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We are, therefore, of the opinion that company did negligently and carelessly perthe plaintiff's mortgage has priority in dis- mit grass and weeds to grow up and betribution of the fund and find it unneces- come dead on its right-of-way, and close to sary, in reaching this conclusion, to decide the plaintiff's land, and did throw old ties whether, if the two tax claims were properly on its right-of-way, near the plaintiff's land, filed, they were or were not divested by the and, on the day in question, did operate an sheriff's sale.—See Bellevue Borough v Um- engine or engines drawing trains equipped stead, 38 Pa. Sup. Ct. 116.

with defective and ineffective spark-arresters After hearing, the exceptions are dis- which emitted sparks of unusual size, in missed, and the sheriff is directed to pay large quantities, in such a manner that the out, in accordance with his schedule of dis- said grass, weeds and :i:s were set on fire, tribution, the money mentioned in his thereby igniting the grass and fence on the return.

plaintiff's land.

It was also alleged that, on Wednesday,

February 10, 1915, the same conditions C. P. of

Lancaster Co. existed, and thereby the same four and a Sheaffer v. Pennsylvania Railroad Co. half acres were again burned over, and ten Statement - When sufficiently specific -- other allegations are, perhaps, contained

panels of fence were destroyed. Some Damages by spark from locomotive.

therein, which are at this time immaterial. In an action against a railroad company for The defendant entered a rule for a more damages for injury by fire to property adjoining specific statement. The numbers of the its tracks alleged to have been caused by sparks engine or engines, which it is alleged caused from a defective smoke-stack on a locomotive the plaintiff should not be compelled to file a more

the fire or fires, are demanded; the time of specific statement, although his statement fails to day when the fire occurred is asked for, aud give the number of the locomotive, the direction the direction in which the engines were runin which it was going or the time of dav, and

ning. The plainuiff thereupon filed an avers that these facts are unknown to the plaintiff.

A more specific statement will not be required amended statement. He changed the date in relation to matters as to which the defendant of the first fire to Wednesday, November should have as much knowledge as the plaintiff. 11, 1914, about midday. He stated that Rule for more specific statement.

the number of the engine drawing the train John A. Nauman, for rule.

was unknown to him, but that it was going F. S. Groff, contra.

in a westerly dirction. As to the second

fire, he stated that both the number of the September 22, 1917. LANDIS, P. J.-engine and the direction in which it was The original statement filed by the plaintiff going were unknown to him, as was also the alleged that he was, on November 2, 1914, time of day. the owner of a traet of land in Sadsbury I cannot see what good objection now township, in this county, and that the de-exists to the statement, so far as relates to fendant company was then operating the the first claim for damages. The plaintiff Atglen and Susquehanna Branch of the says that the fire was about midday on a Pennsylvania Railroad, known as the Low- specific date, and that the engine which Grade Road, alon, the plaintiff's said lands; caused the damage was going westerly. He that the company, about midday of the said does not know ihe number of the engine ; November 2, 1914, negligently and care- but the defendant, with these facts before it, lessly operated, on its said line, close to the certainly has a better opportunity for obplaintiff's land, an engine, drawing a train taining the numbers of the engines passing or trains, the property of the defendant, in this direction about this time than the the smokestack or Alues of which was defec- plaintiff has. tive, in that it emitted large sparks in great In Brauer v. Voore, 24 Lanc. Law Requantities and in such a manner that the view 303; this court held that a more specific grass fields and fences of the plaintiff were statement will not be required in relation to negligently and carelessly ignited and set on matters as to which the defendant should fire by a spark or sparks from the said loco- have as much knowledge as the plaintiff

. motive, and that the grass and vegetation Courts do not require of litigants imposon about four and a half aeres were de- sible things. The plaintiff could demand stroyed, together with about forty panels of of the defendant the numbers of all such fence. It was further alleged that the lengines, but even then he would be unable,

York Legal Record

Vol. XXXI

No 35.

