(c) An advance in the market price of buckwheat coal subsequent to defendant's breach to $4.50 per ton on or about January 18, 1927. (d) Damages amounting to $37.110.26. The correctness of this contention defendant, who refused delivery in Dewould seem quite plausible if it were not cember, 1926. for the fact that husband and wife are considered in law as one person and cannot hold an estate by moieties. By operation of law they must hold by entirety, because they are considered in law but one person. Without the clause in question the instrument shows an estate by entireties. Even if the intention were otherwise, and so shown by the clause, it can have no effect because the parties cannot change the operation of the law. These rules should therefore be made absolute. C. P. of Plaintiff further avers, in paragraph 14. of their statement of claim, that they received a bona fide order covering the entire undelivered balance of said coal on or about January 18, 1927; and further, in paragraph 16, that as a result of defendant's breach of contract, and of its refusal to deliver the said coal to plaintiffs, plaintiffs were unable to fill orders Luzerne Co. that they then had received, and thereby suffered damages to the extent of the amount named. Wilkes-Barre Coal Sales Co. v. Practice-Statement-Striking off. Every statement of plaintiff's claim drawn Defendant, before filing an affidavit of defense denying facts averred or raising questions of law, files a petition praying the court to grant a rule on plaintiffs to show cause why the said plaintiffs shall not amend their statement so as to specify: on or about January 18, 1927, (a) Whether said order alleged to be under Practice Act, embodies a bill of partic-received ulars, and if not so drawn, the proper remedy is to move to strike off statement as indefinite or insufficient. Defendant's petition for more specific statement, should be treated was oral or written. (b) The name and address of the party or parties from whom plaintiffs received said order. Under the Practice Act of 1915 there are only two methods for attacking a statement of claim. as a motion to strike off, where statement fails to conform to Practice Act. Where plaintiff, in suit for damages for failure of defendant to deliver coal according to contract, avers facts as to the contract, and as to the breach thereof, and market price of coal as a commodity at the time of breach, thereby furnishing a measure of damage, statement would not be insufficient or its law be raised by the defendant in the afstriking off be justified. Section 20 requires that questions of fidavit of defense, and it may be done In assumpsit. Petition by defendant without answering the averments of fact for a more specific statement. in the statement of claim, and any quesJenkins, Turner & Jenkins, for plain- hearing and disposal of by the court. tion so raised may be set down for tiff. Evan C. Jones, for defendant. Coughlin, J., April 12, 1927.-Plaintiff brings this action for breach of contract, setting forth in the statement of claim, inter alia: Section 21 covers informality of pleading when the statement does not conform with the provisions of the act. The rule entitling a defendant to ask for a bill of particulars has become obsolete under the Practice Act, for every statement of plaintiff's claim, drawn in An oral contract between plain-compliance therewith, embodies a bill of tiff and defendant whereby defendant particulars. If not so drawn, the proper agreed to sell plaintiff 20,000 tons of No. I buckwheat coal, then in storage at defendant's colliery, at the purchase price of $2.50 per ton, said oral agreement being subsequently confirmed in writing. (b) A breach of said contract by the remedy is to move to strike off the statement as insufficient or too indefinite. Defendant's petition filed herein should be treated as a motion to strike off plaintiff's statement if said statement does not. conform with the Practice Act. See Standard Metal Mfg. Co. v. American Insulator Co., 30 Pa. Dist. Rep. 518; B. F. Sturdevant Co. v. Regan & Hor- English Committee, Etc., v. Bank nell, 26 Dist. Rep. 189; Bowden Construction Co. v. Hagenbuch, 6 D. & C. 132; Section 5, of Act of 1915, P. L. 483. Lunatics-Estates of-Custody of law "The rules of good pleading never require the disclosure of the evidence sup-Judgments-Not a lien. porting the propositions pleaded." Franklin Sugar Refining Co. v. Greenberger & Co., 3 Dist. & County Rep. 92. "The Practice Act of May 14, 1915, P. L. 483, does not require the details of matters intended to be proved, or the evidence relied upon, to be set forth in the pleadings; had defendant desired greater particularity, it should have moved against plaintiff's reply in the manner provided by this statute. See Sec. 21 (P. L. 487)." Kress House Moving Co. v. George Hogg Co., appellant, 263 Pa. 191. When a committee of a lunatic has been appointed, the estate passes into the custody of law and a creditor who obtains a judgment after inquisition acquires no lien upon the real estate of the lunatic nor any right to priority of payment over the creditors. The plaintiff avers the facts pertaining to the formation of the contract sued upon, the facts constituting the breach complained of, and the market price of coal as a commodity at the time of the breach, thereby furnishing a proper measure of damage. We are unable to see wherein plaintiff's statement is insufficient justifying its being stricken off. act. Petition under declaratory judgment Brooks, English and Quinn, for plaintiff. S. L. Gilson, for defendant. Hirt, J., November 19, 1926.