C. B. Rhoads, for plaintiff. 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 between the two companies did not carry with it as an obligation Dr. North's contract for personal services. Whether Dr. North, after being notified a change in the contract had been made by appellant, accepted that change was a question for the jury. The third assignment of error relating to the measure of damages would be serious if it were not for the fact that what is complained of was fully and correctly covered in the general charge Martin, P. J., March 31, 1924.-The plaintiff has taken a rule for judgment for want of a sufficient affidavit of defence in a claim for the recovery of $1250, being first payment under a written contract for the purchase of premises No. 2116 Walnut Street, in the City of Philadelphia. The written contract in question was 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 have similarity of names, identity of officers, unchanged interests and the same attitude toward plaintiff while he was associated with appellant. The assignment of error are overruled, and the judgment of the court below is affirmed. C. P. of cured to the seller by a second mortgage, and the balance of the consideration of $65,000 to be paid at the time of settlement, which was to be within sixty days from the date of the agreement, which time was the essence of the contract. The agreement contained no provision of forfeiture or for the payment of liquidated damages in the event of breach. The 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 he would not carry out the terms of the agreement; that the defendant's contract with the then owner of said premises Vendor and vendee-Contract-Sale of land-Recovery of hand-money Affidavit of defence--Failure of per-provided for a ground rent upon the preformance. A party who has advanced money or done an act in part performance of an agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed to fulfill all the stipulations according to the contract, will not be permitted to recover back what mises in question and other property, in which the plaintiff was not interested, and for payment at the end of five years instead of within five years; that the defendant never had legal title to the property, and was, therefore, not able to perform his part of the contract with the 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 fence is sufficient which avers that plaintiff Nellie R. Carter, the vendor in the said did not pay the second instalment of purchase money under the contract, denies specifically and clearly that defendant refused has thus been advanced or done. ment of purchase money, an affidavit of de to perform his part of the contract, and alleges that defendant was always able and willing to perform his part of the agreement with plaintiff. written agreement with the defendant, under which the defendant claimed to be the equitable owner thereof. The affidavit of defence specifically 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 $40,000 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 agreement with the plaintiff. of the premises subsequent to the breach 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 should place the plaintiff in the same ment. 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 set ance 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 of the breach of the plaintiff. The averWe 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 case 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 to perform his part of the contract with the plaintiff. And now, to wit, March 31, 1924, rule discharged. C. P. of Lehigh Co. Ditchfield v. Bernhard Allegheny Co. Laches. Stewart v. Stewart Costs-Divorce-Witness fees-Hearing before master-Appeal. Witness fees in divorce proceedings are taxable as costs and it is immaterial whether the hearing is had before a master or in open court. Appeal from prothonotary's refusal to tax witness fees as costs sustained. Divorce. Appeal from taxation of costs. R. L. Vann, for libellant. McIntosh & Garrahan, for respondent. Before Shafer, P. J., Macfarland and Haymaker, JJ. Opening-Depositions— William H. Schneller, for defendant. Reno, P. J., May 19, 1924-The petition to open judgment was filed January 28, 1924. A responsive answer was filed February 4, 1924. When called for argument on this date, it appeared that petitioner had not taken depositions. In A petition to open a judgment is an 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.' The act of March 13, 1815, section 8, provides that in a case of divorce the court may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs. every needful act to bring the case before us for adjudication. A delay of ninety days is fatal to the proceeding. Now, May 19, 1924, the petition for and the rule to show cause why the judgment should not be opened are discharged. Supr. Court Reist v. Wogan of Pa. sale would have to be made for less than $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. Where, in the trial of a case, irrelevant matter was brought before the jury, and the court was in great doubt as to the extent to which this matter influenced the minds of the jury in arriving at the verdict, a new trial was granted. But an unusual development at the trial was the apparent hostility of the purchaser towards the interests of the plaintiff in the