The action is in replevin.

The facts are all apparent upon the record,

and are briefly as follows: THURSDAY, JANUARY 10, 1918.

Jones-Whitaker Sales Company of the

City of Indianapolis, Indiana, and Victor most likely, to pick out the alleged defective George Smith of Kokomo, same State, enengine; and the defendant, therefore, has tered into the agreement a copy of which is now as much information upon the subject : appended to the statement of claim, wherein as the plaintiff would have if his demand the plaintiff is styled the "Seller" and said was complied with. It would, therefore, Smith the "Buyer," by virtue of which, for be useless to thus furnish what he had ob- the consideration therein specified, said tained.

"Buyer" became the possessor of a certain As to the second fire, it is true he gives Chevrolet automobile. The price of the no information, except an approximate date. automobile was $585.20, of which the This undoubtedly is very uncertain informa- "buyer" paid $250.00 in hand and agreed to tion, but if he, on the trial, cannot prove pay the balance in monthly payments of the fire and its cause about the time alleged, $27.95 until the whole purchase price should and connect up the defendant with its origin, i be fully paid, with interest at 6% on the he cannot recover. He will not be per- deferred payments.

Provision was made niitted to guess.

What he does not know that title should remain in the "Seller" unand cannot prove he cannot assert in his til the purchase price should be fully paid. statement and cannot recover for. Under The "Buyer" agreed inter alia, "not to the present situation, I think the rule should part with the possession of said property or be discharged.

to remove it from the State without the Rule discharged.

written consent of the “Seller.” Said buyer, however, disregarded his agreement to make

such additional payments and not to remove C. P. of

Allegheny Co. the property from the State of Indiana, but Jones & Whitaker v. Kunkle

brought it into the State of Pennsylvania

and sold it for a valuable consideration to Replevin-Automobile-Conditional Sale the defendant, Albert Kunkle, who had no -Words Lessor" and "Lessee"—-—Buyer”, knowled_e of any defect of title, and is adand "Seller" _"Rent."

mitted to be an innocent purchaser.

Plaintiff replevied the automobile in the Judgment was entered for defendant where it appeared in replevin that defendant purchased hands of said Kunkle, who gave a counter an automobile from one who had failed to make bond, and thereafrer, in reply to the plainall the payments or comply with the conditions of tiff's statement of claim, filed an affidavit of an agreement, of which defendant had no knowledge, when the agreement upon which the defense averring his purchase from said original sale had been made in another state, was “Buyer” for value, without knowledge of a conditional sale and not a lease.

any limitation in the title of said Smith, and In an instrument, providing for the sale of an averring that the agreement referred to automobile and the payment of installments for the unpaid balance of the purchase money, the between said “Seller” and “Buyer" constiwords "lessor" or "lessee” were not used, but the tuted a conditional sale, and not a bailmentparties were designated as "seller" and "buyer" vesting title in his, said defendant's, vendor and the word "rent" as used was equivalent to "liquidated" damages, and it was not clear that

as against the “Seller." a bailment was intended, the court on a rule for

The motion for judgment raises the sole want of a sufficient affidavit of defense in replevin question as to whether such instrument determined that it was a conditional sale and not Exhibit “A” of plaintiff's statement, was, a bailment, discharged the rule and entered judg. 1 under the law of Pennsylvania, a conditional ment for defendant.

sale or a bailment. Rule for Judgment for Want of a Suf- Exhibit "A," the contract appended to ficient Affidavit of Defense.

the statement of claim, in our judgment, J. E. Little, Jos. R, Conrad and Alex- \ has all the marks of the instruments which ander E. Eckles for plaintiff.

the courts of this State have held to evidence A. C. Christiansen for defendant.

conditional sales and not bailments. October 3, 1917. REID, J.-This is a

We are

aware that it is not what the rule for judgment for want of a sufficient parties call the agreement that controls its affidavit of defense.

