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$21.00; "the brick work was changed,” to another, the price of which proved uncolgiving the value of labor and material at $100.00; "a refrigerator was installed," the goods have been actually converted into

Plaintiff may waive a tort, but only when at a value of $25.00; "and drawings were money by

the wrongdoer or the circum

stances are such as to raise a presumption supplied by the plaintiff for defendant,"

that he has done so. the labor and material valued at $50.00 Section 14, of the Practice Act of May 14, These descriptions are all vague, and 1915, Li-483, provides for a set-off or

counter-claim of any right claim for the values are all conclusions, lacking the which an action of assumpsit would lie. necessary detail which would make them statements of fact. That kind of plead

Statutory demurrer. ing is just what the legislature intended Gernerd & Boyle, for plaintiff. to avoid by the Act of 1915.

The Act will not sanction the mere Buts & Rupp, for defendant. giving of the personal judgment of the pleader as to what the fair, reasonable or

Iobst, J., March 3, 1924.—In this case proper value of labor or material is, but the plaintiff claims in assumpsit the such elements in a case are to be deter-recovery of $1510.44 upon

oral mined by a jury based upon the evidence

contract of

agency

for the sale of of the kind of labor, amount of labor certain hides and skins, the properperformed, and the quantity, quality and ty of the defendant. The defendkind of material actually used, and such ant in its affidavit of defence denies facts must be given by a plaintiff in his the claim of the plaintiff, and, in addistatement of claim with the same partic- tion to said denial, sets up a counterularity as denials are required of a de- claim as follows: "For further answer to fendant in an affidavit of defence: Huff the claim of the plaintiff herein, and as v. Kauffman, 3 D. & C. 376; Robertson a counter-claim thereto, the defendant v. International Text-Book Co., 27 Dist. avers that the plaintiff is indebted to it in 18.

the sum of one hundred and twenty dolThe reasons upon which this motion lars and ninety-eight cents ($120.98), to strike off plaintiff's statement are and which is the value of certain leather based, are well stated. The defendant which the plaintiff, while in the employ should have a more definite statement of of the defendant, shipped without authfacts to enable him to adequately re-ority to the Force Company at Philadelspond.

phia, Pa., from whom it could not be colAnd now, February 27th, 1924, the lected by reason of want of assets. The plaintiff's statement is stricken off." with leather so shipped consisted of two inleave to file an additional, amended or

voices, viz, on June 12, 1919, leather insupplemental statement within fifteen voiced at eight dollars and forty-eight days from this date, in accordance with cents ($8.48), and on June 18, 1919, the provisions of the Practice Act 1915.

leather invoiced at one hundred and twelve dollars and fifty cents ($112.50).

The defendant claims the said sum of C. P. of

Lehigh Co. one hundred and twenty dollars and Frey v. Lehigh Valley Shoe Co. ninety-eight cents ($120.98) as a coun

ter-claim, in the event that the plaintiff should recover any

whatsoever

against the defendant upon the cause of Practice, C. P. - Counter claim

action alleged in the statement of claim." Waiver of tort.

To defendant's counter-claim, plaintiff

files an affidavit of defence for the purA claim sounding in tort, arising out of a different transaction, cannot be set up as a

pose of raising questions of law for the counter-claim to plaintiff's claim founded in decision of the court. Section 14 of the assumpsit.

Practice Act of May 14, 1915, P. L. 483, In an action for commissions as agent for sale of hides and skins, the defendant cannot 485, provides, inter alia, that "In actions set up as a counter-claim the value of cer- of assumpsit a defendant may set off or tain leather which plaintiff, while in the employ of defendant, shipped without authority'set up by way of counter-claim against

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the claim of the plaintiff any right or tion, we think that the set-off or counterclaim for which an action of assumpsit claim is not pleaded with sufficient clearwould lie."

ness and exactness as required under the In the case of Satterlee v. Velick & act. "A counter-claim should be set Eves, 76 Pa. 62, Mr. Justice Sharswood, forth with as much precision and exact

page 65, says: “It is evidently true, ness as is required in the statement of that in many cases the owner of goods a cause of action upon which proceedwrongfully taken or detained by another ings are instituted:” Motors Co. v. Hudmay waive the tort and recover on a

ford P. S. Co., 264 Pa. 557. For these count for money had and received in as- reasons, we think that the defendant's sumpsit. But then there must either be set-off or counter-claim should be stricksome evidence that goods have been ac- en from the pleadings. tually converted into money by the

And now, March 3, 1924, it is ordered wrongdoer, or the circumstances must be that the defendant's set-off or countersuch as to raise a presumption that he claim be stricken from the pleadings. has done so.