-This is an application under the Declaratory Judgment Act, of June 18, 1923, P. L. 840, to determine the status of a judg ment entered to No. 147, February term, 1926, in favor of the First National Bank of Lock Haven, Pennsylvania, against a lunatic. The cause of action which resulted in this judgment accrued prior to the inquisition, but judgment was obtained after Whether or not plaintiff received a the appointment of Charles H. English, bona fide order on a given date for all the Esq., as committee of the estate of the undelivered balance of coal would not de- lunatic. It is the contention of the plaintermine his right to recover, nor would tiff committee that the judgment is not the statement be insufficient were that al- a lien on the real estate of the lunatic and legation omitted. Certainly the price for that reason is not entitled to priority fixed in said order would not be evidence over other creditors in the distribution of of the damage sustained if the price the fund arising from the sale thereof. stated exceeded the then existing market With this contention we agree. price of the commodity. If the price When a committee of a lunatic has therein stated was less than the then ex-been appointed, the estate passes into the isting market price of the coal, such or- custody of the law, and although a credder which plaintiff might be obligated to itor may obtain a judgment, the remedy fulfill might be a matter of defense. by common law process to execute does Whether or not said contract would be not exist; that creditor must go into admissible as evidence we do not now de- equity where the judgment would not be termine; but we do determine that plain-enforced, except upon terms of equality tiff's statement avers sufficient under the or a pro rata distribution among all credAct of 1915 to make it self-sustaining. itors. If the creditors could upon the Therefore, We deny the petition of defendant, discharge the rule, and direct that defendant file its affidavit of defense within a period of fifteen days from the date hereof. finding of any person a lunatic by inquisition, be admitted into a scramble or race for the first judgment, under the idea of obtaining preference, and could thus obtain preference, the whole system devised by the legislature with so much. 33 Witherspoon & Devore, Esqrs., for defendant. care would be frustrated, for the lunatic's estate would be liable to the creditors according to the course of common law and its process. It is true that the statute authorized a suit to be brought against The plaintiff sued for the death of her Brownson, P. J., February 14, 1927.— the lunatic which the committee is directed to defend. This may be done for minor son, killed in an automobile accithe purpose of establishing the amount dent, charging that the cause of the acciof the debt; but there he must stop. dent was negligence of the defendant. Therefore, a creditor who obtains a judg- The jury found in plaintiff's favor and ment after inquisition found, receives awarded damages in the sum of $383.15. thereby no lien upon the real estate of the The plaintiff asks for a new trial upon lunatic nor any right to priority of pay- the ground of inadequacy of the damages ment over other creditors. Judgments given. obtained before lunacy have a lien, but In Spence v. Stockdale Borough, 57 all other debts attach equally and have Pa. Superior Court 622, which was an equal claims to payments. Wright's Ap-action for personal injuries, the jury peal, 8 Pa. 57; Rogers' Appeal, 119 Pa. found for the plaintiff, awarding six and 178. And now, to wit, November 18, 1926, it is declared that the judgment in favor of defendant and against Michael Liebel, Jr., a lunatic, entered at No. 147, February Term, 1926, is not a lien upon the real estate of said lunatic; the judgment is a liquidation merely of the amount of defendant's claim and is not entitled to priority of payment by reason of the fact that it has been reduced to judgment. C. P. of See one-fourth cents damages. The appellate court held it reversible error to refuse a new trial, when the plaintiff, if entitled to recover at all, is under the uncontradicted evidence, entitled to substantial damages, and a verdict for nominal damages only is "so absurd as to compel the conclusion that the jury must have been influenced by partiality, passion or prejudice, or by some misconception of the law or the evidence." also Bradwell v. Railway Co., 139 Pa. 404. 