legal effect-and that the intention of the

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parties, as drawn from the instrument, must and does not, standing thus alone, stamp
prevail as against mere designations of the this instrument as a lease or bailment.
thing

The cases of Morgan-Gardner Electric But, nevertheless, the presence or absence Co. v. Brown, 193 Pa. 351, and Farquhar of the terms which usually indicate an in- v. McAlevy, 142 Pa. 233, are also in point tention to make the depository of the chattels as to the inadequacy of the word "lease," to a bailee, has great weight in determining constitute a bailment under the facts thus the meaning of the parties; Kelly Road presented, and as to the necessity of a proRoller Co. v. Spyker, 215 Pa. St. 332.

vision for the return of the property to the In our opinion, the contract in question alleged lessor, in order to affect a legal

lease or bailment. in the case at bar is open to the criticism of

No such return, at the end of any term that in the case cited above:

or period, is stipulated for in the case before “There is nothing about this agreement that suggests a bailment except the use of “Buyer” to make payment.

us, except that incident to the failure of the the word 'lease' in the first line and the

Of such a provision, Mcllvaine, P. J., in word 'rental in the supplement. But these the opinion of the trial court, Morganwords were evidently used to give another Gardner Electric Co. v. Brown, 193 Pa. at name to what was meant to be a conditional sale. The agreement has none of the in- pp. 357-8. (affirmed by the appellate court

on ihat opinion), says: dications of a lease.

There is no term “This provision was not put in the contract mentioned, and there is no proyision for the

to insure the return of the property to the return of the roller except in case of default Electric Company, 'so that it might have its in making monthly payments. Although

own again, but to insure the payment of fixing a term and providing for a return at the notes, so that the property might remain the end thereof, may not be essential to a in the possession of the Coal Company as its bailment, they are important and often con

It was a contract remedy to enforce trolling evidence of the intention of the

payment, not of hire, but of purchase parties.”

money." The instrument which plaintiff maintains The case of Enlow v. Klein, 79 Pa. 488, is a bailment has less of the evidence of such relied upon as supporting plaintiff's conintention on the part of the contracting tention that exhibit “A," constitutes a bailparties, than any other which has come ment, does not, under the facts of this case, under our obseryation.

support the proposition. In the top line, in bold capitals, it is en- To use the term "to furnish within ten titled “Contract for Purchase of Auto-days" does not bring the case within the mobile.” The term "lessor" or "lessee," decision of Enlow v. Klein. Woodward, J. "bailor” or “bailee,” is nowhere used -- nor in that case explicitly says: are the terms, "let" "leased” “bailed” or “The use of such a word as furnish, vague other phrases of a similar nature usual in as it is in its signification, would leave the contracts or bailment anywhere found. On clause in which it occurs of ambiguous imthe contrary, the parties are throughout port, if there were nothing besides to indicate designated as "seller” and “buyer.”

the sense in which it was employed. It The term “rent" is used but once, appear- might imply a sale, a lease, a loan, a gift or ing in the 5th paragraph in connection with a delivery of a chattel in payment of a debt, the right of the seller, who may, at his option, in accordance with its context and its sub“either declare the entire balance of the ject matter. purchase price due and collectible, or may Of the case of Enlow v. Klein, Paxon, J., rescind this contract to sell and take posses-in Stadfeld v. Huntsman & Company, 92 sion of the property

* * * without notice; Pa. St. at p. 57, says: and in the event of such rescission all pay- “An examination of the facts shows, that ments already made by the buyer shall be it was a case of hiring; that $2 per week of taken and retained by the seller, not as the sum to be paid, was for the use or hire penalty, but as rent for said property and of the horses. This clearly appears in the liquidated damages for the breach of this report of the facts *** This was an contract.

It will be seen from important feature of the case in our conthe above that the word "rent" is only an sultation, and eferred to now that it may equivalent term for "liquidated damages'' l not be misunderstood hereafter. Enlow v.

