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This clogged condition caused the water ence of the disputed facts on which the plainin the permanent drain to back up and pass tiff's right to recover depended it should out between its upper end and the funnel, have been, according to well settled rule, which joint was so close to the floor that the submitted to the jury. The plaintiff is enleak was scarcely perceptible. There was titled to the benefit of every inference of no evidence of the over-flow on the kitch-fact which might have been fairly drawn by enerte floor.

the jury from the evidence before them: The escaping water then trickled down Bellman, appellant v. P. & A. Valley Rs. along the outer surface of the pipe through Co., 31 Pa. Supt. Ct. 389 and cases cited; the opening in the wooden floor, only the but negligence, to be actionable, must be at edges of which were made moist thereby, least the breach of a legal duty: Phillip v. until it reached an angle in the pipe, over Craft, 139 Pa. 125; i. e., a breach of duty the ceiling of Miss Yost's closet, where it owed to the plaintiff; Fleming v. Phila. Co., dropped and did the damage of which she appellant 234 Pa. 74, 77; Dialesantro v. complained.

Phila. Co., appellant, 47 Pa. Sup. Ct. 339, As stated, the defendant did not have ac- 341. cess to the locked closet. When the plain- It seems, therefore, that the first thing to tiff returned there was no water on the floor determine, in a proper disposition of the moof her room outside the closet door and it tion now before us, is the relationship that was not until 3 or 4 days afterwards that existed between the parties under the dispushe first discovered the injury done her. She ted facts. knew that the kitchenette and drain pipe Was such relationship that of inn-keeper were over the closet.

and guest, boarding-house-keeper and boardMr. Scheibley, a hotel man of about 20 er, or landlord and tenant? years' experience, had never before had a A guest is a traveler or transient comer similar experiene and did not know of the who puts up at an inn for a lawful purpose clogged condition of the pipe until the ac- to receive its customary lodging and entercident had occurred, but did know that tainment: DeLapp v. Van Closter, 118 S. "waste pipes under refrigerators would clog W. 120; 2 Words & Phrases 809; 2 Bou-as a general proposition."

vier's Law Dict. 1397. "The lexicographThere was no testimony, whatever, to ers define the word 'guest,' when used in show that during the six or more months the sense to which we are now referring, as preceding the accident, during which time a lodger or boarder at a hotel, lodging the apartments above had been occupied by house, or boarding house;" Hirsh v. Agderthe same tenants, the drain had ever over- son Hotel Co., appellant, 58 Pa. Sup. Ct. Aowed; when it had last been cleaned out, 387, 395. or Aushed with scalding water, if such had A “boarder" is one who makes a special been done at all; when, it had been ever, or contract with another person for food, with last, inspected by the defendant; that the or without lodging: Berkshire Woolen Co. v. plumbing above was not in safe condition Proctor, 7 Cush. (Mass.) 424; 1 Bouvier's when possession of the house-keeping apart- Law Dict. 373; 3 Corpus Juris 1131, ments was delivered to Miller, the tenant 1132; Lawrence v. Howard, 1 Utah 142; thereof; that the defendant, thereafter, ex- and is to be distinguished from the guest of ercised any control or supervision over that an inn-keeper: ibid. See, generally, 14 L. plumbing; that the defendant, for any pur- R. A. (N. S.) 476. pose, had access to the Miller apartments; The testimony does not show whether or the terms of the defendant's contracts the monthly rental of $20, which the plainwith either the plaintiff or the tenant above. tiff said she paid for her "room," did or did

The ground of recovery, as set forth in not include her table-board when she was at the statement, being the alleged negligence home. It does, however, clearly indicate of the defendant, the trial judge, under the that she "rented her apartment on one room above facts, entered a compulsory non-suit and a bath for $20 a month” and that she which we are now moved to take off. had occupied it for 7 or 8 years as her

More mature reflection than was possible "home.” at the trial now but confirms our opinion The defendant had no

access wherever, that the plaintiff is not entitled to recover. at any time, to the closet and could only

