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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 ties were set on fire, tribution, the money mentioned in his thereby igniting the grass and fence on the plaintiff's land.

return.

C. P. of

Lancaster Co. Sheaffer v. Pennsylvania Railroad Co. Statement-When sufficiently specific-other allegations are, perhaps, contained

It was also alleged that, on Wednesday, February 10, 1915, the same conditions existed, and thereby the same four and a half acres were again burned over, and ten 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 damages for injury by fire to property adjoining its tracks alleged to have been caused by sparks

from a defective smoke-stack on a locomotive the plaintiff should not be compelled to file a more specific statement, although his statement fails to give the number of the locomotive, the direction in which it was going or the time of day, and 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. was unknown to him, but that it was going in a westerly dirction. As to the second fire, he stated that both the number of the

John A. Nauman, for rule.
F. S. Groff, contra.

The defendant entered a rule for a more specific statement. The numbers of the engine or engines, which it is alleged caused the fire or fircs, are demanded; the time of day when the fire occurred is asked for, aud the direction in which the engines were running. The plaintiff thereupon filed an

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, along the plaintiff's said lands; caused the damage was going westerly. He that the company, about midday of the said does not know the 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 flues of which was defec- plaintiff has. tive, in that it emitted large sparks in great i In Brauer v. Moore, 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 vegetntion 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 engines, but even then he would be unable,

The action is in replevin.

The facts are all apparent upon the record, and are briefly as follows:

most likely, to pick out the alleged defective engine; and the defendant, therefore, has now as much information upon the subject as the plaintiff would have if his demand was complied with. It would, therefore, Smith the "Buyer," by virtue of which, for

Jones-Whitaker Sales Company of the City of Indianapolis, Indiana, and Victor George Smith of Kokomo, same State, entered into the agreement a copy of which is appended to the statement of claim, wherein the plaintiff is styled the "Seller" and said

be useless to thus furnish what he had obtained.

the consideration therein specified, said "Buyer" became the possessor of a certain Chevrolet automobile. The price of the automobile was $585.20, of which the "buyer" paid $250.00 in hand and agreed to

As to the second fire, it is true he gives no information, except an approximate date. This undoubtedly is very uncertain information, 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, be fully paid, with interest at 6% on the he cannot recover. He will not be per- deferred payments. Provision was made mitted 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 written consent of the "Seller." Said buyer, however, disregarded his agreement to make such additional payments and not to remove the property from the State of Indiana, but brought it into the State of Pennsylvania. and sold it for a valuable consideration to the defendant, Albert Kunkle, who had no knowled_e of any defect of title, and is admitted to be an innocent purchaser.

Rule discharged.

Work Legal Record

Vol. XXXI THURSDAY, JANUARY 10, 1918. No 35.

C. P. of

Allegheny Co. Jones & Whitaker v. Kunkle Replevin-Automobile-Conditional Sale -Words "Lessor" and "Lessee"-"Buyer" and “Seller” —“Rent.”

Judgment was entered for defendant where it appeared in replevin that defendant purchased an automobile from one who had failed to make all the payments or comply with the conditions of an agreement, of which defendant had no knowledge, when the agreement upon which the original sale had been made in another state, was

a conditional sale and not a lease.

In an instrument, providing for the sale of an automobile and the payment of installments for the unpaid balance of the purchase money, the words "lessor" or "lessee" were not used, but the parties were designated as "seller" and "buyer" and the word "rent" as used was equivalent to "liquidated" damages, and it was not clear that a bailment was intended, the court on a rule for want of a sufficient affidavit of defense in replevin determined that it was a conditional sale and not a bailment, discharged the rule and entered judgment for defendant.

Rule for Judgment for Want of a Sufficient Affidavit of Defense.

The motion for judgment raises the sole question as to whether such instrument Exhibit "A" of plaintiff's statement, was, under the law of Pennsylvania, a conditional sale or a bailment.

Exhibit "A," the contract appended to 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 conditional sales and not bailments.

A. C. Christiansen for defendant. October 3, 1917. REID, J.-This is a rule for judgment for want of a sufficient affidavit of defense.

Plaintiff replevied the automobile in the hands of said Kunkle, who gave a counter bond, and thereafter, in reply to the plaintiff's statement of claim, filed an affidavit of defense averring his purchase from said "Buyer" for value, without knowledge of any limitation in the title of said Smith, and averring that the agreement referred to between said "Seller" and "Buyer" constituted a conditional sale, and not a bailmentvesting title in his, said defendant's, vendor as against the "Seller."

