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"2. That the delivery of said certificate If the plaintiff sustains his specific averby said bank was a delivery to both Jerry ment that the money in question was the Waltrick and Harry A. Hockensmith. money of the decedent's estate, and that the

"3. Harry A. Hockensmith having sur- defendant wrongfully or unlawfully approvived Jerry Waltrick became the absolute priated it to his own personal use, it would, owner of the fund of which the certificate in all probability, become necessary for the was the evidence, by operation of the terms defendant to produce evidence as to individof the certificate itself, and under the law ual right to the money, and this would was clearly entitled to draw the funds due probably have to be evidence other than his thereon.

personal testimony.. "4. Plaintiff's statement is in other re- It is, therefore, evident that no judgment spects uncertain and insufficient and the can now be entered upon the pleadings. allegations in the body thereof do not agree Motion for judgment is refused, and dewith the tenure of the instrument upon fendant is hereby required to file an addiwhich the suit is founded, to wit: Said tional affidavit of defense within ten days certificate of deposit, and as a whole, does from this date. dot comply with the Acts of Assembly of May 14th, 1915."

Abstracts of Recent Decisions. The main inquiries here are, does the money in question belong to the estate of the hole --Falling

IntoProtection From Dan

Negligence-Seven Year Old Girl-Mandecedent? And did the defendant wrong. fully and unlawfully appropriate it to his ger: - Judgment for defendant upon the

whole record was refused where plaintiff, own use?

aged seven years, fell into the manhole over The plaintiff in his statement filed specif- underground conduits of an electric light ically charges that the money belongs to the company, in that the defendant company estate.

It this charge be sustained by the could not escape liability by showing that evidence, it might become necessary for the what it did for the protection of the public defendant to show that he did not unlaw

was that which was commonly done by the fully appropriate it to his own use.

city or by other persons opening or obstructThe fact that he drew the money from ing the streets. The question in the end the bank by surrendering the certificate be- was whether the means employed were fore he was authorized to act as executor, is under the circumstances reasonably safe, not explained by the pleadings. He must and this was a question for the jury. I have had possession of the certificate of de-Ceronich

v. Duquesne Light Company, posit at the time he drew the money, but his (Allegheny C. P.,) 65 Pittsburg Legal right of possession depends upon various Journal 698. facts which must be properly shown before an intelligent adjudication can be rendered. I mission.--Plaintiff brought suit for recovery

Depositions-Reading to Witness-AdFrom the statement we must conclude that of damages for injuries received by being the money was originally deposited by the struck by an automobile, owned and driven decedent as “his own moneys," and that he, by defendant, on August 21, 1916. On the decedent, “then and there received from Oc:ober 27, 1916, plaintiff's deposition was the said

bank," the certificate of taken before a Notary Public, counsel for deposit in question.

both plaintiff and defendant being present, The statement specifically shows that, Plaintiff died November 4, 1916. At the although the certificate of deposit expressly trial the deposition was offered by counsel states that either may withdraw on his or for plaintiff and objected to on the single her individual order during their joint lives," ground that it had not been signed by the there had been no withdrawal of any part witness. The objection was overruled. of the money deposited during the joint Held, on motion for a new trial and judglives of the payees.

ment non obstante veredicto, that the deThe language used in qualifying the gen- position of deceased plaintiff was properly eral certificate of deposit implies an under- admitted and read in evidence, even though standing or agreement between the parties it had not been read to or by him after it at the time the money was deposited. We was written out and assented to and signed are not enlightened by the pleadings as to by him.-Smith v. Michie, (Montgomery the meaning of the agreement.

1C. P.,) 33 Montgomery Co. Law Rep. 262.

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Vol. XXXI

THURSDAY, DECEMBER 6, 1917.

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Dork Legal Trecord association passed a vote of censure on all

who participated in sending the telegram

and declared "the office of vice-president No. 30 vacant for the balance of the term.” This,

as above noted, was on May 2nd, and after COMMON PLEAS

an unsuccessful effort to have the action re

considered, the plaintiff brought this suit in C. P. of

Lackawanna Co. which he seeks reinstatement.

Defendants justify on no specific authorEvans v. Scranton Protective Associa- ity, either under the constitution or laws of tion et al.

the society; but upon what they regard as

general and comprehensive power conferred Association - Power to Declare Vacancy by Section 1, Article VII, of the by-laws, as

in Office-Misconduct of Member-By- follows:
laws.

