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THE

Dork Legal

Legal Record .

Volume XXXVIII

C. P. of

York Co. ises, November 4, 1922, the defendant, I.
Stoll v. Kunkel et al

E. Kunkel, bought a cow at auction for
$55.00. Under the terms of the sale, he
gave his note for that amount, with C.

A. Barnes as surety, payable to the plainJudgments-opening and letting de- tiff. When the note became due and

payable, the defendants refused to pay fendant into a defense--W'raranty.

and the plaintiff had it entered on the In a proceeding to open a judgment and

confession of judgment which was exelet the defendant into a defense, where the cuted with the note, and issued execupetitioner's testimony, though strongly con- tion. tradicted, shows that the judgment was confessed on a note given for goods purchased

The defendants petitioned to have the by the defendant, and tends to show at the judgment opened, defendant let into a used language which may be construed to 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 judgment was opened and the defendant let into a defense.

to the court, and the case argued by the Where the defendant's testimony in a pro- respective attorneys for defendants and ceeding to open a judgment and let the de

plaintiff. 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 of the plaintiff at a public sale, and that at 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 this is
say

fresh let into a defense.

cow and

straight and all right?' She said, 'Yes, Rule to show cause why the judgment sir; she is. She don't give as much milk of Susan Stoll v. I. F. Kunkel and C. A. as some cows, but she gives good milk.' Barnes, No. 644, January Term, 1923, in Then I walked back and bid her up to the Court of Common Pleas of York Co., fifty-five dollars and she was knocked off Pa., should not be opened and the de- to me." "I said, 'How long is the calf fendant let into a defense. Rule abso-away from this cow?' and she said, lute.

‘About three weeks.'” “She said she

was a fresh cow; that's what I wanted. Harvey -1. Gross, for plaintiff.

I had five cows that were spring cows

That is the J. E. Brenneman, for defendant and I and I wanted a fall cow. rule.

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.

a

a fictitious

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, II. 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 C. P. of

Lancaster Co. cow was straight and all right," but she denies that she represented the cow as a

Trissler Electrical Shop v. Wright "fresh cow," and denies that she told him that the calf had been taken away from her (the cow) only three weeks Suit by fictitions name --Mechanics' before the sale.

lien Affidavit of defense-PracticeThe 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 defendant take of the evidence. If the view May 10, 1921. 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 The Practice Act of May, 1915, which proa “naked averment of fact” which does vides for the raising of a question of law by not constitute a warranty. If his view affidavit of defense, does not apply to me, of the evidence is correct, his legal pro An affidavit of defense purporting to raise position is correct. But the view which a question of law in an action on a mechandefendant's counsel takes of the evidence ics' lien may be considered as an affidavit

of defense filed under the Mechanics' Lien is that the representations which the Act of June 4, 1901, P. L. 431, and sustained. auctioneer and Mrs. Stoll, the plaintiff,

Sci. far. sur. mechanics' lien. Rule made, were that “the cow was straight for judgment for want of a sufficient afand all right," that "she was fresh and

fidavit of defense. Discharged. her calf had been taken away from her (the cow) only three weeks before the B. F. Davis, Jr., and B. F. Davis, for sale," and that those representations in- rule. duced the defendant, Kunkel, to bid

John A. Coyle, contra. more for the cow and buy her. If this view which is taken by the learned coun Landis, P. J., March 29, 1924.-The sel for the defendant is correct, then the defendant in this case to have representations which he argues induced filed an affidavit of defense under the the sale and purchase of the cow by Practice Act of 1915, raising a question Kunkel, the defendant, constituted an of law; but what right he has to do this express warranty, under the 12th sec

we do not see. The Practice Act aption of the act known as the Sales Act plies to actions in assumpsit and tres1915, P. L. 543-546.

pass, but does not cover mechanics' liens. We are of the opinion that the con- Such proceedings are regulated by the flict of testimony in this case and the Act of June 4, 1901, P. L. 431.

The conflict of theory are such as should be 34th section of that act provides that,

seems

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"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 any justice of the peace or magistrate one, under the circumstances, that need thereof, on any cause of action arising 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 name

*

* *

C. P. of

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 tain portions thereof for public and priin which it appears upon the face of the vate uses.” Objections were filed to the pleadings that he is conducting business granting of this charter, and a commisunder an assumed or fictitious name, he sioner was appointed, who took testimust show affirmatively that he has com- mony and reported as above stated. The plied with the statute

objectors then filed exceptions to the reIt would, therefore, seem, without con- port of the commissioner. sidering any other questions raised, that

The exceptions are by the Right Worthe plaintiffs are not at this time entitled shipful Grand Lodge of Free and Acto judgment.

cepted Masons of Pennsylvania, whose The rule is, therefore, discharged.