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Klein was fortified by the authorities, and Beeber, J., in the opinion of the Court at
we do not propose to disturb it. But we pp. 633-4, says:
will not take one step beyond it. We stop "It is argued that because the agreement
just where it ends."

provides that Harper 'will sell and transfer
The instrument before us, Exhibit "A," to the party of the second part on the ful-
does not, taking it in all its details, present, filment of the covenants and conditions
or suggest the idea, that the monthly pay- hereinafter contained,' it shows an intent
ments of $27.95 are fixed as compensation that there is to be a sale only after the full
for the use or hire of the automobile in payment of the purchase money.
question.

Some strength might be conceded to this In Farquhar v. McAlevy, 142 Pa. at p. argument if it appeared that possession of 240, the Per Curiam opinion of the appellate the mill was taken in pursuance of some court again says:

terms of the agreement showing a lease or "Enlow v. Klein stands on its own bailment.

The agreement propeculiar facts, and, to that extent, is author. vides for nothing but a sale, -reserving title ity; but, as remarked in Stadfeld v. Hunts- and calling payments rental, it is true, but

we will not go one step beyond still speaking only of a sale. The use of it."

the word 'will' applies as well to the word It is urged by plaintiff that the contract transfer' as it does to the word 'sell' and in question presents the case of an agreement the seller himself has put a construction on to sell in futuro, which never became exe- this by delivering the mill at the time of the cuted through the failure of the “Buyer" to execution of the articles of agreement. By comply with its terms, the language of the use of this word under such circumExhibit "A" being, in part, as follows: stances he does not seem to have meant so

"The Seller, in consideration of the prys much to emphasize the time when he would ments and conditions herein set forth to be sell in the future, but rather to express a performed by the Buyer, does hereby agree present intent, which was to sell.'' to furnish within ten days after the date of The rule for judgm nt for want of a this agreement to the Buyer, and agrees to sufficient affi lavit of defense must be dissell to the Buyer, subject to the conditions charged. We also enter judgment for the hereinafter contained, the following des-, defendant for the property in controversy. cribed personal property This was followed by the actual delivery to the Buyer, of the automobile in question Emig v. Keystone Wire Cloth Company and the payment of $250 required as hand

Appeal-Bail for Costs— Mandamus money. That such pos;ession as was yielded to the

Defendant, within six days after judgment had Buyer, notwithstanding the piraseology as been rendered against him, appeared before the to a future fulfilment of conditions, is one appeal, tendering the costs of the transcript, and

Alderman with his bondsman, and asked for an of the chief marks of ownership, under con- offering a bond for the debt, interest and costs. tracts for conditional sales is apparent in The Alderman refused to grant an appeal unless Ott v. Sweatman, 166 Pa. 217. In that the costs already accrued were paid. Subse

quently defendant again appeared at the Aldercase, in the opinion of Jenkins, J., at p. 222 min's office, but the latter was absent because of (affirmed by the appellate court), it is said: sicknees, and the twenty days expired without an

and in doubful cases the court in' appeal being taken. Heid, on a petition for a construing the contract has been governed mandamus, that the petition must be granted. by the principle that 'possession of personal Ehrehart & Bange, for petition. property is the great mark of ownership.' In the case of Harper v. Hogue, 1o Supr.

W. A. Miller, contra. Ct. 624, the question presented here, that No. 4, August Term, 1917. the contract was to be executed in futuro, and therefore no present title passed, was

Application for Writ of landamus. raised. The contract there was that "The January 7, 1918. Ross, J. - This case party of the first part agrees that he will was brought into court by a petition of the sell and transfer to the party of the second Keystone Wire Cloth Company praying part on the fulfilment of the covenants anl that a writ of Vandamus be issued to conditions hereinafter contained"-a portable Walter F. Owen, an Alderman for the saw mill and fixtures.

