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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 testa

The "right of a testator is always rementary be issued to him. The register cognized by the courts.'

He may apdeclined 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, The register is a judicial officer, and citing with approval Edward's Estate,

, has judicial duties to perform. If a supra. party is aggrieved, his remedy has been by an appeal; we are not passing upon “Until the executor named in the will the question whether or not our opinion has refused or renounced the trust the will be binding on him or control his register has no authority to grant letters decision. The same questions would with the will annexed. 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 The question is shall letters testamen- register has no discretion but must issue tary be granted to George Crandall. letters to the appointee of the testator:

Will of Wm. Neal, 17 W. N. C. 191. A testator has power to substitute an executor upon the death of the executor "The well settled principle which pernamed, Vol. 4, Vale's Pa. Dig. 9618. mits a testator to delegate to another the In a case decided by Penrose, J. in power to name his executors, and gives

the person so appointed precisely the 1878, it was contended that the death of one appointed in the will must occur in lected by the testator himself, is univer

same authority as if they had been sethe life time of the testator before tes-ally 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. Per answered in the argument by the asser

Curiam. tion that this could not be so because the will was made by the testator on his This decision recognizes the rule of death bed.

law qui facit per alium facit per se, if The court held that “The office of ex

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-The 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.

The testator has the right to provide Whether the words used to indicate the

for a second executor in case of the termination of the first executorship are death of the first one and his rights ‘at his death' on ‘in case of his death' is

must be respected. not very material. It is true that the latter words in case of an absolute gift In the present case, nothing having of property with a limitation over in the been done in the settlement of the estate event of the contingency are referable by the first executor prior to his decease, to a death in the life time of the testa- and the testator having appointed George tor”-for reasons stated, which do "not" Crandall executor in case of Chelsea apply to the mere appointment to an Crandall's death or inability to act, and office.” Letters testamentary were grant that contingency having arisen, we coned in this case to a substituted appointee clude that letters testamentary should be in the will upon the death of a preced-'issued to the said George Crandall.

1

must be filed

case.

C. P. of

Lackawanna Co. tion ul, of the Act of 1901, permitting

a lien against one “structure," or section Hagen Lumber Co. v. Bright, et al. 12, permitting a lien against more than

one structure if intended to form more than one "plant.” This question is setiled 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.

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

tioned. against each building on the basis of an ap

A separate lien must be filed portionment of what is due.

against each building on the basis of an A separate petition is necessary on motion apportionment of what is due.” Alfor leave to amend, and should conform to though the law is clear on this point, we the requirements of section 51, of Act of shall not strike off the lien in the present June 4, 1901, P. L. 431.

The statement of claim does not Rule to strike off mechanic's lien and definitely describe the character of the petition to amend lien.

buildings. It may need the aid of a jury

to determine the exact nature and ownC. A. Battenberg, for plaintiff.

ership of the buildings which are the subject of the lien. The pleadings will

not justify a summary extinction of the Kaufman & Vattes, for defendants.

lien on the present showing. Edwards, P. J., May 23, 1924.-An

A further question to be considered is examination of the lien in this

that of the amendment of the lien. In shows more than one defect. The first the claimant's answer to the petition to formal defect is that the statement of strike off the lien, he prays for leave to claim is not sworn to.

This omission amend the claim. There ought to be a evidently was an oversight and can be separate petition for that purpose, and easily corrected. Nor is the date given

such a petition should conform to the when the last material was furnished. requirements of section 51, of the Act Exhibit A is a page and a half schedule

of 1901, supra. That section provides, enumerating the materials, but no date

inter alia, as follows: is noted. The averment that the mater

"Any claim, petition, answer, replicaials were furnished between November tion, siire facias, affidavit of defense, or 20, 1922, and May 24, 1923, is insuffici- other paper filed of record, may be ent. This defect or omission can also be amended from time to time by agreecorrected. The most serious question ment of the parties, or by leave of the involves the filing of one lien against court, upon petition for that purpose, two distinct buildings erected on two under oath or affirmation, setting forth separate but contiguous lots. The land the amendment desired, that the averis described as “lots 16 and 17 upon the ments therein contained are true in fact, Moore and Reynolds plot"; "together and that by mistake they were omitted with buildings and improvements there from or wrongfully stated in the partion." It may be fairly gathered from the culars as to which the amendment is delien itself that Mr. Bright owns one of sired." the lots and Mr. and Mrs. Hetler the other. So apparently, we have before We make the following order: Claimus two separate lots, each owned by dif- ant is allowed twenty days in which to ferent owners, two distinct buildings, present a petition for amendment of the one contractor and only one lien, there lien; the rule to strike off the lien to rebeing no apportionment to each building. main in abeyance until the further order Such a lien is not contemplated by sec- 'of the court.

case

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Supr. Ct.

of Pa. struction to the jury to find for the deFrank Pure Food Co. v. Dodson treated by court and counsel as a motion

fendants. The motion

therefore Canning Co.

for a new trial at the argument.

The plaintiff sued to recover the pur

chase price of 1,000 cans of sauerkraut, Sales Ict of May 19, 1915, P. L. 513 which was part of the goods to be sold

and delivered under a written contract Pussage of ti!le of goods to be man-between the parties.

