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The decree overruling the demurrer is the said salary, commission, and compensavacated, the demurrer to the plaintiff's petition from the total amount of money received tion is sustained, the motion for judgment during the continuance of this agreement by in favor of the defendants is overruled, the him and his sub-agents on all contracts made petition for a jury trial is refused, and judg- as aforesaid with the parties in said terriment is directed to be entered against the tory, and the remainder of the amount so defendants, Louis Pfeil, William R. Con- received he shall transmit or pay each mail rad, William Wiegand and Frederick Rup- to the said principal or its duly authorized pert, ousting them from their offices as representative, and shall each mail transmit Councilmen of the Borough of Tamaqua.

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Robertson v. International Textbook Co.

Statement-Sufficiency-Practice Act 1915.

or deliver to said principal, or its duly authorized representative, all contracts received by him and his sub-agents for said principal, together with detailed statement of all moneys received by him and his sub-agents, and a detailed statement of all reference libraries and outfits delivered or forwarded

Under the Practice Act of 1915, a statement to parties making contracts as aforesaid in should disclose, for the information of the defend- said territory; also a detailed statement of ant, the essential facts of plaintiff's case with a all reference libraries returned by or recovcopy of all accounts where that is made necessary ered from parties in said territory.”

by the character of plaintiff's claim.

Where the claim is for salary and commissions There is no allegation in the amended and money expended, in accordance with a con- statement touching the breach or repudiation. tract between the parties, the defendant is entitled of the contract by the defendant. So far as to a statement showing for what period a given the parties are concerned, and looking only weekly salary is claimed; on what items or moneys the commissions are based, and where at the amended statement and its averments, and how earned; and in the matter of moneys the contract is still in force, and the plaintiff expended it should state when and to whom the is still the general agent of the defendant moneys were paid. for the territory named. This is apparent from the third paragraph of the statement which reads thus:

Affidavit of defense raising questions of law only.

C. H. Soper for plaintiff.

H. R. Van Deusen for defendant.

"That notwithstanding the defendant's covenants to pay to me the sum of one pound per month and fifty per cent. of all moneys received during the continuance of said agreement, yet the said defendant has utterly failed to pay and still refuses to pay me as provided in said contract, for the whole period of time since the first day of

May 7th, 1917. EDWARDS, P. J.-The original statement in this case contained a complete copy of the contract between the parties, and alleged a breach and repudiation of the contract by the defendant on April 6, 1910. The suit was begun on October November, 1907, to the bringing of this suit." 6, 1916. Defendant thereupon, by affidavit, We are impressed with the fact that the raised the question of the statute of limita- basis of recovery as alleged in the amended tions. An order was then made allowing statement differs from that set forth in the the plaintiff to file an amended statement, which is the statement now before us with an affidavit of defense raising questions of law.

original statement. In the latter, the plaintiff averred a repudiation of the contract, the breach occurring in April, 1910; according to the former, the contract is still in force, and the plaintiff seeks to recover the moneys due to him from the date of the contract to the date of the institution of the suit, thus avoiding, on the face of the statement, any question as to the statute of limitations. However, we have no present concern with this phase of the case. As a matter of pleading, we have nothing before us except the amended statement and the objection thereto.

According to the terms of the contract, the plaintiff was appointed general agent for the defendant for the following territory: "All of Africa, excepting Morocco, Algeria, Tunis, Tripoli and Egypt." The nature of his duties is fully described in the contract, and his compensation, with some other minor allowances, is fixed at "one pound per month and a commission of fifty (50%) per cent. of the total amount of money received," etc. It is provided in the contract that "The The weakness of the amended statement is said general agent shall deduct and retain in the fourth paragraph, which is as follows:

"That there is due me from said defend- October 20, 1916. BROOMALL, J.-This ant by way of salary and commissions as judgment was entered on a judgment note, provided in said contract the sum of four with warrant of attorney, dated September hundred and fifty thousand dollars and ] 1, 1915, payable in one day, for six hundred money expended in behalf of said defendant and fifty dollars. relying upon the agreement aforesaid the further sum of fifty thousand dollars, in all to wit the sum of five hundred thousand dollars."

Defendant is entitled to a full statement of the items, with dates and amounts, which go to make up this sum of half a million dollars. For what period of time is the salary of one pound a week claimed? On what items, or on what moneys, are the commissions based? When and how were the commissions earned? How were the fifty thousand dollars expended? When, and to whom, were the moneys paid?