case. He averred that he had been induced to pay too much for the property in question, and expressed The granting of a new trial is within the the opinion on the witness stand, when 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 commission for the sale of the property because the plaintiff at the time of the power of the trial court, and the appellate abuse of discretion. Appeal by the defendant to the Su-1 preme Court of Pennsylvania in William sale was employed as the purchaser's manager of the Hotel Penn. Reist vs. Franklin H. Wogan, No. 221 January Term, 1924, from the judgement of the Court of Common Pleas of York Co., Pa., No. 87 August Term, 1922, granting a new trial after a verdict for the defendant. Wanner, P. J., the trial judge, in granting the new trial, filed the following opinion: The plaintiff sues to recover the sum of $5000.00 which he alleges the defendant agreed to pay him for procuring a buyer for the Penn Hotel property owned by the defendant. The defendant admits a sale for $165,000.00 through the plaintiff's efforts, which fact was also fully proven at the trial, but he contends that he was only to pay the plaintiff $5,000.00, in case the property was sold through the plaintiff's agency, for $175,000.00. This implied unfaithfulness of the employee to his principal's interest was strongly commented upon by counsel for the defendant in his address to the jury, and to the court it seemed to have immediate effect with certain members of the jury. The court in its charge sought to counteract the probable effect of this matter on the minds of the jury. Its verdict, however, leaves so great a doubt as to the extent of the influence which this incident may have had upon the verdict, that we are of the opinion that a new trial should be granted to make certain of a freer verdict at another trial by the exclusion of such irrelevant and misleading matter from the evidence. And now to wit, October 8th, 1923: A new trial is hereby granted. The defendant appealed. Cochran, Williams & Kain and William A. Allen for Appellant. John L. Rouse and D. P. Klinedinst, for Appellee. The contract between the parties was verbal and there were no witnesses present at its making, so that the issue turned almost entirely on the testimony of the principals themselves. There were corroborating circumstances in support of the plaintiff's claim, and it also appeared that he continued to represent the defendant, with the latter's knowledge and assent, in the concluding negotiations, after it was definitely known that the contract for securing a purchaser for the Per Curiam; July 8, 1924.-Plaintiff sued in assumpit to recover a commission of five thousand dollars claimed to be due him from defendant under an oral 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 discretion on the part of the court below. We have frequently held that the granting of a new trial is within the power of the trial court, and that we Judgment affirmed. 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 Hess V. Gusdorff, abuse of discretion. Wills-Executors and administrators When a will is properly proved and an executor is named therein, if of age, the regis ter has no discretion but must issue letters to the appointee of the testator. A testator has the right to provide for a second executor in case of the death of the first one and his rights must be respected. Petition for an interpretation of a will. Donald F. Smith for George Crandall, petitioner. 274 Pa. 124; Class & Nachod Brewing Company v. Giacobello, 277 Pa. 530. The latter case reviews fully the authori--Power of testator to substitute. ties bearing on this question. An examination of the record fails to show such abuse in this case. It appears that during the trial, evidence of an irrelevant character crept into the jury box, whether that testimony was prejudical to plaintiff or not was a question for the consideration of the court below. In referring to the possible effect to the improper testimony, in the opinion granting a new trial the trial judge says, "But an 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 He averred that he had been induced to pay too much for the property in question, and expressed the opinion on the witness stand, when called on behalf of the plaintiff, that he, and not the plaintiff, should have the commission for the sale of the property because the plaintiff at the time of the sale was employed as defendant's manager of the Hotel Penn. case. "This implied unfaithfulness of the employee to his principal's interest was strongly commented upon by counsel for the defendant in his address to the jury, and to the court it seemed to have immediate effect with certain members of the jury. ments Act was presented to the court, requesting an interpretation of the Fourth Clause of David Crandall's Will. The clause is as follows: "Fourth: I hereby appoint my said brother, Chelsea Crandall, executor of this my last will and testament, and in case of his death or inability to act, I appoint his son, George Crandall, executor of this will." David Crandall, the testator, died September 21st, 1923. October 1, 1923, the will was probated and the same day letters testamentary were issued to Chelsea Crandall. November 9, 1923, the said Chelsea Crandall died intestate. There is nothing 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. |