We are aware that it is not what the parties call the agreement that controls its legal effect-and that the intention of the

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 alleged lessor, in order to affect a legal lease or bailment.

In our opinion, the contract in question in the case at bar is open to the criticism of

that in the case cited above:

"There is nothing about this agreement that suggests a bailment except the use of the word 'lease' in the first line and the

word 'rental' in the supplement. But these words were evidently used to give another name to what was meant to be a conditional

the opinion of the trial court, MorganOf such a provision, McIlvaine, P. J., in Gardner Electric Co. v. Brown, 193 Pa. at sale. The agreement has none of the in- PP. 357-8 (affirmed by the appellate court on that opinion), says: "This provision was not put in the contract to insure the return of the property to the Electric Company, 'so that it might have its own again,' but to insure the payment of the notes, so that the property might remain in the possession of the Coal Company as its own. It was a contract remedy to enforce payment, not of hire, but of purchase money."

The case of Enlow v. Klein, 79 Pa. 488, relied upon as supporting plaintiff's contention that exhibit "A," constitutes a bailment, does not, under the facts of this case, support the proposition.

To use the term "to furnish within ten days" does not bring the case within the decision of Enlow v. Klein. Woodward, J. in that case explicitly says: "The use of such a word as furnish, vague as it is in its signification, would leave the clause in which it occurs of ambiguous import, if there were nothing besides to indicate the sense in which it was employed. It might imply a sale, a lease, a loan, a gift or

dications of a lease. There is no term mentioned, and there is no provision for the return of the roller except in case of default in making monthly payments. Although fixing a term and providing for a return at the end thereof, may not be essential to bailment, they are important and often controlling evidence of the intention of the parties."

a

The instrument which plaintiff maintains. is a bailment has less of the evidence of such intention on the part of the contracting parties, than any other which has come under our observation.

No such return, at the end of any term or period, is stipulated for in the case before us, except that incident to the failure of the "Buyer" to make payment.

In the top line, in bold capitals, it is entitled "Contract for Purchase of Automobile." The term "lessor" or "lessee," "bailor" or "bailee," is nowhere used nor are the terms, "let" "leased" "bailed" or other phrases of a similar nature usual in contracts or bailment anywhere found. On the contrary, the parties are throughout designated as "seller" and "buyer."

ject matter.

Of the case of Enlow v. Klein, Paxon, J., in Stadfeld v. Huntsman & Company, 92 Pa. St. at p. 57, says:

The term "rent" is used but once, appearing 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 purchase price due and collectible, or may rescind this contract to sell and take possession of the property *** without notice; 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 It will be seen from important feature of the case in our conthe above that the word "rent" is only an sultation, and is referred to now that it may equivalent term for "liquidated damages" not be misunderstood hereafter. Enlow v.

1

contract.

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Beeber, J., in the opinion of the Court at pp. 633-4, says:

Klein was fortified by the authorities, and we do not propose to disturb it. But we will not take one step beyond it. We stop just where it ends."

i

The instrument before us, Exhibit "A," does not, taking it in all its details, present, or suggest the idea, that the monthly pay ments of $27.95 are fixed as compensation that there is to be a sale only after the full payment of the purchase money.

"It is argued that because the agreement provides that Harper 'will sell and transfer to the party of the second part on the fulfilment of the covenants and conditions hereinafter contained,' it shows an intent

for the use or hire of the automobile in question.

I

In Farquhar v. McAlevy, 142 Pa. at p. 240, the Per Curiam opinion of the appellate court again says:

Some strength might be conceded to this argument if it appeared that possession of the mill was taken in pursuance of some 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 the word 'will' applies as well to the word. transfer' as it does to the word 'sell' and

man

it."

It is urged by plaintiff that the contract 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 much to emphasize the time when he would sell in the future, but rather to express a present intent, which was to sell.'"

The rule for judgment for want of a

"The Seller, in consideration of the payments and conditions herein set forth to be performed by the Buyer, does hereby agree to furnish within ten days after the date of this agreement to the Buyer, and agrees to sufficient affidavit 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 and the payment of $250 required as hand

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Emig v. Keystone Wire Cloth Company

Appeal-Bail for Costs-Mandamus

money.

