that, and has decided that he does not want to go any further into this deal. He is not in good condition physically, and would much prefer not to make this trip.” Thereupon the secretary and treasurer of the company wrote to Mr. Moses: “We are in receipt this morning of a letter from Mr. M. F. Baringer relative to the contract entered into by you with this company for the purchase of lots 48 and 49 in block 205, Brentwood Park Addition. We beg to advise you that we will have our Mr. Sacks call and see you within the next few days and adjust matters to your entire satisfaction. We have also written Mr. Baringer to the same effect.” The letter to Mr. Baringer stated: “We will have the salesman who secured Mr. Moses’s contract call on him within the next few days and adjust matters to his satisfaction.” Some time later Mr. Moses received word from the company that some one would call the following Monday. On October 15, 1915, he wrote in reply that he would not be home that day and for several days thereafter “but in any case I want to say I have not changed my mind about the Brentwood deal and you will please consider this my final refusal to go any further with it, as my nerve trouble seems to get worse instead of better, and I feel I must drop this matter and would ask that you kindly send me my ten dollars.” After that no one from the company called upon him, and no correspondence was had between them until a letter dated August 30, 1917, from the president of the company demanded payment of the balance due under the agreement. A deed for lots 48 and 49 in block 205, Brentwood Park Addition, was subsequently tendered and refused, and this suit was then commenced. On the trial it was shown by the plaintiff that a tract was first laid out at Brentwood called “Brentwood Park,” that subsequently an addition was made called “Brentwood Park Addition,” and that another plot was added called “Brentwood Park Extension.” Block 205 was in Brentwood Park Addition, and not on the original Brentwood park plan. It was said that the whole development was known as Brent-wood Park.</p> <p>The general rule is that to constitute a contract the acceptance of the offer must be absolute and identical in the terms of the offer. Thus in Swing v. Walker, 27 Pa. Superior Ct. 366, Henderson, J., delivering the opinion of the court, said: “Where.one sues for damages for a breach of contract, the burden is on him to establish a clear case of something actually agreed to. Where a proposal is made on one side, an acceptance is given on the other not according to the terms of the proposal, the parties are not bound: Slaymaker v. Irwin, 4 Wh. 369. ‘To constitute a contract the acceptance of the offer must be absolute and identical with the terms of the offer. If one offers another to do a definite thing, and that person accepts conditionally,- or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal’: Joseph v. Richardson, 2 Pa. Superior Ct. 208; Clements v. Bolster, 6 Pa. Superior Ct. 411. To bind the parties, an acceptance must be in exact conformity with the proposal. A qualified acceptance does not constitute a contract.” “An acceptance qualified in any manner or accompanied by any reservation, or new proposal, is not that union of minds in which the law recognizes a contract”: Clements v. Bolster, supra. It must be identical with the offer and must be definite and in such terms as it cannot be misunderstood: 35 Cyc. 53. In this case there is no evidence to indicate that the defendant knew anything concerning the location of these lots, or had ever seen a plot of either Brentwood Park, Brentwood Park Addition or Brentwood Park Extension. The agreement he signed, which was forwarded to the company, was for two lots in Brentwood Park. It was not shown that he was aware of there being no division 205 in that plot. Be that, however, as it may, when the company changed the agreement from Brentwood Park to Brentwood Park Addition, he disavowed the contract. It is true that he did not give this change as the reason for his disavowal, but it was not necessary for him under the circumstances to do this. It was sufficient that he expressed his dissatisfaction, and he was not bound to give any specific reasons, and as a matter of fact, he did not. The change having been thus made, he was not, in my judgment, bound to carry out the contract. If this is correct, the plaintiff has now no standing to enforce it against him.</p> <p>But it seems to me, there is also another equally good reason why this claim should not be enforced. The contract specifically provided that “if dissatisfied all money paid” was “to be refunded.” This of course implied under these conditions a revocation. It is however contended that Moses was to visit the property within sixty days, and as he did not do so his right to rescind it ceased. Conceding for the sake of the argument that a visit as thus specified was essential to the revocation, and this position is by no means clear, yet that stipulation could undoubtedly be waived by the company. “The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration”: Flegal v. Hoover, 156 Pa. 276. As long as the contract is executory the parties may rescind it at any time by mutual consent: Thompson v. Stone, 43 Pa. Superior Ct. 69; Reber v. Brownback, 27 Pa. Superior Ct. 471; Army and Navy Magazine v. Yarner, 34 Montg. 33. In Fleck v. Collins, 28 Pa. Superior Ct. 443, it was said: “The parties had reduced their original contract to writing, but they were free by a new contract; not in writing, either to waive, annul or modify the former agreement, in any manner which involved no invasion of the rights of others.” See also Carrier v. Dilworth, 59 Pa. 406; McNish v. Reynolds, 95 Pa. 483; Green v. Paul, 155 Pa. 126; Dreifus v. Columbian Exposition Salvage Co., 194 Pa. 475. Even an agreement to rescind in some cases may be inferred from the acts and declarations of the parties inconsistent with the existence of the original contract and the question of rescission is generally for the jury, but where a letter produced in evidence is plain and direct in its statements, and without ambiguity its construction is for the court: Corcoran v. The Mutual Life Insurance Co. of New York, 179 Pa. 132.</p> <p>It is conceded that if Mioses had visited the lots and then had expressed his dissatisfaction the plaintiff’s cause of action would be gone. The important inquiry that arises is therefore what he actually did. Within the proper time he went to his friend in Philadelphia, and had a letter written to the plaintiff company to the effect that he was dissatisfied; “without that”; that is, without making the visit. He stated that he would visit the lots if it was insisted upon, but that he was not well and would prefer not to make the trip. The prompt answer of the plaintiff was that their agent would call to see him in a few days, and adjust the matter to Mr. Moses’s satisfaction. So far as the evidence discloses the agent did not call, and no demand was made for almost two years thereafter. It seems to me that knowing that Mr. Moses wished to save himself the journey to Brentwood, the letter can only be construed as a concurrence with his wish, and excused him from going to that trouble. He notified the company in proper time that he was dissatisfied and that he did not intend to carry out the contract, and in my judgment the concurrent acts of the parties released him from the agreement, and entitled him to receive back the money he had already paid.</p> <p>For these reasons I am of the opinion that the rule for judgment non obstante veredicto should be made absolute, and judgment is now ordered to be entered in favor of the defendant for the sum of $10 with interest from October 1,1915, making in all $12.10.</p> <p>Rule made absolute.</p> <p>Error assigned was in entering judgment in favor of the defendant non obstante veredicto.</p>

Appeal, No. 144, Oct. T., 1919, by defendant, from judgment of C. P. Blair County, June Term, 1917, No. 232, on verdict for plaintiff in case of Jacob Berman v. Adams Express Company. Assumpsit on contract of shipment. Before Bailey, P. J., of the Twentieth Judicial District, specially presiding.

<p>Criminal law — Pandering—Evidence.</p> <p>In a prosecution for pandering, where there is evidence on the part of the Commonwealth which, if believed, would be sufficient to warrant a conviction, and the case was fairly and fully submitted to the jury, a verdict of guilty will be affirmed.</p>

<p>Criminal law — Disposing of goods to defraud, creditors — Intent —Case for jury.</p> <p>In a prosecution for disposing of property with intent to defraud creditors, the case is for the jury and a verdict of guilty will be sustained, where the evidence showed that shortly before going into bankruptcy the defendant had made large purchases, which were not paid for, and that, immediately prior to his declaration in bankruptcy, he had disposed of his property.</p>

Appeal, No. 230, Oct. T., 1919, by libellant, from decree of C. P. No. 3, Philadelphia County, September Term, 1918, No. 192, refusing a divorce in the case of Edward J. Stoeser v. Emilie Pauline Stoeser. Libel in divorce. Before McMichael, P. J. The case was referred to Thomas Bidgway, Esq., as master, who recommended that the libel be dismissed. On exceptions to the master’s report the court overruled the exceptions and dismissed the libel. Libellant appealed.