We are aware that if there was any evi- enter the remainder of her apartment for dence which alone would justify an infer- the purpose of keeping it in order. The

house itself was an "apartment house,” con- existed and the defendant owed the plaintiff taining at least two house-keeping apart- the legal duty of exercising ordinary care, ments which were rented to other tenants. what negligent act, on its part, of either

We therefore concluded at the trial, and omission or commission, was shown by, or are sill of the same opinion that, under may fairly be inferred from, the testimony? these facts, the relation of landlord and ten- Negligence, like any other fact, must be ant, and not that of either inn-keeper and proved and is not to be presumed. Mr. guest or boarding-house-keeper and boarder, Scheibley, it is true, knew, as should every existed between the parties ar the time of one, that waste pipes under refrigerators the injury complained of, as it did between i would, as a general proposition, clog. But the defendant and Miller, the upper tenant. the Millers had used this pipe for over six

The terms of the contract being fixed, months. It had never caused trouble betheir legal import was for the Court to de- fore. It was not shown when it had been clare: Bowman v. Bradley, appellant, 151 last inspected or cleaned out. Such might Pa. 351, 359.

have been done so recently as the day before If our conclusion was, and is, correct then the accident. The defendant had the right it follows that the defendant is not liable for to assume that the Millers would make propMiller's negligence, if there were any such. er use of the appliances furnished them.

As regards the liability of landlords to They were in good condition when furnishthird persons, it may be stated as a general ed and continued in that condition down to rule that the tenant and not the landlord is the time of the accident. liable to third persons for accidents and in- To fasten responsibility upon the defendjury occasioned to them by the premises be- ant, under the facts of this case, would ing in dangerous condition and the only ex- make the ownership of office buildings, apartceptions to this rule appears to arise where ment houses, tenement-houses, and other the landlord has either (1) contracted with structures, which are necessarily occupied by the tenant to repair, or (2) when he has let two or more separate tenants, a very hazardthe premises in a ruinous condition, or (3) ous undertaking. when he has expressly requested the tenant

Such owners should not be required, and to do things amounting to a nuisance: Cun- under the law, as we understand it, are not ningham v. Rodgers, 225 Pa. 132; Levick, required to insure their tenants against the v: ,

negligent acts of their co-tenants. Certainly Sup. Ct. 261.

There appears to be no reported Pennsyl- not against any such that are not fairly and

There appears to be no reported Pennsyl- reasonably to be anticipated, or of which vania case similar in its facts to that before they have had no notice. us. The subject is treated at some length, however, in a note to be found in 12 L, R.

We, therefore, conclude that, if the relaA. (N. S.) 1025. There is to be found tionship existing at the time of the accident commented upon the leading case of Leonard between the parties was that of landlord v. Gunther, 62 N. Y. supp. 99, which was

and tenant, as we find to have been the case, mentioned by the trial judge when the non

then, under the facts, the defendant owed suit was entered, that it is now sought to no legal duty in the premises to the plaintiff have taken off, and which decided that: "I and, should that relationship have been that the dangerous condition is created by the of boarding-house keeper and boarder in tenant in occupation by misfeasance or non

which contingency the rule of ordinary care feasance, or a fixture not dangerous per se is, would have applied, neither the facts nor by the act of omission of the tenant, turned the inferences which could properly and into a nuisance on the premises demised, the fairly have been drawn from those facts, landlord is not liable for damages resulting. showed any negligence on the part of the The injury in such case has for its proxi

defendant. mate cause the failure of duty on the part of

In the cases of Killion v. Power, 51 Pa. the tenant; it is his misfeasance or non-feas- 429 and Levinson v. Myers, 24 Pa. Sup. ance, and not that of the landlord.”

Ct. 481, the defendant landlords were in See, also, Becker v. Bullowa, 73 N. Y. possession of and control over the upper supp. 944:

apartments. Under our facts they can have Assuming, however, for the sake of argu- no application. ment, that under the facts as shown, the relation of boarding-house-keeper and boarder 'over-ruled.

