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terms, the presumption would be it had Rule for judgment for want of a suffully accepted and assumed the terms of ficient affidavit of defence. the obligation. We state this without admitting that the contract of sale be

C. B. Rhoads, for plaintiff. tween the two companies did not carry B. H. W'olf, for defendant. with it as an obligation Dr. North's contract for personal services. Whether

Martin, P. J., March 31, 1924.- The Dr. North, after being notified a change plaintiff has taken a rule for judgment in the contract had been made by appel- for want of a sufficient affidavit of delant, accepted that change was a question fence in a claim for the recovery of for the jury.

$1250, being first payment under a writThe third assignment of error relating ten contract for the purchase of premises to the measure of damages would be No. 2116 Walnut Street, in the City of serious if it were not for the fact that Philadelphia. what is complained of was fully and The written contract in question was correctly covered in the general charge admittedly made with the defendant as of the court.

“equitable owner,” and provided for the Regarding similarity in names of cor- payment of said $1250 at the execution porations buying and selling, and un- of the agreement on May 10, 1923, an changed interests, the case comes within additional sum of $1250 within ten days, Herring v. Weinroth, 61 Pa. Superior $40,000 to remain as a ground rent, "to Ct. 529, and Atlas Portland Cement Co. be redeemed within five years from the V. American Brick and Clay Manufac-date of settlement," $20,000 to be seturing Co. (not yet reported). Here we cured to the seller by a second mortgage, have similarity of names, identity of of- and the balance of the consideration of ficers, unchanged interests and the same $65,000 to be paid at the time of settleattitude toward plaintiff while he was ment, which was to be within sixty days associated with appellant.

from the date of the agreement, which The assignment of error are overruled, time was the essence of the contract. and the judgment of the court below is | The agreement contained no provision of affirmed.

forfeiture or for the payment of liquidat

ed damages in the event of breach. The C. P. of

Philadelphia Co. statement of the plaintiff set forth, inter Schuman v. Barry

alia, that on or about May 20, 1923, when the second payment of $1250 was due,

the defendant notified the plaintiff that Vendor and vendee--Contract-Sale he would not carry out the terms of the of land - Recovery of hand-money

agreement; that the defendant's contract

with the then owner of said premises . 1 ffidavit of defence---Failure of per- provided for a ground rent upon the preformance.

mises in question and other property, in

which the plaintiff was not interested, A party who has advanced money or done an act in part performance of an agreement, and for payment at the end of five years and then stops short and refuses to proceed instead of within five years; that the deto its ultimate conclusion, the other party being ready and willing to proceed to fulfil fendant never had legal title to the proall the stipulations according to the contract, perty, and was, therefore, not able to will not be permitted to recover back what

perform his part of the contract with the has thus been advanced or done.

In an action by the vendee of real estate plaintiff, but that on July 17, 1923, the against the vendor, who contracted as equit- legal title to the premises became vested able owner, to recover back the first instal- in one John C. Crawford by deed from ment of purchase money, an affidavit of defence is sufficient which'avers that plaintiff Nellie R. Carter, the vendor in the said did not pay the second instalment of pur- written agreement with the defendant, chase money under the contract, denies spe; under which the defendant claimed to cifically and clearly that defendant refused to perform his part of the contract, and al- the equitable owner thereof. leges that defendant was always able and

The affidavit of defence specifically willing to perform his part of the agreement with plaintiff'.

and clearly denies that the defendant

refused to perform his part of the con- of real estate. The statement was met tract with the plaintiff; avers and sets by responsive affidavit, which set up that forth that the agreement of the defend the defendant was the equitable owner ant with the then owner of the premises under a written agreement of purchase, provided for the said $10,000 ground of which the plaintiff had knowledge, rent to be paid within five years, as con- and that he was prepared to give a good templated by the agreement of the de- and marketable title to the premises in fendant with the plaintiff; and that the question and had tendered a deed theredefendant was at all times ready and fore, with the denial that the plaintiff willing to perform his part of the agree-was ready to settle on the time fixed by ment with the plaintiff; and that the the agreement, and admitting that after transfer of the legal title to John C. breach by the plaintiff the defendant had Crawford on July 17, 1923, was “in sold the premises in question for a sum trust for and subject to the disposition, in excess of the price agreed to be paid direction and orders of the defendant;" | by the plaintiff. It was held that the and that the defendant always was able affidavit was sufficient and that the sale and willing to perform his part of the of the premises subsequent to the breach agreement with the plaintiff.