<p>Promissory notes — Solders in due course — Affidavit of defense— Sufficiency.</p> <p>In an action by the. holder in due course of' a promissory note an affidavit of defense is sufficient, which avers that the note formed part of the printed order for toilet articles, which was so cunningly attached to the contract that it could be separated, one part of which with the maker’s name constituting a negotiable instrument, and the other an unsigned order for the goods; and which further avers that the defendant was under the impression that he was merely contracting for the merchandise mentioned in the order.</p> <p>Whether or not it was negligence for tbe maker to sign such a writing is a question of fact for the jury, and if there was no negligence, tbe separation of tbe note from tbe contract was a forgery of tbe writing, as it was executed by tbe defendant, and there was nothing to estop him from alleging and proving it.</p>

<p>Summary conviction — Toluntary appearance — Waiver of de* fects — G ertiorari.</p> <p>A petition for a certiorari, to a mayor sitting as a committing magistrate, will be dismissed, where it appears that the defendant waived the issuance or the service of a warrant by voluntarily attending the mayor’s court, and that the record showed a compliance with all the requirements of law.</p>

Appeal, No. 8, Oct. T., 1918, by libellant, from decree of C. P. No. 5, of Phila. County, Sept. T., 1917, No. 76, dismissing libel in divorce in the case of John Francis Maher v. Emmy Himmelbach Maher. Libel in divorce. Before Staake, J. The case was referred to David Phillips, Esq., as master, who recommended that the libel be dismissed. On exceptions to the master’s report the court overruled the exceptions and dismissed the libel. LibeL lant appealed.

<p>Divorce — Desertion—Separation by consent.</p> <p>Desertion is an actual abandonment of the marital cohabitation, with an intent to desert, wilfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other. The guilty intent to desert is rebutted where the separation is encouraged by the other party or by mutual consent. Until one or the other party destroys the prior ¡status and revokes the consent by making a bona fide offer to resume marital relations which offer is refused, the separation must be regarded as consentable.</p> <p>In an action for divorce on the ground of desertion where it appeared that the parties had been living with libellant’^ mother, and that respondent had been forced to leave the house by his mother-in-law with the libellant’s consent; that he had afterwards made numerous requests to the libellant to come and live with him, which she had refused, the respondent cannot be deemed •guilty of desertion and a decree granting a divorce will be reversed.</p>

<p>Appeal, No. 201, Oct. T., 1919, by defendant, from judgment of C. P. Schuylkill County, May T., 1918, No. 124, on verdict for plaintiff in case of Lillian Campbell, Administratrix of the Estate of Charles F. Campbell, deceased, v. Great Eastern Casualty Company.</p> <p>Assumpsit on a policy of insurance. Before Berger, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict for plaintiff for $807.25. Defendant appealed.</p> <p>The court below filed the following opinion:</p> <p>In this action brought by Lillian Campbell administratrix of the estate of Charles F. Campbell, against the Great Eastern Casualty Company, upon a policy insuring her husband against accident, she recovered seven hundred and fifty dollars, the full amount of the policy, on account of the accidental death of the insured while he was at work for his employer, the Eastern Pennsylvania Light, Heat & Power Company, on December 1, 1917. The defendant has filed a motion for a new trial, and for judgment n. o. v. We will consider these motions in the order stated.</p> <p>The first eleven paragraphs of the plaintiff’s statement were not denied by the defendant, and made out a prima facie case upon which the plaintiff relied at the trial. To meet this, the defense sought to establish, (1) that the policy was void for a breach of warranty respecting the occupation of the insured at the time of its issue; (2) that the work in which the insured was engaged at the time of his death, was in an occupation which was not insurable by the company, and plaintiff therefore could not recover; (3) that the work in which the insured was engaged at the time of his death was more hazardous than the occupation given by him when he was insured, and the defendant was therefore but proportionately liable, or for one-fifth of the amount of the policy, as determined by the classification of the occupation in which he met his death.</p> <p>The fifth and sixth paragraphs of the plaintiff’s statement aver that the policy of insurance was in full force and effect at the time of the accidental death of the insured. In view of this admission, in our opinion, the court was fully justified in stating to the jury in its charge that the question whether the policy was void on the ground that the occupation of the insured had been misrepresented when he obtained it, did not arise. In fact, the defendant does not now urge this instruction as a reason for a new trial.</p> <p>When the case attached for trial the plaintiff’s statement was not in the files, so that a careful comparison between it and the affidavit of defense was not made by the trial judge, on account of the hurry of the trial, until after the evidence had been closed. The defenses above referred to were stated orally to the court by defendant’s counsel, as arising out of the pleadings, and his statement was not challenged by counsel for the plaintiff, nor were any of the objections made by plaintiff’s counsel to the admission of testimony, supported by specifically directing attention to the only defense or defenses, set forth in the affidavit of defense. Counsel for the plaintiff did object, however, to the admission of the classification manual of the insurance company, adopted May 1, 1916, which was offered for the purpose of showing that the insured was engaged at the time of his death in an uninsurable occupation, and if not in such an occupation, then in an occupation the hazard of which was so great, compared with the one in which he was insured, as to require the payment of but one-fifth of the face of the policy, with its accumulations, on the ground that the manual did not tend to prove anything at issue in the case, and that it was not admissible for any purpose, because it was not in force when the policy of insurance was issued: see pages 32, 33, 34, 35 and 36 of the testimony.</p> <p>When the points were presented and argued the court called the attention of counsel for the defendant to the fact, that, in its opinion, the question of proportionate liability was not raised by the affidavit of defense, and that the only question for submission to the jury, under the pleadings, was whether the plaintiff was entitled to the full amount of the policy, or was precluded from recovering anything, because the insured was engaged in an uninsurable occupation when he was killed. No application to amend the pleadings was made then or since, and the jury was charged as above stated.</p> <p>Counsel contends, in support of the motion for a new trial, that the defendant was injured by the withdrawal of the question of proportionate liability from the jury, because in support of that defense evidence had been admitted, and also because the defense of proportionate liability is claimed to be set forth in the affidavit of defense. It seems quite clear that if the trial judge discovered error in his ruling admitting evidence offered by the defendant, that he was not required to submit the irrelevant testimony to the jury. The affidavit of defense does not set forth the defense of proportionate liability. The averment of the defendant in his affidavit of defense, that in an effort to effect an amicable adjustment, it paid the plaintiff one hundred and fifty dollars, before suit was brought, and that the said sum was accepted by the plaintiff, does not, taken in connection with the other averments of the affidavit of defense in respect to the conditions of the policy, raise or even suggest the defense of proportionate liability.</p> <p>In construing a rule of court in Westmoreland County in Whitehead v. School Dist., 145 Pa. 418, 428, which provided that when the plaintiff filed a specification of his claim under oath, the averments not denied by the affidavit of defense should be taken as admitted at the trial, Clark, J., said: “Under the rules of practice referred to, they constitute, as it were, part of the pleadings, their object being to reduce the contest at the trial to the points actually in dispute: Bair v. Hubartt, 139 Pa. 96; and the court should take notice of these admissions as disclosed by the record, and confine the contest to the matters in issue. As we said in Neely v. Bair, 144 Pa. 250: ‘The object of this and similar rules of court, obviously, is to dispense with the formal proof, on trial, of all such facts and circumstances, material to the plaintiff’s case, as the defendant shall be required to deny under oath, which facts, if not so denied as required by the rule, shall, for the purposes of the trial, be taken as admitted. A proper system of practice under such rules, greatly facilitates and expedites the trial of causes, and often relieves the jury from consideration of a heterogeneous mass of testimony bearing upon facts which the defendant cannot deny, but which the plaintiff would otherwise be required to establish by formal proof. The controversy is thus narrowed down to such items of claim and material matters of fact as are really disputed. In such cases, it is the province of the court to examine the respective affidavits, and thus ascertain what items of claim, and averments of fact in support thereof, are not denied by the defendant, and then confine the testimony to such items of claim and material averments of fact as are denied.” See also Jacoby v. Insurance Co., 10 Pa. Superior Ct. 171, 178; Easton Power Co. v. Ry. Supply Co., 22 Pa. Superior Ct. 538, 543.</p> <p>From this it appears to be clear that the court should not, on general principles, submit anything to the jury for its determination when it is not in issue, but “Practice Act, nineteen fifteen” plainly so provides in section 16, as follows: “Section 16. Neither party shall be permitted at the trial, to make any defense which is not set forth in the affidavit of defense, or plaintiff’s reply, as the case may be, except as provided in sections seven and thirteen.”</p> <p>The defense of proportionate liability, if in issue by the pleadings, rests entirely upon the classification manual of the defendant company, adopted May 1, 1916. The classification in the manual adopted May 1, 1916, relied upon by the defense, is that by which an “Electrician, transformer work” is placed in Class X, which pays, with full accumulations, one hundred and fifty dollars. Although the classification manual was offered generally by the defendant, attention was not directed to two other classifications which the jury would have been warranted in finding from the evidence, that the insured was engaged in when he met his death, and each of which paid more than one hundred and fifty dollars, with accumulations. The classifications referred to are “electrician, foreman, superintending only, outside, not climbing poles” and “electrician, outside work, not climbing poles.”</p> <p>The policy was issued July 8, 1910. The manuals in force then were adopted January 1, 1908, and October 1, 1909. The relevant provision in the contract of insurance is as follows: “15. I understand and agree, (1) that if I contract illness or am injured, fatally or otherwise, after having changed my occupation to one classified by the company as more hazardous than that herein stated, or if I am injured while doing any act or thing pertaining to any occupation so classified, the liability of the company shall be only for such proportion of the principal sum or other indemnity as the premium paid by me will purchase at the rates fixed by this company for such more hazardous occupation.” This is clearly a reference to the classification manual of the company, and in no other way are any of the classifications contained in said manual referred to, and none of the said classifications are made a part of the application for the policy.</p> <p>We are, therefore, of the opinion that the classification manuals of the defendant company, if relevant at all, are the manuals adopted January 1, 1908, or October 1, 1909: Morse v. Fraternal Acc. Assn. of America, 77 N. E. 491, 492. But the question of the relevancy of the classification manuals, must be decided against the contention of the defendant, and we hold that none of the said manuals were relevant for any purpose under the evidence in this case, even though the defense of proportionate liability had been set forth in the affidavit of defense, because none of the provisions of the said manuals were contained in the application for the insurance: Mowry v. National Protective Society, Appellant, 27 Pa. Superior Ct. 390, 396; Bayard, Adm., v. Continental Casualty Co., 60 P. L. J. 181, 182. This disposes of all the questions raised by the reasons assigned for a new trial, so that specific reference to each of said reasons is unnecessary.</p> <p>The motion for judgment n. o. v. is based on the refusal of the court to affirm the point of the defendant asking for the direction of a verdict in its favor. The contention of the defense in support of this motion is that the check or checks mailed by it to the plaintiff, without her authority, constitute payment, because she did not return the said checks, and that the said alleged payment is for the largest sum which the jury could have awarded the defendant under the evidence, notwithstanding the admission that the said checks were not presented by the plaintiff for payment, and that the defendant was notified of her refusal to accept them. These checks, unless paid upon presentation by the plaintiff, were not payment: Leas, Appellant, v. Hafer, 39 Pa. Superior Ct. 160, 162. There is no merit in the defendant’s motion for judgment n. o. v.</p> <p>For the reasons stated the motions for a new trial and the motion for judgment n. o. v. must be overruled, and the rules to show cause heretofore granted, discharged'.</p> <p>Errors assigned were the charge of the court, refusal of defendant’s motions for a new trial and for judgment non obstante veredicto.</p>

