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The "right of a testator is always recognized by the courts. He may ap

A petition was made to the register of ing executor: Edward's Estate, 12 Phil. wills by the aforesaid George Crandall, 85; 5 W. N. C. 431. named as executor in the quoted clause of the will, requesting that letters testamentary be issued to him. The register declined to do so, hence the petition un-point separate executors-and "may apder consideration. point his executors successively" so held in Pepper's Estate, 32 W. N. C. 323, citing with approval Edward's Estate, supra.

"Until the executor named in the will has refused or renounced the trust the register has no authority to grant letters with the will annexed."

The register is a judicial officer, and has judicial duties to perform. If a party is aggrieved, his remedy has been by an appeal; we are not passing upon the question whether or not our opinion will be binding on him or control his decision. The same questions would arise whether this controversy comes before us on petition or by an appeal, An executor is appointed by the tesand we are giving our conclusions in tator; granting of letters is a pro forma conformity with the Uniform Declara-act: Miller's Estate, 210 Pa. 247. tory Judgments Act for whatever aid or assistance they may be.

When a will is properly proved and an executor is named therein, if of age, the testamen-register has no discretion but must issue letters to the appointee of the testator: Will of Wm. Neal, 17 W. N. C. 191.

The question is shall letters tary be granted to George Crandall.

A testator has power to substitute an executor upon the death of the executor named, Vol. 4, Vale's Pa. Dig. 9618.

In a case decided by Penrose, J.

"The well settled principle which permits a testator to delegate to another the in the person so appointed precisely the power to name his executors, and gives 1878, it was contended that the death of same authority as if they had been seone appointed in the will must occur in lected by the testator himself, is univerthe life time of the testator before tes-sally recognized." So decided in Bonig's tator's second or substituted appointee Appeal, 14 Dist. Rep. 236 and affirmed could be granted letters, and this was in Bonig's Appeal, 214 Pa. 19. answered in the argument by the assertion that this could not be so because the will was made by the testator on his death bed.

The court held that "The office of ex

Curiam.

Per

This decision recognizes the rule of law qui facit per alium facit per se, if then a testator can delegate to another ecutor is necessarily only for life, and a the appointment of an executor, surely provision by the testator for the substi- he can exercise his right by naming his tution of a successor involves no incon-appointee in the will itself.

sistency and violates no principle of law. Whether the words used to indicate the termination of the first executorship are 'at his death' on 'in case of his death' is not very material. It is true that the latter words in case of an absolute gift of property with a limitation over in the event of the contingency are referable to a death in the life time of the testator" for reasons stated, which do "not" apply to the mere appointment to an office." Letters testamentary were granted in this case to a substituted appointee in the will upon the death of a preced

The 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.

In the present case, nothing having been done in the settlement of the estate by the first executor prior to his decease, and the testator having appointed George Crandall executor in case of Chelsea Crandall's death or inability to act, and that contingency having arisen, we conclude that letters testamentary should be issued to the said George Crandall.

C. P. of

Lackawanna Co. tion 11, of the Act of 1901, permitting a lien against one "structure," or section 12, permitting a lien against more than

Hagen Lumber Co. v. Bright, et al.

one structure if intended to form more than one "plant." This question is settled in the case of Todd v. Gernert, 223 Pa., 103, wherein it is decided that "there

Mechanics lien-Amendment Act of is nothing in the Act of June 4, 1901, P.

June 4, 1901, P. L. 431.

tioned.

L. 431, or its supplement of April 17, 1905, P. L. 172, which permits a single A single mechanic's lien cannot be filed mechanic's lien to be filed against sevagainst several dwelling houses and then ap-eral dwelling houses, and then apporportioned. A separate lien must be filed against each building on the basis of an apA separate lien must be filed portionment of what is due. against each building on the basis of an apportionment of what is due." Although the law is clear on this point, we shall not strike off the lien in the present case. The statement of claim does not

A separate petition is necessary on motion for leave to amend, and should conform to

the requirements of section 51, of Act of June 4, 1901, P. L. 431.

Kule to strike off mechanic's lien and definitely describe the character of the petition to amend lien.

C. A. Battenberg, for plaintiff.

Kaufman & Mattes, for defendants.

