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of by the court. If in the opinion of the either upon the employer (for the common court the decision of such question of law law defenses were court-made and can be disposes of the whole or any part of the modified or abolished by the legislature), or claim, the court may enter judgment for the upon the employe. And as the parties have defendant, or make such other order as may a free choice it was competent for the legis be just," etc. The words "or make such lature to make the acceptance of the comother order as may be just" may be sufficient pensation plan presumptive at the time of to support a judgment of nonsuit. In Barto consummating the contract of service. Inv. Shaffner, 26 Pa. Dist. Rep. 957, it was asmuch as the Compensation Act provides held by President Judge Endlich that "The that it shall not impair the obligation of any questions of law contemplated by section 20 contract in force prior to December 31, of the Practice Act of May 14, 1915, P. L. 1915, it cannot contravene article I, section 483, are those a decision upon which dis- 10 of the Federal Constitution. Nor does poses of the whole or a part of the plaintiff's it violate either the due process clause, or claim, such as under the old practice might the equal protection clause of the fourteenth be interposed by demurrer." The practice amendment." The practice amendment." The conclusions above rein the present case follows Anderson v. ferred to, are amply sustained by the many Carnegie Steel Co., 255 Pa. St. 33, a case cases to which the authors refer. It would not cited upon the argument, but which be a waste of time to examine them in depractically rules the present case. The tail, but excellent discussions are found in proper judgment in this case is judgment Young v. Duncan, 218 Mass. 346, and In for the defendant. The plaintiff brings his the Matter of Jenson v. Southern Pacific action of trespass to recover damages against Co., 215 New York 514. The latter case the defendant corporation, and he alleges in is valuable as it practically overrules Ives v. his statement that on the eighth day of South Buffalo Railway Co., a case in 201 July, 1916, he was employed by the defend- New York 271, and as it also refers to the ant company as a carpenter foreman in the decisions of the supreme court of the United city of Easton, and that in the discharge of States. The act itself provides: "Section his duties on the said day, he was seriously 301. When employer and employe shall by and permanently injured, through the neg- agreement, either express or implied, as ligence of the defendant. The defendant hereinafter provided, accept the provisions admits the contract of employment, and of article three of this act, compensation for after denying its negligence, sets up as personal injury to, or for the death of, such matter of law, "that the said plaintiff ac- employe, by an accident, in the 'course of his cepted the provisions of the Workman's employment, shall be made in all cases by Compensation Law of the State of Penn- the employer, without regard to negligence, sylvania and being bound by the provisions according to the schedule contained in sectherof, cannot maintain present action tions three hundred and six and three hunagainst the said defendant." The learned dred and seven of this article. *** Section counsel for the plaintiff contends that "The 302. (a) In every contract of hiring Workmen's Compensation Act of 1915," made after December thirty-first, one thouspage 736, is unconstitutional, and that he is and nine hundred and fifteen, and in every entitled to maintain the present action. contract of hiring renewed or extended by That act is the law in at least twenty-eight mutual consent, expressed or implied, after of the United States, in Canada, in Eng- said date, it shall be conclusively presumed land, and most of her colonies, in Mexico, that the parties have accepted the provisions Peru, Venezuela, Austria, Belgium, France, of article three of this act, and have agreed Japan, Italy, Norway, Russia, Sweden, to be bound thereby, unless there be, at the Switzerland, and most of the other civilized time of the making, renewal, or extension nations of the world. In Schnader's and of such contract, an express statement in Storey's Pennsylvania Workmen's Compen- writing, from either party to the other, that sation Law, Section 106, it is said: "Every the provisions of article three of this act are elective workmen's compensation act which not intended to apply, and unless a true has been attacked before a state court of copy of such written statement, accompanied last resort has been held constitutional. by proof of service upon the other party, The acceptance of the compensation plan setting forth under oath or affirmation the contained in the Pennsylvania Compensa- time, place, and manner of such service, be tion Act is optional and not compulsory filed with the bureau within ten days after

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Affidavit for Defense-Averments--Sufficiency-Not Delivered on Sunday.

A note, bond or contract although executed on a Sunday is nevertheless valid if delivered on a week day.

Rule for judgment for want of a sufficient affidavit of defense.

W'elles, Stocker & Torrey and John M. Gunster for plaintiff.