<p>Appeal, No. 30, April T., 1920, by defendant, from judgment of Q. S. Beaver County, March Sess., 1919, No. 34, on verdict of guilty in the case of Commonwealth v. A. L. McDonald.</p> <p>Indictment for leasing a house for immoral purposes. Before Baldwin, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were the charge of the court and the refusal to direct a verdict in favor of the defendant.</p>

<p>Appeal, No. 50, April T., 1920, by defendant, from judgment of Q. S. Indiana County, March Sessions, 1919, No. 61, on verdict of guilty in the case of Commonwealth v. Davis A. Palmer.</p> <p>Indictment for assaulting an officer in the discharge of his duty, and assault and battery. Before Langham, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict of guilty on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and refusal to grant a new trial.</p>

<p>Appeal, No. 40, April T., 1920, by defendant, from judgment of Q. S. Allegheny County, May Sessions, 1919, No. 15, on verdict of guilty in case of Commonwealth v. Albert J. Wibner.</p> <p>Indictment under Act of July 11, 1917, P. L. 773, for failure to support illegitimate child. Before Haymaker, J.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned, among others, was the charge of the court, refusal to quash the indictment and to give binding instructions for the defendant.</p>

<p>Appeals, Nos. 153 and 154, Oct. T., 1919, by defendant, from judgment of C. P. No.. 1, Phila. County, Sept. T., 1917, No. 420, in the case of Sarah Prettyman, by her father and next friend, George W. Prettyman and George W. Prettyman, in his own right, v. Trenton Transportation Company.</p> <p>Trespass for personal injuries. Before Shoemaker, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff, Sarah Prettyman, for $1,000 and for plaintiff George W. Prettyman, in his own right, for $525, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 249, Oct. T., 1918, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1918, No. 235, refusing to strike off nonsuit in the case of W. L. Kramer v. John Slattery.</p> <p>Assumpsit for the value of culm or coal dirt. Before Koch, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court entered a compulsory nonsuit, which it subsequently refused to strike off. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and the order of the court.</p>

<p>Criminal law — Larceny—Question for jury — Remarks of counsel —Discretion of court.</p> <p>1. In a prosecution for the larceny of $8,500 from the possession of a private hanker, the ease is for the jury and a verdict of guilty will he sustained, where the issue raised was sharply defined and depended upon the credibility of the witnesses and the case was fairly and adequately submitted by the court.</p> <p>2. A charge of the court must be considered as a whole, and, where such charge fairly and adequately submits the defendant’s case, isolated portions of it will not be considered as grounds for reversible error.</p> <p>3. Remarks of counsel for the prosecution, which are not excepted to during the trial, or which cannot be supposed to have prejudicially affected the .defendant, are not sufficient grounds for setting aside a verdict.</p>

<p>Trespass — Damages for improper levy and sale — Act of March 28, 1905, P. L. 62, (Bulk Sales Act) — Notice—Nonsuit—Question for fury.</p> <p>In an action of trespass to recover damages sustained by the plaintiff in consequence of an improper levy and sheriff’s sale of his goods, the defense was that the plaintiff, a purchaser of certain goods in hulk, had not complied with the provisions of the Act of March 28, 1905, P. L. 62, (Bulk Sales Act) in giving notice to the defendant who was one of the creditors of the original vendor. No evidence was produced to show that the defendant was a creditor at the time of the sale or that any of the other creditors were complaining. Under such circumstances the case was for the jury and the entry of judgment of nonsuit constituted reversible error.</p> <p>The fact that other creditors had not received notice did not avail the defendant, if they afterwards confirmed the sale by accepting the amounts due them, and the defendant would not be relieved from liability by the omission of the plaintiff to give such notice to creditors, who were not then complaining.</p> <p>The intentional and wilful omission of the name of one of his creditors by one who sells his property in bulk, in answer to the purchaser’s inquiry for a list of his creditors, will render the seller liable for the penalties provided in the second section of the Act of March 28, 1905, P. L. 62, but such conduct will not subject the merchandise purchased to execution process, at the instance of an undisclosed creditor.</p>

<p>Criminal law — Forcible entry and detainer — Possession—Title —Evidence.</p> <p>In the trial of an indictment for forcible entry and detainer the title to the premises is not involved. It is requisite that the person claiming possession should be in actual and peaceable possession, and where this occupancy has continued for a considerable length of time, it is ordinarily a fact susceptible of easy proof. It is this possession which the law protects against acts of violence.</p> <p>Where a prosecutor and his family were quietly possessed of the premises and the defendant with violence and a strong hand broke and entered the premises, or with threats or such show of strength as was calculated to intimidate the occupants of the house, and forcibly took possession thereof, a verdict of guilty will he sustained.</p> <p>Evidence — Constructive delivery — Charge of court — Reversible error.</p> <p>The mere delivery of a key to the rear door of a house, during the course of negotiations for the exchange of real estate, is not such a constructive delivery as would give the legal title to the property against the party having actual possession. Under such circumstances, it was error for the court to instruct the jury that such delivery of the key was a delivery of possession and that the defendant was justified in entering by force, and a verdict of not guilty will be reversed.</p>