It is evident that conversion or consumption was essential; C. P. of

Somerset Co. a mere detention, or a loss even by negligence, would not have been enough to

American Surety Company of New charge him in this form of action. There York v. McSpadden must be something from which to presume that he assumed the ownership as vendee.” The counter-claim in this case

Practice, C. P.-Court may postpone does not allege that the plaintiff con zerted the leather to his own use, or that it decision of legal questions raised by stawas converted into money. It simply alleges that he shipped without authoriti tutory demurrer until after jury trial-to some one else the goods of the defend Practice act of May 14, 1915. ant while he was in its employ. But a

When a question of law in the nature of a more serious objection appears in the demurrer is raised by the affidavit of defact that the matters set forth in the fense and the matter is brought before the counter-claim do not arise out of the the Practice Act of May 14, 1915, P. L. 483,

court for disposition, under Section 20 of same transaction as set forth in the plain the court may postpone decision of the ques. tiff's cause of action. There is no doubt tions of law until the issues of fact shall

have been determined by a jury. This is a that an action sounding in tort, arising proper exercise of the discretion of the court, out of a different transaction, cannot be

as it affects the order of procedure, but not

the rights of the parties. set up as a counter-claim to a plaintiff's cause of action founded in assumpsit.

Statutory demurrer. "It is well settled that matters sound

E. E. Kiernan, for plaintiff. ing in tort and arising out of a different

Ogle, Kooser & Kooser, for defendtransaction cannot be given in evidence

ant. as a set-off by a defendant sued in an action ex contractu. Broad and liberal as Berkey, P. J., June 7, 1924.-This is the decisions have been, they have never an action in assumpsit, in which the authorized the admission of proof of plaintiff seeks to recover from the dedamages arising from a technical tort: fendant as one of the indemnitors in an Groetzinger v. Latimer, 146 Pa. 628. In agreement between the plaintiff and the the case of Koth v. Deiter, 213 Pa. 400, defendant, entered into Sept. 23, 1916. Mr. Justin Elkin, on page 401, says: “It The basis of this claim is set forth in a is conceded in this case, and it is the law, statement filed by the plaintiff Nov. 5, that in an action on a contract, unliqui- 1923. The defendant filed an affidavit of dated damages arising out of a tort inde defence Dec. 8, 1923, whereupon the pendent of, and disconnected with, the plaintiff moved for judgment for want transaction sued on cannot be recouped of a sufficient affidavit of defence. The by way of equitable defence.” In addi-'rule issued thereupon was dismissed by

trate.

the

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the court. This was followed by the de- resulting from collisions between motor ve. fendant moving the court for judgment the damages had been repaired and a receipt

hicles, as the transcript failed to show that in favor of the defendant on questions of led bill properly verified by oath had been law raised in the affidavit of defence. presented at the hearing. The record standing in this position, the

The court at the argument on a certiorari

from a magistrate cannot embody in the requestions of law in the nature of a de- cord any document not returned by a magismurrer were argued by counsel, bringing

After the statutory period for the rethe matter before the court for disposi- dimunition of record can only be accom

turn of a record has passed, a suggestion of tion under section 20 of the “Practice plished by waiving requirement of Act of 1915."

Amended Rule 69 of the Common Pleas Court

of Allegheny County. An inspection of the plaintiff's statement and the paper filed Feb. 18,

Certiorari.

1924, calling attention to the questions of law

Gray, Thompson & Rose, for plaintiff. raised in the affidavit of defence, constrains the court to postpone decision on David C. dcDonald, for defendant. the questions of law in the nature of de

Before Macfarlane, Kline and Reid murrer until after the issues of fact are determined by a jury. This action by

JJ. the court affects but the order of pro

Reid, J., March 7, 1924.- This is a ceeding, not the right of the parties, and certiorari to a magistrate, and the excepas the court view's the case from the tion filed raise the question of jurisdicpleadings on file, it is a proper exercise tion. of its discretion : Marseilles v. Kenton's Counsel for defendant in error conExecutors, 17 Pa. 238; Com. v. Porter, tended that the action was brought under 33 Pa. 82 (note).