"Should any member of this association Where the by-laws of an association provide violate any of its laws or say or do arything that action against any member for conduct det- that may be justly construed as injurious, rimental to the purposes of its organization shall detrimental or hurtful to the purpose for be based upon a charge in writing signed by the

which this association has been organized person or persons making the same, and specifying offense alleged to have been committed, the and incorporated, charges may be preferred association has no power, in the absence of such against said member or members by any specific charge, to declare a vacancy in an office member in good standing. It, after having for the obvious purpose of ousting the incumbent been notified and given a fair trial, said as a penalty for such misconduct.

member or members are found guilty of Demurrer to return to alternative writ of charges that may have been preferred against mandamus.

him or them, he or they may be dealt with C. B. Little for plaintiff.

in such manner by this association as may

seem best for its purposes.' P. V. Mattes for defendants.

The power thus conferred is certainly August ist, 1917. NEWCOMB, J. -- The plenary on its face. The penalty of condefendant society and certain of its executive viction is limited only by the pleasure of the officers are sued jointly. In like manner convicting tribunal, and as such gives rise to they join in the return to the alternative the objection that it is void for unreasonwrit and no question is raised as to their ableness. joint liability, if liable at all. Plaintiff is a The objection is not without merit though member of the association in good standing, the proper disposition of the case makes it and at the time of the grievance complained unnecessary to decide the point. The anof was exercising the functions of vice-presi- swer on the other side is that the ai minisdent by virtue of his election last December tration of the law is subject to the "rule of for the term of one year. Since May 2, reason," and that would protect the convict 1917, he has been excluded from the office against any unlawful or oppressive penalty. and he sues to test the legality of the society's

The weakness of that argument is that it proceedings to oust him. From what de- only serves to emphasize the capricious veloped at the argument we ventured to character of the law and thus to reinforce believe that the cause of provocation was the objection. By what standard shall it be rather trivial; that to keep it alive would known when the penalty is within the rule only tend to impair the usefulness of the as- of reason? Who is to determine what sociation; and therefore we have made an penalties would conforin, and what would earnest effort to bring about an amicable set- be obnoxious to the rule? Penal laws are tlement of the controversy, though without not to be enforced by such arbitary sanction. success.

But for present purposes the objec'ion on Plaintiff, with one group of members, in- | that ground may be disregarded. Tie procurred, the displeasure of another group by ceeding itself was irregular. Section 2 of sending a telegram to members of assembly the same law requires that “all charges at Harrisburg, criticising the form and char- against a member shall be submitted in writacter of a bill pending before the legislature ing together with the signed name of the in which the association had taken an active person or persons making said charges and interest. As a measure of punishment the specifying the offense which has been alleged to have been committed. The association the quasi statute law of the society itself. will then appoint a committee whose duty it The defect was not cured by appearance of is to probe thoroughly into all the details of the accused and a contest on the merits. said charges and report as soon as possible The return is at pains to show that he has its findings to the association."

at all times denied the authority of the assoThe only thing that can be called a charge ciation in the premises, and, therefore, the submitted in writing is a resolution adopted proceeding is still open to objection. by the association on April 27, purporting It only remains to be noted that the assoto be offered and signed by one W. J. Long. ciation has no power to declare any office It is as follows:

vacant except to lay ground to elect a new "There has been brought to the attention incumbent. But that is nothing to this of certain members of this association certain plaintiff except as it affects him in person by facts which have been construed as prejudi- incidentally ousting him, which, no doubt, cial to the interests of the organization and was the principal object aimed at, rather liable to work harm to the best efforts of than a mere collateral incident to the atthe organization in its attempt to secure re- tempted vacation of the office. lief from the mine cave menace.

On the pleadings the issue is with plain"Therefore, be it resolved, that this or- tiff. The demurrer is sustained and judg. ganization summon its viee-president, Dr. ment directed to be entered for plaintiff D. W. Evans, to appear before an investi- with costs. gating committee and make answer to the charges that his actions are detrimental and hurtful to the purpose of this organization,

Harding v. Heindel. and the said committee be instructed to give the vice-president a fair and impartial hear- StatementTort---Capias to Hold 10 Bail ing and report its findings, together with its

-Waiver of Defects. recommendation to the organization at the

Where plaintiff's statement aileges the receipt earliest possible moment.

of plaintiff's property by defendant in a lawful

"W. J. Long.” manner; but further alleges unlawful detention The following day a copy of the resolu- or disposition thereof, a writ of capias ad respontion was sent to plaintiff by Lafontaine, the

dendum in trespass is a proper legal process.

Where, without any objections to the sufficiency secretary, with request to meet "the investi

or legality of the statement and cause of action, gating committee” at an hour and piace defendant enters bail, it is too late to raise objecdesignated on April 30th, “to make answer tions subsequently and make them effective to to said charges.”

avoid the merits of the cause of action Just what the specific charges were was

The allegation that the plaintiff is not the thus left entirely to conjecture. Whatever

owner of the property alleged to have been de

tained, but only a bailee thereof, is one of fact they might have been, the resolution would which cannot be decided as a question of law. ply that they had been fully "construed"

No. 93, August Term, 1917. at the outset without waiting the result of trial and investigation. In judicial pro- Questions of law raised by an Affidavit cedure this would be an anomaly.

of Defense. Again, the charges--if any there were-- V. K. Keesey for plaintiff. could only be tried by a eommittee ap

E. D. Bentzel and C.W.A. Rochow for pointed by the association. In a case of this

defendant. kind it is believed the burden of showing the due constitution of the trial court de- November 19th, 1917.

