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amount of the check, as required by the in the remarks of Mr. Rochow, and bestatute. There was evidence to show that lieve no harm was done to plaintiff. defendant kuew that sufficient funds The proper way to bring objectionable were not in the bank when he gave the remarks before the court for adjustment, check.
is to formally and definitely except to the There can be no plausible argument remarks at the time of their utterance, so that the verdict was against the evidence that the exceptions will become a part of or the law.
the record: Haines V. Commonwealth, The first, second and third exceptions 90 Pa. 410; Commonwealth v. Shields, are therefore refused.
50 Pa. Supr. Ct. 1; Commonwealth v. The evidence shows that the counsel Dyminski, 79 Pa. Supr. Ct. 499; Comfor defendant was allowed to present all monwealth v. Ezell, 212 Pa. 293; Comthe evidence he could produce to show monwealth v. Zappe, 153 Pa. 198; Comto the jury that the defendant did not monwealth v. Rothensies, 64 Pa. Supr. draw the check, that he did not send it 395; Commonwealth v. Rothensies, 256 to the prosecutor, or that he did not re- Pa. 337; Commonwealth v. Williston, 73 ceive the note which the check was in Pa. Supr. 161-164. tended to pay for. Nowhere on the The fifth reason is therefore overruled. stenographer's transcript of the trial evi The defendant's counsel, in his brief dence and proceedings can we find any submitted, stresses the additional reason ruling of the trial judge which deprived that this court did not have a legal right defendant from offering any evidence to try the defendant, alleging that the germain to the issue.
drawing of the check and the delivery of The fourth reason is therefore over- it was in Philaclelphia County. ruled.
There was some conflict of evidence as During the trial, counsel, acting for to what was done with the check in the prosecution made the following re-question after the defendant had exemark, on cross-examination.
cuted it in Philadelphia. One of the "Q. Why, Mr. Rogowski, I have more Commonwealth's witnesses swore that respect for your intelligence as a member the check was delivered to him as the of the Jewish race, for you to try to tell agent of the prosecutor, but the defendthis court and jury that you didn't ant himself swore that he sent the check know
by mail to the alderman who was acting The following objection, colloquy and for Ellis, the prosecutor, for the purpose ruling occurred in the hearing of the of obtaining from defendant the payment jury:
of a note which prosecutor held against "Mr. Ehrenreich. If your Honor the defendant. please, I object to that remark and ask The evidence showed that the check for the withdrawal of a juror. I think July reached the hands of the prosecutor, that remark, I have more respect for and that, as a consequence thereof, the your intelligence as a member of the prosecutor forwarded the note which the Jewish race,
' is objectionable. There is check was intended to pay. no reason in the world why Mr. Rochow We can find no authority in Pennsylshould call attention of the jury to any vania which reverses the well established man's faith, creed or religion.
principle that "where one puts in force "The Court. I don't think that I can an agency for the commission of crime, support that theory. The Jewish race he, in legal contemplation, accompanies stands very high in the estimation of this the same to the point where it becomes community.
effectual"': Bishop on Criminal Law (oth "Vr. Ehrenreich. No doubt, sir. 1 Edition), Vol 1, pages 65-66, sec. 110. don't know whether it may or may not Under all the circumstances of this have. I strenuously object to it and ask case as tried before the jury, we are of for the withdrawal of a juror.
the opinion that none of the reasons ad“The Court. Ile refuse to comply with vanced for a new trial are tenable. the request and grant an exception for The motion for a new trial is refused, the defendant."
and the defendant is directed to be in lle cannot conceive of any prejudice' court at the next term of quarter ses
tion of that error.
sious court, beginning Monday, January the road, the road being narrow at the 5th, 1925, then and there to be sen-l place of the collision; and that he drove tencel.
into the rear of the defendant's automo
bile projecting out into the traveled part C. P. of
Berks ('o. of the road, sustaining injuries to himself Merritt et al v. Becker
and to his motorcycle. The defendant denies that he was negligent and that the disposition he made of his car was im
proper, and asserts that the accident was Practice- Trial Terdiet. - Parimce due 10 negligence on the part of the betavien oral and written verdict: Tirron plaintiff Charles Merritt in the manage
ment of his motorcycle. The case was Puls zerdict-- Veov trial.
submitted to the jury upon the questions 1 lirdiet rendered by the jury orally at of negligence of the defendant and conthe brand recorded by the court, cannot be tributory negligence of the plaintiff controlled by the writien verdiet handed in Charles Merritt and resulted in a verdict by the jury at the same time.
Where it verdict is palpably wrong and tho for plaintiffs. The latter are now asking 41101 shown to exist with certainty by ref- for a new trial on the ground that the relice to the written verdict, the discretion
The court will be properly exercised by verdict is contrary to the charge of the looking at the written verdiet for explana- court and inadequate.
