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In a proceeding to open a judgment and let the defendant into a defense, where the petitioner's testimony, though strongly contradicted, shows that the judgment was confessed on a note given for goods purchased

used language which may be construed to

The defendants petitioned to have the by the defendant, and tends to show at the judgment opened, defendant let into a sale the plaintiff, in recommending the goods, defense, and execution stayed in the have been a warranty, and clearly showed meantime. A rule was accordingly. the goods were not as recommended, the granted, evidence was taken, presented to the court, and the case argued by the respective attorneys for defendants and plaintiff.

judgment was opened and the defendant let into a defense.

Where the defendant's testimony in a proceeding to open a judgment and let the de

of the plaintiff at a public sale, and that at

all right and a fresh cow," and it was clear

fendant into a defense, though contradicted by the testimony on behalf of the plaintiff, The defendants gave evidence that at showed that the judgment was confessed on the sale, when the cow was offered for a note given in payment of a cow purchased sale by the auctioneer, it was announced the time of the sale the auctioneer and the by the auctioneer that "the cow was plaintiff said the cow then was "straight and straight and all right and a fresh cow." ly proven that the cow then was not fresh, "I bid the cow up to fifty dollars, then and was unfit for use as a milk cow, the I walked over to Mrs. Stoll and I said, judgment was opened and the defendant was 'You say this is a fresh let into a defense. cow and straight and all right?' She said, 'Yes, sir; she is. She don't give as much milk as some cows, but she gives good milk.' Then I walked back and bid her up to fifty-five dollars and she was knocked off to me." "I said, 'How long is the calf

Rule to show cause why the judgment of Susan Stoll v. I. F. Kunkel and C. A. Barnes, No. 644, January Term, 1923, in the Court of Common Pleas of York Co., Pa., should not be opened and the defendant let into a defense. Rule abso-away from this cow?' and she said,

lute.

Harvey A. Gross, for plaintiff.

rule.

'About three weeks.' "She said she was a fresh cow; that's what I wanted. I had five cows that were spring cows That is the J. E. Brenneman, for defendant and and I wanted a fall cow. reason I bid five dollars more." This evidence of I. E. Kunkel was Ross, J., March 3rd, 1924.-It appears strongly corroborated by a number of from the records and the evidence sub-other witnesses, and just as strongly demitted to us that, at a public sale held by nied by the plaintiff, Mrs. Susan Stoll, the above named plaintiff on her prem- 'and her corroborating witnesses.

It appears from the undisputed testi- referred to a jury, on the principle anmony that the cow was not a "fresh nounced in the following cases: Italocow," and that her milk was "slippery" French Produce Co. v. Thomas, 28 Pa. and "bad," so that "she (the cow) was Supr. 293-4-5; Weber v. Roland, 39 Pa. unfit to use." It also appears by the un- |Supr. 611, 616; Kemper v. Richardson, denied testimony that the plaintiff, Mrs. 172 Pa. Supr. 115; Spiess v. Mooney, 67 Stoll, promised to take the cow back and Pa. Supr. 9, 11.

surrender the defendant's note to him, And now, March 3rd, 1914, the rule but afterwards she changed her mind is made absolute. The judgment is and refused to comply with the defend- opened for the purpose of letting the ant's request to give him the note and defendants try their defense by jury. "take the cow back."

The plaintiff admits that she represented to defendant, Kunkel, that "the cow was straight and all right," but she denies that she represented the cow as a "fresh cow," and denies that she told him that the calf had been taken away from her (the cow) only three weeks before the sale.

C. P. of

Lancaster Co.

Trissler Electrical Shop v. Wright

Suit by fictitious name-Mechanics' lien Affidavit of defense-Practice

The conflict in this case seems to be largely based upon the view which the | Acts of June 4, 1915, June 28, 1917, and respective counsel for plaintiff and de

fendant take of the evidence. If the view May 10, 1921.

P. L. 465.

a fictitious

The Practice Act of May, 1915, which provides for the raising of a question of law by affidavit of defense, does not apply to me,

chanics' liens.