<p>Appeal, No. 165, Oct. T., 1919, by plaintiff, from order of C. P. Centre County, February T., 1919, No. 69, making absolute rule to strike off judgment in the case of Rothfuss Garage Co., Inc., v. Joseph Diehl.</p> <p>Petition to strike off judgment of a justice of the peace. Before Quigley, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute the rule to strike off judgment. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Replevin — Answer—Averments of title — Sufficiency.</p> <p>In an action of replevin to recover possession of an automobile truck the plaintiff claimed under a lease duly assigned by the original vendor. The answer of the defendant denied the ownership of the plaintiff and averred that the defendant held under a lease from the original owner, similar to the lease of the plaintiff, and that the said owner was in possession of the truck at the time the lease was made. Under such circumstances, the case was for the jury, and it was not error for the court to refuse judgment for want of a sufficient affidavit of defense.</p>

<p>Replevin — Automobiles—Sale or lease — Fraud — Question for fury.</p> <p>In an action to recover possession of an automobile, under the provisions of a bailment lease, the defense was that the transaction was a sale and not a bailment and that the defendant signed the lease through the misrepresentations of the plaintiff. Under such circumstances the case was for the jury, as to the question of fraud and a verdict for the plaintiff will be sustained.</p> <p>The fact that the original intention of the parties was to make a sale, and that such was the legal effect of their first agreement did not prevent a change, while it was still executory, into a bailment with an alternative of future conversion into a sale, on the compliance of stipulated conditions.</p> <p>Contracts — Sales—Alternative of written instrument — Evidence.</p> <p>Where parties without fraud or mistake have put their engagements in writing, the law declares the writing not only the best but the only evidence of the agreement. While parol evidence is admissible to prove fraud and mistake, it is - insufficient for the purpose unless clear, precise and indubitable. Testimony in contradiction of a written agreement amounts to nothing unless it is sufficient to warrant a chancellor in reforming it.</p> <p>Replevin — Breach of warranty — Evidence.</p> <p>In an action of replevin the issue is confined strictly to the ownership of the article replevied and evidence of a breach of warranty is not admissible.</p>

<p>Contracts — Building contracts — Performance to satisfaction of owner — Substantial compliance.</p> <p>Where a party to a building contract has acted honestly with intent to fulfil his agreement and has fulfilled it substantially, but has failed in some comparatively slight particulars, the other party cannot hold and enjoy the fruits of his labor without paying a fair compensation according to the contract, receiving credit for whatever loss or damage he has suffered, by reason of the failure to comply with the strict terms of the agreement.</p> <p>Mechanics’ liens — Act of June 1, 1901, P. L. ¡$1, section 86— Minor defects as a defense.</p> <p>Under the provisions of section 36 of the Act of June 4, 1901, P. L. 431, which provides that “minor defects or a failure to complete in minor particulars shall operate as a defense only to the extent necessary to repair or complete the work,” a defendant, in the trial of a scire facias sur mechanics’ lien, filed for the recovery of the balance due on a building contract, cannot escape entire payment by alleging minor defects in the construction of the building. He must pay in accordance with the terms of the contract, receiving credit for the loss occasioned by the defects.</p>

<p>Appeal, No. 102, Oct. T., 1919, by respondent, from decree of Municipal Court of Philadelphia, April T., 1915, No. 167, on writ of habeas corpus in the case of Commonwealth of Pennsylvania ex rel., Ellen Henrietta Hawk v. Philip Bovier Hawk.</p> <p>Habeas corpus for the custody of children. Before Brown, P. J.</p> <p>The court entered the following decree:</p> <p>This cause originally came before the court in a petition for writ of habeas corpus, issued on the twenty-first'day of April, 1915, wherein it is set forth by their mother and next friend, Ellen Henrietta Hawk, that Philip Bovier Hawk, Jr., aged seven years, and Ellen Minnie Hawk, aged nine years, her two children, were deprived of their liberty unjustly, as they apprehended, by their father, Philip Bovier Hawk, Sr.</p> <p>The cause was subsequently continued on the date set for the hearing by agreement of counsel, and at the request of counsel, times were fixed when the children should see their mother. The court delegated one of its probation officers to conduct the said children from the father to their mother, and return, upon the times agreed upon by counsel, which was altered from time to time at the request of the counsel or at the suggestion of the court. The court has intimate knowledge of these children, through its probation officer, and their investigation, and was desirous of concluding the cause for the interest of the children; which was delayed by' the protracted proceeding in divorce, when finally counsel, representing both parties in the proceeding offered to the court an agreement as to the care and custody of the children on the sixth day of December, 1918. This court feels, however, that it cannot avoid its responsibility for the welfare of the children, since its attention has been so closely directed to the cause, that leads it to a contrary belief. It is the firm belief of the court that the welfare of these children would be conserved if they were left a longer period with each of their respective parents, and particularly so, when involved is the custody of a girl approaching so near a time in her life, when she needs the maternal care and guidance of a mother, and to that extent the agreement that counsel presents differs with the duty that the court feels devolves upon it, in the decision of a cause of so much moment in the future of the children.</p> <p>It is, therefore, ordered and decreed, that Ellen Minnie Hawk be remanded to the custody of her mother, with the right of the father to have custody of her one-third of the vacation periods during the year, and he shall have the right to the custody of his daughter, Ellen Minnie Hawk, one Saturday of each month, excepting the Saturdays when his daughter is placed in the custody of the mother of the child during the vacation period above alluded to; and that he shall pay for the support and education, of his daughter to Ellen Henrietta Hawk, the sum of ten dollars ($10) per week ¡during the time that she is in the custody of her mother. This especially means the longer period of the summer vacation during the one-third period that he shall have possession of his daughter.</p> <p>That Philip Bovier Hawk, Jr., shall be remanded to the custody of his father, with the right of the mother to have custody of him one-third of the vacation periods during the year, and she shall have the right to the custody of her son, Philip Bovier Hawk, Jr., one Saturday of each month, excepting the Saturdays when her son is placed in the custody of the father of the child during the vacation period above alluded to, and during the vacation period that Philip Bovier Hawk, Jr., shall be with his mother, the father shall pay the sum of ten dollars ($10) per week for his maintenance to Ellen Henrietta Hawk, his mother.</p> <p>It is the intent of the court that during the Saturday on which either of the parents shall have the child so awarded in the above decree, that the Saturday selected by the parents for the custody of the boy or the girl in each month shall be the Saturday when both children shall be with the one parent in order that the children may have the advantage and benefit of an acquaintance with each other. This period of Saturday is selected, in order that the education of the children may not be neglected during the week day, or that the religious education of the children may not be neglected on the Sabbath day.</p> <p>The writ in this case is to stand open for the further order of the court.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Building contracts — Performance to satisfaction of owner — Failure to perform.</p> <p>In an action on a note given in payment for the amount due for the reconstruction of two houses, the defense was that the work had not been done in accordance with the contract and that the consideration therefor had failed. In such case it was not error for the court to charge that if the defendant’s dissatisfaction of the plaintiffs’ work was in good faith and was genuine as distinguished from mere capriciousness or dishonesty the verdict should be for the defendant; but if, on the other hand, the objection was not in good faith or sincere, but was merely capricious and not found in truth the verdict should be for the plaintiffs.</p> <p>Contracts — Optional remedies — Bonds to secure contract — Admissibility — Evidence.</p> <p>The fact that a bond had been given to secure the performance of a building contract is not admissible in evidence in a suit on a note given in payment for services rendered under the contract. It was not a matter affecting the defendant’s right, to introduce the defense disclosed by the evidence, whether there was some other remedy to which he might have resorted and which he had not used. The defendant was entirely within his rights in presenting a defense of a total or partial failure of the consideration for the note, and that right was not affected by the fact that he also took the precaution to secure himself by a bond against the default, with which he charged' the plaintiffs.</p>

Appeal, No. 212, Oct. T., 1919, by defendants, from judgment of C. P. No. 2, Phila. County, June T., 1916, No. 493, on verdict for plaintiff in the case of Samuel Crown and Max Crown, trading as the Crown Printing Company, v. Charles Beck, Charles J. Beck, A. S. Beck, H. P. Beck, Leonidas Beck and Andrew Simon, trading as Charles Beck Company. Assumpsit for breach of contract. Before Wessel, J. The facts are stated in the opinion of the Superior Court.

