« ПредишнаНапред »
American Chain Co.'s Appeal
sued. For the purposes of the rule, the And now, September 22, 1924, rule to affidavit of cause of action filed by plain- show cause why writ of foreign attachtiff can be treated as if same had been ment should not be dissolved, is made filed in response to the rule. The de- absolute. fendant, in support of the rule, suggests the affidavit of cause of action does not Superior Ct. aver the following jurisdictional facts: That the defendant had property in the County of Northampton and State of Pennsylvania, or within the jurisdiction of the court, subject to attachment at the time the writ issued, or the attachment was made. 2. That the defendant was not in the county or state at the time the writ issued, or the attachment was made.
* * *
Workmen's compensation-Review of testimony on appeal-Sufficient evidence to sustain findings of liability.
The appellate court will review testimony, on an appeal from a judgment affirming an order of the Workman's Compensation Board, with the sole purpose of ascertaining whether evidence appears which justifies the findings made, and, if so, whether the law has been properly applied.
Where a workman when about to quit his work told his foreman of an injury he had sustained while at work and showed an into show that his work was such that it was jured finger, and where the testimony tended quite likely that an injury like that complained of might occur, and that he later died "as the resuult of septicaemia following the injury," notwithstanding evidence that the finger was scratched before he went to work, occurred in the course of decedent's employthere was sufficient evidence that the injury ment and that it was the cause of his death.
Appeal to the Superior Court of Pa., No. 10, March Term, 1925, in Lulu M. Felker vs. American Chain Company, from the judgment of the Court of Common Pleas of York Co., Pa., affirming the findings of the Workmen's Compen
The plaintiff, having filed no answer to the rule, must rely entirely upon the record presented to the court, as there can be no amendment now of the affidavit of cause of action filed: Selwen v. Tappan, et al., 30 Dist. 937. While the plaintiff in the affidavit avers that defendant is a resident of the City of New Haven, Connecticut, and is beyond the jurisdiction of this court, this refers to the date of the affidavit and not to the date of the issuance of the writ. The 44th section of the Pennsylvania Act of June 13. 1836, relating to foreign attachments, provides: "A writ of attachment may be issued against the real or personal estate of any person not residing within this Commonwealth, and not being within the county in which such writ shall issue, at the time of the issuing thereof." From the language of this section of the act, there appears to be two tests, non-residence of the defendant, and that he is not within the county at the time of the issuance of the process of foreign attachment against him. The averment of plaintiff is silent as to whether defendant was not within the county at the time of the issuance of the writ, which is fatal. Further, the affidavit fails to disclose that the defendant was the owner of proerty within the jurisdiction of the court at the time the writing compensation to the grand-children issued, which is an essential requirement of the decedent, who was in the employ under the Pennsylvania authorities. "To of the defendant corporation, the Amersupport a writ of foreign attachmet, it is ican Chain Company. It is our duty to as necessary that defendant have propreview the testimony with the sole purerty within the jurisdiction and that he
sation Board. Affirmed.
Opinion of the court below by Judge
Trexler, J., February 27th, 1925.-
be beyond it. Both are essential and pose of ascertaining whether evidence must be averred." Mindlin et al. v. Sax- appears which justifies the findings ony Spinning Co., 261 P. S. 354. made, and if so, whether the law has
been properly applied; Thomas v. State C. P. of
Davis v. Gregg
Landlord and tenant-Duty of land
worked during the night until 6:20 the lord to repair following morning. At that time the de
Practice Set-off or
iedent came and told the foreman that at counter claim Demurrer
14, 1915, P. L. 483.
4 o'clock in the morning he had rubbed strike off-Notice to be endorsed-Cophis finger open or cut himself. The fin-ies of contracts-Practice Act of May ger was wrapped, he took the rag off and showed the hurt to the foreman and told him he had a "burnish" feeling in it. There was some evidence that there had been a scratch on the finger before he came to work, but there was also evidence that the employment in which he an affidavit of defense stricken off, and not
There is no implied covenant on the part of a lessor that the premises are in good repair and fit for any particular purpose. He is not bound to make repairs unless he has
covenanted to do so.