Official title is: “The Right Worshipful Rule discharged.

Grand Lodge of the Most Ancient and

Honorable Fraternity of Free and AcAllegheny Co. cepted Masons of Pennsylvania and Ma

sonic Jurisdiction Thereunto Belonging." In re Ancient Free and Accepted

The exceptant is also known as the Masons Temple Association Grand Lodge Free and Accepted Masons

of Pennsylvania, and its Masons are

known as Ancient York Masons, or as Corporations--dipplication for char- the Free and Accepted York Masons.

The fraternity is likewise generally ter-First class-Similar names-Act of known as the Masonic, and its members

as Free Masons. March 28, 1907.

This Grand Lodge originated in PennIn an application for a charter of the first sylvania 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 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 and for such reasons the application was re

investments amount to several millions Exceptions to commissioner's report devises are made to the Grand Lodge and

of dollars in value; many bequests and on application for charter.

lits subordinate lodges. The

The distinctive Harold Obernauer, for exceptant.

words in the name of the exceptant are

"Ancient," and "Free and Accepted" and Maurice Schneiroy, for petitioner. "Masons." These words are all used by

Before Swearingen, Reid and Carna- the applicant for this charter. In our han, JJ.

opinion, the adoption of the name under

which the applicants have presented their Swearingen, J., July 2, 1923.—This petition will result in confusion and uncause is before the court upon excep- certainty, and will be likely to mislead tions to the report of a commissioner, and deceive those who might have dealrecommending that a charter be granted ings with the exceptant, or who might be to certain citizens of Pittsburgh, Penn- disposed to bequeath or devise property sylvania, for a corporation, under the thereto. Such a name as that under name of Ancient Free and Accepted Ma- which the applicants seek to be incorposons Temple Association.

rated 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- Icharters : Philadelphia Lying-in Charity

fused.

L. 35.

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Hospital v. Maternity Hospital, 29 Pa. erly on the rule, and that is, whether or Superior Ct. 120.

not the judgment ought to be stricken Likewise, we are of opinion that the off. granting of this charter would be in vio The praecipe for the issuance of the lation of the Act of March 28, 1907, P. summons was filed May 24th, 1922, call

ing for the return day of the summons This application must be refused. to be on the first Monday of July, 1922,

And now, to wit, July 2, 1923, after being the 3rd day of the month. The argument and upon consideration, the sheriff served the summons on the deexceptions to the report and recommen- fendant on May 25th, 1922. Counsel for dation of the commissioner are sustained the plaintiff claims the defendant has fifand the application for a charter of the teen days, under the Practice Act of Ancient Free and Accepted Masons 1915, to file an affidavit of defense, from Temple Association is refused.

May 25th, 1922, the date of the service

of the summons, and that these fifteen C. P. of

Union Co. day's expired on the oth day of June, Colt Company v. Shirk

1922.

As a matter of fact the Act of March Toth, 1921, P. L. 16, which is an amend

ment of the 12th section of the Practice Practice Rules of court -- Rule to let of 1915, provides that in no case strike off judgment for want of affidavit shall an affidavit of defense be required

to be filed before the return day of the of defense-Rule for security for costs summons. Under this act, then, the de- Votice to counsel.

fendant had till July 3rd, 1922, to file his

affidavit of defense. Judgment for want of an affidavit of de 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 should be stayed pending the determination 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 rule.

Monday, September 18th, 1922. See Rule to strike off judgment taken for Rule of Court No. 165, and the Act of Want of affidavit of defense. Rule ab- May 7th, 1880, L. L. 102, solute.

The order of the court made June

28th, 1022, upon granting the rule, is as C. C. Lesher, for the plaintiff.

follows: d. 1. Leiser, for the defendant.

“And now, June 28th, 1922, upon pre

sentation of above motion and affidavit, Potter, P. J., November 25, 1922.-Onla rule is granted upon J. B. Colt Comthe 17th day of August, 1922, judgment pany, plaintiff in above suit, to enter sewas taken by counsel for the plaintiff, curity for costs in said suit, to be apupon pruecipe, for want of an affidavit proved by the court, in the sum of five of defense, in the sum of $273.11. 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. records.

53, all proceedings to stay pending the Other questions have been injected determination of said rule and until 10 into the case, ut, as we said at argu- days ter notice thereof, or 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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