<p>Accord and satisfaction — Payment—Tender—Conditional acceptance.</p> <p>In an action to recover the balance due on a book account evidence was produced to show that the defendant had sent a cheek for an amount less than that claimed by the plaintiffs, on which was endorsed the statement that it was to be in full payment of the account. The check was returned by the plaintiffs in a letter refusing acceptance on the ground that it did not provide for the full amount of the claim. Later the check was again returned to the .plaintiff by the defendant. Under such circumstances the lower court did not err in holding that the check was received in part payment only, and in awarding judgment in favor of the plaintiff for the balance due on the account.</p> <p>Sales — Delivery—Refusal to accept because of delay — Failure to notify vendor within reasonable time.</p> <p>Where goods are received by a consignee, and the defendant four months afterwards notifies the consignor that he did not accept the goods because they were not delivered in time, a verdict is properly rendered in favor of the plaintiff because of the defendant’s failure to notify the plaintiff within a reasonable time of its intention to refuse to accept the goods.</p>

<p>Trespass — Asscmlt and battery — False arrest — Hotels — Ejectment from — Case for jury.</p> <p>In an action to recover damages for assault and battery and for false arrest and imprisonment against a private policeman' of a hotel company, the case is for the jury and a verdict for the plaintiff will be sustained where the evidence, if believed, established the fact that the employee of the hotel used excessive force in making an arrest, called the defendant abusive names and acted in an unnecessarily rough manner in ejecting him from the hotel. Under sucb circumstances, it was error to enter judgment for tbe defendant non obstante veredicto.</p> <p>Malicious prosecution — Verdict of guilty in criminal proceedings ■ — Prima facie evidence of probable cause.</p> <p>In an action for damages for false arrest, tbe general rule is that a conviction in tbe criminal proceedings is conclusive proof of probable cause, unless procured by false or fraudulent testimony or other unlawful means. Such a conviction is therefore open to inquiry as to the means by which it was brought about, and it may be rebutted by proving that it was obtained illegally.</p> <p>Where one enters a hotel open for the entertainment of the public the proprietor is bound to see that he is properly protected from the assaults or insults of those who are in the proprietor’s service and this is particularly true if the condition of the person so assaulted is brought about by the sale of liquor by the hotel.</p>

<p>Appeal, No. 97, Oct. T., 1919, by defendant, from the judgment of Municipal Court of Philadelphia, Sept. T., 1918, No. 580, in favor of plaintiff for want of an answer in the case of Mary O’Hara v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on insurance policy. Before Bonniwell, J.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court. ’</p> <p>The court discharged the rule.</p> <p>Error assigned, was the order of the court.</p>

<p>Real estate — Brokers—Settlement—Loss of sale.</p> <p>In an action against a real ■ estate broker to recover damages, arising out of a failure to obtain a conveyance to real estate, where it is alleged that the broker failed to attend the meeting of the parties at the time fixed for settlement and delivery of the deed, judgment for the plaintiff will be reversed where the evidence phows that the grantors, on the day in question, were not in a position to convey a title free and clear of encumbrance. If at the only time the grantors were ready to tender a conveyance of the property, the title to the lot was still encumbered, they were not in a situation where they could allege performance, in which case it could not be successfully contended that the defendant was in default.</p>

<p>Appeal, No. 23, Oct. T., 1919, by plaintiff, from judgment of C. P. No. 2, Phila. County, Sept. T., 1917, No. 500, on verdict for defendant in the case of J. W. Truitt, trading as J. W. Truitt & Company, v. Guenther Lumber Company, a Corporation.</p> <p>Assumpsit for goods sold and delivered. Before Wessel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for defendant for $860.88 and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were refusal of plaintiff’s request for binding instructions and for judgment non obstante veredicto, and the charge of the court.</p>

<p>Appeals, Nos. 35 and 36, Oct. T., 1919, by defendant, from judgment of C. P. No. 2, Phila. County, Sept. T., 1916, No. 4391, on verdict for plaintiffs in tbe case of James Malloy, by his nest friend and father, John Malloy, and John Malloy, in his own right, v. Richard J. Steiner.</p> <p>Trespass for personal injuries. Before Wessel, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff, James Malloy for $1,500.and for the plaintiff, John Malloy, for $250 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment in favor of defendant non obstante veredicto.</p>

<p>Appeal, No. 257, Oct. T., 1918, by plaintiff, from judgment of C. P. Chester County, Oct. T., 1918, No. 22, on verdict for defendant in the case of F. A. North Company v. Walter Vanleer and Lillie Vanleer.</p> <p>Replevin to recover the possession of a piano. Before Butler, P. J.</p> <p>The facts are stated in the following opinion of the court below discharging rule for judgment non obstante veredicto:</p> <p>In July of 1918, Walter Vanleer had completely forfeited his right to the piano in suit through breach of •the condition in his lease as to nonremoval of the piano, and failure to pay installments of rent. In this situation, in July, 1918, George Boyd, general manager of plaintiff company, in this district, with authority, as he says, to make contracts under some circumstances, agreed with Lillie Yanleer, as the jury have found, that the piano should stay with her if she would promptly pay $5, and thereafter make payments of the remaining installments of rent. This installment of $5, she promptly paid to Boyd, he giving her a receipt'that makes no reference to Walter Vanleer or his contract — and subsequently showed her readiness to make the other payments, in all respects living up to the agreement which the jury found Boyd made with her and pursuant to which she, through Boyd, paid the company $5. While we believe that general manager Boyd, under all the evidence, manifestly had authority of sufficient scope to cover the contract here proved, we are entirely clear that plaintiff cannot question his authority to make the contract under consideration. Under the jury’s finding he received for his principal $5 of Lillie Yanleer’s money, which with other payments she properly tendered, he had agreed should clear the piano, would allow it to remain with her. Plaintiff could not thus become the owner of the $5, enjoy the fruits of its agent’s contract and at the same time repudiate the contract as ultra vires. If he, Boyd, exceeded his authority, if he failed to report to the plaintiffs the agreement found by the, jury, and thus allowed the plaintiffs to suppose that the $5 was paid by Walter Vanleer under his lease, it was their agent that misled them and no fault of Lillie Van-leer. “It is repugnant to every sense of justice and fair dealing that a principal shall avail himself of the benefits of an agent’s acts and at the same time repudiate his authority”: Presbyterian Board v. Gilbee, 212 Pa. 310.</p> <p>There was evidence touching the piano’s value. Its price was in evidence, and in answer to her counsel’s question Mrs. Vanleer, without objection, testified that it was worth $175.</p> <p>The rule for judgment is dismissed.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Automobiles—Sired automobile — Case for fury.</p> <p>Iu an action to recover damages for personal injuries, sustained by reason of the collision of a trolley car and an automobile owned and operated by the defendant, in which the plaintiff was passenger, the case is for the jury and a verdict for the plaintiff will be sustained where the issue is purely one of fact and the evidence, if believed, would be sufficient to warrant the jury in rendering a verdict in favor of the plaintiff.</p>

<p>Appeal, No. 155, Oct. T., 1919, by defendant, from judgment of C. P. Monroe County, Sept. T., 1916, No. 20, in favor of plaintiff for want of a sufficient affidavit of defense, in the case of E. A. Bell Company, a corporation, v. Monroe Hotel Company, a corporation.</p> <p>Assumpsit for insurance premiums. Before Shull, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court’.</p>

<p>Municipalities — Streets—Second'paving—Assessments—Affidavit of defense.</p> <p>In an action to collect assessments for street paving, an affidavit of defense is sufficient which alleges, substantially, that the street in question had been formerly paved by the city with a view to making it a permanent improved city street; that the work so done by the city consisted primarily of grading the roadway, by macadamizing the same, first, by putting large stones on the bottom and smaller stones thereon, and then a top dressing.</p> <p>It is not the obligation of a defendant, in filing an affidavit of defense to set forth the evidence by which he expects to prove the facts averred, to the end that the court may, in limine, determine questions as to the competency of witnesses or the admissibility and sufficiency of the evidence to be produced. Nor is it necessary that he should aver, in any particular set form of words, the essential facts which constitute his defense.</p>

<p>Judgment — Judgment notes — Entry of judgment — Maher—Endorser — Separate judgments — Act of 1806.</p> <p>A judgment by confession can only be sustained by a warrant authorizing it at the time and in the manner and form in which it was entered. The prothonotary entering the.judgment does not act as an officer of the court; his hand is not that of the court entering upon record a judgment duly pronounced by the law. He derives his authority solely from the Act of 1806. To exercise the power conferred by that statute he must obey its mandatory directions, otherwise he remains a mere volunteer and his action is without legal effect.</p> <p>A joint judgment cannot be entered against an endorser and maker on two separate judgments.</p> <p>Where a judgment note has been endorsed and the endorser has executed a warrant of attorney to confess judgment on the back of the note, the endorser is not liable for the same unless the note is unpaid by the maker at maturity, and it was error for the prothonotary to enter a joint judgment against a maker and endorser on the authority of the note, and in so doing he did not execute the warrant of attorney to confess judgment given by the endorser. The proper procedure, under such circumstances, was to enter a judgment against the maker, and if the note remained unpaid at maturity to enter a separate judgment against the endorser on the warrant contained in his endorsement.</p>