The statement should contain all the material allegations constituting the basis of plaintiff's claim. As there is no provision for a bill of particulars in the Practice Act of 1915, it follows that the statement should disclose, for the information of the defendant, the essential facts of plaintiff's case, with a copy of all accounts where that is made necessary by the character of plaintiff's claim.

The Act of 1876 refers only to a clear case of a paid judgment. If there is any dispute between the parties as to the fact of payment, the act has no application, but in that case the defendant must resort to the remedy of an application to have the judgment opened and a trial by jury to resolve the disputed facts.

The testimony offered by the defendant tends to show that being indebted to the plaintiff in the sum of seven hundred dollars, for which the plaintiff had judgments of record, and the defendant being about to obtain a loan on mortgage out of which the plaintiff and others were to be paid and plaintiff's judgments satisfied of record, the plaintiff and defendant agreed that the plaintiff would accept four hundred dollars in cash and a note for two hundred dollars in full payment of the seven hundred dollar debt. The judgment in this case of six hundred and fifty dollars was given by the defendant to the plaintiff to secure the above two hundred dollar note, as well as another note for four hundred and fifty dollars given by the defendant to the plaintiff, and it appears that these two notes have been fully

As the law is liberal in the matter of amendments to pleadings, we allow plaintiff thirty days from this date in which to file a second amended statement; otherwise judg-paid. ment for defendant.

C. P. of

An answer was filed by the plaintiff denying that the judgment was given for the two notes alone, and alleging that the judgment Delaware Co was given on account of a debt of seven

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hundred and fifty dollars made up by charging the defendant with his debt of seven hundred dollars and crediting him with four hundred dollars cash paid and charging him with the four hundred and fifty dollar note. At the hearing upon this rule, the plaintiff? testified, and therefore this answer must be interpreted by his testimony. He testified that a short time before the note under consideration was given, the defendant proposed to him to pay six hundred dollars cash in full settlement of his seven hundred dollar

debt, which he agreed to accept. Afterwards when they met to settle, and when the plaintiff learned that he was not to get six hundred dollars in cash, but instead thereof he was to get four hundred dollars in cash and promissory note for two hundred

J. DeHaven Ledward and Jos. H. Hink- dollars, he said to the defendant, that that son for rule.

E. A. Howell, contra.

was not the understanding, and that the defendant said, "well. it is all right." The

Work Legal Record

Vol. XXXI THURSDAY, OCTOBER 25, 1917. No. 24

plaintiff said to defendant "this does not cover full," and the defendant said, "you agreed upon taking six hundred dollars for the seven hundred dollars.,' The plaintiff then accepted the cash four hundred dollars and a note for two hundred dollars. At this I stage, the plaintiff's testimony must be considered as verity, but taking it as literally true, the inference is irresistible that the "plaintiff accepted the four hundred dollars cash and two hundred dollar note in full settlement of the seven hundred dollar claim, and a jury would not be permitted to draw any other inference. When the plaintiff

Motion for judgment.

Beers Grambs for Plaintiff.
Rutherford Burns for Defendants.

June 18, 1917. NEWCOMB, J.-The action is replevin for a certain oven which has been repossessed by plaintiff as appears by the sheriff's return of service. There are several defendants, but defense is taken only by Mr. Rutherford and it is the suficiency of his affidavit that is now in question.

The undisputed facts disclosed by the pleadings are as follows: (1), Title to the property was in plaintiff on July 11, 1916; Pryor upon his payment of the sum of $135, (2), it was then delivered to the defendant and the execution and delivery to plaintiff of the writing declared upon as a bailment lease; (3), further payments on account knew that the defendant was paying four were made by him but eventually he made hundred dollars cash and a note for two default; (4), thereafter, to wit, in February, hundred dollars as a substitute for six hun- this year, the property was taken in execudred dollars cash under the agreement, he tion on a judgment against him at suit of a could not entertain an undisclosed purpose creditor and in due course of law sold by the to retain a claim for the remaining one hun- sheriff to Mr. Rutherford, who sets up as -dred dollars on the ground that he was not his defense the right thereby acquired. getting the six hundred dollars in cash. What he claims is that Pryor took the legal The defendant was making the payment in title as plaintiff's vendee, and it was transfull, and the plaintiff knew he was making ferred to him by the sheriff's seizure and payment in full, and the plaintiff accepted sale for Pryor's debt. His contention, the payment and satisfied the judgments, which he held as security for his seven hundred dollar claim, and accepted a new judgment for the two hundred dollars plus his endorsement of defendant's note for four hundred and fifty dollars.

therefore, is that both by reason of its terms and what was said by and between the parties at the time, the written instrument merely evidenced a sale, and not a leasing of the property.