Edwards, P. J., May 23, 1924.-An examination of the lien in this case

shows more than one defect. The first formal defect is that the statement of claim is not sworn to. This omission evidently was an oversight and can be easily corrected. Nor is the date given when the last material was furnished. Exhibit A is a page and a half schedule enumerating the materials, but no date is noted. The averment that the mater

ials were furnished between November 20, 1922, and May 24, 1923, is insufficient. This defect or omission can also be corrected. The most serious question involves the filing of one lien against two distinct buildings erected on two separate but contiguous lots. The land is described as "lots 16 and 17 upon the Moore and Reynolds plot"; "together with buildings and improvements thereon." It may be fairly gathered from the lien itself that Mr. Bright owns one of the lots and Mr. and Mrs. Hetler the other. So apparently, we have before us two separate lots, each owned by different owners, two distinct buildings, one contractor and only one lien, there being no apportionment to each building. Such a lien is not contemplated by sec

buildings. It may need the aid of a jury to determine the exact nature and ownership of the buildings which are the subject of the lien. The pleadings will not justify a summary extinction of the lien on the present showing.

A further question to be considered is that of the amendment of the lien. In

the claimant's answer to the petition to strike off the lien, he prays for leave to amend the claim. There ought to be a separate petition for that purpose, and such a petition should conform to the requirements of section 51, of the Act of 1901, supra. That section provides, inter alia, as follows:

"Any claim, petition, answer, replication, scire facias, affidavit of defense, or other paper filed of record, may be amended from time to time by agreement of the parties, or by leave of the court, upon petition for that purpose, under oath or affirmation, setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake they were omitted from or wrongfully stated in the particulars as to which the amendment is desired.”

We make the following order: Claimant is allowed twenty days in which to present a petition for amendment of the lien; the rule to strike off the lien to remain in abeyance until the further order of the court.

Supr. Ct.

of Pa.struction to the jury to find for the defendants. The motion was therefore treated by court and counsel as a motion for a new trial at the argument.

Frank Pure Food Co. v. Dodson
Canning Co.

Sales Act of May 19, 1915, P. L. 543

The plaintiff sued to recover the purchase price of 1,000 cans of sauerkraut, which was part of the goods to be sold and delivered under a written contract

Passage of title of goods to be manu-between the parties. factured in the future--Executory con

After some delay and correspondence between them, the defendant notified the

tract -Measure of damages - - Specific plaintiff that it would not accept or receive the goods and the plaintiff later on deposited them in a warehouse and noti

performance.

Where personal property of a certain de-fied defendant that they were there subscription is purchased but not identified or ject to its orders, &c. selected from a mass of the property of the vendor, the contract is executory and incom

dor.

An agreement to sell future goods is exec

The main question of the case was plete and the title to it remains in the ven- whether there had been such a delivery under the facts and circumstances, as entitled the plaintiff to recover the purchase price of the goods, or whether it was only entitled to recover, if at all, a different measure of damages for the alleged breach of the contract.

utory, and does not pass the title, although couched in the present tense, and the title

remains in the vendor until the goods are ascertained and set aside by the act or consent of both parties.

The general rule is that the measure of damages for a refusal to accept salable After a careful review of the authorigoods, where the title has not passed, is a difference between the contract price and ties, the court was of the opinion that the the market value of the goods at the time plaintiff could not recover the contract

and place of delivery.

He who would exact specific performance price of the goods, on the conceded facts from another, must be in no default, there-of the case, and therefore directed a verfore, in an action on a contract for the pur-dict for the defendant. chase of goods in cans with labels thereon, tender of the goods in unlabeled cans

was

An examination of the sections of the

held not in compliance with the contract, and Sales Act, and the cases cited by defendthe plaintiff could not recover. ants' counsel at the argument of this moIn an action on a contract for the pur-tion, has not changed our conclusion on

chase of goods, then not in existence, where

the vendor, after the purchaser had given the subject.

notice of his intention not to accept the goods, delivered the goods to a warehouse

And now, to wit, October 8th, 1923:

and brought an action for the contract price, Plaintiff's motion for a new trial is overand not having averred or proven the dif-ruled and refused.

ference between the contract price and the market value of the goods at the time and place of the delivery, a compulsory non-suit was properly entered.

John 1. Hoober, for appellant.

