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Vol. XXXI

No. 11

filed an affidavit of defense, in which he Work Legal Trecord

denied that he was a co-partner with Gitt, or

had traded as S. L. Johns Cigar Company, THURSDAY, JULY 26, 1917

or was in any way liable on the notes in suit.

Upon the trial, at the close of plaintiff's Delone's Appeal.

evidence the court entered judgment of com[BANK OF HANOVER V. GITT ET AL.] pulsory non-suit, upon the ground that no

partnership had been made out, and no liaPartnership-Evidence of.

bility upon the part of Delone had been Gitt and Delone agreed with Johns to take over established. Plaintiff has appealed, and its his property, make specific payments and retain counsel contend that the evidence offered the residue for their own use. They continued was sufficient to establish the fact that the Johns' business, and in due course Gitt endorsed defendants purchased property which they two notes in the business name;on which suit was brought. Delone denied the existence of a part-employed for their mutual profit

, and that dership, and there was no evidence to that effect. the obligations upon which this action was Held, that the court below (Ross, J.,) properly brought, were incurred in the management entered a compulsory non-suit.

of a business from which they were jointly The "residue" could not be regarded as profits, entitled to the net profits, and in which, it but as compensation of the assignees dependent upon the skill and ability displayed in settling the is argued, they were, therefore, partners. affairs of the estate.

In an article of agreement which was The fact that Delone retained some of the col- offered in evidence, it was set forth that, lateral security given with the customer's note. has nothing to do with the question of partner-being desirous of relief from the cares growship. Under the agreement it was defendants' ing out of the involved condition of his busiduty to collect all indebtedness due Johns, for ness affairs, S. L Johns, upon the conditions which they must account as trustees.

named, turned over his entire estate to Gitt No. 106, January Term, 1915.

and Delone for the purpose of administraAppeal from the judgment of the Court tion. They were to convert the property of Common Pleas of York County, Pa.

into cash as in their judgment should be adFor the opinion of the court below, Ross, first in payment of the claims of creditors,

visable. The proceeds were to be applied, J., see Bank of Hanover v. Gitt et al., 30 then in payment of an annuity to Johns for YORK LEGAL RECORD 17. Niles & Neff for appellant.

ten years, and after that the fixed sum of

$40,000 was to be paid to him. In addition V. K. Keesey for appellee.

they were to pay to Johns or his heirs such June 30, 1917. Potter, J.—This is an sum as should be necessary to acquire a clear appeal from the refusal of the court below title to his residence and contents, and to a to take off a judgment of compulsory non- certain farm property with stock and imsuit. The action was assumpsit brought to plements. Provision for the payment of recover from the defendants, as partners, the certain other sums was also made, and if amount of two certain promissory notes Gitt and Delone succeeded in these undermade by L. M. Long & Co., to the order of takings, they were to retain for their own S. L. Johns Cigar Company, and endorsed use "all the proceeds and property remaining in that name by H. N. Gitt, and by H. N. after the above provisions have been comGitt personally. In plantiff's statement of plied with." It thus appears that while claim it was averred that, on the dates of Johns made an absolute conveyance of his the notes in question, “H. N. Gitt and property to Gitt and Delone, they took it Charles J. Delone were co-partners, trading only for the purpose of liquidation, and suband doing business under the name of S. L. ject to the payment of all the indebtedness Johns Cigar Company,” and that the notes of Johns, and of the various other sums "were taken, endorsed and delivered to the specified. They were to have for themplaintiff in and about the business of the selves only the residue which might be left said co-partnership of H. N. Gitt and after those payments were made. A division Charles J. Delone, trading and doing busi- of the product between tenants in common ness as S. L. Johns Cigar Company, and for does not make them partners, although they the benefit and in the business of the said I may have contributed labor or money to co-partnership."

raise it. No presumption of partnership The defendant, Gitt, made no defense to arises from the mere fact of co-tenancy; plalntiff's demand, but Charles J. Delone Taylor v. Fried, 161 Pa. 53. The defend