After some delay and correspondence fuctured in the future, Executory con

between them, the defendant notified the Tract - Pleasure of damages Specific plaintiff that it would not accept or re

ceive the goods and the plaintiff later on performance.

deposited them in a warehouse and notiWhere personal property of a certain de- tied defendant that they were there subscription is purchased but not identified.orject to its orders, &c. selected from a mass of the property of the vendor, the contract is executory and incom- The main question of the case plete and the title to it remains in the ven- whether there had been such a delivery dor.

under the facts and circumstances, as An agreement to sell future goods is executory, and does not pass the title, although lentitled the plaintiff to recover the purcouched in the present tense, and the title chase price of the goods, or whether it remains in the vendor until the goods are ascertained and set aside by the act or con

was only entitled to recover, if at all, a Sent of both parties.

different measure of damages for the alThe general rule is that the measure of leged breach of the contract. damages 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 spreific 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

In 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 contract for the chuse of goods, then not in existence, where tion, has not changed our conclusion on the vendor, after the purchaser had given the subject. notice of his intention not to accept

And now, to wit, October 8th, 1923: goods, delivered the goods to a warehouse 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 John 1. Hoober, for appellant. place of the delivery, a compulsory non-suit was properly entered.

1/cLean Stock and Stewart & Gerher, 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 11. gaged in the manufacture and sale of Dodson Canning Company, No. 225 Jan- sauerkraut, while defendant is a 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:

"Milwaukee, Wis., Feb. 22nd, 1918.

"The Frank Pure Food Company, This is a motion to take off a compul- Milwaukee, Wisconsin, has this day sold sory non-suit. The ruling of the court and Wm. Dodson Canning Co., York, at the trial, however, was a binding in- Pa., has this day purchased 2500 cases

was

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Frank's Quality Sauerkraut, packed in plied, and may be given either before or No. 3 Sanitary Tins, at $1.35 per dozen, after the appropriation is made.” ThereF. O. B. Factory, Wisconsin points, fall under in the case of future goods the 1918 pack.

title does not pass until they are ascer

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

of both parties. In Conrad v. Penna. R.

R. Co., 214 Pa. 98, Mr. Justice Mestre"Labels to be forwarded to The Frank Pure Food Company, Franksville, zat, for the court, says (p. 102): "In

,

cases like the present, where personal ll'isconsin, by express or freight, pre-property of a certain description is pur; paid, at least six weeks before date spel chased but not identified or selected cified for delivery of kraut.

from 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: 112% jo 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 Law's Annotated, Vol. 1 (Sales to that repudiated the contract. On the Act), p. 102: Furst v. Schiffman, 187 N. other hand, plaintiff insisted on defendy. S. 166; 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 l'eoples, Inc., v. Fried, 83 X. J. L. 361 ; storage warehouse at Milwaukee and 85 Atl. 321. tendered defendant the receipt therefor,

In 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. 5861; Winslow, Lanier & Co. 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-tant case defendant made no selection ant, and plaintiff has appealed.

of the goods and refused those plaintiff In our opinion the ruling complained claims to have set aside. In case of such of was right. The contract was execu- refusal, subsec. 3, of sec. 64, of The tory; in other words, it was not a pur- Sales Act, P. I. 561, provides: "Where chase of existing specific property, but there is an available market for the an agreement to purchase unascertained goods in question, the measure of damand non-existent goods, to be thereafter ages is, in the absence of special circumproduced: the

case, therefore, falls stances showing proximate damage of a within rule 4 (clause 1) of Sec. 19, of greater amount, the difference between The Sales Act of May 19, 1915, P. L. the contract price and the market or cur543, 548, that: “Where there is a con- rent price at the time or times when the tract to sell unascertained or future goods ought to have been accepted, or, if goods by description, and goods of that no time was fixed for acceptance, then description and in a deliverable state are at the time of the refusal to accept." unconditionally apprapriated to the con- Sauerkraut is a well known article of tract, either by the seller with the assent food with a market value, as plaintiff's of the buyer, or by the buyer with the own evidence shows, hence, subsec. 3, of assent of the seller, the property in the sec. 63, of said act, P. L. 561, that: “Algoods thereupon passes to the buyer. though the property in the goods has not Such assent may be expressed or im-'passed, if they cannot readily be resold

V

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 buver 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, 220 Mass. 115, 118, V. 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- hels, 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: C'nexcelled Fire sand cases involved in this suit, yet not Works Co. v. Polites, 130 Pa. 536; Guil- one was attached. Defendant was not lou v. Earnshaw, 169 Pa. 463, +71; Jones, required to accept unfinished goods and et. al, v. Jennings Bros. Co., 168 Pa. 493; it was no answer that its name was stenSharpsville Furnace Co. v. Snyder, 223 ciled on the cases. The tins in the carPa. 372; Webb Co. v. Nov. Hosiery Co., load which defendant accepted were 231 Pa. 297; Hooper, Seeving & Co. v. properly labeled. 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. 16. 555; also same act, subsec. 4, sec. Sales (2 ed.) sections 580-582; Prager 176, 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. I 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 re- the warehouse cannot be treated as the covery. Had the title passed, plaintiff's agent of the buyer for the purpose of accontention would be sound: Subsec. 1. cepting the property; that is especially sec. 63, of The Sales Act, P. L. 561; true as such consignment was made to Uniform Laws Annotated, vol. 1 (Sales plaintiff's own order. Placing in storage Act) p. 206; Turner Locker Co. v. Ap- might have been justified had the title rile, 187 X. Y. S. 367; Rosenberg Bros. passed and the buyer refused to accept & Co. v. F. S. Buffum Co., Inc., 234 N.'the property; see sec. 51, of The Sales

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