Графични страници
PDF файл
[ocr errors]

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. or deliver to said principal, or its duly auth

orized representative, all contracts received C. P. of

Lackawanna Co. by him and his sub-agents for said principal,

together with detailed statement of all Robertson v. International Textbook Co. moneys received by him and his sub-agents,

and a detailed statement of all reference Statement-Sufficiency-Practice Act 1915. 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 ani, 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 contrace by the defendan:. 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 moners 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 Affidavit of defense raising questions of from the third paragraph of the statement

which reads thus: C. H. Soper for plaintiff.

“That notwithstanding the defendant's

covenants to pay to me the sum of one H. R. Van Deusen for defendant.

pound per month and fifty per cent. of all May 7th, 1917. EDWARDS, P. J. - The' moneys' received during the continuance of original statement in this case contained a said agreement, yet the said defendant has complete copy of the contract between the utterly failed to pay and still refuses to pay parties, and alleged a breach and repudiation me as provided in said contract, for the of the contract by the defendant on April whole period of time since the first day of 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, original statement. In the latter, the plainwhich is the statement now before us with tiff averred a repudiation of the contract, an affidavit of defense raising questions of the breach occurring in April, 1910; accordlaw.

ing to the former, the contract is still in force, According to the terms of the contract, and the plaintiff seeks to recover the moneys the plaintiff was appointed general agent for due to him from the date of the contract to the defendant for the following territory: the date of the institution of the suit, thus "All of Africa, excepting Morocco, Algeria, avoiding, on the face of the statement, any Tunis, Tripoli and Egypt." The nature of question as to the statute of limitations. his duties is fully described in the contract, However, we have no present concern with and his compensation, with some other minor this phase of the case. As a matter of allowances, is fixed at “one pound per month pleading, we have nothing before us except and a commission of fifty (50%) per cent. the amended statement and the objection of the total amount of money received," etc. thereto. 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:

law only.

"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 The Act of 1876 refers only to a clear further sum of fifty thousand dollars, in all case of a paid judgment. If there is any to wit the sum of five hundred thousand dispute between the parties as to the fact of dollars."

payment, the act has no application, but in Defendant is entitled to a full statement that case the defendant must resort to the of the items, with dates and amounts, which remedy of an application to have the judggo to make up this sum of half a million ment opened and a trial by jury to resolve dollars. For what period of time is the the disputed facts. salary of one pound a week claimed ? On The testimony offered by the defendant what items, or on what moneys, are the tends to show that being indebted to the commissions based? When and how were plaintiff in the sum of seven hundred dollars, the commissions earned ? How were the for which the plaintiff had judgments of fifty thousand dollars expended? When, record, and the defendant being about to and to whom, were the moneys paid ? obtain a loan on mortgage out of which the

The statement should contain all the plaintiff and others were to be paid and material allegations constituting the basis of plaintiff's judgments satisfied of record, the plaintiff's claim. As there is no provision plaintiff and defendant agreed that the plainfor a bill of particulars in the Practice Act tiff would accept four hundred dollars in of 1915, it follows that the statement should cash and a note for two hundred dollars in disclose, for the information of the defend- full payment of the seven hundred dollar ant, the essential facts of plaintiff's case, debt. The judgment in this case of six with a copy of all accounts where that is hundred and fifty dollars was given by the made necessary by the character of plaintiff's defendant to the plaintiff to secure the above claim.

two hundred dollar note, as well as another As the law is liberal in the matter of note for four hundred and fifty dollars given amendments to pleadings, we allow plaintiff by the defendant to the plaintiff, and it apthirty days from this date in which to file a pears that these two notes have been fully second amended statement; otherwise judg- paid. ment for defendant,

An answer was filed by the plaintiff denying that the judgment was given for the two

notes alone, and alleging that the judgment C. P. of

Delaware Co was given on account of a debt of seven

hundred aıd fifty dollars made up by chargHoffman v. Marker.

ing the defendant with his debt of seven Judgment-Satisfaction-Act of 14 March, hundred dollars and crediting him with four

1876, P.L.7_Settlement for Less Than hundred dollars cash paid and charging him Claim.

with the four hundred and fifty dollar note.

At the hearing upon this rule, the plaintiff The Act of 14 March, 1876, authorizing the testified, and therefore this answer must be court to direct the prothonotary to mark judg; interpreted by his testimony. He testified ments satisfied, applies only to a clear case of a paid judgment. If there is any dispute as to the fact of that a short time before the note under conpayment the defendant must move to have the sideration was given, the defendant proposed judgment opened and the disputed facts decided to him to pay six hundred dollars cash in by a jury.

full settlement of his seven hundred dollar A plaintiff who accepts in full settlement of a judgment cash and a note aggregating less than debt, which he agreed to accept. Afterhis claim, is estopped from afterward claiming wards when they met to settle, and when the balance.

the plaintiff learned that he was not to get Petition and rule for entry of satisfaction six hundred dollars in cash, but instead of judgment.

thereof he was to get four hundred dollars J. DeHaven Ledward and Jos. H. Hink- dollars, he said to the defendant, that that

in cash and promissory note for two hundred son for rule.

was not the understanding, and that the deE. A. Howell, contra.

fendant said, "well, it is all right.”