<p>Appeal, No. 208, Oct. T., 1919, by defendant, from judgment of C. P. No. 5, Phila. County, March T., 1919, No. 2396, dismissing appeal from the award of the Workmen’s Compensation Board in the case of James Spizzirri v. Ray Krouse, trading as the Krouse Motor Car Company.</p> <p>Appeal from order of Workmen’s Compensation Board. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court affirmed the order of the Workmen’s Compensation Board, awarding the claimant compensation. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 16, Oct. T., 1919, by defendant, from judgment of C. P. Blair County, March T., 1918, No. 55, in favor of plaintiff for want of a sufficient affidavit of defense in the case of Altoona City v. John A. Laughlin.</p> <p>Sci. fa. sur municipal lien. Before Baldrige, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear in the following opinion of the court below making absolute rule for judgment for want of a sufficient affidavit of defense:</p> <p>The plaintiff municipality enacted an ordinance numbered 281; signed by the mayor on February 19, 1916, which provided for the paving of First avenue between Second and Kettle streets. The cost's and expenses were to be assessed and collected from the owners of the real estate bounding and abutting thereon, according to the “fqot-front rule.” The work was done and the defendant was assessed for his share thereof, which he refused t'o pay; whereupon a municipal lien was filed.</p> <p>The affidavit of defense filed alleges the unconstitutionality of the act of assembly authorizing cities to pave the streets. The ordinance was enacted under the Act of June 27, 1913, article Y, section 3, clause 10, P. L. 582, which provides for the grading and paving of public streets, etc., and stipulates that payment therefor shall be in whole or part by the city or by the owners of real estate bounding and abutting thereon according to the foot-front rule. The expense of making local improvements, such as grading and paving the streets and sidewalks, the construction of drains, sewers, etc., is generally made in whole or in part by local assessment authorized to be made on the persons or property bene-fited or attempted to be benefited. The courts of this State have given effect to the principle that local assessments are not only constitutional, but as Mr. Justice Sharswood, in Hammett v. Phila., 65 Pa. 146, said almost fifty years ago1, “No system 'of taxation which the wit of man ever devised has been found perfectly equal, perhaps no fairer rule can be adopted than the proportion of the foot-front rule.</p> <p>If there was any doubt whatever as to the constitutionality of the legislation adopting the “foot-front- rule” it was finally removed by our Supreme Court in the case of Harrisburg v. McPherran, 200 Pa. 343, affirming the exhaustive opinion of Judge Simonton, and the excellent opinion of Judge .Rice, as reported in 14 Pa. Superior Ct. 473.</p> <p>The defendant contends that' the plaintiff was without authority to include, in the assessment charges for the crossings and intersecting,^streets. v,. He cites no authorities, nor do we find any to sustain the position that the intersecting streets could not be included in the-total amount of the assessment. The city has the power-t'o pave the streets and to charge lot owners therefor. The power to pave the streets includes also the street crossings and the intersections: Dillon, Fifth Edition, Municipal Corporations, 1146, note. “The cost of paving an intersection cannot be assessed against the street that intersects the one that is being paved on the theory of special benefit to adjoining property; but the cost of paving such intersection may be included in the assessment of property abutting the street that is being improved” : 28 C. Y. C. 1110. The city had the right, and it was its purpose, as clearly expressed in the ordinance, to make the abutting owners pay all the expenses incident to the improvement.</p> <p>The defendant complains further that the lien is defective in that no ordinance, or copy of ordinance, was attached to the lien, as required by rules of court. Buie No. 11 provides that “In all actions of assumpsit on bills, notes or bonds, policies of insurance, or other instruments of writing, for the payment of money,...... in all actions of scire facias on judgments, mortgages, liens of mechanics or materialmen, and recognizances, ......no judgment shall be entered unless plaintiff shall have filed with his declaration or statement a copy of the bond, bill, note, or other instrument of writing upon which the claim is founded.”</p> <p>There is no requirement in this rule that a copy of the ordinance shall be filed with the municipal lien. The ordinance passed was required to be recorded by the city clerk in a book provided by the city for that purpose, which is at all times open-to the inspection of the public, and is, therefore, a public record. In addition thereto the lien filed recited that' “a certified copy-of each ordinance is attached to municipal claim . No. 17394, and is also made a part of this present municipal claim.” While the ordinance was not attached to this particular claim it is not required so to be under our rules of court, and the defendant had notice where he could learn the contents thereof amongst the public records.</p> <p>The defendant complains further that special ordinances were passed and became a law in the City of Altoona which appropriated $300,000 for the paving of the avenues, streets and highways, and as the defendant had to pay his portion of the taxes on the city’s appropriation of this expenditure, that it is unfair and inequitable for the city not to pay a portion of the .expenditure required for this improvement, and that he is required to pay a double assessment.</p> <p>This is in no sense a double assessment. In this State the cost of the original paving of the city streets may be assessed against the properties abutting thereon under the theory that it is for their special benefit, but the repaving of such streets is a purely public duty for the advantage of the general public, and the legislature has not power to impose or to authorize a municipality to impose the costs thereof upon abutting properties by special assessment. The money appropriated by the city under the ordinance referred to was no doubt for repairing or repaving of the streets, as the city would have to pay all the expenses in connection with such work. There is nothing in that legislation that makes it conflict with t'he legislation under consideration. The assessment for improvements was made in pursuánce of authority conferred by the Act of 1913. The question as to whether the improvement should be paid for in whole or in part by the owners of the real estate abutting on the streets to be improved is a question which the act left entirely within the discretion of the municipal authorities, and as they have exercised that.authority in a legal mánner' the defendant’ is not in a position to question their action.</p> <p>There is no allegation in the affidavit of defense which denies any of the facts alleged in the plaintiff’s lien; the defendant relying solely upon legal questions which we have decided adversely to him.</p> <p>Now, August 30, 1918, this cause came on to be heard, was argued by counsel, and after due consideration it is hereby ordered, adjudged and decreed that the rule for judgment- for want of sufficient affidavit of defense is hereby made absolute.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 11, Oct. T., 1919, by defendants, from judgment of Municipal Court of Philadelphia, August T., 1916, No. 124, in favor of plaintiff in suit tried by the court without a jury in the care of E. E. Berry v. Simon Caplin, Morris Caplin, Abraham Rubin, Joseph Spector and Samuel Spector, trading as Quaker City Dairy Company.</p> <p>Assumpsit of goods sold and delivered. Before Gorman, J., without a jury.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court found in favor of the plaintiff for the sum of $337.59, and judgment was entered thereon. Defendant appealed.</p> <p>Errors assigned were in refusing defendants’ point for binding instructions and motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 248, Oct. T., 1919, by complainant, from order of the Public Service Commission, Complaint Docket, No. 2311, 1918, in the case of the Slate Belt Electric Street Railway Company v. The Pennsylvania Utilities Company and The Public Service Commission of Pennsylvania on appeal.</p> <p>Complaint against' Pennsylvania Utilities Company on account of schedule of increased rates.</p> <p>The charges in said schedule were alleged to be unjust and unreasonable, both on account of the amount charged and because of the insertion of a “Coal Clause” regulating the rates upon the varying price of coal. The commission dismissed the complaint. Complainant appealed.</p> <p>Error assigned, among others, was the order of t'he commission.</p>