by the plaintiff is not such rescission of The averment of the statement with the contract which can be invoked in aid respect to rescission or breach by declin of the party at fault. Moreover, the ing to perform on the part of the defend- averment of the affidavit of defence is ant is thus clearly denied in the affidavit that the title has not passed out of the of defence, and the averment of the control of the defendant, but that it is statement that the $40,000 ground rent, held in trust for him and subject to his as provided for in the defendant's con- direction and control. We think this tract with the holder of the legal title, authority is controlling, and that the rule was not in accord with the ground rent must be discharged. provision of the contract between the This conclusion is not inconsistent plaintiff and defendant, is likewise clear- with Howard v. Stillwagon, 232 Pa. 625, ly met by the affidavit of defence. The where the defendant rescinded the confact that the ground rent might rest upon tract under a provision that upon deproperty other than that which the de- fault in the payment of the purchase fendant was selling to the plaintiff was money by the vendee the seller might to the advantage of the plaintiff, rather treat the contract as void, and it was than otherwise, and was not a violation held that the rescission being in disafof the provisions of the plaintiff's agree-firmance of the contract, the defendant ment.

should place the plaintiff in the same The remaining question then, is condition in which he was at the incepwhether the plaintiff is entitled to judg-tion of the agreement and refund the ment for the down-money, in the face of payments made. The agreement providthe defence set up that the plaintiff was ing for rescission by the seller, his acin default in not making the second pay- tion in exercising his option in disaffirmment of $1250. The general rule, as setance of the contract, fixed the status of forth in Sanders v. Brock, 230 Pa. 609, the parties with respect to the moneys 614, is that “the party who has advanced paid on account of the purchase. money or done an act in part perform- In Artzerounian v. Demetriades, 276 ance of the agreement and then stops Pa. 303, the agreement specifically proshort and refuses to proceed to its ulti- vided for the forfeiture of the first paymate conclusion, the other party being ment of $1000 as liquidated damages in ready and willing to proceed to fulfill case of default in performance by the all his stipulations according to the con- plaintiffs, and it was held that the parties tract, will not be permitted to recover having thus fixed the amount which back what has thus been advanced or should be retained by the seller in the done.” In that case the plaintiff was event of breach by the purchaser, the suing to recover the payment made on defendant-seller could not retain more account of a contract for the purchase than this stipulated amount in the event

case

tions.

of the breach of the plaintiff. The aver- We know of no reason why the party ment of the plaintiff's statement that the entitled to costs is not entitled to witness defendant was unable to perform his fees where the case is heard before a part of the agreement because he had master appointed by the court, where he no legal title to the property was met by would get costs for the same witness if a “bald denial” in the affidavit of de- they were heard in open court or before fence, which was held to be insufficient. a jury. We are clearly of opinion that

The under consideration dif- the respondent in this case is entitled to fers from the facts in the two last quoted have her witness fees taxed as costs in cases, in that the breach of the plaintiff the case. The appeal is therefore suswas prior to the time when the defend- tained, and the prothonotary is directed ant was required to have the legal title, to tax the witness fees of the respondent and that the affidavit of defence sets in the manner as if the case had been forth facts from which it appears that heard in open court. the legal title was and is in the control of the defendant, and that he was able C. P. of

Lehigh Co. to perform his part of the contract with

Ditchfield v. Bernhard the plaintiff.

And now, to wit, March 31, 1924, rule discharged.

Judgments Opening-DepositionsC. P. of

Allegheny Co. Laches.
Stewart v. Stewart

A petition to open a judgment, as soon as a responsive answer is filed, must be followed by the immediate taking of deposi

A delay of ninety days is fatal to the Costs-Divorce-Witness fees-Hear- proceeding. ing before master- uppeal.