An affidavit of defense purporting to raise a question of law in an action on a mechanics' lien may be considered as an affidavit of defense filed under the Mechanics' Lien Act of June 4, 1901, P. L. 431, and sustained. Rule

Sci. far. sur. mechanics' lien. for judgment for want of a sufficient af

which plaintiff's astute counsel takes is Where a plaintiff brings an action which to be followed, then there was no spe- is conducting business under shows on the face of the pleadings that he cial warranty, for he argues that the ex-name, he must show affirmatively that he pressions which Mrs. Stoll made were has complied with the Fictitious Name Acts only that "the cow was straight and all of June 28, 1917, P. L. 645, and May 10, 1921, right" and that this expression was only a "naked averment of fact" which does not constitute a warranty. If his view of the evidence is correct, his legal proposition is correct. But the view which defendant's counsel takes of the evidence is that the representations which the auctioneer and Mrs. Stoll, the plaintiff, made, were that "the cow was straight and all right," that "she was fresh and her calf had been taken away from her (the cow) only three weeks before the sale," and that those representations in-rule. duced the defendant, Kunkel, to bid more for the cow and buy her. If this view which is taken by the learned counsel for the defendant is correct, then the representations which he argues induced the sale and purchase of the cow by Kunkel, the defendant, constituted an express warranty, under the 12th section of the act known as the Sales Act 1915, P. L. 543-546.

We are of the opinion that the conflict of testimony in this case and the conflict of theory are such as should be

fidavit of defense. Discharged.

B. F. Davis, Jr., and B. F. Davis, for

John A. Coyle, contra.

Landis, P. J., March 29, 1924.-The defendant in this case seems to have filed an affidavit of defense under the Practice Act of 1915, raising a question of law; but what right he has to do this we do not see. The Practice Act applies to actions in assumpsit and trespass, but does not cover mechanics' liens. Such proceedings are regulated by the Act of June 4, 1901, P. L. 431. The 34th section of that act provides that,

* *

"if an affidavit of defense be filed, a rule by any such person or persons on any may be taken for judgment for want of such contract, either expressed or ima sufficient affidavit of defense, or for so plied, in any of the courts of this Commuch of the claim as is insufficiently de- monwealth or before any justice of the nied, with leave to proceed for the res- peace or magistrate thereof, until such idue * * *"" We will, therefore, person or persons comply with the protreat the affidavit of defense as a pro-visions of this act. And provided furceeding under this act, and examine into ther, before any such person or persons its sufficiency. can institute any action in any of the courts of this Commonwealth or before The second specification is the only one, under the circumstances, that need thereof, on any cause of action arising any justice of the peace or magistrate now be discussed. This avers that "the prior to the filing of the certificate proplaintiffs in this suit bring this proceed-vided for in this section, such person or ing under a trade or fictitious name, persons shall pay to the secretary of the without any averment that they have Commonwealth * * * a license fee registered in accordance with the legal or fine of twenty-five ($25.00) dollars requirements." It will be observed that the defendant does not allege that they have not been registered; but this would In Ferraro v. Hines, Director General appear to make no difference. The lien of Railroads, 77 Pa. Superior Ct. 274, it on its face shows that it is filed by "D. appeared that the suit was instituted by Allen Landis and Harry H. Landis, Jr., Albert Ferraro and Amelia Ferraro, partners doing business as Trissler Elec- trading and doing business as A. Fertrical Shop." It may be assumed that raro & Co. The defendant filed an affithe name "Trissler Electrical Shop" is a davit of defense, raising the question fictitious name, and the plaintiffs admit that the plaintiffs were a co-partnership, that they were doing business under that doing business under the firm name of name. Section 1 of the Act of May 10, A. Ferraro & Co., without having com1921, P. L. 465, which re-enacts and plied with the terms of the Act of 1917. amends the Act of June 28, 1917, P. L. Judgment was entered in favor of the 645, provides "that no individual or in- defendant. Trexler, J., delivering the dividuals shall hereafter carry on or con- opinion of the superior court, affirming duct any business in this Commonwealth the court below, said: "It is argued that under any assumed or fictitious name, the contract in this case being made with style or designation, unless the person the railroad company in the name of A. or persons conducting or carrying on the Ferraro, its enforcement does not necessame shall have first filed in the office of sarily involve the business of the firm. the secretary of the commonwealth and The suit, however, is brought by Albert in the office of the prothonotary * *Ferraro and Amelia Ferraro, doing busi* a certificate, under oath, and signed ness as A. Ferraro & Company. On the by such person or persons, setting forth face of things, the transaction occurred the real name or names and addresses in the business they were conducting. of all the persons owning or interested Had Ferraro desired to submit proof in said business, and also the name, style that the transaction was not in the line or designation under which said business of his business, or that he was acting is being or will be carried on or con- solely as an individual, not trading unducted. * * * Provided that the der a fictitious name, the course open to failure of any such person or persons to him would have been to have declared file the certificates aforesaid * * *accordingly." In Commonwealth to use shall not impair or affect the validity of of Hagerling Motor Car Co. v. Palmer, any contract with such person or per-3 D. & C. Rep. 650, it was held by the sons, and actions or proceedings at law Common Pleas of Dauphin County that or in equity may be instituted and main- the Hagerling Motor Car Company used tained or any such contract, but no such to designate the business carried on by action shall be instituted or recovery had L. H. Hagerling, was a fictitious nam