<p>Appeal, No. 180, Oct. T., 1919, by defendant, from judgment of C. P. Northampton County, July T., 1917, No. 105, on verdict for plaintiff in the case of Michael McCabe v. Onofrio Sacchetti.</p> <p>Assumpsit on promissory note. Before Stewart, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $606.66 and judgment thereon. Defendant appealed.</p> <p>At the trial the defendant submitted the following points:</p> <p>1. It is not lawful for a director of a national bank to demand or receive payment for negotiating loans from the bank in which he is a director.</p> <p>2. It is against the policy of the law for a director of a national bank to demand or receive payment for recommending the discounting of notes for customers or borrowers by the bank in which he is a director.</p> <p>3. If the jury shall find from all the evidence in this case that the note in suit was given by the defendant to the plaintiff for bringing about the discounting and renewing of a certain promissory note drawn by the defendant and endorsed by the plaintiff then the plaintiff is not entitled to recover, and the verdict must be for the defendant.</p> <p>i. To entitle the plaintiff to a verdict he must prove by the weight of the evidence that the note in suit was given to him for a valid consideration.</p> <p>5. If the jury shall find that the consideration for the note in suit was the endorsement of defendant’s note and all renewals thereof until such time as the defendant could, at his convenience, pay the same, and that' the plaintiff refused to endorse any such renewal, and suffered the same to be protested, and if the court shall hold that to have been a valid consideration then the plaintiff is not entitled to récover, and the verdict must be for the defendant.</p> <p>6. Under the law and the evidence the verdict must be for the defendant.</p> <p>Errors assigned were the answers to points submitted by the defendant and refusal to reopen the case to permit further cross-examination of the plaintiff.</p>

<p>Negligence — Carriers—Damages—Husband and wife.</p> <p>A common carrier is responsible for medical and hospital aid furnished to a person injured by reason of its negligence, where the aid was furnished and the action brought by a plaintiff under the bona fide impression that he was the true and lawful husband of the injured party, notwithstanding the fact that it was subsequently established, in a criminal proceeding against the wife, that a state of lawful wedlock did not exist.</p> <p>When the plaintiff provided for such care, not as a volunteer, but under a mistake of fact, he should not in equity or good conscience be deprived of the right to be reimbursed.</p> <p>Practice, C. P. — Vacating judgment — Discretion of court.</p> <p>The action of the lower court in refusing to open judgment will be affirmed, where it appears the facts set forth in the petition were considered insufficient to warrant the granting of the request made therein, and the court below was of the opinion that no injustice would be done by the execution of the judgment, and where there has been no abuse of the discretionary power of the court.</p>

Appeal, No. 149, Oct. T., 1919, by defendant, from judgment of C. P. Northampton County, Dec. T., 1917, No. 41, on verdict for plaintiff in the case of Joseph Maiorana v. Onofrio Sacchetti. Appeal from judgment of justice of the peace.

Appeal, No. 241, Oct. T., 1919, from order and decree of O. C. of Delaware County, by Eliza J. Johnston, executrix and sole legatee, in the estate of Nancy Hoy, deceased. Exceptions to auditor’s report. Before Johnson, P. J. From the record it appeared that Eliza J. Johnston, executrix and sole legatee, excepted to the allowance of $800 to the claimant and the allowance of $650 to the auditor as excessive. The court below dismissed the exceptions. Exceptant appealed.

Appeal, No. 242, Oct. T., 1919, by plaintiff from judgment of Municipal Court of Philadelphia, April Term, 1916, No. 278, on verdict for defendant in the case of Joseph Silver v. Morris Tomach. Assumpsit on promissory notes. Before Crane, J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict for defendant and judgment was entered thereon. Plaintiff appealed.

Appeal, No. 173, Oct. T., 1919, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1918, No. 3428, on verdict for plaintiff in the case of Michael McGlinchey v. Clarence Steigerwald. Trespass to recover damages for injuries to automobile. Before Wessel, J. From the record it appeared that the damages sustained occurred by reason of a collision between two automobiles meeting at the intersection of Forty-fourth and Chestnut streets, in the City of Philadelphia.

<p>■ Railroads — Trains—Full crew law — Switching operation — Act of June 19, 1911, P. L. 1058, (Full Grew Law).</p> <p>The provisions of the Full Grew Law do not apply to the movement of thirty-five or more cars, coupled together, over tracks devoted solely to yard purposes, over which no through or local trains pass, and where the movement is made under the direction of a local yardmaster without cabooses, markers or train orders. Such a collection of cars must be regarded as merely a switching movement, and is not a train within the meaning of the act.</p>

<p>Guardian and ward — Guardian’s account filed during minority— Maintenance of minor — Order of court.</p> <p>An account of a guardian, filed during the minority of his ward, is not conclusive upon the ward, even though it goes through the form of settlement, and confirmation. The fact that during his ward’s minority a guardian filed an account in the register’s office, which was afterwards confirmed in the orphans’ court, does not relieve him of the duty of filing a final account upon the arrival of the ward at his majority.</p> <p>An order of court, authorizing the expenditure of certain sums for the maintenance of a ward, does not relieve the guardian from the duty of seeing that the money is spent for the purpose designated. He cannot justify the expenditure by citing the order of the court, when it appears that the maintenance was not furnished.</p>

Appeal, No. 171, Oct. T., 1919, by Commercial Trust Company, guardian of Watson L. Hoch, from the judgment of C. P. Berks County, in the case of Charles Keller v. Commercial Trust Company, guardian of Watson L. Hoch, November Term, 1916, No. 102. Issue framed for trial by jury to determine the liability for maintenance of a weak-minded person. Before Wagner, J. The opinion of the Superior Court states the case.

Appeal, No. 150, Oct. T., 1919, by defendant, from the judgment of Municipal Court of Philadelphia, July Term, 1918, No. 175, in the case of Joseph Kirschbaum v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Crane, J. Tlie facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $250 and judgment thereon. Defendant appealed.

<p>Appeal, No. 152, Oct. T., 1919, by defendant, from judgment of C. P. No. 3, Phila. County, Sept. T., 1918, No. 207, in the case of William F. Taliaferro and Peter V. Sherwood, copartners, trading as Taliaferro & Sherwood, v. Morris Ackerman, trading as Independent Hosiery Mills and Independent Hosiery Company.</p> <p>Assumpsit for breach of warranty under written contract. Before McMichael, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $806.95 and judgment thereon. Defendant appealed.</p> <p>Errors assigned was the charge of the court, answers to points and refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Landlord and tenant — Surrender—Acceptance—Agency of lessor — Affidavit of defense — Sufficiency.</p> <p>In an action to recover rent accruing after the defendants had vacated the premises, an affidavit is sufficient that alleges that the defendants, lessees, through their agent, surrendered possession prior to the time required by the lease, which was accepted by the landlord. A verbal notice of vacation, if accepted, is sufficient and a waiver of written notice may be by parol.</p> <p>Averments in an affidavit of defense must be taken as true and the defendant is not required to set forth the manner in which they will be proved or the evidence in which they will be substantiated.</p>

<p>Appeals, Nos. 48, 49 and 51, Oct. T., 1919, by defendants, from judgment of O. P. No. 3, Phila. County, June T., 1918, Nos. 536, 537 and 538, in the cases of Automobile Finance Company v, Harry T. Rosenheim, John E. O’Brien and-Harry J. Hogg.</p> <p>Assumpsit under written contract for sale of stock. Before Ferguson, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear in the opinion of the Superior Court.</p> <p>The court made absolute the rule. Defendants appealed.</p> <p>Errors assigned were the orders of the court.</p>

<p>Appeal, No. 142, Oct. T., 1919, from judgment of C. P. No. 5, Phila. County, June T., 1917, No. 4416, on verdict for plaintiff in the case of Automobile Finance Company v. William O. Reese, Harry Bolen and Charles O. Woertz.</p> <p>Replevin to recover possession of an automobile. Before Martin, P. J.</p> <p>From the record it appeared that the plaintiff purchased from Gorson’s Automobile Exchange an Overland Touring Car Motor No. 10,224, and, on the same day entered into a bailment lease with the defendant, by which the latter acquired possession of the car upon his undertaking to pay rental in the sum of $525.</p> <p>By the contract the bailee agreed not to dispose of the car, during the continuance of the lease, without the written consent of the lessor, and at the expiration of the lease, return the car to the plaintiff. The defendant paid some installments of the rent, but later defaulted and placed the automobile in the hands of the Keystone Motor Car Company for the purpose of sale. The latter company sold the car to the defendant, Harry Bolen, on June 24, 1917, for the sum of $150. On August 11, 1917, the plaintiff issued a writ of replevin, filing an affidavit that the value of the car was $300, and entering bond for the sum of $600. On August 14, 1917, the defendant, Bolen, filed a counterbond in the sum of $600 and received possession of the car from the sheriff.</p> <p>At the trial the court instructed the jury that it must find for the plaintiff, but submitted to them for determination the damages to which the plaintiff was entitled.</p> <p>The plaintiff submitted a point for binding instruction in its favor for the value of the car as indicated by the counterbond filed by Bolen. This point was declined and the plaintiff excepted.</p> <p>Verdict for plaintiff in the sum of $100 and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was refusal to give binding instructions in favor of the plaintiff for $300 and refusal of plaintiff’s motion for judgment non obstante veredicto.</p>