The motion to take off the non-suit is

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C. P. of

Schuylkill Co.W. G. Thomas, Esq., of Lansford, drew Moskovitz v. Katsuch.

up the agreement between the parties. Fifty

dollars had been paid down in the beginJudgment by Confession--OpeningAgen- ning and later $1000. When the license су.

was transferred, the defendant paid to Where the defendant can neither read nor Sofsky $6000 more and Morris Moskovitz write and signed a judgment exemption aote paid to Sotsky $150.00 for Katzuch, thus smaller sum than the face of the note the court making the sum of $7200 paid to Sofsky. will permit him to show such imposition.

Morris Moskovitz had prepared the note in A person cannot represent both parties to a question and got the defendant to sign it. transaction without the knowledge of such fact by The amount of the note was intended to both parties and if such agent deceives either of the parties he cannot recover commissions from cover the eight hundred dollars commission either.

which Moskovitz was to receive from SofRule to open Judgment.

sky and the one hundred and fifty dollars

which Moskovitz paid to Sofsky as already R. A. Freiler for rule.

stated. The mistake in making the note J. H. Rothstein, contra.

$1000.00 was discovered before execution November 5, 1917. Koch, J.-Judg- was issued in this case, and consequently ment was entered for the sum of one thous- execution was issued for $950.00, instead of and ($1000.00) dollars in the above case $1000.00, or the face of the note. upon a bill single dated the 17th day of The defendant can neither read nor write. October, 1916, waiving inquisition and ex. When the writ of fi. fa. was served upon emption. A writ of fieri facias having been him, he filed his petition for this rule averrissued to collect the sum of nine hundreding that the note for $1000.00 had been and fifty (950.00) dollars, the defendant fraudulently obtained. He did not deny filed his petition to have the said judgment the signature on the note, but averred that opened, and, the rule having been granted, it was to secure the sum of $150.00 and not testimony was taken for both parties to the $1000.00, and that he had been frauduaction. Since the testimony was taken, the lently induced to put his mark to the note defendant has filed a supplementary petition for $1000.vo. When the testimony was to open the judgment. The later petition, taken, the defendant claimed that he had in its statement of facts, conforms more been induced by Morris Moskovitz to buy nearly than the first with the evidence taken this place; that Morris Moskovitz told him in support of the rule to open the judgment. that he did not want to make anything out The plaintiff lives in Wilkes-Barre, and the of it himself but that he wanted the dedefendant in Lansford, Carbon County. fendant to continue as one of his customers Plaintiff is a wholesale liquor dealer and when he acquired the saloon. The defenddefendant conducts a saloon. They have ant claimed that the plaintiff acted as his known each other for about ten years. agent in the purchase of this saloon. There

According to the testimony which was can be no doubt about the plaintiff acting submitted in this case, 'it appears that the as the agent for Sofsky and that he and his note in question was made under the follow- brother got Katzuch to buy the place. He ing circumstances:

admits that he was acting for both. He Aaron Moskovitz, a brother of the plain- corresponded with Sofsky and on the 27th tiff, on the 20th day of September, 1916, of September, 1916, received a letter from entered into an agreement with Peter him to bring the party to Lansford. Sofsky, of the Borough of Lansford, to pro- The following appears from the testicure a customer for the purchase of the mony of Morris Moskovitz: latter's saloon business, on a commission “Q. You were acting for Mr. Katzuch basis of 10 per cent.

then in the matter? Aaron Moskovitz testified that he ob

A. Well, I was acting for both of them. tained the agreement for his brother, Mor- Q. You were acting for both of them? ris. Aaron met the defendant in Pottsville A. I was acting for Mr. Katzuch and and they together went to Lansford to look Mr. Sofsky both.”' at the property. Several days later, the Aaron Moskovitz also testified that Mortwo Moskovitz's and the defendant went to ris was acting for both. Lansford and the terms of the sale were The following appears from his testiagreed upon at $8000. Sofsky's attorney, mony:

No 33.

2

C. P of Work Legal Trecord

Northampton Co.