That such possession as was yielded to the Buyer, notwithstanding the phraseology as to a future fulfilment of conditions, is one of the chief marks of ownership, under contracts for conditional sales is apparent in Ott v. Sweatman, 166 Pa. 217. In that case, in the opinion of Jenkins, J., at p. 222 (affirmed by the appellate court), it is said: and in doubful cases the court in construing the contract has been governed by the principle that 'possession of personal property is the great mark of ownership.'

January 7, 1918. Ross, J.-This case

In the case of Harper v. Hogue, 10 Supr. Ct. 624, the question presented here, that the contract was to be executed in futuro, and therefore no present title passed, was raised. The contract there was that "The 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 an 1 that a writ of Mandamus 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

f

Defendant, within six days after judgment had been rendered against him, appeared before the Alderman with his bondsman, and asked for an appeal, tendering the costs of the transcript, and offering a bond for the debt, interest and costs. The Alderman refused to grant an appeal unless the costs already accrued were paid. Subsequently defendant again appeared at the Aldermin's office, but the latter was absent because of sicknees, and the twenty days expired without an appeal being taken. HELD, on a petition for a mandamus, that the petition must be granted. Ehrehart Bange, for petition. W. A. Miller, contra.

No. 4, August Term, 1917.
Application for Writ of Mandamus.

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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 of debt, interest, and costs that have and will accrue on affirmance of the judgment, the appellant shall not be required to pay any costs before taking an appeal;" Act approved May 29th, 1907, P. L. 306. It, therefore, was the duty of the Alderman to allow the petitioner to appeal from his judgment upon a compliance with the above cited law; Cambria Auto Co. v. Frischkorn, 54 Pa. Super. Ct. 272; Snyder v. Bauer, 18 Dist. Rep. 639.

An answer was filed to the petition and testimony was taken in support of the contentions of the respective parties. From the evidence we find the following facts:

1. On the 17th day of March, 1917, suit against the Keystone Wire Cloth Company was entered before Walter F. Owen, Esq., (an Alderman for the City of York, Pa.) by Charles H. Emig and on said day a summons was issued, directed to the Keystone Wire Cloth Company, commanding said defendant to be and appear before the said Alderman, &c., on the 23rd day of March, 1917, between the hours of nine and ten o'clock A. M.

2. At the time fixed for the hearing the defendant did not appear and judgment was entered against it in favor of the said Charles H. Emig, for the sum of two hundred sixty-nine dollars and ninety cents, with costs.

3. On the 29th day of March, 1917, W. F. Kintzing, General Manager of said Keystone Wire Cloth Company, appeared at the office of said Alderman, and demanded an appeal from said judgment, stating that he had his bondsman with him and desired to give bond for the debt, interest and costs upon the affirmance of the judgment, and offered to pay the sum of one dollar and fifty cents, the costs of the transcript of appeal.

4. The Alderman refused to grant an appeal to the defendant unless the whole of the costs incurred would be first paid by the defendant to him, and several days later wrote the defendant to that effect.

The peremptory writ of mandamus is awarded as prayed for.

5. On the 12th day of April, 1917, the General Manager of the defendant Company, with a bondsman or surety, Mr. John J. Schmidt, again visited the office of the Alderman for the purpose of perfecting his appeal by entering bond and making the necessary affidavit.

The Alderman was at that time confined at his dwelling house by sickness which rendered him unable to attend to the duties of his office; consequently defendant did not take its appeal within the twenty days from the entry of judgment.

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J. H. Garrahan for Rule.
G. W. Ryon, Contra
November 12, 8917.

BERGER, J.-This

is

a rule to strike off a mechanic's lien on the ground that the claimant has failed to issue a scire facias against the owner within two years of the filing of the lien, as is required by Sec. 10 of the Act of June 4, 1901, P. L. 432. The lien was filed June 5, 1915, and the rule to strike it off was taken September 10, 1917.

J. A. Eroh, the assignee of the claimant of H. E. Eroh, made answer to the said rule in which he avers that he and his counsel, George W. Ryon, Esq., and the owner and her counsel, George Striegel, Esq., after various meetings between the parties during the two years subsequent to filing the lien, agreed that the claimant should be adjusted out of Court, and that pending an adjustment no proceedings would be taken upon the mechanic's lien; and failing in an ad

The petitition for mandamus was presented to the Court and filed April 17th, 1917.justment, proceedings might then be taken

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