Petition
to open judgment.

Dis

charged. Witness fees in divorce proceedings are taxable as costs and it is immaterial whether Dewalt & Heydt, for plaintiff. the hearing is had before a master or in open court. Appeal from prothonotary's refusal to tax witness fees as costs sustained.

W’illiam H. Schneller, for defendant. Divorce. Appeal from taxation of Reno, P. J., May 19, 1924-The peticosts.

tion to open judgment was filed January

28, 1924. A responsive answer was filed R. L. Van, for libellant.

February 4, 192 When called for arMIcIntosh & Garrahan, for respondent. gument on this date, it appeared that

petitioner had not taken depositions. Before Shafer, P. J., Macfarland and A petition to open a judgment is an Haymaker, JI.

appeal to chancery. The chancellor is Shafer, P. J., October 3, 1923.-— The moved by the vigilant, not the slothful. respondent having made claim before Such petition, as soon as a responsive the prothonotary in the taxation of the answer is filed, must be followed by the costs in this case for witness fees for immediate taking of depositions. witnesses produced by her before the every order granting a rule to show master in the trial of the case, the pro- cause why a judgment should not be thonotary refused to tax the same, stat- opened there is implied the imperative ing that: “The witnesses being heard be- condition that the petitioner shall fore the master and not appearing in promptly and expeditiously perform court, they are not entitled to fees.'

every needful act to bring the case beThe act of March 13, 1815, section 8, fore us for adjudication. A delay of provides that in a case of divorce the ninety days is fatal to the proceeding. court may award costs to the party in Now, May 19, 1924, the petition for whose behalf the sentence or decree shall and the rule to show cause why the pass, or that each party shall pay his or judgment should not be opened are disher own costs.

charged.

In

Supr. Court

of Pa. sale would have to be made for less than Reist v. Wogan

$175,000.00

These circumstances alone would not, however, upon the application of the

well settled rules of practice, be sufficient New trial granted because irrelevant in themselves, to justify the granting of matter may have influenced jury-The a new trial, even though the court was

of the opinion that the weight of the granting of a new trial is within the dis- evidence was with the plaintiff. cretion of the trial court.

But an unusual development at the

trial was the apparent hostility of the Where, in the trial of a case, irrelevant matter was brought before the jury, and the purchaser towards the interests of the court was in great doubt as to the extent to plaintiff in the case. He averred that which this matter influenced the minds of he had been induced to pay too much for the jury in arriving at the verdict, a new trial was granted.

the property in question, and expressed The granting of a new trial is within the the opinion on the witness stand, when power of the trial court, and the appellate court will not interfere with the inherit ex- called on behalf of the plaintiff that he, ercise of that authority, except in cases and not the plaintiff, should have the where the record shows an unmistakable abuse of discretion.

commission for the sale of the property Appeal by the defendant to the Su-Sale was employed as the purchaser's

because the plaintiff at the time of the preme Court of Pennsylvania in William Reist vs. Franklin H. Wogan, No. 221

manager of the Hotel Penn. January Term, 1924, from the judge- This implied unfaithfulness of the emment of the Court of Common Pleas of ployee to his principal's interest was York Co., Pa., No. 87 August Term, strongly commented upon by counsel for 1922, granting a new trial after a verdict the defendant in his address to the jury, for the defendant.

and to the court it seemed to have im

mediate effect with certain members of Wanner, P. J., the trial judge, in the jury. granting the new trial, filed the following opinion:

The court in its charge sought to

counteract the probable effect of this The plaintiff sues to recover the sum matter on the minds of the jury. Its of $5000.00 which he alleges the deverdict, however, leaves so great a doubt fendant agreed to pay him for procuring as to the extent of the influence which a buyer for the Penn Hotel property this incident may have had upon the verowned by the defendant.

dict, that we are of the opinion that a The defendant admits a sale for $165,- new trial should be granted to make cer000.00 through the plaintiff's efforts, tain of a freer verdict at another trial which fact was also fully proven at the by the exclusion of such irrelevant and trial, but he contends that he was only misleading matter from the evidence. to pay the plaintiff $5,000.00, in case the And now to wit, October 8th, 1923: property was sold through the plaintiff's A new trial is hereby granted. agency, for $175,000.00.