Section 30 of the Act of June 14, 1923, It is true since the above decisions P. L. 718 (at p. 749), conferring juriswere rendered, the Practice Act of 1887 diction on magistrates in certain actions and the "Practice Act of 1915" have for damages arising from the use and been passed, but a careful reading of the operation of any motor vehicle where 20th section of the "Practice Act of the amount claimed shall not exceed 1915," we think, in no wise disturbs the $100.00. Such jurisdiction is conferred rulings in the earlier cases cited. with the following limiting clause: DECREE

* if the plaintiff has had such Now, June 7, 1924. the court post- damages repaired and shall produce a pones decision on the question of law in receipted bill for the same properly the nature of demurrer raised by the de- sworn to by the party making such refendant until after the issues of fact are pairs or his agent.” determined by a trial; and the case is The record before us does not disclose remanded to the trial list, to be placed the presentation of any such bill. It upon the term calendar when reached does, however, show that the action was under the rules of this court.

in trespass for damages not exceeding

$100.00, and that defendant in error C. P. of

Allegheny Co. made proof of a claim for $75.00, "being

amount due for damage done to plainExcelsior Express Co. v. Caulk

tiff's automobile," for which judgment
was rendered.

Following the oral argument, counsel Certiorari - Magistrate- Jurisdiction for defendant in error presented a petiin motor vehicle cases Transcript — magistrate of a bill for $75.00 for repairs

tion averring the production before the

Dimunition of record-Act of June 14, to defendant in error's motor vehicle,

sworn to as prescribed by the Act, and 1923, P. L. 718.

praying to have the record amended. Of On certiorari the transcript of a magis course, we can not, in such an informal trate was defective, where the action was under the Act of June 14, 1923, P. L. 7is, way, embody in the record any document giving magistrates jurisdiction for damages not returned by the magistrate.

*

The re

a

medy is a suggestion of diminution of Sur petition for rule to take deposirecord and a rule on the alderman to tion of witnesses residing out of the complete it.

Commonwealth, in Harriet V. Furby v. It would seem that in the interest of Pennsylvania Railroad Company, No. justice this should be done. It can, 102, January Term, 1924, in ihe Court however, only be accomplished by the of Common Pleas of York Co., Pa. Pecourt's waiving the requirement of tition refused. Amended Rule 69, which fixes a period of ten days after the return of the record

Cochran, Williams & Kain, for petiwithin which such suggestion may be tion. filed. As the record here was filed Jan

Stewart & Gerber, contra. uary 9, 1924, that period is long past.

In order to give defendant in error an Wanner, P. J., August 25th, 1924.opportunity to correct any omission in | The Act of June 25th, 1895, P. L. 279, the magistrate's record, we make the only authorizes the taking of depositions following order:

of witnesses residing outside of the And now, March 7th, 1924, for the Commonwealth on rule instead of reasons stated in foregoing opinion, it is

upon a commission and interrogatories, ordered that a rule be granted upon with the special consent of the court or plaintiff in error to show cause why the of a judge thereof, for sufficient cause defendant in error should not be permit- shown. The testimony intended to be ted, notwithstanding the expiration of taken should therefore be made known the time fixed by Rule No. 69, to file a to the court, that its nature and its relesuggestion of diminution of record and vancy to the issue involved in the case to apply for a rule on the magistrate to may appear, and so that the opposite make full return by sending up as part party may admit the same, if the facts of his record any document omitted alleged are not disputed: Carter v. which formed part of the same in the Blair, 10 Dist. Rep. 749; Force's Petiproceeding before him, said rule to be tion, 265 Pa. 228-230. returnable sec. reg., and pending its dis

It should also appear that the witposition, further action in this cause is suspended.

nesses are out of the Commonwealth, and cannot be produced at the trial of the case.

In this application it is only C. P. of

York Co.

stated generally that the single witness Furby v. Pennsylvania Railroad Co. whose deposition is to be taken will tes

tify to matters material to the defend

ant's case, and his testimony will be difRule to take deposition of witnesses ficult and unsatisfactory to take on inout of the Commonwealth Require-terrogatories and cross-interrogatories.

This is not sufficient ground under the ments of petition for such rule--Dis- decisions for the granting of this petitance of place of taking testimony from tion.