We are, therefore, satisfied that said judg-writing by parol merits no consideration. It The attempt to either vary or explain the ment has been fully paid, and we direct the is altogether too vague and indefinite for prothonotary to mark it satisfied on record, that purpose and may be dismissed without and that the plaintiff pay all costs incurred further comment. in the premises.

C. P. of

Johnson Co. v. Pryor et al. Replevin-Leased property-Bailment. An agreement to lease and demise a certain oven for a term of eight months, with covenant for surrender of the property at the end of the term. coupled with an option to buy at that time for a stated sum if the rent sheould then have been paid, the amount received as rent in that case to be applied as purchase money, is a contract, of bailment, and cannot be made to operate as a sale at the time of its date, in the absence of anything | to either impeach or vary its terms.

As to the writing itself the argument is that it cannot be a lease because it is void Lackawanna Co. for uncertainty in that it specifies no amount to be paid as rent, either the amount to be paid down nor that of the monthly instalments. True, the operative words of the demise, if taken alone, might be open to that criticism. They are as follows: "* does hereby lease and demise unto the said party of the second part one, etc., etc., for and during the full term of eight months for which the said second party agrees to pay for the use of the same, as follows: One-half on order and balance in eight monthly instalments." Then follow the covenants usual in such cases against sub-letting, removal, etc., together with that for surrender at the end of the term, coupled with an

Where the property so leased was taken in execution and sold by the sheriff within the eight months' term on a judgment against the lessee at

the suit of a creditor, the sheriff's vendee acquired

no title.

option to buy, if the rent should have been paid, "for the sum of $265," upon which

Niles et al. v. Richley.

the amount received would in that case be Equity-Public Garage-Damage to Adjaapplied as purchase money.

One answer to the argument is that the parties themselves seem to have had no difficulty in understanding the contract. It is not Pryor who now calls it in question. He has disappeared, so that the writ could not be served upon him. But the more conclusive answer is found in the maxim: that is certain which is capable of being reduced to certainty. "This agreement made," etc., says the writing, "witnesseth that the said party of the first part for a consideration hereinafter mentioned, does hereby lease and demise unto the said party of the second part," etc.

The consideration thereinafter mentioned was the sum of $265, upon the payment of which, according to the stipulated terms,

cent Properties.

Plaintiffs' bill set forth the proposed erection of a public service garage by defendant, the injuries that would result therefrom to their respective properties, and prayed for an injunction. Defendbe issued in advance of the erection of the garage; ant demurred, contending that no injunction could that the question of whether or not it was a nuisance must first be determined by an action at law; and asked for a jury trial. HELD, that the demurrer must be dismissed and the prayer for a jury trial denied.

The allegations that the proposed garage, if it
should be erected, would necessarily become a
nuisance; that it would interfere with the safe
and quiet use of plaintiff properties, and of the
streets and sidewalks adjacent thereto; and that
it would interfere with divine services in a near-
by church, (one of the plaintiffs,) if fully proven,
entitle the plaintiffs to equitable relief, because of
for such injuries.
the inadequacy of an action at law as a remedy

No. 2, August Term, 1917.
Sitting in Equity.

Stewart & Gerber and W. A. Miller for demurrer.

Niles & Neff, contra.

October 15, 1917. WANNER, P. J.The plaintiffs' bill prays for an injunction

lessee could at his election take the title. No doubt such eventual sale was the thing in mind of the parties. But the contract did not purport to pass the title on any other terms, and until the event should happen upon which the option to buy depended, the payments must be deemed to be just what the parties agreed they should be, viz., payments for the use or hire of the property. On the face of the writing $132.50 would be the down payment. It is alleged, and to restrain the defendant from erecting and not denied, that the amount then paid was operating a public service garage on East $135. Let it be either sum, the monthly Market Street, York, Pa., at a point ininstalments would, as a matter of law, be dicated in said bill, for the reason that said the equal eighth parts of the balance. proposed garage would necessarily become Hence there is no uncertainty in that regard. a nuisance, and would be so prejudicial to It is very evident that there was no agreethe safe and quiet enjoyment of their rement to sell during the term of the lease. spective properties, that they would have no It is, therefore, quite out of the question to adequate remedy at law for their respective make the writing operate as a sale at the injuries. time of its date; and in the absence of anything to either impeach or vary its terms it must be held to be just what it purports to be, to wit, a contract of bailment which was lawfully terminated by this proceeding for breach by the bailee of his covenant to pay for the use. The issue is, therefore, with the plaintiff and the exceptions to the affidavit of defense are sustained. There is nothing in the pleadings to support an assessment of substantial damages, and these will have to be nominal.