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ants in this case were clearly trustees of the Gitt and Delone as to any sharing of pro-
property and were liable to account as such; fits, nor did it appear that Delone in any
Ahl's Appeal, 120 Pa. 26. We find nothing way gave plaintiff reason to belive that any
in the agreement which expressly constitutes partnership existed between Gitt and him-
the defendants actual partners, and the self. The non-suit was properly entered,
record is bare of evidence tending to show and the refusal to take it off was justified.
that they ever held themselves out to the The judgment is affirmed.
public as such, nor did it appear that the
plaintiff in this case extended credit to them.
notes in question represented old indebted. Pennsylvania Water and Power Co.'s
ness of L. M. Long & Co. to the Cigar

Appeal.
Company. All the negotiations with the Vandersloot v. PENNSYLVANIA WATER
bank were conducted by H. N. Gitt, who
endorsed the notes, signing the name of S.

AND Power Co.]
L. Johns Cigar Company, and also endors- Equity--Jurisdiction--Service out of County.
ing as an individual. The defendant,
Delone, had nothing to do with the negotia- tion, alleging that while the lands, tenements and

Plaintiff below (appellee) presented his peti-
tion of the notes. The agreement discloses hereditaments concerning which suit was brought
no intention that the business should be car- are located in York County, the defendant cor-
ried on for the purpose of making profits, poration had no office or place of business in
nor does it appear that any were realized. defendant's business offices were in New York
It was only after the indebtedness of Johns City, and that it had a place of business in Lan-
had been discharged, and the various sums caster County, and further praved that service :
specified had been paid, and the plan had might be made at those places. The petition was
been successfully carried out by Gitt and granted (Ross, J.), and a motion to set aside the

service was subsequently denied. Held, to be Delone, that they were to retain whatever crror. money remained in their hands, as compensa. The Act of April 6, 1859, P. L. 387, does aot. tion for their services. Such a sum could apply to persons or property outside the jurisdicnot fairly be regarded as the profits of a tion of the couri. business venture. More properly speaking, fendant had a right to appeal from the order re

Having entered a conditional appearance, deit would be residue derived from the corpus fusing to set aside the service out of the county. of the assigned estate, as the entire transac

The court fell into error by relying exclusively tion was in the nature of an assignment for on the averments in the bill, and failing to take the benefit of creditors, with the compensa- into account the controlling importance of the tion of the assignees dependent upon the prayers for relief. skill and ability displayed in settling the No. 1, October Term, 1916. affairs of the estate. In their argument, counsel for appellant Common Pleas of York County, Pa.

Appeal from the decree of the Court of make specific complaint of the action of defendant, Delone, in retaining certain shares For the opinion of the court below, Ross, of telephone company stock which was ob- J., see Vandersloot v. Pennsylvania Water tained as partial security upon the indebted- and Power Co., 30 YORK LEGAL RECORD 189. ness of L. M. Long, evidenced in part by John E. Melone and Stewart & Gerber the notes in question. We do not: see, for appellant. however, that this has anything to do with the question of partnership. Under the

Niles & Neff for appellee. agreement, it was the duty of Gitt and

June 30, 1917. MOSCHZISKER. J--The Delone to collect this indebtedness, as well defendant, a corporation under the laws of as all other sums due to Johns, and as Pennsylvania, possesses and operates a dam trustees they are liable to account to Johns, across the Susquehanna River. The plainand perhaps his creditors, for the monies they tiff filed a bill in equity, alleging that this received. But in the present suit the effort obstruction backs the water upon certain is to hold them as partners, and not as property owned by him in York County; trustees. Our examination of the record where he averred, one end of the dam is leads us to agree with the conclusion of the located. The bill prayed, (1) That defendcourt below that the evidence does not show ant be ordered to remove the dam and that there was any understanding between certain obstructions connected therewith,

plaintiff

, an the same lief, etc

The defer ed in Lanca an office; York City. plaintift pet service on de of the Con whereupon service of th defendant i Ac of April ed that he president an its office in 13; 1916, th tized the lik make service on Septemb sherifi mado

bill

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office" in 1 28; 1916, appearance attacking e below dism service, stat bill contain court can yo clearly reve within the rant the C service ont