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within the meaning of the Act of 1917 commodation of the members as a place as amended, and that, "when an individ- of meeting, and leasing and letting cerual comes into court and brings an action in which it appears upon the face of the pleadings that he is conducting business under an assumed or fictitious name, he must show affirmatively that he has complied with the statute

* * *""

It would, therefore, seem, without considering any other questions raised, that the plaintiffs are not at this time entitled to judgment.

The rule is, therefore, discharged.
Rule discharged.

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Corporations-Application for charter-First class-Similar names-Act of March 28, 1907.

In an application for a charter of the first

class, the name "Ancient Free and Accepted

tain portions thereof for public and private uses." Objections were filed to the granting of this charter, and a commissioner was appointed, who took testimony and reported as above stated. The objectors then filed exceptions to the report of the commissioner.

The exceptions are by the Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania, whose official title is: "The Right Worshipful Grand Lodge of the Most Ancient and Honorable Fraternity of Free and Accepted Masons of Pennsylvania and Masonic Jurisdiction Thereunto Belonging.

The exceptant is also known as the Grand Lodge Free and Accepted Masons of Pennsylvania, and its Masons are known as Ancient York Masons, or as

the Free and Accepted York Masons. The fraternity is likewise generally known as the Masonic, and its members as Free Masons.

This Grand Lodge originated in Pennsylvania about 1730, by obtaining a charMasons Temple Association" was held to be ter from the Grand Lodge of England. of such close similarity to the name "Grand It has 546 subordinate lodges in PennLodge Free and Accepted Masons of Pennsylvania" as to be confusing and productive sylvania, of which 64 are in Allegheny of litigation and controversies, and in viola- County. The membership in the state is tion of the Act of March 28, 1907, P. L. 35, over 190,000; the property owned and investments amount to several millions of dollars in value; many bequests and Exceptions to commissioner's report devises are made to the Grand Lodge and on application for charter.

and for such reasons the application was refused.