The defendant, in a single document, filed a demurrer and an answer to the bill, including also therein a demand for a jury trial under the provisions of the Act of June 7th, 1907, P. L. 449. He denies the jurisdiction of the Court, and contends that no injunction could issue against the proposed garage, in advance of its erection and operation, and that the question of whether or not it would be a nuisance must first be determined by an action at law before a court of equity could acquire jurisdiction.

The rule to show cause is made absolute. [ It is contended by the plaintiffs that Let judgment be entered for plaintiff for the goods and chattels described in the writ with costs together with one dollar damages for detention.

though a public service garage may not be a nuisance per se, that if erected at the place indicated in the bill, amongst the surroundlings therein described, and operated as such

garages usually are, it would necessarily re- the damage from fire, and from gas explossult in such a continuous flagrant violation ions; the offensive odors, noises and other of the plaintiffs' right to the safe and quiet annoyances, inseparably connected with the enjoyment of their respective premises as garage business, will materially reduce the constitutes a nuisance and entitles them to value of plaintiffs' properties and will serequitable relief because they can have no iously interfere with the safe and quiet use adequate remedy at law for such a continu- and enjoyment of the same; and also with ing injury. the safe use of the streets and sidewalks adjacent thereto.

It is also alleged that divine services in the Presbyterian Church, which congregation is one of the plaintiffs, will also be interfered with. These allegations would be sufficient, if fully proven, to entitle the plaintiffs to equitable relief, because of the inadequacy of an action at law as a remedy for such injuries. They are, therefore, sufficient to give a Court of Equity jurisdiction to hear the case.

We are of the opinion that as to its law, this case is ruled by the recent decision of the Supreme Court in Prendergast et. al. vs. Wall et. al., 257 Pa. 547, where an injunction was granted against a proposed public service garage prior to its actual erection, and without a preliminary suit at law to determine whether or not it would constitute a nuisance. That case and the numerous authorities cited therein by Court and counsel, sustains the previously recognized rule that Courts of Equity have jurisdiction not only to abate existing nuisances per se, but to prevent otherwise lawful oc- fused. cupations from being so conducted as to unavoidably become continuously injurious to the occupation and enjoyment of the plain- C. P. of tiff's premises, and prejudicial to the safe and convenient use of the streets and sidewalks abutting thereon.

The demurrer is overruled and the defendant's request for a trial by jury is re

Allegheny Co.

Vargo vs. Carnegie Steel Co.

Workmen's Compensation-Widow - Not Living with Husband-Support-Finding of Referee - Appeal.

men's Compensation Board.
Appeal from the Award of the Work-
men's Compensation Board.

Wm. E. Hague for plaintiff.

That bill, like this, was against the erection of a proposed public garage in a residential section of a city, in the immediate vicinity of a church, and of the plaintiffs' Under the Workmen's Compensation Act, claimant, widow of decedent, who was not living with respective properties, alleged to be injured her husband at the time of his death and was not thereby, and seems to be conclusive of the actually dependent upon him for support, but was jurisdiction of a Court of Equity in similar depending entirely upon her own earnings for her circumstances. Whether or not the facts support, is not entitled to compensation, and a of this case, when fully heard, will establishing by the referee to this effect will not be disturbed on appeal. the plaintiffs' claim. to the equitable relief sought for in this case, is not the question now before the Court. The defendant's allegations in the answer filed by him, indicate a materially different state of facts from these on which the plaintiffs' prayer for equitable relief is based and the Court's legal conclusions must finally depend upon the satisfactorily proven facts of the case. But we are now concerned only with the question whether the allegations of the plaintiffs' bill bring this case within that class which calls for equitable relief because there is no adequate remedy at law for the injuries alleged to be threatening the plaintiffs and their respective properties.

The most material allegations of the plaintiffs' bill are that the proposed public service garage, operated as such garages usually are, will necessarily become a nuisance at this place and in these surroundings; that

Reed, Smith, Shaw & Beal for defendant.

May 4, 1917. DAVIS, J.-The referee in this case found as a finding of fact (6) "that at the time of the death of the said Steve Vargo, his widow, the claimant, was not living with him and was not then actually dependent upon him for support, but was depending entirely upon her own earnings for her support;" and as a conclusion of law (3) "that the claimant, the widow of said Steve Vargo, was not living with her deceased husband at the time of his death and was not then actually dependent upon him for support."

The exception that controls the award is that the Board erred in sustaining the above

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