1 erronéons verdict which defies corree On the subject of damages the jury tion by the record is ground for a new trial.
Was instructed to render a verdict, in the Kule for new trial at instance of plain-Levent of their finding in favor of the tiff after verdict for them. Rule abso-plaintills, pecifying the allowance made lute
10 cach of them, and told that the father
Hould be entitled to recover the amount Joseph R. Dickinson, for defendant expended for medical services and attenand rule.
tion, for the loss of a suit of clothing, John B. Stedens, contra.
for the loss of earnings of the son already
sustained, and for loss of future earnEndlich, P. 1. Iugust 11, 1124 This ings of the son, if any, up to the age of is an action of trespass in which the 21 years, and ihat the son would be enplaintifis, Charles Merritt, a minor, and titled to compensation of the damage Harry J. llerritt, his father, both claim alone to his motorcycle, and for the pain to be entitled to a verdict against the de- and suffering and inconvenience result fendant. The plaintiff Charles Merritt ing to him from the accident. The jury alleges, as the basis of the right of recov- returned a verdict in favor of Charles ery; that on the night of Oct. 14. 1922, Merritt for $200, and in favor of Harry he was operating his motorcycle with ... Verritt for $284.50, and this verdict Sidecar attached upon a public highway was taken orally at the bar. The writat a proper and lawful rate of speed and ten verdict handed in by the jury allowwith proper lights in conformity with the led the son for the cost of repairing his law'; that at the same time the defendant motorcycle (which, according to the unhad placed his automobile on the side of contra licted testimony, was $106), and ile road in urh manner that the rear for pain and suffering, and in addition end projected out into the traveled por- for "los, of time” (meaning loss of earntion of the road, and without any lightings, which belonged to the father), and upon it to warn others approaching it; limited the father's recovery to his actual that the place at which the defendant's expenses; --thus showing very plainly automobile was left standing by the de- that they misconceived the instruction refendant is on a slight curve in the roadl : lating to the measure of recovery of the that the plaintiff Charles Verritt, when father. It is well understood and has driving his motorcycle along the road, been often decided that the verdict rencould not see the defendant's automobile dered by the jury orally at the bar and because there were no lights upon it and recorddeil by the court cannot be controlbecause of the curve in the road, the road led by the written verdict handed in by being narrow at the place of the curve in the jury at the same time: see Dornick v.
12, 1919, P. L. 478, considered.
Reichenback, 10 S. & R. 84; Rees v. Acts of April 22, 1856, P. L. 532 (as amStille, 38 Pa. 138; Haycock v. Greup, ended, March 27, 1865, P. L. 56), and June 57 id. 438; Scott v. Scott, 110 id. 387; Com. v. Breyessee, 160 id. 451; Kramer Rule for judgement for want of sufv. Kister, 187 id. 227; Rottmund v. R. R. ficient affidavit of defence. Co., 225 id. 410; Com. v. Mills, 3 Pa. Super Ct. 161; Com. v. George, 12 id. 1;
Il'Wie 1/cCaslin, for plaintiff. Com. v. Houghton, 22 id. 52; Com. v. Mark I. Rabinovits and Robert L. Flaharty, 25 id. 490; Henning v. Keiper, Wallace, for defendants. 37 id. 188; Beecher v. Newcomer, 46 id. 44; Cooper v. Construction, etc., Co., 53 Emery; P. J., May 5, 1924.—Plaintiff id. 141. But after all the object of every alleges in his statement of claim, and judicial proceeding is to do justice to the which is not denied by the defendants, parties: R. R. Co. v. Berry, 08 Pa. 272. that the title to the land in question in 279; Lingenfelter v. C. & 1. Co., 84 id. this case was sold at sheriff's sale by pro328, 332; Henry v. Huff, 143 id. 548, ceedings based upon a julgement entered 503; Waln v. Beaver, 161 id. 605, 010;in said court at No. 32, March Term, Com. v. Striepeke, 32 Pa. Super. "Ct. 82, 1917; that Leonard M. Uber, as attorney 85; Waugaman v. Henry, 75 id. 94, 98 for plaintiit, confessed judgment on a and the verdict here being palpably juigment bond in favor of George H. wrong and the error shown to exist with Bell and against James H. Shaffer for certainty by reference to the written ver- / $1.50, with interest thereon and costs; dict, it seems that the discretion of the that said Leonard M. Lber, while acting court will be properly exercised by look as attorney for the plaintiff in said judging at the written verdiet for explanation ment, caused a writ of fieri facias to be of that error, the fact of its commission issued at No. 8, March Term, 1917, in being apparent, though the exact figures said court, and that the land in question are impossible of ascertainment. Because was sold by the sheriff to said Leonard of that error, and because it defies cor
M. Cber for the sum of $50, and, in purrection by the record, the new trial asked suance of said sale, on Feb. 9, 1917, the for must be granted; hence it is unneces- sheriff executed and delivered a deed to sary to discuss the question whether the Leonard M. Lber for the property in verilict should be set aside on the ground question. of inadequacy.