413. In Hammaker v. Watts. Twp., 71 Pa. Superior Ct. 554, the principle of Washington Co. those cases was applied to an action for the death of a minor child. The verdict for the plaintiff in the latter case awarded only the amount of the funeral expenses paid, and gave nothing for the pecuniary value to the parents of the child's life. The refusal to grant a new trial for in Jurovcik v. Belback New trial-Negligence-Suit for death adequacy of the verdict was held to be of minor child-Damages. In a suit for the death of a minor child, killed in an automobile accident, charging that the cause of the accident was negligence of the defendant, the jury awarded damages equal to the undisputed items of funeral expenses. The plaintiff asks for a new trial on the ground of inadequacy of the damages given. an abuse of judicial discretion. The court, Keller, J., said in substance (p. 565) that while there may possibly be exceptional circumstances which may justify a jury in holding that parents are not entitled to more than nominal damages for the death of their child through negligence, such exceptional circumstances did not specting the age, health, ability and disexist in that case, as by the evidence reposition of the child, it was established that the lost life had a pecuniary value, and a verdict, fixing such pecuniary value at the amount expended for the child's burial was "so unreasonable and disproportionate to the value of human life," that it should have been set aside. The facts of the present case are close ly similar to those of Hammaker v. Watts four installments at intervals of approxi mately four weeks and when delivery was buyer in the specifications of the goods, during which delay and until delivery began delay part of the goods were delivered and the buyer urged prompt delivery, after which accepted, and after the last of these delivwithout delivery, tender of delivery or explanation of delay; it was held that the last delay constituted a breach of contract and cept the remainder of the goods when tenjustified the defendant in refusing to acdered, and judgment n. o. v. was entered for the defendant. temporarily delayed by changes made by the eries there was an interval of ten weeks Motion for judgment for defendant non obstante veredicto in Parrish Manufacturing Corporation v. Martin-Parry Corporation, No. 221, August Term, 1923. Motion allowed. Twp. There was testimony that the deceased was a strong, healthy young man, a little over eighteen years of age, who was a steady worker and in the habit of turning practically all his wages over to his mother, the plaintiff, for the support of her family, which included other minor children, younger than himself. This testimony was not contradicted nor was its truth in anyway impugned. It was sufficient to show that his life had an actual and substantial pecuniary value to the plaintiff. There was testimony offered, also, to show the amount expended for the funeral and interment of the young man. Two of the items embraced in the bill therefor were objected to by the defendant as unnecessary and unreasonable expenses, but to none of the other items was any objection made at the trial. The amount of the verdict was substantially what was paid for these unattacked expenses, being in fact a few cents less than this-the difference being Stock, J., June 13th, 1927.-At this, perhaps accountable for on the supposi- the second trial of this case, the defense tion of an error of calculation when the of novation which had been introduced jurors added up the undisputed items. It at the first trial, was not interposed by is evident, then, that this jury, like the defendant. This change in strategy on jury in Hammaker v. Watts Twp., have the part of defendant considerably afawarded no compensation for the pecun- fected the remaining issues. iary value of the child's life, and under the authority of that case a new trial should be granted. And now, February 14, 1927, the plaintiff's motion for a new trial is sustained, and the new trial therein prayed for is granted. C. P. of Schmidt, Keesey, Stair & Kurtz and Harvey A. Gross, for defendant and motion. M. S. Niles and R. P. Sherwood, contra. Plaintiff proved at this trial, without objection, that on May 26, 1920, during the period of performing the contract, defendant notified plaintiff that defendant had transferred its contract to the Atlas Truck Corporation, effective upon the consent of plaintiff being obtained in writing, and asking plaintiff to give such assent. Under date of June 4, 1920, York Co. plaintiff refused assent unless defendant guaranteed such orders as were then on plaintiff's books. June 11, 1920, defendant guaranteed payment of bills until such time as the Atlas Truck Corporation should render a statement of their financial condition. Both parties to this suit accepted this as insufficient to establish a novation, and the liability of defendant is conceded unless defendant has been relieved by