First Ward of the City of York, command-,

a summons

ing him to deliver a transcript of appeal in The evidence divulges that the Alderman the case of Charles H. Emig, plaintiff in a was mistaken in his conception of the duties suit brought before the said Alderman of an Alderman and the rights of a party against the above named defendant; in which litigant. The law is quite plain and reads suit the said Alderman had entered judg- as follows: "If any appellant shall give good ment against the said defendant.

and sufficient bail absolute, for the payment An answer was filed to the petition and of debt, interest, and costs that have and testimony was taken in support of the con- will accrue on affirmance of the judgment, tentions of the respective parties. From the the appellant shall not be required to pay evidence we find the following facts: any costs before taking an appeal;" Act

1. On the 17th day of March, 1917, approved May 29th, 1907, P. L. 306. It, suit against the Keystone Wire Cloth Com- therefore, was the duty of the Alderman to pany was entered before Walter F. Owen, allow the petitioner to appeal from his Esq., (an Alderman for the City of York, judgment upon a compliance with the above Pa.) by Charles H. Emig and on said day cited law; Cambria Auto Co. v. Frischkorn,

was issued, directed to the Key- 54 Pa. Super. Ct. 272; Snyder v. Bauer, 18 stone Wire Cloth Company, commanding Dist. Rep. 639. said defendant to be and appear before the The peremptory writ of mandamus is said Alderman, &c., on the 23rd day of awarded as prayed for. March, 1917, between the hours of nine and ten o'clock A. M.

C. P. of 2. At the time fixed for the hearing the

Schuylkill Co. defendant did not appear and judgment was

Eroh v. Payer entered against it in favor of the said

Mechanics Lien-Section Charles H. Emig, for the sum of two hun

10, Aci of June died sixty-nine dollars and ninety cents,

4, 1901, P. L. 432. with costs.

Section 10 of the Act of June 4, 1901, P. L. 432, 3. On the 29th day of March, 1917, issue a scire facias against the owner within two

requires that the claimant in a mechanic's lien W. F. Kintzing, General Manager of said years of the filing of the lien unless the owner in Keystone Wire Cloth Company, appeared writing filed before the expiration of such time, at the office of said Alderman, and demanded waives the necessity for so doing for a further an appeal from said judgment, stating chat period not exceeding three years, if the plaintiff he had his bondsman with him and desired stricken off. to give bond for the debt, interest and costs

Rule to strike oft Lien. upon the affirmance of the judgment, and offered to pay the sum of one dollar and

J. H. Garrahan for Rule. fifty cents, the costs of the transcript of

G.W. Ryon, Contra appeal.

November 12, 8917. BERGER, J.—This 4. The Alderman refused to grant an is a rule to strike off a mechanic's lien on appeal to the defendant unless the whole of the ground that the claimant has failed to the costs incurred would be first paid by the issue a scire facias against the owner within defendant to him, and several days later two years of the filing of the lien, as is rewrote the defendant to that effect.

quired by Sec. 10 of the Act of June 4, 5. On the 12th day of April, 1917, the 1901, P. L. 432. The lien was filed June General Manager of the defendant Com- 5, 1915, and the rule to strike it off was pany, with a bondsman or surety, Mr. John taken September 10, 1917. J. Schmidt, again visited the office of the J. A. Eroh, the assignee of the claimant Alderman for the purpose of perfecting his of H. E. Eroh, made answer to the said rule appeal by entering bond and making the in which he avers that he and his counsel, necessary affidavit.

George W. Ryon, Esq., and the owner and The Alderman was at that time confined her counsel, George Striegel, Esq., after at his dwelling house by sickness which rend- various meetings between the parties during ered him unable to attend to the duties of the two years subsequent to filing the lien, his office; consequently defendant did not agreed that the claimant should be adjusted take its appeal within the twenty days from out of Court, and that pending an adjustthe entry of judgment.

ment no proceedings would be taken upon 6. The petitition for mandamus was pre- the mechanic's lien; and failing in an adsented to the Court and filed April 17th,1917. ljustment, proceedings might then be taken

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