No. 24

pork Legal Record

Motion for judgment.
Beers Es Grambs for Plaintiff.
Rutherford Burns for Defendants.

June 18, 1917. NEW COMB, J.- The plaintiff said to defendant “this does not cover action is replevin' for a certain oven which full," and the defendant said, "you agreed has been repossessed by plaintiff as appears upon taking six hundred dollars for the

by the sheriff's return of service. There seven hundred dollars.,' The plaintiff then

are several defendants, 'but defense is taken accepted the cash four hundred dollars and a only by Mr. Rutherford and it is the sufic note for two hundred dollars. At this

iency of his affidavit that is now in question. stage, the plaintiff's testimony must be con

The undisputed facts disclosed by the sidered as verity, but taking it as literally pleadings are as follows: (1), Title to the true, the inference is irresistible that the plaintiff accepted the four hundred dollars property was in plaintiff on July 11, 1916; cash and two hundred dollar note in full

Pryor upon

his payment of the sum of $135, settlement of the seven hundred dollar claim, and the execution and delivery to plaintiff and a jury would not be permitted to draw of the writing declared upon as a bailment any other inference. When the plaintiff 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 Prvor's debt. His contention, the payment and satisfied the judgments, therefore, is that both by reason of its terms which he held as security for his seven hun- and what was said by and between the dred dollar claim, and accepted a new judg: parties at the time, the written instrument ment for the two hundred dollars plus his merely evidenced a sale, and not a leasing of endorsement of defendant's note for four the property. hundred and fifry dollars.

The attempt to either vary or explain the We are, therefore, satisfied that said judg- writing by parol merits no consideration. It 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.

As to the writing itself the argument is

that it cannot be a lease because it is void C. P. of

Lackawanna Co. for uncertainty in that it specifies no amount

to be paid as rent, either the amount to be Johnson Co. v. Pryor et al.

paid down nor that of the monthly instalReplevin-Leused property-Bailment.

ments. True, the operative words of the : An agreement to lease and demise a certain demise, if taken alone, might be open to that oven for a term of eight months, with covenant for criticism. They are as follows: surrender of the property at the end of the term, does hereby lease and demise unto the said coupled with an option to buy at that time for a stated sum if the rent sheould then have been party of the second part one, etc., etc., for paid, the amount received as rent in that case to and during the full term of eight months for be applied as purchase money, is a contract, of which the said second party agrees to pay for bailment, and cannot be made to operate as a sale at the time of its date, in the absence of anything the use of the same, as follows: One-half to either impeach or vary its terms.

on order and balance in eight monthly inWhere the property 'so leased was taken in stalments.” Then follow the covenants execution and sold by the sheriff within the eight usual in such cases against sub-letting, remonths' term on a judgment against the lessee the suit of a creditor, the sheriff's vendee acquired moval, etc., together with that for surrender no title..

at the end of the term, coupled with an

[ocr errors]
[ocr errors]

option to buy, if the rent should have been Niles et al. v. Richley. paid, "for the sum of $265," upon which the amount received would in that case be Equity-Public Garage-Damage to Adjaapplied as purchase money.

cent Properties. One answer to the argument is that the

Plaintiffs' bill set forth the proposed erection of parties themselves seem to have had no

a public service garage by defendant, the injuries difficulty in understanding the contract. It that would result therefrom to their respective is not Pryor who now calls it in question. properties, and prayed for an injunction. DefendHe has disappeared, so that the writ could be issued in advance of the erection of the garage;

ant demurred, contending that no injunction could not be served upon him. But the more con- that the question of whether or not it was a nuisclusive answer is found in the maxim: that ance must first be determined by an action at law; is certain which is capable of being reduced and asked for a jury trial. Held, that the deto certainty. "This agreement made," etc., jury trial denied.

murrer must be dismissed and the prayer for a says the writing, "witnesseth that the said

The allegations that the proposed garage, if it party of the first part for a consideration should he erected, would necessarily become a hereinafter mentioned, does hereby lease and nuisance; that it would interfere with the safe demise unto the said party of the second and quiet use of plaintiff properties, and of the

streets and sidewalks adjacent thereto; and that part,” etc.

it would interfere with divine services in a scarThe consideration thereinafter mentioned by church, (one of the plaintiffs,) if fully proven, was the sum of $265, upon the payment of entitle the plaintiffs to equitable relief, because of which, according to the stipulated terms, for such injuries.

the inadequacy of an action at law as a remedy lessee could at his election take the title. No doubt such eventual sale was the thing

No. 2, August Term, 1917. in mind of the parties. But the contract Sitting in Equity did not purport to pass the title on any other terms, and until the event should happen

Stewart Es Gerber and W, A. Miller for upon which the option to buy depended, the demurrer. payments must be deemed to be just what| Niles & Neff, contra. the parties agreed they should be, viz., payments for the use or hire of the property.

