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Under Section 409 of the Workman's Compen- [ sation Act of June 2, 1915, P. L. 736, the ruling of the compensation board in reversing the finding of a referee and setting aside his award is final when there is no question of law involved.
Rodger J. Devers for Plaintiff.
November 5, 1917. EDWARDS, P. J.According to Section 409 of the Compensation Act of June 2, 1915, P. L. 736, "a referee's finding of fact shall be final unless the board shall allow an appeal therefrom as hereinafter provided. The board's findings of fact shall in all cases be final. From the referee's decision on any question of law an appeal may be taken to the board, and from any decision of the board on a question of law an appeal may be taken to the courts as herein provided."
February 18, 1918. WANNER, P. J.— The exceptions to the appraisement of the real estate in this case have been withdrawn.
Appeal from finding of Workman's Com- Those alleging the undervaluation of an
automobile and objecting to the award of a certain certificate of deposit by the decedent in the Peoples National Bank of Stewartstown, for $700.00, and a judgment of the decedent against L. G. Gemmill, No. 706, January Term, 1916, for $900.00 at their face value only, when they also carried accrued interest, are insisted upon.
While it is true that a small second-hand roadster appraised at $250.00, was afterwards sold for $300.00, that fact alone is not conclusive evidence of undervaluation, or of any collusion or wrongdoing on the part of the appraisers, against whose character and good faith in this transaction nothing is either alleged or proven.
It is a matter of common knowledge that the value of a second-hand automobile is most uncertain, at all times, and has a wide margin for the exercise of honest individual judgment in attempting to fix it. The general good judgment of these appraisers appears in the fact that at a sale of the personal goods awarded to the widow, which was held several months after the appraisement, the difference between the appraisement and the proceeds of sale of seven hundred dollars worth of chattels was only about $57.00.
In the present case the board reversed the findings of the referee and set aside the award. There is no question of law involved. The latest adjudication on this matter has been rendered by the Supreme Court in the case of Poluskiewicz v. Phila. & Reading C. & I. Co., 257 Pa. 305. Appeal dismissed.
The fact that a second-hand automobile, which was appraised at $250, afterward sold for $300, is no evidence of undervaluation or collusion or wrongdoing on the part of the appraisers.
A refusal to permit the presence of interested heirs at an appraisement is a fact to be taken into consideration when the fairness of the appraisement has been questioned.
Exceptions to widow's appraisement.
The method of holding this appraisement
Widow's appraisement-Method of Holding was manifestly fair, and has the approval of judicial decisions. They first appraised all the decedent's personal prop rty, without knowing which the widow would elect to take, and then after she had made her choice, set apart the articles chosen for her at the general appraisement price. This exception must be dismissed.
The appraisers first valued all of decedent's personal property, without knowing which the widow would elect to take, and then set aside to her the articles which she chose, at the appraised price. HELD, to be a manifestly fair method of appraisement.
Logan Logan for exceptions.
The appraisers awarded to her a certificate of deposit and a judgment at their face value, with out taking the interest into consideration. HELD,
that the interest, up to the time of the appraise ment, must be accounted for as part of the estate.
Those against the award of both princi-. pal and interest on the certificate of deposit and the judgment set apart to the widow, however, should be sustained. Although at the time of the appraisement, it may not have been known precisely what interest would be payable, the certificate of deposit having now matured, interest is collectible
thereon from its date. As the interest on this certificate of deposit and upon the judgment note in question, if given to the widow, would increase her allowance to more than the statutory sum of $5000.00, she should only receive the principal in each case, and the interest up to the date of the appraisement should be retained as part of the decedent's estate.
Another ground of exception to the appraisement generally is the fact that exceptants were not notified of the time and place of holding the appraisement, though they had requested it, in order that they might be present when it was held. No ruling that such a refusal to give notice would be sufficient ground upon which to set aside the appraisement has been cited, and we know of no authority for so doing. A refusal to permit the presence of interested heirs at such an appraisement however, is a fact for consideration along with the other proven facts in the case, in determining the fairness and justice of the appraisement, when it is objected to upon any ground
raising that question.
The second and third exceptions are sustained. The principal sums due on the certificate of deposit and the judgment of the decedent in question are awarded to the widow, Nettie B. Logan, and it is ordered that the interest which had accrued thereon up to the date of the appraisement, shall be accounted for as part of the decedent's estate hereafter, by said Nettie B. Logan as administratrix of the estate of Curtis E. Logan, deceased. The cost of this proceeding to be paid out of the estate.