McLean Stock and Stewart & Gerber,

a CO

Appeal to the Supreme Court of Pa., for appellee. the Frank Pure Food Company, Appel- Walling, J., July 8th, 1924.-The lants, v. William H. Dodson, et al., co-plaintiff is a Wisconsin corporation enpartners, under the name of William M.gaged in the manufacture and sale of Dodson Canning Company, No. 225 Jan-Sauerkraut, while defendant is uary Term, 1924, from the judgment of partnership, located at York, Pa., and the Court of Common Pleas of York Co., engaged in the purchase and sale of the No. 36 August Term, 1919. same commodity. This suit is based on Wanner, P. J., in refusing a new trial, a written contract, in part as follows: filed the following opinion:

This is a motion to take off a compulsory non-suit. The ruling of the court at the trial, however, was a binding in

"Milwaukee, Wis., Feb. 22nd, 1918. "The Frank Pure Food Company, Milwaukee, Wisconsin, has this day sold and Wm. Dodson Canning Co., York, Pa., has this day purchased 2500 cases

No. 3 Sanitary Tins, at $1.35 per dozen,

Frank's Quality Sauerkraut, packed in plied, and may be given either before or after the appropriation is made." Thereunder in the case of future goods the title does not pass until they are ascer

F. O. B. Factory, Wisconsin points, fall 1918 pack.

"$1.00 per M. label allowance for tained and set aside by the act or consent buyer's labels.

"Labels to be forwarded to The Frank Pure Food Company, Franksville, Wisconsin, by express or freight, prepaid, at least six weeks before date specified for delivery of kraut.

of both parties. In Conrad v. Penna. R. R. Co., 214 Pa. 98, Mr. Justice Mestrezat, for the court, says (p. 102): “In cases like the present, where personal chased but not identified or selected property of a certain description is purfrom a mass of the property of the "Shipments to be made in carload lots, vendor, the contract is executory and inpayment to be made for each car on fol- complete and the title to it remains in lowing terms: 12% 10 days or 30 days the vendor. As soon, however, as the net from date of invoice." Later, by mu-purchaser makes a selection of a partictual consent, the amount was reduced to ular part of the property in pursuance of two thousand cases, of which one-half his contract and his act is approved by (a carload) delivered to defendant late the vendor, the sale is complete and the in the fall of that year was accepted and title of the vendor is divested." To pass paid for. Before receiving the one-half, the title the seller's appropriation of the however, defendant notified plaintiff of goods must be assented to by the buyer: its refusal to receive the balance and as Uniform Laws Annotated, Vol. 1 (Sales to that repudiated the contract. On the Act), p. 102; Furst v. Schiffman, 187 N. other hand, plaintiff insisted on defend-y. S. 666; Byrne v. Hulett Motor Car ant receiving the remaining one thou- Co., Inc., 198 N. Y. S. 232; Jaehnig & sand cases and finally placed same in a Peoples, Inc., v. Fried, 83 N. J. L. 361; storage warehouse at Milwaukee and 85 Atl. 321. tendered defendant the receipt therefor, An agreement to sell future goods is which the latter refused to accept. executory and does not pass the title, alThereupon plaintiff brought this suit and though couched in the present tense: claimed the contract price of the com- Strong, Deemer & Co. v. Dinniny, 175 modity, on the contention that the title Pa. 586; Winslow, Lanier & Co. v had vested in the purchaser. The trial Leonard, 24 Pa. 14; Pritchett and ancourt denying the latter contention, sus-other v. Jones, 4 Rawle 260. In the intained a directed verdict for the defend-stant case defendant made no selection ant, and plaintiff has appealed.

In our opinion the ruling complained of was right. The contract was executory, in other words, it was not a purchase of existing specific property, but an agreement to purchase unascertained and non-existent goods, to be thereafter produced; the case, therefore, falls within rule 4 (clause 1) of Sec. 19, of The Sales Act of May 19, 1915, P. L. 543, 548, that: "Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally apprapriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or im

of the goods and refused those plaintiff claims to have set aside. In case of such refusal, subsec. 3, of sec. 64, of The Sales Act, P. L. 561, provides: "Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept." Sauerkraut is a well known article of food with a market value, as plaintiff's own evidence shows, hence, subsec. 3, of sec. 63, of said act, P. L. 561, that: “Although the property in the goods has not passed, if they cannot readily be resold