The proper practice is to move to have a defective set-off or counter claim set up in
to file a replication by way of statutory demurrer to the counter claim and such statu
tory demurrer should be regarded by the
court as a motion to strike off. Such motion
the affidavit stricken off which sets up a setoff or counter claim.
lowed when it asks to have only that part of
The Practice Act of May 14, 1915, P. L.
was engaged was such that it was quite likely that a scratch or puncture of the finger might occur. There was no evi-will be considered, and in a proper case aldence that the injury to the finger prior to the employment was of any extent. In fact the circumstances as narrated sup-483, Section 5, requires that copies of all The Practice Act of May 14, 1915, P. L. port the inference that there was a rub-contracts must be attached to the pleadings, including a defendant's set-off or counter bing open and inflammation which was claim. not present when the decedent went to work. The conclusion can be reasonably drawn that the accident was sustained in the course of the employment. The pre-and in the exact language of the act, othercise details of the occurrence were not set out. It was not necessary to show the exact nature of the injury, nor just how it occurred; Lario v. Pennsylvania Railroad Company, 277 Pa. 382; Watkins v. Pittsburgh Coal Company, 278 Pa. 463.
483, Section 15, requires that where the affidavit of defense sets up a set-off or counter claim against the plaintiff it should be en
dorsed the same as required for a statement,
Demurrer to counter claim.
Edwin M. Gilbert, for defendant.
Hassler, J., January 17, 1925.—PlainThe casual connection between the ac- tiff filed a statement in this case, claiming cident and the death was supported by an amount due from the defendant bethe testimony of a doctor who, when the cause of his failure to do certain things question was asked: "Did he or not die which he was required to do under the as a result of septicaemia following the terms of a written lease of a farm of injury to his finger?" stated: "In my which the plaintiff was the lessor and the opinion he did." This seems positive defendant the lessee. The amount enough to meet the rule as set out in claimed for each failure appears in the Fink v. Sheldon Axle & Spring Com-statement. The defendant filed an affidapany, 270 Pa. 476; McCoy v. Jones and vit of defense, which contained a full and McGlaughlin Steel Compny, 275 Pa. legal defense to many of the items of 422. We think there was sufficient evi- plaintiff's claim, and, in addition, set dence that the injury occurred in the course of decedent's employment and that it was the cause of his death. The judgment is affirmed.
forth a set-off or counter claim as follows: "12. That growing out of this agreement, and a part of it, was the right of defendant and his family to take
water from a well at the house; that the pump was in such condition that it could not be used, and the landlord (the plaintiff) refused and neglected to repair or have it repaired; that by reason of this, this defendant and his family was forced to carry water from a spring up a long hill a hundred yards away, at a cost to the defendant in time to the value of a dollar a week for one hundred and fifty weeks, and that the defendant claims of the plaintiff an offset of one hundred and fifty dollars ($150.00), in time, due to the neglect of the plaintiff to repair the pump and furnish water to the defendant and his family."
To this the plaintiff filed a replication, raising a question of law to so much of the affidavit of defense as set forth a setoff or counter claim.
The proper practice is to move to have the set-off or counter claim set up in the affidavit of defense stricken off. Seaman v. Meeley, 1 D. & C. 146; Marcus Woods, 69 Pitts. 832. Section 21, of the Act of May 14, 1915, P. L.. 483, pro
or counter claim, and will strike off that portion of the affidavit of defense if under the Practice Act it is insufficient.
Section 5, of the Act of May 14, 1915, P. L. 483, requires that "every pleading (including defendant's set-off or counter claim) shall contain a statement in a concise and summary form of the material facts on which the party relies. It must have attached to it all copies of notes, contracts, etc." The set-off set up in this affidavit of defense is defective in that a copy of the contract (the lease) is not attached to the affidavit of defense, as required by the Practice Act. An exact copy of it is attached to the plaintiff's statement, and it does not show that the defendant and his family were to take water from the well, nor that the plaintiff was required to repair the pump and keep it in repair. There is no implied covenant on the part of a lessor that the premises are in good repair and fit for Landlord and Tenant, 68 et seq.; Moore any particular purpose. Trickett on make repairs, unless he has covenanted v. Weber, 71 Pa. 429. He is not bound to to do so.