O. C. of
Specific performance-Acts of February 24,
Petition for Specific Performance.
January 21, 1918. WILHELM, P. J.This is the application of Edmunda Gross, administratrix, for a decree of specific performance of an alleged agreememt of sale, entered into by the decedent, praying for an order to execute and deliver a deed in fee simple to the purchaser of certain real estate upon the payment of the balance of the purchase money.
The petition sets out that Thomas Grenbowski died seized of a piece of real estate, known as No. 2951 Alter Street in the City of Philadelphia, and that the decedent through his duly constituted agent entered into a written contract with one Edward Mowbray for the sale and conveyance of said premises for the price or sum of Nine Hundred Dollars, and that copy of the contract is attached to the petition and marked Exhibit A.
by the purchaser to Frederick R. Gerry for That the contract has since been assigned whom the purchaser was acting as agent in said transaction.
that twenty-five dollars was paid at the time The petition also contains the allegation. of the execution of the contract, and seventyfive dollars was subsequently paid on account of said purchase money.
There is no ailegation that any of the money paid in pursuance of this contract was received by the decedent.
It is presumed that the Act of 24 February, 1834, section 15 P. L. 75, is relied upon to secure the order prayed for. This section of the act provides: "Whenever any Schuylkill Co. person shall, by a bargain or contract in writing, bind himself to sell and convey any real estate within this commonwealth, and shall die seized or possessed of such real estate, without having made any sufficient provision for the performance of such bargain or contract, it shall be lawful for the executors or administrators of such decedent, or for the purchaser of such real estate, or other person interested in such contract, to apply, by bill or petition, to the Orphans' Court having jurisdiction of the accounts of such executors or administrators to decree the specific performance of such contract."
A bill for specific performance must show that the decedent contracted in writing to sell or convey his real estate or that he authorized another to contract for him; that the decedent received
The difficulty here lies in the fact that.
part of the purchase money and that he had this decedent did not contract in writing to sell his real estate. Exhibit A. attached to
knowledge of the contract.
the petition shows that the contract was executed by Thomas A. Mullen, Agent, of the first part, and Edward Mowbray of the second part.
There is nothing in this petition to show that the decedent contracted in writing to sell or convey his real estate or that he authorized any person to contract for him. It is not alleged that the decedent received any part of the purchase money, neither is it shown that he had any knowledge of this
Stewart & Gerber and J. G. Giessner for exceptions.
W. A. Miller, contra.
Road in East Manchester Township Road View-Petition-Naming of Route.
The petition for the opening of a new road not only gave the termini, but marked out the route over which the proposed road was to be constructed, and the names of the owners of the land through which it was to pass. HELD, that the
report must be set aside.
February 11th, 1918. Ross, J.-Numerous exceptions were duly filed to the report of the above designated view, but because the 1st and 4th exceptions filed on October 11th, 1917, are fatal to the report, it will be unnecessary to here discuss any of the other exceptions.
It appears in the petition that the termini When this petition was presented, counsel stated that under the authority of West of the proposed road were mentioned, but Hickory Mining Association v. Reed, 80 the petition also marked out the route over Pa. 38, it is unnecessary to give notice to which the proposed road was to be conheirs when an application of this character structed with several given points between is made, and it is presumed that, relying the point of beginning and the point of ending. upon that authority, no notice was given, and it is not the intention of the petitioner The names of persons owning the lands to give notice to the heirs of the decedent. on the route through which the petitioners The Act of 1889, section 1, P. L. 157, asked to have the proposed road laid out requires that notice shall be given to heirs were given in the petition. The report of when an application of this nature is made. viewers practically follows the route proposed by the petitioners.
The exceptions are as follows:
It is improper to grant the prayer of this petition upon the ground that the decedent entered into a parol contract for the con"I. The petition in the above case not veyance of his real estate. There is no only designates the termini of the said road proof or offer that a parol contract was but designates the route between the termentered into. Neither is there any allega- inal points, a matter which is exclusively tion that the contract has been so far executed for the viewers." that it would be against equity to rescind it.
The petition shows that the decedent did
not enter into a written contract to sell his
The petition is dismissed at the cost of the petitioner.
The petition for the view lies at the foundation of all the subsequent proceedings, and can do no more than state the beginning and ending.
Exceptions to Report of Viewers.