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"or such parts thereof as shall allow the the provisions of the Act of April 6th, 1859, water of said river to run in its usual and P. L. 387, Sec. I

It might natural course as it did before the be that facts or matters would be revealed erection, maintenance and operation of said by regular and legal investigation which dam, structures and works of the defend- would render the jurisdiction of this Court ant"; (2) That defendant be restrained nugatory; but, until * properly shown, from increasing the height of its dam; (3) we cannot assume that such “That defendant be enjoined from main- ditions exist.” The defendant has aptaining and operating its said dam and pealed. works or other obstructions in said river The Act of 1859, supra, provides that any *** in such manner as shall cause the Court of the Commonwealth having equity water thereof to back and overflow the jurisdiction may upon due application auproperty of the plaintiff"; (4) “That de-thorize service outside the jurisdiction of fendant be perpetually enjoined from placing such Court, in any suit "concerning and maintaining any dam, structure or lands, tenements and hereditaments works * as shall increase the depth of situated or being within the jurisdiction of the water * * thrown or flowing upon (such court

In Coleman's Appeal, plaintiff's said property”; (5-7) That de- 75 Pa. 441, 443, 457, 458, the averments of fendant be enjoined from flooding certain the bill related to property both within and roads, tow-paths, banks, etc., claimed to be outside the jurisdiction of the Court, and it the property of plaintiff; (8) That an ac- prayed, (1) That a certain company decount be taken of the damages suffered by fendant "transfer to plaintiff ninety-eight plaintiff, and defendant be "decreed to pay shares of its stock" (being the property the same”; (9-11) “Discovery, general re- within the jurisdiction); (2) That one lief,' etc.

Walton Dwight (the principal defendant) The defendant's mill and works are locat- account and pay to plaintiff a designated ed in Lancaster County, where it maintains sum of money; (3) That two other peran office; but its headquarters are in New sons be made defendants; (4) General reYork City. On the day the bill was filed, lief. The court below set aside service upon plaintiff petitioned for an order allowing the defendant Dwight, had under the Act service on defendant outside the jurisdiction of 1859, supra, and on appeal we affirmed, of the Common Pleas of York County; saying, "It has not been the policy of our whereupon the Court below decreed that jurisprudence to bring non-residents within service. of the bill be made upon ** the the jurisdiction of our courts unless in very defendant in the manner directed by the special cases

The Act of 1859 Act of April 6, 1859." The sheriff return- ought, therefore, to receive a construction in ed that he had made such service on the harmony with this policy. There exists no president and secretary of the corporation at good reason why courts of equity should be its office in New York City. On September invested with a more enlarged jurisdiction 13, 1916, the sheriff of York County depu- ! against non-residents than courts of law. tized the like officer of Lancaster County to On the contrary

the inclination make service in the latter's jurisdiction; and, should be in a different direction on September 16, 1916, the last mentioned Had the bill in this case been confined to sheriff made return that he had served the the prayer for relief as to the ninety-eight bill, etc., on “the agent of defendant and the shares of the capital stock of the Williamsperson for the time being in charge of its port and Canada Lumber Company, standoffice" in Lancaster County. September ing on their books in the name of the defendant 28, 1916, counsel for defendant entered an Walton Dwight, there would be plausible appearance de bene esse, for the purpose of ground upon which to sustain the service of attacking these two returns. The court the process upon him

We are of below dismissed a motion to set aside the opinion that the bill must be confined, at service, stating, inter alia, “the plaintiff's least so far as the interest of the foreign bill contains the only facts upon which the defendant is involved, to a prayer for a decourt can yet rely; and an inspection thereof cree affecting only the property in question. clearly reveals a suffcient subject matter If it goes further and asks for relief by a within the jurisdiction of this court to war- decree against the defendant, personally, rant the court in authorizing process of it is not a case within the purview service on the defendant in accordance with of the act, and the court has no authority to