Macan v. Scandinavia Belting Co. Vol. XXXI THURSDAY, DECEMBER 27, 1917.

Foreign Attachment--Motion to Quash"Q. For whom were you acting?

Reduction of Bail. A. Morris Moskovitz.

In jurisdictions where appearances de bene esse Q. Who was Morris Voskovitz acting are abolished by rule of court, the defendant canfor in the transfer ?

not, without a general appearance, be heard to A. For both. We drew both parties object to the cause of action stated; but may aptogether.

pear specially to challenge a jurisdictional fact,

by deposition or proof dehors the record. Q. Did either you or Morris in your Bail demanded by the plaintiff in foreign atpresence, at any time, make known to Kat-tachment will not be reduced upon a motion to zuch that he was receiving this sum of $800 quash. That question can only be considered

upon a rule to show cause why bail should not be commission

reduced. A. No."

Motion to quash writ of foreign attachW. G. Thomas, Esq., testified that Mor- ment. ris Moskovitz was acting for Katzuch when

Motion denied. in his office. The second petition which was filed is

Aaron Goldsmith and W. S. Kirkpatrick based upon the dual capacity in which the for plaintiff. plaintiff acted. The defendant contends

F. W'. Edgar and R. A. Stotz for the that in as much as Moskovitz could not, ini

defendant. an action at law, collect from Sofsky the June 25. 1917. STEWART, P. J.-On commission agreed upon, Moskovitz cannot the 24th day of May last, Geo. C. Macan, collect from him, the defendant, the amount Jr., issued a writ of foreign attachment of the commission which is included in the against the Scandinavia Belting Company, said judgment note.

based upon a contract in writing, attached He cannot serve two masters. He can- to his affidavit, and alleging a breach thereof, not be the agent of the seller and at the and claiming damages therefor, and sumsame time the agent of the buyer. This is moning the Macan Jr. Company as garagainst public policy and is not contenanced nishee. On the 11th day of June, 1917, in the law, except in cases where the dual “the Scandinavia Belting Company, defendattitude of the agent is clearly and fully ant named, by Robert A. Stotz and F. W. known to both the seller and the buyer and Edgar, its attorneys, without causing its both consent thereto, and where the agent appearance to be entered, moves the court acts for both, without the knowledge of to dissolve the attachment for the following such fact by both, he is not entitled to re- reasons, viz:" Then follow six reasons to cover compensation from either; Wilkinson the effect that the statement and affidavit do v. McCollough, 169 Pa. 205; Addison vil not disclose a good cause of action; that the Wanamaker, 185 Pa. 536; Cannellv. contract does not disclose any criterion by Smith, 142 Pa. 24; Rice v. Smith, 136 Pa.' which the damages may be estimated; that 439; Railroad Company v. Flannigan, 112 the damages are so speculative in character Pa. 558; Everhart v. Searle, 71 Pa. 256; that they cannot be determined; that it apMitchell v. Schreiner, 43 Superior Court peared that the said George C. Macan, Jr. 633; Eightcap v. Nicola, 34 Superior Court had presented a petition to stay iwo execu189; Marshall v. Reed, 32 Superior Court tions issued by the Scandinavia Company 60; Evans v. Rockett, 32 Superior Court against the Macan Company; and that 365; Fulton v. Walters, 28 Superior George C. Macan, Jr., was really the same Court 269; Linderman y. McKenna, 20 as the Macan Jr. Company; and that this Superior Court 409.

attachment was not issued for the benefit of The plaintiff could not recover from the plaintiff, but for the benefit of the garSofsky were he to sue him for the commis-nishee; that George C. Macan, Jr.,is stopped sion of $800.00 nor should he be permitted by the pleadings and testimony which he to take advantage of his own wrong and gave in two suits brought by the Scandirecover the amount from the defendant in navia Company against the Macan Com

pany, wherein the Mecan Company had set The rule is made absolute and the judg- up as a defense the breach of the same conment is opened to permit the defendant to i tract as that in suit; and that the verdicts defend.