vides that the court, upon motion, may Wodock v. Robinson, 28 W. strike from the record a pleading which does not conform to the provisions of this N. C. 288; Moore v. Weber, supra; Graact. The Act of May 23, 1923, P. L. ham v. Hay, 81 Pa. Superior Ct. 594; 325, amends this, so as to require the mo- Wood v. Carson, 257 Pa. 522. tion to be made and served on the party Paragraph 12, of the affidavit of defiling the pleading, or his attorney, with-fense setting up the set-off does not, in fifteen days after a copy of such therefore, show a cause of action as pleading was served upon the opposite would entitle a defendant to recover unparty or his attorney. A motion to strike der the Act of Assembly. off in this case was made and served on Another reason why it must be stricken the attorney for the defendant within off is, it is not endorsed as required by fifteen days of the date on which the affi- Section 15 of the Act of 1915, supra, davit of defense was filed, though the af-known as the Practice Act. This section fidavit of defense was not served upon provides that, "where the affidavit of dethe attorney for the plaintiff. fense sets up a set-off or a counter claim
The court will regard a statutory de-against the plaintiff, the affidavit of demurrer filed in such a case as this, as a fense shall be endorsed as follows: To motion to strike off a pleading. Hallo- the within-named plaintiff. You are rewell v. Kimink, 2 D. & C. 145; Sorrick v. quired to file a reply to the within set-off Scheetz, 33 L. L. R. 401. Such motion (or counter claim as the case may be) will be considered and in a proper case within fifteen days from the date hereallowed where it asks to have only that of." If the affidavit of defense is not part of the affidavit stricken off which endorsed as required by the act, that is, sets up a set-off or counter claim. Snell if it does not have the endorsement at all, v. Nickles, I D. & C. 487; Middletown or has it even slightly different from Water Co. v. Borough, 3 D. & C. 587. We will, therefore, consider the statutory demurrer filed by the plaintiff as a motion to strike off that portion of the affidavit of defense which sets up a set-off
what the act requires, it is defective and must be stricken off. In Dick v. Forshey, 71 Pa. Superior Ct. 439, it is decided that the endorsement on the back of plaintiff's statement must be in the exact language
required by the Act of Assembly, and terials was with the owner, it is sufficient
that the purpose of the act "was manifestly to secure uniformity and regularity with respect to the notice necessary, to place the defendant in default, in case of his failure to present his defense, and it is to be presumed that, in selecting the very words of the endorsement, importance was attached to them according to their signification, and that they were used advisedly." This applies with equal force to an affidavit of defense setting up a set-off or counter claim.
under paragraph 2 of Section 1 of the Act amount claimed to be due, the kind and materials were furnished over a period of time, giving the dates of the first and last deliveries.
17 April, 1905, P. L. 172, to set forth the amount of materials furnished, and that the
On a motion to strike off a mechanic's lien
the court cannot decide the issue whether the statement or a sub-contractor as contended by the petitioner.
the claimant is a contractor as averred in
Rule to strike off mechanic's lien. Rule discharged.
Emanuel Weiss, for defendant and
George J. Gross, contra.
If an endorsement on the back of a plaintiff's statement which differed slightly in its language from that required by the act, did not conform to the requirements of the act, and made the statement defective, it follows that where such en- Schaeffer, P. J., January 5, 1925.— dorsement is entirely omitted, such plead- This is a motion to strike off a mechaning would not conform to the require-ics' lien for materials furnished. In this ments of the act, and would have to be stricken off. See, also, Wagner Bros. Co. v. Douglas Bros., 39 L. L. R. 233. It is true that, in that case, the pleading was a plaintiff's statement, but the act requires the same endorsement on an affidavit of defense which sets up a set-off.
As this affidavit of defense does not contain the required endorsement, Paragraph 12 of it must be stricken off.
proceeding the petitioner must rely upon defects apparent upon the face of the record; the court cannot, upon the application of the owner, strike off a lien regular upon its face for matters dehors the record: Hiestand v. Keath, 229 Pa. 149. The irregularities here relied upon by the petitioner are as follows: (a) Claimants failed to attach to their claim an affidavit signed, and sworn to or affirmed to, by the claimants or one of them, or by someone cognizant of the facts, to the effect that the facts set forth are true as they are within the affiants' knowledge; (b) That the claimants in their bill of Berks Co. particulars, marked Exhibit A, fail to show the dates upon which the materials were furnished and the prices charged for each thereof; (c) That on the face of the claim the claimants clearly indicate that the contract was made with one Howard Sheeder and not with the owner,
Rule is made absolute to strike off Paragraph 12 of defendant's affidavit of defense.