Harold Obernauer, for exceptant. Maurice Schneiroy, for petitioner. Before Swearingen, Reid and Carnahan, JJ.

its subordinate lodges. The distinctive words in the name of the exceptant are "Ancient," and "Free and Accepted" and "Masons." These words are all used by the applicant for this charter. In our opinion, the adoption of the name under which the applicants have presented their petition will result in confusion and uncertainty, and will be likely to mislead and deceive those who might have dealings with the exceptant, or who might be disposed to bequeath or devise property thereto. Such a name as that under which the applicants seek to be incorporated cannot help being productive of The purpose for which the corpora- controversies and litigation respecting tion is to be formed, as set forth in the titles to real and personal estate. The application, is "The acquiring of neces-courts have uniformly sought to avoid all sary real estate and erecting suitable these difficulties when asked to grant buildings and halls thereon for the ac- charters: Philadelphia Lying-in Charity

Swearingen, J., July 2, 1923.-This cause is before the court upon exceptions to the report of a commissioner, recommending that a charter be granted to certain citizens of Pittsburgh, Pennsylvania, for a corporation, under the name of Ancient Free and Accepted Masons Temple Association.

Hospital v. Maternity Hospital, 29 Pa. erly on the rule, and that is, whether or Superior Ct. 420. not the judgment ought to be stricken off.

Likewise, we are of opinion that the granting of this charter would be in violation of the Act of March 28, 1907, P. L. 35.

The praecipe for the issuance of the summons was filed May 24th, 1922, calling for the return day of the summons to be on the first Monday of July, 1922, being the 3rd day of the month. The sheriff served the summons on the defendant on May 25th, 1922. Counsel for the plaintiff claims the defendant has fifteen days, under the Practice Act of 1915, to file an affidavit of defense, from May 25th, 1922, the date of the service of the summons, and that these fifteen Union Co. days expired on the 9th day of June, 1922.

This application must be refused. And now, to wit, July 2, 1923, after argument and upon consideration, the exceptions to the report and recommendation of the commissioner are sustained and the application for a charter of the Ancient Free and Accepted Masons Temple Association is refused.

C. P. of

Colt Company v. Shirk

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Rules of court strike off judgment for want of affidavit of defense-Rule for security for costs --Notice to counsel.

Judgment for want of an affidavit of de

should be stayed pending the determination,

As a matter of fact the Act of March 10th, 1921, P. L. 16, which is an amendment of the 12th section of the Practice Act of 1915, provides that in no case shall an affidavit of defense be required to be filed before the return day of the summons. Under this act, then, the defendant had till July 3rd, 1922, to file his affidavit of defense.

On June 28th, 1922, the defendant fense will be stricken off where before the took out a rule on the plaintiff to show return day of the summons defendant was granted a rule on plaintiff to show cause cause why security for costs should not why security for costs should not be given, be given, as is required by our Rule of which rule provided that all proceedings Court No. 53, the plaintiff being a forof the said rule and until ten days after no-eign corporation. This rule was granted tice to defendant or his attorney of entry in vacation, and was, therefore, returntaken without the notice required in said able to the next term of court, or on Monday, September 18th, 1922. See Rule of Court No. 165, and the Act of May 7th, 1880, U. L. 102,

of security, and where the judgment was

rule.

Rule to strike off judgment taken for want of affidavit of defense. Rule absolute.

C. C. Lesher, for the plaintiff. A. A. Leiser, for the defendant. Potter, P. J., November 25, 1922.-On the 14th day of August, 1922, judgment was taken by counsel for the plaintiff, upon praccipe, for want of an affidavit of defense, in the sum of $273.11.

records.

The order of the court made June 28th, 1922, upon granting the rule, is as follows:

"And now, June 28th, 1922, upon presentation of above motion and affidavit, a rule is granted upon J. B. Colt Company, plaintiff in above suit, to enter security for costs in said suit, to be approved by the court, in the sum of five hundred dollars, on or before the 17th

On September 23rd, 1922, a rule was day of July, 1922, or show cause why taken out by the defendant upon the judgment of non pros. shall not be enplaintiff to show cause why this judg-tered in said case for want of such sement should not be stricken from the curity, as provided by Rule of Court No. 53, all proceedings to stay pending the Other questions have been injected determination of said rule and until 10 into the case, but, as we said at argu- days after notice thereof, or of entry of ment, we shall confine uorselves to but security as aforesaid, to the defendant the one question which comes up prop-or his attorney; rule returnable sec. reg.”

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