Work Legal Record Vol. XXXI THURSDAY, JULY 26, 1917 Delone's Appeal. No. 11 [BANK OF HANOVER V. GITT Et al.] Partnership Evidence of. filed an affidavit of defense, in which he denied that he was a co-partner with Gitt, or had traded as S. L. Johns Cigar Company, or was in any way liable on the notes in suit. Upon the trial, at the close of plaintiff's evidence the court entered judgment of compulsory non-suit, upon the ground that no partnership had been made out, and no liability 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 nership, 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 entitled to the net profits, and in which, it is argued, they were, therefore, partners. 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 partnership. Under the agreement it was defendants' duty to collect all indebtedness due Johns, for which they must account as trustees. The "residue" could not be regarded as profits, but as compensation of the assignees dependent upon the skill and ability displayed in settling the affairs of the estate. No. 106, January Term, 1915. Appeal from the judgment of the Court of Common Pleas of York County, Pa. For the opinion of the court below, Ross, Niles&Neff for appellant. being desirous of relief from the cares growing out of the involved condition of his business affairs, S. L Johns, upon the conditions named, turned over his entire estate to Gitt and Delone for the purpose of administration. They were to convert the property into cash as in their judgment should be adfirst in payment of the claims of creditors, visable. The proceeds were to be applied, then in payment of an annuity to Johns for ten years, and after that the fixed sum of $40,000 was to be paid to him. In addition 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 said co-partnership of H. N. Gitt and Charles J. Delone, trading and doing business as S. L. Johns Cigar Company, and for the benefit and in the business of the said co-partnership." The defendant, Gitt, made no defense to plaintiff's demand, but Charles J. Delone selves only the residue which might be left after those payments were made. A division of the product between tenants in common does not make them partners, although they may have contributed labor or money to raise it. No presumption of partnership arises from the mere fact of co-tenancy; Taylor v. Fried, 161 Pa. 53. The defend Pennsylvania Water and Power Co.'s AND POWER Co.] ants in this case were clearly trustees of the Gitt and Delone as to any sharing of proproperty 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 himthe 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. as partners. The testimony shows that the notes in question represented old indebted ness of L. M. Long & Co. to the Cigar 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. L. Johns Cigar Company, and also endors-Equity--Jurisdiction--Service out of County. ing as an individual. The defendant, Plaintiff below (appellee) presented his petiDelone, had nothing to do with the negotiation, alleging that while the lands, tenements and 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 corried on for the purpose of making profits, nor does it appear that any were realized. It was only after the indebtedness of Johns had been discharged, and the various sums specified had been paid, and the plan had been successfully carried out by Gitt and Delone, that they were to retain whatever money remained in their hands, as compensation for their services. Such a sum could not fairly be regarded as the profits of a business venture. More properly speaking, it would be residue derived from the corpus of the assigned estate, as the entire transaction was in the nature of an assignment for the benefit of creditors, with the compensation of the assignees dependent upon the skill and ability displayed in settling the affairs of the estate. poration had no office or place of business in defendant's business offices were in New York actual operation in said county; but averred that City, and that it had a place of business in Lancaster County, and further prayed that service might be made at those places. The petition was granted (Ross, J.), and a motion to set aside the service was subsequently denied. HELD, to be error. : The Act of April 6, 1859, P. L. 387, does not apply to persons or property outside the jurisdiction of the court. fendant had a right to appeal from the order reHaving entered a conditional appearance, defusing to set aside the service out of the county. The court fell into error by relying exclusively on the averments in the bill, and failing to take into account the controlling importance of the prayers for relief. No. 1, October Term, 1916. Appeal from the decree of the Court of Common Pleas of York County, Pa. For the opinion of the court below, Ross, J., see Vandersloot v. Pennsylvania Water? and Power Co., 30 YORK LEGAL RECORD 189. John E. Melone and Stewart & Gerber for appellant. Niles&Neff for appellee. In their argument, counsel for appellant make specific complaint of the action of defendant, Delone, in retaining certain shares of telephone company stock which was obtained as partial security upon the indebtedness of L. M. Long, evidenced in part by the notes in question. We do not see, however, that this has anything to do with the question of partnership. Under the 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. court below that the evidence does not show ant be that there was any understanding between certain The bill prayed, (1) That defendordered to remove the dam and obstructions connected therewith, * * "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. 