Графични страници
PDF файл
ePub

lectible.

stances are such as to raise a presumption

Section 14, of the Practice Act of May 14,

$21.00; "the brick work was changed," to another, the price of which proved uncolgiving the value of labor and material at Plaintiff may waive a tort, but only when $100.00; "a refrigerator was installed," the goods have been actually converted into at a value of $25.00; "and drawings were money by the wrongdoer or the circumsupplied by the plaintiff for defendant," that he has done so. the labor and material valued at $50.00 These descriptions are all vague, and the values are all conclusions, lacking the necessary detail which would make them statements of fact. That kind of pleading is just what the legislature intended. to avoid by the Act of 1915.

1915, P. L. 483, provides for a set-off or counter-claim of any right or claim for which an action of assumpsit would lie.

Statutory demurrer.

Gernerd & Boyle, for plaintiff.

Butz & Rupp, for defendant.

an oral

The Act will not sanction the mere 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 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 properThe defendperformed, and the quantity, quality and ty of the defendant. kind 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 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.

18.

And now, February 27th, 1924, the plaintiff's statement is stricken off, with leave to file an additional, amended or supplemental statement within fifteen days from this date, in accordance with the provisions of the Practice Act 1915.

C. P. of

phia, Pa., from whom it could not be collected by reason of want of assets. The leather so shipped consisted of two invoices, viz, on June 12, 1919, leather invoiced at eight dollars and forty-eight cents ($8.48), and on June 18, 1919, leather invoiced at one hundred and twelve dollars and fifty cents ($112.50). The defendant claims the said sum of Lehigh Co. one hundred and twenty dollars and

Frey v. Lehigh Valley Shoe Co. ninety-eight cents ($120.98) as a coun

Practice, C. P.-Counter claim Waiver of tort.

A claim sounding in tort, arising out of a

different transaction, cannot be set up as a

counter-claim to plaintiff's claim founded in assumpsit.

In an action for commissions as agent for sale of hides and skins, the defendant cannot set up as a counter-claim the value of cer

tain leather which plaintiff, while in the em

ter-claim, in the event that the plaintiff should recover any sum whatsoever against the defendant upon the cause of action alleged in the statement of claim.”

To defendant's counter-claim, plaintiff files an affidavit of defence for the purpose of raising questions of law for the decision of the court. Section 14 of the Practice Act of May 14, 1915, P. L. 483, 485, provides, inter alia, that "In actions of assumpsit a defendant may set off or

ploy of defendant, shipped without authority set up by way of counter-claim against

the claim of the plaintiff any right or tion, we think that the set-off or counterclaim for which an action of assumpsit would lie."

claim is not pleaded with sufficient clearness and exactness as required under the In the case of Satterlee v. Melick & act. "A counter-claim should be set Eves, 76 Pa. 62, Mr. Justice Sharswood, forth with as much precision and exacton 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.

And now, March 3, 1924, it is ordered that the defendant's set-off or counterclaim be stricken from the pleadings.

tually converted into money by the
wrongdoer, or the circumstances must be
such as to raise a presumption that he
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 neg-American Surety Company of New

ligence, would not have been enough to charge him in this form of action. There must be something from which to pre

York v. McSpadden

sume that he assumed the ownership as vendee." The counter-claim in this case does not allege that the plaintiff convert

Practice, C. P.-Court may postpone

Practice Act of May 14, 1915.

ed 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 authority tutory demurrer until after jury trialto some one else the goods of the defendant while he was in its employ. But a more serious objection appears in the fact that the matters set forth in the counter-claim do not arise out of the same transaction as set forth in the plaintiff's cause of action. There is no doubt that an action sounding in tort, arising out of a different transaction, cannot be set up as a counter-claim to a plaintiff's cause of action founded in assumpsit.

demurrer is raised by the affidavit of deWhen a question of law in the nature of a fense and the matter is brought before the the Practice Act of May 14, 1915, P. L. 483, court for disposition, under Section 20 of the court may postpone decision of the questions of law until the issues of fact shall have been determined by a jury. This is a proper exercise of the discretion of the court, as it affects the order of procedure, but not the rights of the parties.

Statutory demurrer.

E. E. Kiernan, for plaintiff.

Ogle, Kooser & Kooser, for defend

ant.

"It is well settled that matters sounding in tort and arising out of a different transaction cannot be given in evidence 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

ed bill properly verified by oath had been presented at the hearing.

The court at the argument on a certiorari

the court. This was followed by the de- resulting from collisions between motor vefendant moving the court for judgment the damages had been repaired and a receipthicles, as the transcript failed to show that in favor of the defendant on questions of law raised in the affidavit of defence. The record standing in this position, the questions of law in the nature of a demurrer were argued by counsel, bringing the matter before the court for disposition under section 20 of the "Practice Act of 1915."

from a magistrate cannot embody in the re-
cord any document not returned by a magis-
After the statutory period for the re-
trate.
turn of a record has passed, a suggestion of
dimunition of record can only be accom-
plished by waiving the requirement of
Amended Rule 69 of the Common Pleas Court
of Allegheny County.