C. B. Little for defendant.

such service and before any accident has occurred. Every contract of hiring, oral, written, or implied from circumstances, now in operation, or made or implied on or beIn a suit against defendant as accommodation fore December thirty-first, one thousand tiff, an affidavit of defense is sufficient to prevent endorses on a promissory note payable to plainnine hundred and fifteen, shall be conclu-judgment which avers that the note was endorsed sively presumed to continue subject to the and delivered by defendant on a Sunday. provisions of article three hereof, unless either party shall, on or before said date, in writing, have notified the other party to such contract that the provisions of article three hereof are not intended to apply, and unless there shail be filed with the bureau a true copy of such notice, together with proof of service, within the time and in the manner hereinafter prescribed. *** Section 303. Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a sur- December 20, 1917. EDWARDS, P. J.render by the parties thereto of their rights This is a suit against the defendant as acto any form or amount of compensation or commodation endorser for M. S. Trucker, damages for any injury or death occurring on a promissory note payable to the plaintiff. in the course of the employment, or to any Regardless of the question of the liability of method of determination thereof, other than the defendant on the note in the face of the as provided in article three of this act. Such fact of that the affidavit of defense alleges a agreement shall bind the employer and his failure of consideration as between Trucker personal representatives, and the employe, and the plaintiff, there is one other question. his or her wife or husband, widow or raised in the affidavit, which, in itself, is widower, next of kin, and other depend- suffic.ent to prevent judgment on the pleadents." It was the plain du'y of the plaintiff ings. It is averied by the defendant that to set forth that he was exempted by the the note in suit was endorsed and delivered exceptions to the act. The rule is that by him on Sunday, November 12, 1916. where a statute is relied on for a defense, Plaintiff's counsel, in the citation of authorithe party relying on it, need not refer to, or ties, must have overlooked the allegation as negative an exception or proviso unless it is to delivery on Sunday, because the cases cited contained in the enacting clause. In the establish the proposition that a note, bond absence of any such averment the presump-jor contract executed on Sunday is neverthetion is "conclusive" that the parties accept- less valid if delivered on a week day. One ed the provisions of the act. The whole of the early cases in Pennsylvania is authorsubject both as to practice and as to the law, ity on this point, viz., Com. v. Kendig, 2 is, however, set at rest in Pennsylvania by Pa. 448, wherein it is decided that "a bond Anderson v. Carnegie Steel Co., supra. is not perfected until delivery, and that a Mr. Chief Justice Brown discusses every mere signing on Sunday does not render it phase of the questions raised by the learned void if not delivered until the day followcounsel for the plaintiff in the present case, adversely to him. It would be waste of time to quote what he so well said.

ing." The same ruling is made by Judge Rice in Stevens v. Hallock & Co. et al., 7 Kulp 260. We refer also to Beitenman's Appeal, 55 Pa. 183; Sherman_v. Roberts, 1 Gr. 261, and Williams v. Transit Co., 257 Pa. 354.

In the opinion of the court, the decision of the question of law, raised by the statement and affidavit of defense, disposes of the whole of the plaintiff's claim, and the court The exceptions in this case are overruled hereby enters judgment for the defendant. and the rule for judgment is discharged.

American Insulation Co. v. Lindemuth April 25th, 1917, the defendant agreed to accept the plaintiff's offer, provided that it would also furnish a bond for the proper

Engineering Co.

Contract-Acceptance of Offer-Reasona- completion of the work on time. bie Time. April 26th, 1917, plaintiff replied objectPlaintiff offered to furnish and erect for de-ing to furnishing the bond because the cost fendant certain covering material. Defendant of so doing had not been included in its bid agreed to accept said offer if plaintiff would give for the work, but proposed to furnish the bond for the proper completion of the work on bond if the defendant paid the expense. time. Plaintiff consented to give the bond if defendant would pay the cost thereof. To this de- April 28th, 1917, the defendant wrote the fendant replied that it would pay half the cost. plaintiff insisting upon a bond being given Not having received an answer in five days; "as a protection owing to the condition of defendant placed its order elsewhere. Plaintiff then brought suit to recover the profits it would the market and the scarcity of materials,” have made on the contract. The affidavit of de- and offered to bear half the expense of the fense denied liability, owing to the plaintiff's same, if the plaintiff would pay the other unreasonable delay in answering defendant's last half. offer. HELD, that a motion for judgment for want of a sufficient affidavit of defense must be denied.

The general rule of law in Pennsylvania is that a contract is concluded at the time of the mailing of the acceptance of an offer, and not at the time of its receipt by the party addressed.

If the offer itself fixes a time within which it must be accepted, the acceptance thereof must be made within the period specified. If no such time is fixed, as in this case, the acceptance must nevertheless be mailed within a reasonable time after the receipt of the offer or it will lapse.

What is a reasonable time in any case depends upon the location of the parties, the nature of the transaction, the usages of the trade or business in which the parties are engaged, and slso upon the previous rules of conduct between the parties themselves in the matters in controversy, and is a question for the jury,

The statement must show clearly what items of damages or profits are claimed, and the defendant cannot be expected to deny in detail these matters connected with plaintiff's business of which it can have no personal knowledge.

No. 96, October Term, 1917.

It is entirely clear that up to this point. neither party had unconditionally accepted the proposal of the other and that no contract had been closed between them; Jaxtheimer v. Sharpville Boro., 238 Pa. 42; Dougherty v. Briggs, 231 Pa. 68.