1

1

This case.

in those cases were in favor of the Scandi-, George C. Macan, Jr., is the plaintiff

. We navia Company; and that the said Macan, cannot consider the case as if he was identiJr., had caused these attachments to be issued cal with the Macan Jr. Company, nor can for the mere purpose of delaying the pay- we look into the pleadings or the record of ment of the above judgments. We have the other cases, or to the motives with which examined the affidavit and statement, and this case was commenced. The only relano objection can be taken to them. It was i tion those cases have to the present case is in decided by Judge Elkin in Commonwealth just such matters as referred to above in the to u: c v. Bixter & Co., 235 Pa. St. 179, reduction of bail, which depend on our disthat a foreign attachment would lie in a cretion. This motion must be dismissed case like the present. An obliging legisla. because the reasons do not set up such matture, by the Act of June 21, 1911, P. L. ters as can properly be considered by the 1097, affirmed that decision. The contract court. Our learned predecessor, President in suit is very familiar to us. In our charge Judge Scott, in Clement & Co. v. Didier to the jury in the two cases, Nos. 86 and 87 March Co., 13 Northampton Co. Rep. 293. January Term, 1916, which cases were has so well stated the rule that no further affirmed by the Supreme Court, although at citations are necessary. The syllabus of this writing we do not know whether what that case is: "In jurisdictions where appearwe said on the subject of damages was as- ances de bene esse are abolished by rule of signed for error or not, we said: “Now, court, the defendant cannot, without a genthey claim profits. Profits are not to be ex- eral appearance, be heard to object to the cluded in your consideration of this case cause of action stated, which is the approsimply because they are profits. There is priate subject of demurrer; but may apno rule of law that there is any such require pear specially to challenge a jurisdictional ment at that. They are not to be consid- fact, by deposition or proof dehors the ered if they are speculative. They are not record." That case was affirmed by the to be considered unless you believe that these Supreme Court, and the ruling made above profits were necessarily in the contemplation was not questioned: 244 Pa. St. 616. of the parties, and unless you believe that Counter affidavits tending to set up a dethese profits would have been reasonably fense to the action, are never to be read or made if the contract had not been termina- considered. As President Judge Johnson ted, and you must consider them as of the of Delaware County, said in Gray, Assignee time when the contract was broken." (Page v. Hanf Optical Co., 8 Delaware Co. Rep. 35). Then on the following pages we ex- 255: “If the writ is regular and the deplained more fully the subject. Parentheti- fendant a non-resident, and not within the cally we may say that having this in mind, county when issued, if he acts at all, he has we suggested after the argument, to the of two courses to pursue. He may learned counsel for the plaintiff in the at- enter bail and have the attachment diss lvid, tachment, that in our judgment the bail or he may enter an appearance and make demanded was too high and should be re-l defense without encering bail, in which case duecd in accordance with the request made the attachment will continue." by the learned counsel for the defendant Motion of the defendant to dissolve atupon the argument, but counsel for the tachment is denied. plaintiff insisted that it was irregular, to do it upon consideration of the present motion.

C. P. of

Luzerne Co. That position is correct, but in view of our knowledge of this case, we should confine

Confer v. Smith. the taking of any testimony, or any argu- ! Pleading and Practice - A ffidavit of Dement to the narrowest limits if an applica- Pleading and Practice - A ffidavit of Detion was made to reduce the bail. Although

fense-Form of-dct of May 14, 1915, the learned counsel for the defendant have

P. L. 483. cited Sales Service Co. of Pa. v. Mutual A statement that is not divided into paraOrange Distributors, 63 Pittsburgh Leg. graphs, as required by the Act of May 14. 1915, Journa 719, we cannot make the order it does not comply with the Practice Act.

P. L. 483, will be stricken from the record in that that they ask for as the matter is not properly before us. The matters set forth in

Motion to strike off pleading. the other reasons cannot be considered from Abner Smith for plaintiff. any point of view.

The record shows that A. H. Jones for defendant,

on

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