"4. The petition in the above case is defective, in that it designates the route and Properties through which the proposed road is to run, between the termini.”
The law is well established that "the petition for the view lies at the foundation of all the subsequent proceedings, and can do no more than state the beginning and ending. If an intermediate point be prayed for, the viewers will be refused, and if by oversight they be appointed the report will be quashed. This is the uniform practice, and the reason is, that the law requires the viewers to lay out the road, having respect to the shortest distance and the best ground for a road, and in such manner as to do the least injury to private property **** Even the court cannot designate an intermediate point in the order;" Road in Lower Merion, 58 Pa. 66; Road in Ottercreek Township, 104 Pa. 261; Franklin Township Road, 54 Pa. Sup. Ct. 293.
The first and fourth exceptions filed October 4th, 1917, are sustained and for that reason the report of the viewers is set aside at the cost of petitioners.
A, an officer of C, the insolvent corporation, as an agent for B, sold and delivered to Ca
Sitting in Equity.
Exceptions to Auditor's Report.
I. K. Keesey for exceptions to disallowance of Delone claim, to the allowance of the Hardnett claim, and in not allowing a set-off against the awarded Haney claim.
Niles&Neff for exceptions to the allowance of the Hardnett and Haney claims.
allowance of Haney's smaller claim.
March 4, 1918.
Ross, J.-This court distribution of a balance appearing on the appointed Ray P. Sherwood auditor to make account of Alvin R. Nissley, who was the receiver of the Poultry Fancier Publishing Company, to and amongst those legally entitled thereto. The balance on the account was not sufficient for the payment in full of all claims presented by creditors.
press and other material with the understanding that B was "to carry" the machinery so sold until it was "convenient for C to pay for it." Subsequently A, as an inducement for S and M to purchase stock in the corporation, stated to them that the equipment of the plant was entirely free of debt. Before the auditor distributing the balance on the account of the receiver of C, B claimed the full purchase price and the auditor the R. W. Hardnett Company for $2293.25 awarded him a dividend thereon. On exceptions filed, HELD, that in the absence of any testimony to show that A had been authorized to make such untrue declaration, that the exceptions must be dismissed.
Among the claims was one presented for
for an optimus press, motor castings, &c., which the claimant alleged he had previously sold and delivered to the Poultry Fancier Publishing Company. The allowance of the claim was objected to and the claimant
A agreed to sell his stock in the C company to the company for a fixed sum, part to be paid in cash and the balance in installments, secured by produced proof which satisfied the auditor judgment. On receipt of the cash he sent the of its validity, and he allowed it to particistock to the secretary of the company with instruc-pate with the claims of other general creditions to hold the same until the judgment was
secured. C refused to give the judgment and tors in the distribution and awarded a pro after some correspondence expressed its willing- rata dividend to the claimant thereon. That ness, by its attorney, to declare the whole thing award by the auditor is made the subject of off but directed the secretary to hold on to the exceptions by the First National Bank of stock. Before the auditor, A claimed the balance Hanover, Pa., and Charles J. Delone, who of the purchase price. HELD, that exceptions to the allowance of the claim must be dismissed. are creditors of the insolvent company.
E, as attorney, successfully resisted the payment of claims amounting to $1227.12. HELD, that an allowance of $300 to him out o: the fund for distribution, will be sustained.
On page 16 of the auditor's report he rethe facts as follows: ports
"E. D. Haney, for the R. W. Hardnett D advanced to the corporation $3000 to pay for Company, in the fall of 1912, sold and dethe stock of A, under an agreement that $3000 delivered to the Poultry Fancier Publishing worth of stock was to be transferred to him. By Company an optimus press with motor roller reason of the failure of the corporation, acting under his advice, to give the judgment desired equipment and punching machine, cutter and by A, the stock was ** never delivered to the press for the sum of $2393.25.” * company, or any part to him. The auditor "That said personal property was bought found that his participation in the meetings of with the understanding that claimant was the corporation as president and director, and his failure to assert any claim for the money ad- to carry them until such time as it would be vanced until after the appointment of the receiver, convenient for the Poultry Fancier Publishfixed his status as that of a stockholder, and re- ing Company to pay for them. That said jected the claim. HELD, that exceptions to this personal property has never been paid for by finding must be dismissed. the Poultry Fancier Publishing Company. That at the time of said sale of said personal property by the claimant through its agent, E. D. Haney, that the said E. D. Haney was treasurer and stockholder of the claim-. ant's company. That in the fall of 1913, E. D. Haney, who was also an officer of the
A presented a claim for money loaned to the corporation. As others had been induced to loan money to the corporation by reason of his statements that it was not indebted to him, the auditor rejected the claim. HELD, that exceptions to his findings must be dismissed.