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direct service of process upon the defend- a plea in the case; this action must be re

a waiver of any irregant."

garded as In the case at bar, it will be observed that ularity or insufficiency in the service of the

writ." While we dismissed the assignment the prayers for relief are not confined to in question, as not calling for an actual property alleged to be within the jurisdiction ruling upon the situation which it sought to of the court; but, on the contrary, they com bring before us, yet we discussed at large prehend relief affecting the entire dam of the principles of law and practice involved ; defendant, extending into the river beyond and during the course of that discussion we the limits of York County, and also relief held that, if a defendant's motion to set which, if granted, would require a decree aside the service of the writ against him be against the defendant personally. On this refused, “he may rely upon the position he state of facts, under the authority just cited, has taken and attempt to sustain it by an the present is not a case for service in ac, appeal to the proper Appellate Court, or he cordance with the Act of 1859, supra; and the Court below erred when it determined the action on its merits," adding, “He is re

may consider himself in court and defend otherwise.

quired to select one of the two courses, and The plaintiff contends, however, that, having done so he must accept the legal consince our equity rule 10 provides that ser- sequences of his action. He cannot deny vice of the bill and notice to appear and the jurisdiction of the court, and at the same

on a corporation shall be effected in time take such action to defeat the plaintiff's the mode prescribed by law for the service claim as will amount to an appearance. of a writ of summons upon such corpora- Under this authority, which is our latest tion,” the service by the deputized sheriff of ruling upon the subject, the defendant had Lancaster County is good and sufficient in a right to appeal from the order here comthis case, without regard to that had under plained of. the Act of 1859 (citing Sec. 42 of the Act of June 13, 1836, P. L. 568; Act of March If the procedure determined upon by the 17, 1856, P. L. 388; Act of July 9, 1901, court below were followed, and this case set P. L. 614, as amended by the Act of April for trial on the merits, so that; incidentally, 3, 1903, P. L. 139; and the Act of June 5, it might be ascertained whether facts would 1915, P. L. 847); but there is nothing in develop "which would render the jurisdicrule 10, or any of the acts of assembly relied tion of the court nugatory," then, under the upon by plaintiff, which confers the right principles laid down in McCullough v. Railupon a court in equity to bring a corpora- way Mail Asso., supra, if the defendant tion, which otherwise would be without its should appear and defend, it would be in jurisdiction, within the grasp of its process, court for all purposes, and a decree in so as to subject such defendant to a decree personam could be entered against it; which in personam or one affecting its property decree would be enforcible by proceedings located in another county. We have in contempt, despite the provisions of Secamined the cases cited by plaintiff, but tion 3, Act of 1859, supra, that no such none of them supports the order appealed process should issue thereunder. The learned from.

court below fell into error by relying exclu

sively upon the averments of the bill, and The question of the right to take the failing to take into account the controlling present appeal was also argued before us. importance of the prayers for relief (ColeIn McCullough v. Railway Mail Asso., 225 man's Appeal, supra); when the latter are Pa. 118, 124 and 123, a rule to avoid service kept in mind, without the need for further of a summons was discharged; whereupon light upon the subject, it becomes clear that defendant went to trial. The verdict fav- the attempt to secure jurisdiction under the ored plaintiff, and defendant appealed, as- Act of 1859 was “nugatory," and that the signing as error, inter alia, the discharge of rule to avoid the service made upon defendthe before mentioned rule; but we said: ant should have prevailed. “The defendant association entered a conditional appearance for the purpose of moving The assignment of error is sustained, the to set aside the service of the summons order of the court below reversed, and service

After the court had refused the of the bill set aside; appellee to pay the.. motion, the association

entered costs.

either plan of pa
had one system
was not probibite
for different stree
If a gross abus
determining what
be paved wholly
streets should be
abutting owner,
more to determit
expenditure of
faith of the ordin
ment.