The defendant appealed. The contract between the parties was verbal and there were no witnesses pres- Cochran, W’illiams & Kain and Wilent at its making, so that the issue turned liam . Illen for Appellant. almost entirely on the testimony of the

John L. Rouse and D. P. Klinedinst, principals themselves. There were corroborating circumstances in support of

for Appellee. the plaintiff's claim, and it also appeared Per Curiam; July 8, 1924.- Plaintiff that he continued to represent the de- sued in assumpit to recover a commission fendant, with the latter's knowledge and of five thousand dollars claimed to be assent, in the concluding negotiations, due him from defendant under an oral after it was definitely known that the contract for securing a purchaser for the

Penn Hotel property located in the city dict, however, leaves so great a doubt as of York. At the trial under conflicting to the extent of the influence which this testimony, a verdict was rendered for incident may have had upon the verdict, defendant, which the court subsequently that we are of the opinion that a new set aside and made absolute a rule for a trial should be granted to make certain new trial. That action is the sole season of a freer verdict at another trial by the assigned for error in this appeal. The exclusion of such irrelevant and misleadcontention being that in granting a new ing matter from the evidence.” trial there was a palpable abuse of dis- Judgment affirmed. cretion on the part of the court below.

We have frequently held that the granting of a new trial is within the

O. C. of

Erie Co. power of the trial court, and that we will not interfere with the inherent ex- Estate of David Crandall, Deceased ercise of that authority, except in cases where the record shows an unmistakable abuse of discretion. Hess V. Gusdorff, 274 Pa. 124; Class & Nachod Brewing I'ills-Erecutors and administrators Company V. Giacobello, 277 Pa. 530. The latter case reviews fully the authori

-Power of testator to substitute. ties bearing on this question. An exam- When a will is properly proved and an exination of the record fails to show such ecutor is named therein, if of age, the regisabuse in this case.

ter has no discretion but must issue letters It appears that dur

to the appointee of the testator. ing the trial, evidence of an irrelevant

A testator has the right to provide for a character crept into the jury box, second executor in case of the death of the whether that testimony was prejudical

first one and his rights must be respected. to plaintiff or not was a question for Petition for an interpretation of a the consideration of the court below. In will. referring to the possible effect to the improper testimony, in the opinion granting

Donald F. Smith for George Crandall, a new trial the trial judge says, “But an

petitioner. unusual development at the trial was the Clark, P. J., April 2, 1924. A petition apparent hostility of the purchaser to- under the Uniform Declaratory Judgwards the interests of the plaintiff in the ments Act was presented to the court, case. He averred that he had been in- requesting an

interpretation of the duced to pay too much for the property Fourth Clause of David Crandall's Will. in question, and expressed the opinion on the witness stand, when called on

The clause is as follows: "Fourth: I behalf of the plaintiff, that he, and not hereby appoint my said brother, Chelsea the plaintiff, should have the commission Crandall, executor of this my last will for the sale of the property because the and testament, and in case of his death plaintiff at the time of the sale was em

or inability to act, I appoint his son, ployed as defendant's manager of the George Crandall, executor of this will." Hotel Penn.

David Crandall, the testator, died “This implied unfaithfulness of the September 21st, 1923. employee to his principal's interest was October 1, 1923, the will was probatstrongly commented upon by counsel fored and the same day letters testamentthe defendant in his address to the jury, ary were issued to Chelsea Crandall. and to the court it seemed to have immediate effect with certain members of

November 9, 1923, the said Chelsea the jury.

Crandall died intestate. There is noth

ing to show that during the brief inter"The court in its charge sought to val between October 1, 1923, and the counteract the probable effect of this date of his death, he did any thing in matter on the mind of the jury. Its ver-settlement of the estate.

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