for a reasonable price, and if the provis-Y. 338; Williston on Sales (2 ed.), secions of section sixty-four (four) are not tions 560-562. applicable, the seller may offer to deliver Furthermore, he who would exact. the goods to the buyer, and, if the buyer specific performance from another, must refuses to receive them, may notify the be in no default; for example, where the buyer that the goods are thereafter held attempted rescission of the buyer has by the seller as bailee for the buyer. been refused by the seller, the latter, in Thereafter the seller may treat the goods order to so hold the former, must as the buyer's, and may maintain an ac- strictly comply with the provisions of tion for the price," does not apply. The the contract: Fairfax Textile Mills v. subsection last quoted made no material Feingold, 273 Pa. 73; American S. change in the law, for where an article, Foundries v. Metal P. Co., 74 Pa. Suwithout market value, has been made to perior Ct. 505; Rock Glen Salt Co. v. order for a specific purpose, like a suit Segal, 229 Mass. 115, 118, N. E. 239; of clothes, or a special type of engine, it Libman, et al., v. Fox Pioneer Scrap may be tendered to the buyer and the Iron Co., (Wis.), 185 N. W. 551; Liebagreed price recovered from him: Bal- erman v. Templar Motors Co., 195 N. Y. lentine, et al., v. Robinson, et al., 46 Pa. S. 885. Here again plaintiff's case fails, 177. Aside from The Sales Act, the gen- for the goods tendered were not aceral rule is that the measure of damages cording to contract. Defendant furfor a refusal to accept salable goods, nished plaintiff twenty-four thousand lawhere the title has not passed, is the dif- bels, which it was the latter's duty to atference between the contract price and tach to the twenty-four thousand tins of the market value of the goods at the time sauerkraut, contained in the one thouand place of delivery: Unexcelled Fire sand cases involved in this suit, yet not Works Co. v. Polites, 130 Pa. 536; Guil-one was attached. Defendant was not lon v. Earnshaw, 169 Pa. 463, 471; Jones, et. al, v. Jennings Bros. Co., 168 Pa. 493; Sharpsville Furnace Co. v. Snyder, 223 Pa. 372; Webb Co. v. Nov. Hosiery Co., 231 Pa. 297; Hooper, Seeving & Co. v. Carpet Co., 11 Pa. Superior Ct. 634; 35 The rule that a delivery to a carrier is Cyc. 592. In Keeler Co. v. Schott, 1 Pa. a constructive delivery to the buyer does Superior Ct. 458, Judge Rice, speaking not apply here, (a) because the latter for the court, says (p. 467): "In the had not given an express or implied ascase of an executory contract of sale of sent to the appropriation of the goods, goods not specific, the rule undoubtedly but had repudiated the contract long beis that the measure of damages for re- fore delivery to the carrier, (b) because fusal to receive the goods is the differ- the goods being without the required laence between the price agreed upon and bels were not in a deliverable condition the market value on the day appointed (see subsec. 5, sec. 43, of The Sales Act, for delivery." See also Williston on P. L. 555; also same act, subsec. 4, sec. Sales (2 ed.) sections 580-582; Prager 76, P. L. 566), and (c) because the goods v. J. S. Scheff & Co., 177 N. Y. S. 28. were not consigned to the buyer (see It follows that plaintiff's remedy here subsec. 1 of sec. 46, of The Sales Act, was an action for damages untler that P. L. 556), but to a warehouse, in Milrule and not for the price of the prop-waukee for storage. Under such cirerty, and, having neither alleged nor cumstances the carrier who took them to proved any damages, there can be no recovery. Had the title passed, plaintiff's contention would be sound: Subsec. 1, sec. 63, of The Sales Act, P. L. 561; Uniform Laws Annotated, vol. 1 (Sales Act) p. 206; Turner Locker Co. v. Aprile, 187 N. Y. S. 367; Rosenberg Bros. & Co. v. F. S. Buffum Co., Inc., 234 N.

required to accept unfinished goods and it was no answer that its name was stenciled on the cases. The tins in the carload which defendant accepted were properly labeled.

the warehouse cannot be treated as the agent of the buyer for the purpose of accepting the property; that is especially true as such consignment was made to plaintiff's own order. Placing in storage might have been justified had the title passed and the buyer refused to accept the property; see sec. 51, of The Sales

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