The affidavit of defense discloses the The rule to show cause is made abso-fact that Leonard M. Uber and wife, by lute.
leed dated lieb). 13, 1922, recorded in the
recorder's office of Lawrence County C. P. of
in deed book, vol. 234, page 450, con
veyed the land in question to William H. Bell v. Parrell et al.
Shaddick, and William H. Shaddick, by deed dateci Sept. 8. 1922, and recorded
in the recorder's office of said county, Attorney and client-Purchase of real convered said land to Harry l'arrell, one
of the defendants herein, subject to an estate by attorney in erecution-Eject- article of agreement dated Feb. 13, 1922,
recorded in agreement book, vol. 22, ment by client -Statute of limitations-
page 249, by which William H. Shaddick Acts of Ipril 22, 1856, Varch 27, 1865. agreed to convey said land to Jacob Cot
tler upon the terms and conditions thereand June 12, 1919.
in stated. If an attorney in an execution purchases
Plaintiff's statement of claim further the real estate, he becomes trustee for his avers, and is not contradicted by the client, and the client can maintain ejectment atfidavit of lefence, that plaintiff had against him and those claiming under him, made demands upon defendants for posunless barred by the statute of limitations.
session of the premises prior to the bringThe statute of limitations begins to run from the date the attorney parts with the ing of this action. The question raised is
one of a fiduciary relationship arising by
reason of the fact that Leonard M. rell and Jacob Cottler, upon the payUber was attorney for plaintiff in the ment of $50 to Harry Parrell, being the confession of a judgment on a judg- armount paid by Leonard M. L'ber to the ment bond and acting for plaintiff at the sheriff upon the sale of the property to time the land in question was sold by the him. sheriff. It is well settled principle of law in
C. P. of
York Co. Pennsylvania that the party occupying a trust relation to another is prohibited Blaebaum v. Julius from becoming an unconditional purchaser of land in which the other has an interest. This principle is very clearly and concisely laid down in Leisenring v.
Jechanic's lien- Pleading-Rescission Black, 5 Watts, 303, and the reason in of sale-Set-off-- Affidavit of defense. support of it plainly stated. We find this rule has been followed in a number
A deduction or set-off alleged in an affida
vit of defense must, in order to be of any of cases: Beeson v. Beeson, 9 Pa. 279; avail, be stated with precision and exactness Smith v. Brotherline, 62 Pa. 461; Al- as to the amount, and the court must be left
in no doubt as to its source and character, bright v. Mercer, 14 Pa. Superior Ct. 3;
so as to be able to judge of the propriety of Barrett v. Bambar, 81 Pa. 247.
its allowance against the plaintiff's claim; It appears from the record that judg- and this rule is applicable to an atħdavit of
defense filed to a scire facies sur mechanic's ment upon which the land in question lien. was sold was confessed by Leonard M. Where an owner of a building in course of Uber as attorney for plaintiff; that the erection accepted materials from a material
man, and in his affidavit of defense to a scire pleadings admit that the same attorney facias sur mechanic's lien avers that the mawas in charge of the execution upon terials were not in accordance with a warwhich the land was sold; that he pur- and use thereof, but does not aver that the
ranty of the same, and admits the retention chased the title for $50, while the judg- alleged defects were pointed out to the claimment was for $1450. His legal duty,
ant, or that he gave any notice of such de
fect or that he intended to rescind the contherefore, would have been to have pro-tract, he cannot rescind the sale of the matected his client's interest and not per- terials mentioned. mitted the sale for a nominal or trifling cias sur mechanic's lien avers a set-off for
Where an affidavit of defense to a scire faamount. This, we believe, would be at defects in materials, for unsound lumber and least constructive notice. It is also aver- for materials which the claimant agreed to
take back, without stating the full particured that plaintiff has been at all times lars and details in relation to the same, the ready and willing to repay the actual affidavit is not sufficient to prevent judgment. amount paid by Leonard M. Uber for
Motion for rule for judgment in methis property at the sheriff's sale.
chanic's lien of Frederick Blaebaum vs. The title to the land remained in Leon- Norman C. Julius, owner or reputed ard M. Uber until Feb. 13, 1922, and owner, McMillan, carpenter contractor, the Statute of April 22, 1856, P. L. 533, No. 19 in Mechanic's Lien Docket No. does not begin to run against the claim 10, in the Court of Common Pleas of of plaintiff until after that time or until York Co., Pa. Motion allowed. the title was acquired by Shaddick. Under the Act of June 12, 1919, P. L.