Ross, J.—This volves upon defendants, and their averment suit was commenced by issuing a writ of is only that “a committee was appointed capias ad respondendum in trespass with a pursuant to a motion or resolution," etc. demand for bail of two hundred dollars. How the appointment was made is a matter The necessary affidavit of cause of action about which the return is silent. The was filed and the defendant furnished the minutes of the proceedings so far as pleaded bail required by the praecipe and writ. The are equally silent.

plaintiff's statement of claim was duly filed But disregarding also this ground of criti. and the defendant first comes into court cism, the important defect remains that the with an affidavit of defense which was filed proceeding was founded on no specific July 11th, 1917. By the affidavit of decharges as required by all analogy as well as fence the defendant raises questions of law

20

on which he founds a request for "the court The case should therefore be dismissed with
to hear and pass upon the same before the reasonable costs to defendant."
trial of the case." They are as follows: Our answer to the first point is, that we

"1. The writ was not the proper legal think the writ used for the plaintiff is a remedy, but was erroneously and improperly proper legal process in a case such as the issued. The Act of July 12, 1842, P. L. allegations in the affidavit and staiement 339, does not apply to the case as outlined disclose; Alexander & Co. v. Goldstein, 13 by the plaintiff's statement of claim.

Pa. Superior Ct. 518. “2. The plaintiff's statement of claim is The second and fourth points challenge insufficient in law to sustain the action based the sufficiency of the statement and athidavit on the preliminary affidavit upon which the of cause of action. The statement of claim writ issued.

seems to have been filed and served upon the "3. The plaintiff is not the owner of the defendant on the same day the affidavit of said motor cycle, but only the bailee thereof, cause of action was served; without any oband consequently cannot recover either for jections to the sufficiency or legality, he the value of said motor cycle or for damage entered into the required bail. It is too for its alleged detention.

late now to raise those objections and make 4. The plaintiff's affidavit to hold to them effective to avoid the merits of the bail is defective and insufficient in law to cause of action. We are of the opinion that hold the within defendant to bail, because the voluntary entering of the bail demanded there is no allegation in said affidavit that waives the defendant's right to avail himself plaintiff was the owner of said motor cycle. of that which might, and should have been,

determined by the court before he filed his *The plaintiff, Daniel Harding, a minor. suing affidavit of defense. by his father and next friend, Henry Harding, The third objection raises a question of claims of the defendant, Perry J. M. Heindel, the sum of two hundred dollars on the cause of action fact which is beyond the province of the whereof the following is a statement:

court to decide as the record now exists. 1. The defendant is alderman in and for the It will therefore be necessary for the case Sixth Ward of the City of York, Pennsylvania.

2. On or about March 3, 1917, the detendant, to be tried upon the questions raised by the
upon information by a certain Clarence C. Ume statement and affidavit of defence or such
man, issued to Thad S. Stronan, Constable for additional defenses as the defendant shall
the Sixth Ward of the City of York, a warrant see proper to file within the next ten days
for the arrest of the plaintiff on a charge of

from this date.
larceny by baillee of a certain 7-H. P. "Indian”
motor cycle, and also issued to said constable a
search warrant for the seizure of said motor cycle.' C. P. of

Allegheny Co.
3. By virtue of the said writs the defendant
was duly arrested by the said constable, and a

Berger v. McCluan,
certain 7-H. P. “Indian" motor cycle of the value
of one hundred dollars, then in the plaintiff's pos: JudgmentsOpening-For Materials and
session, was seized by the said constable and
taken from the plaintiff's possession and delivered

Labor-Evidence-Exhibit.
into the custody of the defendant.
4. Subsequently, to wit: On March 24, 1917,

A judgment entered on a judgment note given the defendant dismissed the said complaint

in payment of a contract for materials and labor against the plaintiff for want of sufficient evi- in the erection of a house will be opened where dence, but unlawfully and contrary to his duties the evidence is conflicting and the facts presented in the premises, delivered to the said Clarence C. are proper for the consideration of a jury. Umeman, or to some other person to the plaintiff

A copy of a letter was incompetent as evidence unknown, the said motor cycle, which had been where it did not appear that the letter was mailed taken from the plaintiff's possession and delivered or how it was brought to the attention of plaininto the defendant's custody.

tiff, and no demand was first made to hive the 5 On May 11, 1917, the plaintiff served on original produced. Where such an exhibit was the defendant notice in writing of his intention to

a part of a deposition taken on a rule to open a
bring this suit upon the cause of action herein set judgment, the court refused to consider it,
forth unless sufficient amends were tendered to Sur rule to open a judgment.
him by the defendant. A copy of the said notice
marked "Exhibit A" is hereto attached.