default of plaintiff. Plaintiff did not allege that this attempted transfer of the contract interfered with its performance of the contract, but on the contrary showed that during the period of time when the above negotiations were in progress it tract for the sale and delivery of goods in was actively performing its contract, and Parrish Manufacturing Corporation v. Martin-Parry Corporation Contracts-Sales-Time of delivery of goods sold-Failure to deliver in time, ground for refusal to accept. Where time was of the essence of a con continued to do so for more than one frames. Plaintiff, however, elected to month after the date of the last letter on waive the breach and to proceed under this subject. Having eliminated the the contract. The duties affecting plainquestion of novation, much of the evidence which had been introduced at the defined by the Supreme Court. Time retiff when it so elected have already been former trial was not offered at this trial. mained of the essence of the contract. The case turned on the single question of The time of performance was merely performance of contract by plaintiff. The facts in this case have already postponed or extended by such length of been clearly summarized by the Supreme time as defendant's conduct caused delay: Parrish Manufacturing Corporation Court: Parrish Manufacturing Corporav. Martin-Parry Corporation, supra, 140. tion v. Martin-Parry Corporation, 285 The evidence of the extent of this time is Pa. 131-134. For the purpose of this review it might be well to restate those not clearly proven by plaintiff, but at the facts proven at the second trial. most it was less than two months. This measure of delay is, however, substantiDefendant was engaged in the manu- ated by the actual facts of the case. No facture of automobile trucks, and on De- deliveries were made in March or in Apcember 17, 1919, ordered from plaintiff ril, but deliveries were commenced early one thousand frames required in the in May. On May 8, 1920, the first construction of the completed motors, frames were shipped, and deliveries were which frames were of a design de- continued in irregular amounts and at scribed in the contract by model num- irregular intervals until and including ber. Deliveries were promised in four July 12, 1920. At this time plaintiff had equal parts during the months of March, delivered a total of 489 frames, of which April, May and June, 1920. Later cer- 100 were right-hand drive and 389 lefttain changes were made in the specifica- hand drive. These frames were accepted tions and on March 2, 1920, the contract and paid for in full. It will be observed was confirmed at an increased price; de- that the first delivery on May 8 was exliveries were to be made 250 during the actly two months and two days after the week of March 29, 250 during the week confirmation given by plaintiff to defendof April 26, 250 during the week of May ant, on March 6, and was accepted by de31, 250 during the week of June 28. fendant, thereby waiving any objection Plaintiff, under date of March 6, ac- to it on account of unreasonable delay. cepted this final modification, promised On July 12, 1920, deliveries ceased and prompt deliveries, expressed doubt as to were never resumed. Ten weeks later, fulfilling March deliveries, but its belief on September 30, 1920, invoices were in its ability to make April deliveries. mailed by plaintiff to defendant for 444 Under date of April 22 another modifi- frames, and on October 29, 1920, 14 cation was made affecting only one-half weeks later, invoices for the remaining of the order, to wit: changing one-half 67 frames were mailed. Defendant reof the frames from left-hand drive to fused deliveries of these 511 frames so right-hand drive. This change necessi- billed on September 30 and October 29. tated a delay of one day, and on April These frames constitute the subject mat24 plaintiff wrote defendant that its ter of this suit. drilling jigs had been changed in accordance with this modification. An error in the location of drilling a hole was later discovered and the correction of this was made by defendant under date of May 1. This correction occasioned a delay of not more than one day. At this point it might be helpful to state the rights of plaintiff. The delays were caused by defendant. Plaintiff had the right to rescind the contract on account of defendant's breach and to refuse to perform its part of the contract, to wit: to manufacture and deliver the At the time of trial plaintiff offered to prove no legal explanation for this unwarranted delay. During this period, from July 12, 1920, to September 30, 1920, no correspondence nor communication whatever was had between plaintiff and defendant. An unauthorized waiver or extension of the time of delivery sent plaintiff in this interval, had already been excluded by the Supreme Court: Parrish Manufacturing Corporation v. Martin-. Parry Corporation, supra, 138. The limited extensions of the time of performance occasioned in February, March and |