It is also objected that it would be an parties.

unwarranted hardship to the plaintiff to The petition for a rule to take depositions require her to come from Florida to of witnesses outside of the Commonwealth | Ohio, to take the testimony of a single on a rule instead of upon a commission and interrogatories must show that the witnesses witness, or even to send her counsel

out of the Commonwealth, and make from here to appear for her and crossknown the nature of the testimony and its relevancy to the issue in the case, so that examine the witnesses of the defendant the opposite party may admit the same, if in the State of Ohio: Comth. y. Miller, the facts are not disputed.

16 Pa. Co. Ct. 656. The distance the opposite party counsel would be required to travel to the For these reasons we think this appliplace of taking the testimony for the pose of cross-examining the witnesses, is an cation should not be granted. element that the court will consider in de- And now, August 25th, 1924: The termining whether such a rule should be granted.

plaintiff's petition is refused.

are

or

his

as

a

garage.

C. P. of

Philadelphia Co. cation of the proposed garage. DuncanWhealen et al v. Satz et al.

non Avenue, the thoroughfare nearest on the south, is occupied exclusively by

private residences. Fishers Avenue, the Nuisance - Automobiles-Public ser- north side exclusively by private resi

next street north, is also occupied on the vice garave in residential district--Build- lences. The south side bounds the va

cant lot north of defendants' property. ing restriction--Injunction.

The blick of ground bounded on the

cast by Ninth Street, west by HutchinA building restriction in an exclusively residential section of the city, built up with -on Street and north by Fishers Avenue, substantial modern houses, which prohibits in which the property of defendants is the establishment of any offensive business, located, is occupied on the south by resiapplies to the use of one of the properties affected by such restriction public dences, the back yards of which adjoin

defendants' lot. The northern part of Such use, at the instance of the owners of ihe block is an open lot, unimproved, but properties in the neighborhood, will be enjoined.

in the market for sale. Ninth Street,

which bounds defendants' property on Rule for preliminary injunction.

the east, is unopened, and the land to D. H. Rahilly and E. IV. Lank, for the eastward is unimproved as far as

Fifth Street, The nearest public garplaintiffs.

age is about two blocks from the propMartin, P. J., July 7, 1924.-Defend-erty of defendants, at the northeast corants own ground situated on the east ner of Fighth Street and Lindley Avenue. side of Hutchinson Street, at the dis-l'pon the land to the east of Ninth tance of 22 feet 6 inches northwardly Street there is a brickyard and an old from the north side of Duncannon Ave- manufacturing establishment, which, it nue, containing in front on Hutchinson is apparent, were established many years Street 75 feet and extending in depth before the course of city improvements eastwardly between lines parallel to reached this neighborhood. There is a Duncannon Avenue 160 feet 10!2 inches large public school two blocks to the to Ninth Street. The property is sub-south. All the surrounding property, ject to a restriction that there shall not north, south and west, is closely built up be erected on the lot or any part of it an with high-class private residences, sevestablishment for any offensive business. eral of which have private garages, and

Defendants have obtained a permit it is a purely residential section. At the and are proceeding to erect a public ser-southeast corner of Fishers Avenue and vice garage to accommodate seventy Duncannon Avenue there is a dwelling automobiles.

house with a drug store on the first floor, Complainants are the owners and oc- and the east side of Hutchinson cupiers of dwelling houses on Hutchin-Street, north of Duncannon Avenue, son Street, which is 30 feet wide. They there are two dwelling houses have filed the bill in equity in this case, structed for stores on the first floor, but prwaying thai defendants be restrained, these are not of a character to change preliminarily until hearing and perpetu- the neighborhood from residential. ally thereafter, from erecting a public The restriction in defendants' deed is service garage.

broad enough to include a public garage: A rule was granted requiring defend- Hibberd v. Edwards, 235 Pa. 454. There ants to show cause why a preliminary was testimony at the hearing that the opinjunction should not issue. Testimony eration of the proposed garage would rewas taken, and the properties owned by sult in noises at night and at all hours, the parties and the surrounding neigh-smoke and odors, which in summer time borhood were visited by the court. get into the houses and are very obnox

Hutchinson Street is occupied exclu- ious, and there is no restriction upon sively by two-story dwelling houses on autonobiles passing in and out of the the side of the street opposite to the lo- garage during the day and night; that

on

con

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