October 15, 1917. WANNER, P. J. On the face of the writing $132.50 would The plaintiffs

' bill prays for an injunction 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 agree the 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 absenee of any- The defendant, in a single document, thing to either impeach or vary its terms it filed a demurrer and an answer to the bill, must be held to be just what it purports to including also therein a demand for a jury be, to wit, a contract of bailment which was trial under the provisions of the Act of lawfully terminated by this proceeding for June 7th, 1907, P. L. 449. He denies the breach by the bailee of his covenant to pay jurisdiction of the Court, and contends that for the use. The issue is, therefore, with no injunction could issue against the prothe plaintiff and the exceptions to the affi. posed garage, in advance of its erection and davit of defense are sustained. There is operation, and that the question of whether nothing in the pleadings to support an as- or not it would be a nuisance must first be sessment of substantial damages, and these determined by an action at law before a will have to be nominal.

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 though a public service garage may not be a the goods and chattels described in the writ nuisance per se, that if erected at the place with costs together with one dollar damages indicated in the bill, amongst the surroundfor detention.

ings therein described, and operated as such



garages usually are, it would necessarily re- the damage from fire, and from gas explos-
sult 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 ser-
equitable 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 ad-
We are of the opinion that as to its law, jacent thereto.
this case is ruled by the recent decision of It is also alleged that divine services in
the Supreme Court in Prendergast et. al. the Presbyterian Church, which congrega-
vs. Wall et. al., 257 Pa. 547, where an in- tion is one of the plaintiffs, will also be in-
junction was granted against a proposed terfered with. These allegations would be
public service garage prior to its actual sufficient, if fully proven, to entitle the
erection, and without a preliminary suit at plaintiffs to equitable relief, because of the
law to determine whether or not it would inadequacy of an action at law as a remedy
constitute a nuisance. That case and the for such injuries. They are, therefore, suffi-
numerous authorities cited therein by Court cient to give a Court of Equity jurisdiction
and counsel, sustains the previously recog- to hear the case.
nized rule that Courts of Equity have juris- The demurrer is overruled and the de-
diction not only to abate existing nuisances fendant's request for a trial by jury is re-
per se, but to prevent otherwise lawful oc- fused.
cupations from being so conducted as to un-
avoidably become continuously injurious to
the occupation and enjoyment of the plain-C. P. of

Allegheny Co.
tiff's premises, and prejudicial to the safe

Vargo vs. Carnegie Steel Co.
and convenient use of the streets and side-
walks abutting thereon.

Workmen's Compensation-Widow -- Not
That bill, like this, was against the erec- Living with Husband - Support-Find-
tion of a proposed public garage in a resi- ing of Referee - A1 peal.
dential section of a city, in the immediate
vicinity of a church, and of the plaintiffs’

Under the Workmen's Compensation Act, claim

ant, 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 establish disturbed on appeal.

finding by the referee to this effect will not be
the plaintiffs' claim to the equitable relief
sought for in this case, is not the question

Appeal from the Award of the Work-
now before the Court. The defendant's al- men's Compensation Board.
legations in the answer filed by him, in-

W m. E. Ilague for plaintiff.
dicate a materially different state of facts

Reed, Smith, Shaw & Beal for defendant,
from these on which the plaintiffs' prayer
for equitable relief is based and the Court's May 4, 1917. Davis, J.—The referee
legal conclusions must finally depend upon in this case found as a finding of fact (6)
the satisfactorily proven facts of the case. “that at the time of the death of the said

But we are now concerned only with the Steve Vargo, his widow, the claimant, was
question whether the allegations of the not living with him and was not then actu-
plaintiffs' bill bring this case within that ally dependent upon him for support, but
class which calls for equitable relief because was depending entirely upon her own earn-
there is no adequate remedy at law for the ings for her support;" and as a conclusion of
injuries alleged to be threatening the plain- law (3) “that the claimant, the widow of
tiffs and their respective properties.

said Steve Vargo, was not living with her
The most material allegations of the deceased husband at the time of his death
plaintiffs' bill are that the proposed public and was not then actually dependent upon
service garage, operated as such garages us- him for support.”
ually are, will necessarily become a nuisance The exception that controls the award is
at this place and in these surroundings; that that the Board erred in sustaining the above

[merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors]

not x1

he pa

« ПредишнаНапред »