No. 4, January Term, 1915.
Poultry Fancier Publishing Company, and argument of its astute counsel, are to the other officers of the Poultry Fancier Pub-effect that the auditor has deducted an erronlishing Company, to wit, F. D. Sutton and eous legal conclusion from the facts as he F. W. DeLancey, interested C. S. Shirk has stated them in his report. After a careand C. N. Myers in the purchase of stock ful study of the exceptant's exceptions and of the Poultry Fancier Publishing Company, the arguments in support thereof, we are led with the object of moving the Poultry by the reasoning of the auditor, to the afFancier Publishing Company's plant to firmance of his legal conclusions. The exHanover, Pa. That at said time E. D. ceptions filed to the award of the auditor on Haney stated to Messrs. Shirk and Myers this branch of the case are, therefore, disthat the equipment of the plant was entirely missed. free without any debt. That E. D. Haney E. D. Haney presented a claim amountat said time delivered to C. N. Myers Ex-ing to $7000.00, which was represented to hibit No. 70, R. P. S., and declared that be a balance due him from the Poultry the same was a correct statement of the Fancier Publishing Company on a verbal assets and liabilities of the Poultry Fancier contract for the purchase of the claimant's Publishing Company, and that the Poultry stock, in the month of June, 1914. Fancier Publishing Company owed nothing more than was shown on this statement. That said declaration of E. D. Haney, pertaining to the claim: together with a statement marked Exhibit No. 70, R. P. S., influenced Messrs. Shirk Company, prior to June 8, 1914, entered and Myers in purchasing stock of the into a verbal agreement with the claimant Poultry Fancier Publishing Company. That for the purchase of all his stock in the on December 26, 1914, the R. W. Hartnett Poultry Fancier Publishing Company for Company filed in the Court of Common the sum of $9000.00. That $3000.00 of Pleas to No. 4 of January Term, 1915. its said consideration was to be paid in cash, bill in equity against the Poultry Fancier and the balance of $6000.00 by six notes of Publishing Company for the appointment the Poultry Fancier Publishing Company, of a receiver, recorded in Equity Docket each in the sum of $1000.00, to be dated No. 12, page 331, wherein the claimant April 10, 1914, maturing annually; the dealleged it was a creditor of the Poultry ferred payments to be secured by judgment Fancier Publishing Company to the sum of note. about $950.00."
The auditor found the following facts from all the testimony taken before him
"That the Poultry Fancier Publishing
It was also found by the auditor that "no testimony has been offered to show that the claimant authorized Haney to make this declaration."
On page 19 of the auditor's report, he asserts as a fact that, "No testimony is offered in contradiction of the witnesses to the effect that the press and other personal property were sold and delivered to the company, and that the purchase price thereof is unpaid, the officers of the company testifying in behalf of the claimant."
An examination of the notes of testimony taken before the auditor plainly justifies his conclusion of fact; and although some of the exceptions directly question those findings of fact, there is nothing on the record which induces the court to change or modify them. "Unless the finding of an auditor be manifestly erroneous, the court will not set it aside;" Coleman's Assigned Estate No. 1, 200 Pa. 29.
But one set of exceptions, that of the First National Bank of Hanover, and the
That subsequent thereto, F. W. Delancey, President of the Poultry Fancier Publishing Company, and on its behalf, went to Philadelphia, to wit, on or about June 6, 1914, saw the claimant, and after talking the matter over, the original agreement between the Poultry Fancier Publishing Company and the claimant was modified so as to require a cash payment of $2000.00, and seven notes in the sum of $1000.00 each, maturing annually-the deferred payments to be secured by judgment note for $7000.00 as evidenced by a memorandum of an agreement. That said memoranda was executed by E. D. Haney, but was not executed by the Poultry Fancier Publishing Company. That at said time $2000.00 in cash was paid by the Poultry Fancier Publishing Company through its agent, F. W. Delancey, the president of the company, to the claimant for claimant's stock.
The claimant, upon receipt of said sum of $2000.00, immediately assigned his stock of upwards of twelve thousand shares in the Poultry Fancier Publishing Company to F.