Geo. Y. Meyer for plaintiff.
6. No amends have been tendered to the plain- Joseph P. Weddell for defendant,
tiff by or on behalf of the defendant.

7. Therefore, to recover from the defendant HAYMAKER, J., July 18, 1917.- Judg-
the value of the said motor cycle, to wit: the sum ment having been entered on a judgment
of one hundred dollars, and also punitive or ex-
emplary damages in the further sum of one hun note the defendant obtained a rule to open.
dred dollars, the plaintiff brings this action.

We now have before us the petition of the

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defendant, the answer of the plaintiff, and companied the plaintiff, the defendant and the depositions of the parties and their wit- her husband, all of whom appeared as witnesses. The controversy grew out of a con- nesses. The testimony of the defendant tract in which the plaintiff, H. O. Berger, and her husband was to the effect that when agreed to do the plumbing work of a dwell- the note was given on Friday, March 23, ing house being erected by the defendant. 1917, and the release of lien executed, the The plaintiff's place of business was at plaintiff agreed to return not later than the Homewood in the City of Pittsburgh, and middle of the week following and complete the defendant resided in Bellevue, where his contract, which he did not do, and she the new house was being erected. The was obliged to have it done by another. contract was oral, whereby the plaintiff The defendant called James J. Coolman, agreed to furnish the material and do the who testified that he, representing the dework for $155.00, according to the testi- fendant, wrote a letter to the plaintiff mony of the defendant, or for $590.00, as requesting him to do the work. That letter claimed by the plaintiff. When the note was dated March 29, 1917, six days after was made it is conceded that the plumbing the execution of the note, and just about the work had not been entirely finished, but the time the plaintiff was to return and comextent of the unfinished work is now a mat- plete his contract, according to the evidence ter of controversy, the plaintiff contending of the defendant and her husband. That that his contract was nearer completion letter contains the following: than the defendant is willing to concede. "You have been paid in full, partly by cash The plaintiff undertakes to justify any and partly by a judgment note. We wish delay on his part by setting up the unbusi- to notify you that if the work is not comness-like methods of the carpenter or con- pleted at once and the completion started tractor, while the latter, as well as the de- this coming Monday, April 2nd, 1917, fendant, insists that the work of completing another plumbing contractor will be hired, the building was delayed by the plaintiff. the work completed, and the amount charged Thus stood the matter at the time of giving up to you.” the note. Just before the note was made The letter was offered in evidence, and the defendant negotiated a loan with which its admission objected to by the plaintiff

. to pay the contractor and material men, and We do not understand this offer. If that it became necessary to secure the release of letter was properly mailed to the plaintiff

, the plaintiff and others.of their right of lien. and if it appeared that he made no reply, it Up to this time the plaintiff had been paid would have been of some consequence to the only $50.00, but he agreed to and did exe- defendant's case; but strange to say there cute the release of liens on payment to him was no attempt to prove that the letter in cash of the further sum of $100.00 and marked Exhibit “A” was a copy of an the delivery of the judgment note in ques-original mailed to the plaintiff, or that any tion, which is dated March 23, 1917, at notice was given him to produce the origthirty days, for $305.00, and was entered of inal. Coolman is simply asked if Exhibit record May 8, 1917.

"A" is the paper that he wrote, to which he The real question in the case is this: answered “Yes.” If Exhibit "A" is the Was the note given in full satisfaction of letter he sent, in what way did it get into the plaintiff's claim for work and materials the possession of the witness ? It it was furnished down to that time, and was the only a copy why did he not so 'say and foldefendant discharged from further liability low up with the proof in the usual and to complete the job, as he now contends, or proper way? We will not consider Exhibit was it given, as defendant claims, on condi- "A" as evidence in the case. tion that the plaintiff was thereafter to com- The defendant also called Mr. McKisplete the job according to his contract, sock, a plumber, who testified that it would which note, when paid, was to operate as a cost about $300.00 to complete the plumbfull payment of the plaintiff's contract price? ing work. There is evidence by the The question grows out of what actually defendant's husband that he notified the took place at the time of giving the note, at piaintiff to complete the job. In addition the defendant's home in Bellevue, on that to the evidence of the plaintiff and Morton evening.

that the note was given in full settlement There were four persons then present, to that time, and the plaintiff released from being the plaintiff, Mr. Morton who ac- ! further obligation under his contract, the

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