Jacob E. W'eaver, for plaintiff. 478, the case being within the law as
John A. Hoober, for defendant. above noted, the court may, on rule, enter such judgment on the pleadings in Ross, J., December 29, 1924.-There favor of either party as it may appear to was filed, January 9, 1924, in the office the court the party is entitled to, and in of the Prothonotary, a mechanics' lein this case it appears that the plaintiff is by Frederick Blaebaum, contractor, entitled to judgment.
against Norman Julius, owner or reputed And now, May 5, 1924, it is ordered, owner, and M. L. McMillan, carpenter adjudged and decreed that judgment be contractor. It was duly entered of reentered on the pleadings in this case in cord as No. 19 in Mechanics' Lien Dockfavor of the plaintiff, George H. Bell, et No. 10. and against the defendants, Harry Par A writ of scire facias sur mechanics'
lein was issued by the claimant, June 23, quired of a statement of claim: O'Neil v. 1924.
Burnett, 263 Pa. 216; Gross v. Exeter The owner or reputed owner, Norman Machine Works, 277 Pa., 363-368, 369; Julius, and the said carpenter contractor Gimble Bros. v. Weaver, 71 Pa. Supr. appeared and filed an affidavit of de- Ct. 212. fence, on July 7, 1924, and ruled the The plaintiff's bill of particulars reads claimant to file his replication thereto. as follows:
On July 22, 1924, the claimant filed “1. The claimant, Frederick Blaehis reply, and at the same time entered a baum, resides in the City of York, Pa. rule on the owner or reputed owner (the and is engaged in the lumber and mill defendants named in the writ of scire work business at 446-472 West Clarke facias) to show cause why judgment Alley, in said City of York, Pa. should not be entered in favor of the “2. The owner resides in West Vanplaintiff and against the defendant, for chester Township, York County, Pa., upjudgment for want of a sufficient affida on the premises described in this lien. vit of defence.
"3. The contract between the claimNothing further was done by the par- ant and owner or reputed owner ties until the contentions were argued at partly in writing, a copy whereof is the regular term of argument court dur-hereto attached, marked Exhibit B, and ing the week beginning September 22, | made part hereof, and partly oral. 1924.
" 4. On the sixth day of February, The law which seems to have con- |1923, the claimant, Frederick Blaebaum, trolled the procedure of both parties in at the request of the owner or reputed this controversy is the act of General As-owner, Norman C. Julius, furnished the sembly of June 4, 1901, P. L. 431, and owner an estimate, Exhibit B, of the cost supplements thereto.
of certain materials and mill work, acThe 34th section of the act provides, cording to a list or mill work statement inter alia, that "If an affidavit of defence furnished the claimant by the owner and be filecl, a rule may be taken for judg- one M. L. McMillan, the carpenter conment for want of a sufficient affidavit of tractor of the owner, in which the claimdefence, or for so much of the claim as ant undertook to and did furnish the is insufficiently denied,” &c., &c.
lumber and mill work therein set forth, The 52d section provides, inter alia, at and for the sum of $1944.00. “The facts averred by either party not “5. That the owner accepted said esdenied in the answer or replication of timate and requested the lumber and mill the other, shall be taken as true in all work therein set forth be furnished at subsequent proceedings in the cause, and when the same was required by the without the necessity of proof thereof." carpenter contractor.
The affidavit of defence is contradict “6. That all the lumber and mill work ed and denied by the replication, in every set forth in said estimate, Exhibit B, essential particular, and the whole con was furnished by the claimant to the troversy came before the court at argu-owner, as therein specified. ment, without any depositions to support “7. That on various dates, all as set any of the defendants' allegations. forth in a statement designated 'Extras,
The affidavit of defence is evidently a marked Exhibit C, hereto attached and defensive answer to the plaintiff's "bill made part hereof, the claimant furnished of particulars," as set forth in the lien, to the owner, at his request, on the premand it is not drawn in consecutively num-lises described in this lien, the lumber bered paragraphs as required by the law. and mill work therein specified and set
The affidavit of defence is not a direct forth, at and for the amounts or values denial of the statements contained in the therein set forth, which said charges and bill of particulars, but is an indefinite amounts are the usual and market chargallegation of counterclaims or set-off es or value of said lumber and mill work, against the definitely stated claims of the and are the amounts or value agreed upplaintiff. All rules of pleading require on between the claimant and the owner that an affidavit of defence raising ques- or reputed owner. tions of set-off, must state facts with the "8. That the total cost of the lumber same certainty and regularity as is re- and millwork in the specifications desig