Six days after the date of its letter of April 28th, 1917, viz; May 4th, 1917, the defendant received a letter from the plaintiff, dated May 3rd, 1917, stating that the plaintiff had procured the bond desired, and had charged the defendant with half the costs therefor, viz; $2.50.

May 5th, 1917, the defendant replied that the contract had been given to another party on May 3rd, 1917, because up to that time the plaintiff had not answered the defendant's letter of April 28th, 1917. The plaintiff thereupon brought this suit.

The main question involved in the case is

Motion for judgment for want of a suffi- whether or not the plaintiff's acceptance on

cient affidavit of defense.

Cochran, Williams & Kain for motion.
J. T. Atkins, contra.

May 3rd, 1917, was in time to hold the defendant to its offer of April 28th, 1917.

The general rule of law in Pennsylvania is that a contract is concluded at the time of the mailing of the acceptance of an offer, and not at the time of its receipt by the party addressed.

March 11, 1918. WANNER, P. J.-The plaintiff seeks to recover damages from the defendant for breach of a contract which the latter contends was never closed between If the offer itself fixes a time within the parties. Their entire negotiations are contained in certain letters set forth in the pleadings.

The defendant company, located at York, Pennsylvania, in April 1917, was soliciting bids for certain non-conducting covering materials for use in the erection of a school building at West Chester, Pennsylvania.

On April 23rd, 1917, the plaintiff offered to furnish and to erect the same and to fully guarantee the work and materials, for the sum of $305.00.

which it must be accepted, the acceptance thereof must be made within the period specified. If no such time is fixed, as in this case, the acceptance must nevertheless be mailed within a reasonable time after the receipt of the offer or it will lapse.

The case of Boyd v. Peanut Company, 25 Pa. Super. Ct. 199, qualifies the general rule as to the conclusiveness of the mailing of an acceptance by holding that it depends upon whether or not it was mailed within a reasonable time after the receipt of the offer.

What is a reasonable time in any case de- Anicipated profits are not always recoverpends upon the location of the parties, the able as damages for the breach of a contract nature of the transaction, the usages of trade and this statement is obviously not specific or business in which the parties are engaged, enough to show that the plaintiff is entitled and also upon the previous rules of conduct to recover profits or to show the items which between the parties themselves in the matters | constitute the lumping sum demanded. in controversy. Having failed to show clearly and un

The defendant contends that in due course questionably to what items of damage or of mail, its letter of April 28th, 1917, must profits it may be entitled, in this case, that have reached the plaintiff on April 30, 1917, question must necessarily be referred to a and that the plaintiff's delay in answering it jury. until May 3rd, 1917, was unreasonable, as I

The defendant cannot be expected to the letter only involved the question of deny in detail these matters connected with whether or not plaintiff would bear half the plaintiff's business of which it can have no expense of procuring the desired bond. The personal knowledge. plaintiff had answered the defendant's letter The plaintiff's motion for judgment for of April 25th, 1917 on the next day, and want of a sufficient affidavit of defense is defendant contends that it should also have overruled and refused. done so in this case, instead of consuming three days in procuring the bond before C. P. of sending an acceptance of the defendant's offer.

It is also alleged in the affidavit of defense, that there was an extraordinary rise

in the price of labor and materials during the period of these negotiations which made it risky for the defendant to wait longer for an answer to defendant's letter of April 28th, 1917, before letting the contract.

Plaintiff's attention had been called in that letter to the "condition of the market and the scarcity of materials" as the reason for requiring a bond. Though these seem to be substantial reasons for a prompt answer to defendant's letter, we are of the opinion that the question whether or not the plaintiff's acceptance of defendant's offer was made within a reasonable time after its rece pt, is a question of fact for the determination of a jury, and not of law for the decision of the Court. This subject is fully considered in Boyd v Peanut Company, 25 Pa. Super. Ct. 199-205.

Sitler's Appeal

Schuylkill Co.

Appeal from School Auditor's Report-l'ac ancy-Appointment - Sureties.

An appeal from the report of school auditors will not be sustained upon the ground that the Court appointed another collector and gave him the duplicates; such appointment will not relieve the sureties on the former collector's bond.