The location of
the streets, and

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provement bonds
that "the bonds si
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was void and er
but refused. He

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York Legal Record

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If such reductions are not made the affidavit of defense should set forth that the amount of the

lien is unjust by reason of such failuie. THC'RSDAY, AIGIST 2. 1917

Appeal from the judgment of the Court SUPERIOR COURT

of Common Pleas of York County. Eyster's Appeal.

No. 45, August Term, 1915. [CITY OF YORK V. Eyster.]

For the opinion of the Court below, Municipal Lien_Paving-Discrimination. Ross, J., at the trial, without a jury, of the

.

sci. fa., see City of York v. Eyster, 29 York Plaintiff city (appellee) paved the street in LEGAL RECORD 193. front of appellant's property, and assessed the cost thereof by the foot front rule. Other streets,

The findings of fact and conclusions of prior to this, having been paved at the sole cost of law were excepted to, but the exceptions the city, defendani contended that plaintiff was were dismissed; City of York v.- Eyster, estopped from attempting to collect the cost by assessments on the adjoining property owners; but 30 York LEGAL RECORD 29. the court below, Ross, J., entered judgment for

From the judgment there entered this the plaintiff. HELD, that the judgment must be

appeal was taken. affirmed.

There is nothing in the Act of June 27, 1913, James G. Glessner and Cochran, Williams P. L: 532, which by any reasonable construction & Kain for appellant. changes the existing law, that the city might use either plan of payment. When the municipality John L. Rouse and Niles Neff for had one system of payment for certain streets it was not prohibited from adopting another system

appellee. for different streets.

July 13, 1917. KEPHART, J.—The street If a gross abuse of discretion is perpetrated in determining what streets or parts of 'streets should in front of appellant's property was paved be paved wholly at the city's expense, and what under ordinances of council and the cost streets should be paved at the expense of the thereof assessed by the foot front rule. abutting owner, the complaining parties should Other streets in the city of York had been

move to determine that question before a large I expenditure of money had been made on the paved by the municipality, at its sole cost faith of the ordinance providing for the improve- and expense, prior to the improvement of

this street. Appellant's counsel contend The location of the population, the use made of that under the Act of 1913 the city has the streets, and many other considerations enter into the question of how the payment of the im- power to adopt any one of the methods provement shall be made. This must be deter- specified in the Act for paying the cost of mined by the local government and courts should an improvement, but when once they exer

not interfere unless a palpable injustice warranted cise that power, the method adopted must iit. The Act of June. 27, 1913, P. L. 582, is not un

apply to all future paving, grading and macconstitutional, as a whole, on the ground that it adamizing throughout the city; it cannot violates the provision against a bill containing thereafter pay the cost of improving other more than one subject. The Act of June 4, 1901, P. L. 364, as amended in the Act. We cannot agree to this pro

streets by any of the other methods specified by the Act of March 19, 1903, P. L. 42, requires, where the contractor performing the work is to position. be paid by assessment bills, the lien is to be filed Section 10 of the Act of June 27, 19,13, to his use, and one month's notice must be given P. L. 582, authorizes cities of the third class to the owner of the property to be affected. Improvement bonds were issued, containing a clause to provide for the payment of the cost and that “the bonds shall rest alone upon and be pay- expenses of paving, grading or macadamable out of said assessment, and from no other izing any public highway. It may be done fund." The lien was filed by the city, and no in whole or in part by the city or by the notice of filing given. For this reason the court below was asked to find as a fact that the lien owners of real estate abutting on the imwas yoid and enter judgment for the defendant, provement; the cost and expense, when paid but refused. Held, not to be error.

by the abutting owners, shall be assessed As between the bondholder and the city, the city's liability would not end if its officers were

according to the foot-front rule or according negligent or careless in their collection, and its to benefits, as council may by ordinance deresponsibility would not cease if there should be termine. This section of the Act does not a diminution in the amount of those collections, materially change the law as it existed under occasioned through the voluntary act of the city. Section io of the Act of 1889, P. L. 288,

The ordinances authorizing paving need not contain the clause relative to reductions in assess

as amended by the Act of Vay 16, 1901, ment for irregularly shaped lots.

P. L. 224. The power of the legislature to

ment.

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