Certiorari.

Gray, Thompson & Rose, for plaintiff. David C. McDonald, for defendant. Before Macfarlane, Kline and Reid JJ.

Reid, J., March 7, 1924.-This is a certiorari to a magistrate, and the exception filed raise the question of jurisdic

An inspection of the plaintiff's statement and the paper filed Feb. 18, 1924, calling attention to the questions of law raised in the affidavit of defence, constrains the court to postpone decision on the questions of law in the nature of demurrer until after the issues of fact are determined by a jury. This action by the court affects but the order of proceeding, not the right of the parties, and as the court views the case from the pleadings 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, P. L. 718 (at p. 749), conferring jurisdiction on magistrates in certain actions. for damages arising from the use and operation of any motor vehicle where the amount claimed shall not exceed $100.00. Such jurisdiction is conferred with the following limiting clause:

It is true since the above decisions were rendered, the Practice Act of 1887 and the "Practice Act of 1915" have been passed, but a careful reading of the 20th section of the "Practice Act of 1915," we think, in no wise disturbs the rulings in the earlier cases cited.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small]

** *

*if the plaintiff has had such damages repaired and shall produce a receipted bill for the same properly sworn to by the party making such repairs or his agent."

The record before us does not disclose the presentation of any such bill. does, however, show that the action was in trespass for damages not exceeding $100.00, and that defendant in error made proof of a claim for $75.00, "being amount due for damage done to plaintiff's automobile," for which judgment. was rendered.

Following the oral argument, counsel for defendant in error presented a petition averring the production before the magistrate of a bill for $75.00 for repairs to defendant in error's motor vehicle, sworn to as prescribed by the Act, and 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 way, embody in the record any document under the Act of June 14, 1923, P. L. 718, giving magistrates jurisdiction for damages not returned by the magistrate. The re

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 the 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 within which such suggestion may be tion. filed. As the record here was filed January 9, 1924, that period is long past.

In order to give defendant in error an opportunity to correct any omission in the magistrate's record, we make the following order:

Cochran, Williams & Kain, for peti

Stewart & Gerber, contra.

Wanner, P. J., August 25th, 1924. The Act of June 25th, 1895, P. L. 279, only authorizes the taking of depositions of witnesses residing outside of the And now, March 7th, 1924, for the Commonwealth on a 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 to apply for a rule on the magistrate to make full return by sending up as part of his record any document omitted which formed part of the same in the proceeding before him, said rule to be returnable sec. reg., and pending its disposition, further action in this cause is suspended.

[blocks in formation]

vancy to the issue involved in the case may appear, and so that the opposite party may admit the same, if the facts alleged are not disputed: Carter v. Blair, 10 Dist. Rep. 749; Force's Petition, 265 Pa. 228-230.

It should also appear that the witnesses are out of the Commonwealth, and cannot be produced at the trial of the case. In this application it is only 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 defendant'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 petition. tance of place of taking testimony from parties.

on a rule instead of upon a commission and

It is also objected that it would be an 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 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 crossexamine the witnesses of the defendant in the State of Ohio: Comth. v. Miller, 16 Pa. Co. Ct. 656.

are

known the nature of the testimony and its relevancy to the issue in the case, so that the opposite party may admit the same, if the facts are not disputed.

The distance the opposite party or his counsel would be required to travel to the place of taking the testimony for the purpose of cross-examining the witnesses, is an cation should not be granted.

For these reasons we think this appli

element that the court will consider in determining whether such a rule should be granted.

And now, August 25th, 1924: The plaintiff's petition is refused.

C. P. of

Philadelphia Co. cation of the proposed garage. Duncan

Whealen et al v. Satz et al.

non Avenue, the thoroughfare nearest on the south, is occupied exclusively by private residences. Fishers Avenue, the next street north, is also occupied on the Nuisance - Automobiles- Public ser-north side exclusively by private resivice garage in residential district-Build-dences. The south side bounds the va

ing restriction-Injunction.

A building restriction in an exclusively residential section of the city, built up with

substantial modern houses, which prohibits the establishment of any offensive business,

applies to the use of one of the properties

affected by such restriction as a public

garage.

Such use, at the instance of the owners of

properties in the neighborhood, will be enjoined.

Rule for preliminary injunction.

D. A. Rahilly and E. W. Lank, for plaintiffs.

cant lot north of defendants' property.

The block of ground bounded on the east by Ninth Street, west by HutchinSon Street and north by Fishers Avenue, in which the property of defendants is located, is occupied on the south by residences, the back yards of which adjoin defendants' lot. The northern part of the block is an open lot, unimproved, but in the market for sale. Ninth Street, which bounds defendants' property on the east, is unopened, and the land to the eastward is unimproved as far as Fifth Street. The nearest public garage 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 Eighth Street and Lindley Avenue. side of Hutchinson Street, at the dis-Upon the land to the east of Ninth tance of 92 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 101⁄2 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 on 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 conhave filed the bill in equity in this case, structed for stores on the first floor, but prwaying that 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 service garage.

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

« ПредишнаНапред »