C. P. of
KASE et al. v. SEGAL
Mechanics' liens Act 4 June, 1901, P. L. 431-Necessity for affidavit support ing statement of claim-Practice, C. P.Act 17 April, 1905, P. L. 172, Paragraph 2 of Section 1-Requisites of statement
Lillian Segal, but claimants have failed to give a notice to the said Lillian Segal, the owner of the premises, of an intention to file the claim; (d) Claimants have failed to allege whether or not Howard
Sheeder had contracted directly with the owner, Lillian Segal; (e) That the claimants do not show whether the lien was claimed for erection and construction, or for alteration and repairs; (f) That in point of fact the claimants are not the Contractor, but a sub-contractor, the said Howard Sheeder being the party with whom the owner, Lillian Segal, contracted.
Neither the Act of 1901 nor any of its amendments specifically require that the claim or statement of demand be supported by affidavit, although it is undeniably in general good practice to have such claims sworn to. In Donaghoo v. Scott, 12 Pa. 45, it was decided that, under the Act of 1836, from which the present act was patterned, a statement signed not by the claimant, but by his attorneyat-law, was sufficient. And upon the argument of this case, we do not understand that the objection based upon absence of an affidavit was pressed.
to strike off the lien, determine the We cannot, upon a motion truth of the issue thus raised; that
Brennan v. Kennedy, supra. If the jury find that the claimants are in fact sub-contractors, then the lien must fall for want of the natice required to be given to the owner of the sub-contractor's intention to file the lien by the Act of March 24, 1909, P. L. 65, and for failure to set forth in the claim the several dates of delivery and the prices. charged for the several materials delivered: Burrows v. Carson, supra. But if the contract was between the claimant and the owner, the lien is good.
The statement avers that the materials | can be determined only by a jury: were furnished "beginning February 7, 1924, and continuing until March 13, 1924," and in the schedule attached thereto fixes the price of material set forth in 14 items as $161.25, and of material set forth in two items as $4.96, or a total of $166.21. Paragraph 2 of Section 1 of the Act of April 17, 1905, P. L. 172, provides that the statement of claim shall set forth: "2. The amount or sum claimed to be due and the nature or kind of the work done or the kind and amount of the materials furnished, or both and the time when the materials were furnished, or the work done, or both, as the case may be.'
Here the statement does set forth the amount claimed to be due, and the kind and amount of the materials furnished, and avers that they were furnished beginning February 7, 1924, and continuing. to March 13, 1924. That is, the claim gives only the dates of the first and last deliveries. It has been decided in a num
In paragraph 6 of the statement of claim it is averred that the materials were furnished in "the construction and erection of the building" liened.
The rule to strike off the mechanics' lien is discharged.
ber of cases that such an averment is suf- Petition of York Lodge of Moose
ficient in cases where the contract to furnish the materials was with the owner and where, in other words, the claimant is not a sub-contractor. "When the own
Banks-Bonds stolen by assistant cash
er is also the contractor, he is presumed ier-Notice of fraudulent acquisition.
The burden of proof is upon the holder of stolen bonds, in defending against the claim quired them without knowledge, or notice, either actual or constructive, of the fraud
of the owner thereof, to show that he ac
to know whether or not he received the materials contracted for:" Brennan v. Kennedy, 69 Pa. Superior Ct. 77; Steinback's Sons v. Keystone Oil Service Co., 4 D. & C. 559; Wint Co. v. Kurecz et al., 29 Dist. R. 925. The case of Burrows v. Carson, 244 Pa. 6, relied upon by the pe-ceived bonds, negotiable by delivery, for sale, titioner, is a case in which the claimant was a sub-contractor.
The owner, however, asserts that the claimant here was a sub-contractor and that the lien must fall for the additional reason that no notice of an intention to
ulent acquisition of the same.
Where an assistant cashier of a bank re
and subsequently fraudulently pledged them
pledged, the bank was effected with a guilty