<p>Sheriff’s sale — Sheriff’s deed — Acknowledgment — Delivery to prothonotary.</p> <p>When, in pursuance of a sheriff’s sale, the sheriff executed a deed and acknowledged the same before the prothonotary, and the prothonotary after holding the deed for two years returned it to the sheriff who properly recorded the same, the latter has done all that is required of him by law and will not be liable to the purchaser, who has rescinded the sale and demanded a repayment of the purchase money.</p> <p>Under the provisions of the Act of April 22, 1905, P. L.. 265, it is the duty of the prothonotary to deliver the deed to the sheriff after the final disposition of any motions or exceptions which might be made to its confirmation. It is not the latter’s duty to inquire whether there is any such motion pending or exception filed. When the record is in proper form, the prothonotary must act, and the sheriff cannot be held liable for the delay of the prothonotary. Nothing more could be required of the sheriff, in the first instance, than the acknowledgment of the deed and the delivery to the prothonotary. Having done what the law required of him, he is not responsible to the plaintiff.</p>

<p>Appeal, No. 164, October Term, 1919, by plaintiff, from judgment of C. P. McKean County, June Term, 1916, No. 144, on verdict for defendant on feigned issue on petition to open judgment in the case of C. B. Kervin v. Thomas Gale, now by substitution Evalena Gale, Administratrix of Thomas Gale, deceased.</p> <p>Feigned issue on petition to open judgment. Before Heck, J., of the Fifty-fifth Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury rendered a verdict for the defendant and judgment was entered thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were (1) the admission of certain depositions; (2) submission to the jury as to whether or not Thomas Kervin was acting as agent for the plaintiff; (4) refusal to grant a new trial.</p>

<p>Practice, Superior Court — Equity—Assignments of error — Insufficient.</p> <p>An appeal from a decree, which follows logically certain facts found and legal conclusions reached by a referee, will be dismissed, where it appears that no exceptions were filed to any such findings and conclusions.</p> <p>Equity practice — Buie 69 — Notice to counsel.</p> <p>Under Rule 69, Equity Rules, when the referee has completed his findings and decree he must give notice to counsel for the respective parties; he is not required, under the rule, to give notice to the clients.</p>

<p>Criminal law — Fornication and bastardy — Presumption of celibacy — Proof that prosecutor and defendant are not married — Sufficiency.</p> <p>In a prosecution for fornication and bastardy, in the absence of any testimony to the contrary, the presumption is that prosecutrix is a single -woman, and until the fact is drawn into actual question no affirmative testimony is required.</p> <p>In such prosecution it is necessary for tbe Commonwealth to produce testimony that the prosecutrix and defendant were not husband and wife, but the testimony may consist in fully disclosing the relations in which the parties stood to each other and the circumstances in which they acted. It is not necessary that the declarations of the witness should be in any specific words, or that they should be asked a direct, formal question as to whether or not a marriage existed. Where the evidence was fully sufficient to warrant the jury in finding that the parties were not husband and wife, the court did not err in overruling a motion in arrest of judgment.</p>

<p>Telephone companies — Eminent domain- — •Damages — Special benefits — Instruction to juries.</p> <p>Advantages to a property resulting from the construction of a telephone, which ought to be considered in connection with the disadvantages, are such as are special to the property affected, and give it an increased value above the general appreciation of the property in the neighborhood.</p> <p>The question whether the right to direct access to a telephone line is a benefit to the property, and the value of such right, is a matter for the determination of the jury.</p> <p>In an action brought by a property owner against a telephone company for damages, caused by the latter constructing a telephone line along a public road running through the plaintiff’s farm, it is error for the court to refuse to charge the jury that where the telephone line benefits only the land through which it runs and not land adjoining such property or the community generally, it must be considered in determining whether any damage or benefit has accrued and, if damages or benefit, the amount thereof.</p>

<p>Municipalities — Police powers — Regulation of autobusses — Acts of July 86,1918, P. L. 181b, and June 1,1915, P. L. 685.</p> <p>Tbe Act of July 26, 1913, P. L. 1374 (Public Service Oompany Law) and the Act of June 1, 1915, P. L. 685, giving to cities the power to regulate and license certain motor vehicles, are not repugnant or inconsistent. The provisions of the two acts, so far as they relate to the same subject, are not irreconcilable and there is no express repeal in the latter act.</p> <p>An ordinance passed under the provisions of the Act of June 1, 1915, P. L. 685, designating certain streets on which interurban busses should be operated, and forbidding such operation upon other streets of the city, is not an unreasonable exercise of the power conferred in that act, nor does it conflict with the provisions of the Public Service Oompany Law. No individual or company has-the right to operate, as a common carrier, a motor vehicle for the transportation of persons and property without first obtaining from the Public Service Commission a. certificate of public convenience, but the authority to designate the city streets over which such motor vehicle shall operate is by the Act of 1915 vested in the municipality.</p>

<p>Appeal, No. 239, Oct. T., 1919, by plaintiff, from judgment of C. P. No. 4, Phila. Co., December .Term, 1918, No. 4852, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Benjamin Nicoll, trading as B. Nicoll & Company v. D. B. Martin Company, a corporation.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Superior Court;</p> <p>The court discharged the. rule. Plaintiff appealed.</p> <p>Error assigned was the order of the court,</p>

<p>Contracts — Mortgages—Bonds—Commissions.</p> <p>In an action of assumpsit to recover commissions for obtaining a loan, to be secured by a mortgage, it appeared that tbe defendant, who was trustee for himself and other parties, had agreed to pay the plaintiff a commission for placing a loan, to be secured by a first mortgage upon real estate. It further appeared that the plaintiff had secured an investor willing to make the loan upon condition that the defendant give his personal bond, with warrant of attorney to confess judgment, in addition to the security of the mortgage. In such case, the plaintiff cannot be considered to have fulfilled the terms of his contract, and judgment of nonsuit was properly entered.</p> <p>When a party undertakes to obtain a loan of money for a trustee, he has no right to assume, in the absence of an express covenant to that effect, that the trustee will enter into any obligation which will bind other than the property belonging to the trust.</p>

<p>Appeal, No. 211, Oct. T., 1919, by defendants, from judgment of C. P. No. 5, Phila. County, December Term, 1915, No. 174, for want of sufficient affidavit of defense in the case of Pennsylvania Railroad Company v. Mahlon S. Kemmerer, Daniel Whitney, Charles H. Jacobs and Daniel F. Connor, co-partners, trading as Whitney & Kemmerer.</p> <p>Assumpsit for charges of demurrage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court made absolute the rule. Defendants appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 83, Oct. T., 1919, by plaintiff, from decree of Municipal Court of Philadelphia, November Term, 1910, No. 121, dismissing petition to set aside a verdict in the case of Harry Rebecchi, by his mother and next friend, Helen Rebecchi, and Helen Rebecchi, in her own right, v. Charles H. Clark.</p> <p>Petition to open judgment and set aside verdict on the ground of fraud and misrepresentation.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court dismissed the petition. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 18, 1919, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1917, No. 1954, on verdict for plaintiff in the case of Abraham Caplan, Trading as A. H. Caplan & Company, v. Charles A. Ebel.</p> <p>Assumpsit to recover value of goods lost while in custody of an agent. Before Finletter, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict in favor of the plaintiff and entered judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the refusal to direct a verdict' in favor of the defendant.</p>

<p>Carriers — Loss of parcel — Failure, to deliver — Status of carrier —Case for jury.</p> <p>In an action for damages for loss of a parcel where the evidence was entirely oral, and the defendant claimed to be a forwarder only and not a common carrier, the case was for the jury to determine whether or not the package had been delivered to the defendant; whether or not he had undertaken to deliver the parcel at its destination, and if such questions were decided in favor of the plaintiff, the value of the goods which were lost. In such circumstances, it was competent for the defendant to produce evidence as to the exact relation in which he stood to the parties from whom be received the merchandise, and the exact nature of the business be was doing.</p>