J. O. Ulrich for appeal.

A. L. Shay, contra.

December 10th, 1917. KOCH, J.-The appeal in this case was filed by Clinton E. Sitler, collector of taxes in the Borough of Tamaqua, who, having filed a proper bond, was entitled to collect the taxes levied and assessed in said school district for the year 1915. The auditors found that at the time of this audit there was a balance of $13,771.29 owing to the school district by said Sitler on the tax duplicate for the year 1915. The motion for judgment for want of a. The report of the auditors of the said school sufficient affi avit of defense must, therefore,, district (which is of the third class) for the be refused. But there is another sufficient reason why judgment could not be granted for the lump sum of damages claimed in this case, viz; $74.20. The only item stated in sufficiently specific form in the plaintiff's statement to make it recoverable, is that of $2.50, for one-half of the expenses of procuring the bond required by the defendant. The defendant's general denial that the plaintiff has suffered the damages claimed in the statement is, therefore, suficient to put plain riff to specific proofs of the items of its claim at the trial; Robertson v. International Textbook Co., 27 Dist. Rep. 18.

year ending the first Monday of July, 1916, was filed on the 29th day of August, 1916, and this appeal was filed on the 21st day of September, 1916

The school district, by its attorney, moved the court on the 22nd day of December, 1916, to strike off the appeal, the principal. reasons for the motion being, that the appellant "did not present his claim before the said auditors when they sat to settle his accounts;" that "the appellant filed no exceptions to the findings of the auditors, although the appeal was taken in September, 1916;" and that appellant failed to take

testimony. No testimony was taken in sup-ceived by the school district or $2014.12, port of the reasons assigned on the motion which added to the amount received by the to quash. The appellant, on the same day, school district makes the sum of $40,282.39, to wit, December 22nd, 1916, filed an affi- or $9554.36 less than the face of the duplidavit setting forth the reasons why he cate. The appeal will, therefore, be susappealed from the auditor's report. An in- tained as to the difference between $13,771.20 spection of a statement of the account by the stated by the auditors as "balance due school auditors attached to the appeal shows that district" and $9554.36, which difference is "from the above (balance) there are to be $4216.84. The appellant claims something deducted commissions and exonerations at should be allowed him by way of exonerasettlement of duplicate." In view of this tions and, perhaps, something should be so later fact, we disposed of the motion to allowed, but he has not taken the necessary quash on the 29th of January, 1917, and steps to obtain the allowance. Having directed "that the testimony necessary to failed to avail himself of all opportunities enable us to decide" what the true balance to have the amount of exonerations, if any, due to the school district is, "be taken with- ascertained and allowed in the proper way, out delay and submitted to us with the entire we are not required to make up for lack of record in the case." But, without taking his diligence and to guess at the amonnt. testimony, the parties to this controversy When Sitler was an absconder in the have filed certain affidavits and we are now west and Krell, one of his bondsmen, was asked to dispose of this controversy on those appointed collector of taxes, the latter apaffidavits. The appellant filed three and plied for a writ of mandamus to compel the defendant filed two, as answers. Refer- delivery of the duplicate to him, the same ence to said affidavits enables us to state the having been in charge of Sitler's brother as following facts. Sitler was elected Collec- his deputy. The deputy delivered possession tor of Taxes sometime prior to the year of the duplicate, etc. In the writer's opin1913; that he was in default upon the ion, the appointment of Krell was made duplicate for the year 1913, and, being so in without proper legal authority (see 109 default, left the Borough of Tamaqua in March Term, 1916), and that opinion was September, 1915, and went to Oregon, expressed in such a way as appellant cannot where he was subsequently apprehended on claim ignorance of it. He has rested on his the charge of embezzlement, was brought oars ever since the appointment and has back to this county, tried, convicted and allowed matters to remain in status quo and sentenced in our Court of Quarter Sessions, now tries to make argument out of his deand the said sentence was affirmed by the fault and neglect in permitting the duplicate Superior Court. After the appellant ab- to remain in Krell's hands for over two sconded, nine of his bondsment petitioned years. He claims he is unable to make setthe court on the first day of November, tlement of the duplicate until he has posses1915, to appoint George M. Krell, one of sion of the same and says "All proceedings their number, to the office of tax collector upon this appeal should be postponed until for said borough to fill the vacancy appar- such time as the appellant regains possession ently caused by Sitler's absconding. George of his books and papers and has time to M. Krell was appointed in accordance with make the proper collection, examination, adthe prayer of the petition. The respondent ditions, exonerations and report." He canwas brought back to Tamaqua in December, not complain that we have not been patient 1915. As already stated, Sitler was given and waited now long enough. We will, the duplicate for the year the year 1915. The therefore, pass over the points based upon amount of taxes therein levied and assessed these facts. is $49,836.75.

Before Sitler absconded, he paid over to the school treasurer, $29,347.24 on account of said duplicate. His bondsmen later paid $5600 on account of said duplicate and the said George M. Krell, who had been appointed as above stated, paid over $3321.03, or making a total of $38,298.27. Allow ing five per cent. for commissions, would be equal to one-nineteenth of the amount re

The appellant also claims that the auditors were remiss in making the audit. They, like every other officer, are presumed to do their duty, and, in the absence of evidence that they have not done it, the presumption will stand that they have performed it. "Such auditors shall begin their duties on the fiast Monday of July each year and promptly audit the accounts of the school district for which they were appointed,"

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