1 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, that any such con from increasing the height of its dam; (3) we cannot assume 華莊 "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 * * in such manner as shall cause the water thereof to back and overflow the property of the plaintiff"; (4) "That defendant be perpetually enjoined from placing and maintaining any dam, structure or works *** as shall increase the depth of the water thrown or flowing upon plaintiff's said property"; (5-7) That defendant be enjoined from flooding certain roads, tow-paths, banks, etc., claimed to be the property of plaintiff; (8) That an account be taken of the damages suffered by plaintiff, and defendant be "decreed to pay the same"; (9-11) "Discovery, general relief," etc. . The Act of 1859, supra, provides that any Court of the Commonwealth having equity jurisdiction may upon due application authorize service outside the jurisdiction of such Court, in any suit "concerning lands, tenements and hereditaments situated or being within the jurisdiction of such court In Coleman's Appeal, 75 Pa. 441, 443, 457, 458, the averments of the bill related to property both within and outside the jurisdiction of the Court, and it prayed, (1) That a certain company defendant "transfer to plaintiff ninety-eight shares of its stock" (being the property within the jurisdiction); (2) That one 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 * direct service of process upon the defend- a plea in the case; this action must be reant." garded as * a waiver of any irregIn the case at bar, it will be observed that writ." While we dismissed the assignment ularity or insufficiency in the service of the the prayers for relief are not confined to in question, ás 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 acappeal to the proper Appellate Court, or he cordance with the Act of 1859, supra; and consider himself in court and defend the Court below erred when it determined otherwise. may the action on its merits," adding, "He is required to select one of the two courses, and having done so he must accept the legal consequences of his action. He cannot deny the jurisdiction of the court, and at the same time take such action to defeat the plaintiff's claim as will amount to an appearance." Under this authority, which is our latest ruling upon the subject, the defendant had a right to appeal from the order here complained of. The plaintiff contends, however, that, since our equity rule 10 provides that "service of the bill and notice to appear and answer on a corporation shall be effected in the mode prescribed by law for the service of a writ of summons upon such corporation," the service by the deputized sheriff of Lancaster County is good and sufficient in this case, without regard to that had under 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 examined the cases cited by plaintiff, but none of them supports the order appealed from. in contempt, despite the provisions of Section 3, Act of 1859, supra, that no such process should issue thereunder. The learned court below fell into error by relying exclusively upon the averments of the bill, and failing to take into account the controlling importance of the prayers for relief (Coleman's Appeal, supra); when the latter are kept in mind, without the need for further light upon the subject, it becomes clear that the attempt to secure jurisdiction under the Act of 1859 was "nugatory," and that the rule to avoid the service made upon defendant should have prevailed. The question of the right to take the present appeal was also argued before us. In McCullough v. Railway Mail Asso., 225 Pa. 118, 124 and 123, a rule to avoid service of a summons was discharged; whereupon defendant went to trial. The verdict favored plaintiff, and defendant appealed, assigning as error, inter alia, the discharge of the before mentioned rule; but we said: "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. 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 failure. Appeal from the judgment of the Court of Common Pleas of York County. No. 45, August Term, 1915. For the opinion of the Court below, Ross, J., at the trial, without a jury, of the sci. fa., see City of York v. Eyster, 29 YORK LEGAL RECORD 193. Plaintiff city (appellee) paved the street in 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, defendant 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 the plaintiff. HELD, that the judgment must be affirmed. There is nothing in the Act of June 27, 1913, P. L. 532, which by any reasonable construction changes the existing law, that the city might use either plan of payment. When the municipality had one system of payment for certain streets it was not prohibited from adopting another system for different streets. From the judgment there entered this appeal was taken. James G. Glessner and Cochran, Williams & Kain for appellant. John L. Rouse and Niles Neff for appellee. 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 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 ment. it. 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 exernot interfere unless a palpable injustice warranted cise that power, the method adopted must 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 prostreets 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 be paid by assessment bills, the lien is to be filed to the owner of the property to be affected. Im position. Section 10 of the Act of June 27, 1913, to his use, and one month's notice must be given P. L. 582, authorizes cities of the third class provement 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 notice of filing given. For this reason the court below was asked to find as a fact that the lien was void and enter judgment for the defendant, but refused. HELD, not to be error. As between the bondholder and the city, the city's liability would not end if its officers were negligent or careless in their collection, and its responsibility would not cease if there should be a diminution in the amount of those collections, occasioned through the voluntary act of the city. The ordinances authorizing paving need not contain the clause relative to reductions in assessment for irregularly shaped lots. in whole or in part by the city or by the owners of real estate abutting on the improvement; the cost and expense, when paid by the abutting owners, shall be assessed according to the foot-front rule or according to benefits, as council may by ordinance determine. This section of the Act does not materially change the law as it existed under Section 10 of the Act of 1889, P. L. 288, as amended by the Act of May 16, 1901, P. L. 224. The power of the legislature to |