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of by the court. If in the opinion of the either upon the employer (for the common court the decision of such question of law law defenses were court-made and can be disposes of the whole or any part of the modified or abolished by the legislature), or claim, the court may enter judgment for the upon the employe. And as the parties have defendant, or make such other order as may a free choice it was competent for the legibe just,” etc. The words "or make such lature to make the acceptance of the comother order as may be just" may be sufficient pensation plan presumptive at the time of to support a judgment of nonsuit. In Barto consummating the contract of service. Inv. Shaffner, 26 Pa. Dist. Rep. 957, it was asmuch as the Compensation Act provides held by President Judge Endlich that "The that it shall not impair the obligation of any questions of law contemplated by section 20 contract in force prior to December 31, of the Practice Act of May 14, 1915, P. L. 1915, it cannot contravene article 1, section 483, are those a decision upon which dis- 10 of the Federal Constitution. Nor does poses of the whole or a part of the plaintiff's it violate either the due process clause, or claim, such as under the old practice might the equal protection clause of the fourteenth be interposed by demurrer.” The practice amendment." The conclusions above rein the present case follows Anderson v. ferred to, are amply sustained by the many Carnegie Steel Co., 255 Pa. St. 33, a case cases to which the authors refer. It would not cited upon


argument, but which I be a waste of time to examine them in depractically rules the present case. The tail, but excellent discussions are found in proper judgment in this case is judgment Young v. Duncan, 218 Mass. 346, and In for the defendant. The plaintiff brings his the latter of Jenson v. Southern Pacific action of trespass to recover damages against Co., 215 New York 514. The latter case the defendant corporation, and he alleges in is valuable as it practically overrules Ives v. his statement that on the eighth day of South Buffalo Railway Co., a case in 201 July, 1916, he was employed by the defend- New York 271, and as it also refers to the ant company' as a carpenter foreman in the decisions of the supreme court of the United city of Easton, and that in the discharge of States. The act itself provides: "Section his duties on the said day, he was seriously 301. When employer and employe shall by and permanently injured, through the neg- agreement, either express or implied, as ligence of the defendant. The defendant hereinafter provided, accept the provisions admits the contract of employment, and of article three of this act, compensation for after denying its negligence, sets up as personal injury to, or for the death of, such matter of law, "that the said plaintiff ac- employe, by an accident, in the course of his cepted the provisions of the Workman's employment, shall be made in all cases by Compensation Law of the State of Penn- the employer, without regard to negligence, sylvania and being bound by the provisions according to the schedule contained in sectherof, cannot maintain present action tions three hundred and six and three hunagainst the said defendant.” The learned dred and seven of this article. ** * Section counsel fur the plaintiff contends that “The 302. (a) In every contract of hiring Workmen's Compensation Act of 1915,"| made after December thirty-first, one thouspage 736, is unconstitutional, and that he is and nine hundred and fifteen, and in every entitled to maintain the present action contract of biring renewed or extended by That act is the law in at least twenty-eight mutual consent, expressed or implied, after of the United States, in Canada, in Eng- said date, it shall be conclusively presumed land, and most of her colonies, in Mexico, that the parties have accepted the provisions Peru, Venezuela, Austria, Belgium, France, of article three of this act, and have agreed Japan, Iraly, Norway, Russia, Sweden, to be bound thereby, unless there be, at the Switzerland, and most of the other civilized time of the making, renewal, or extension nations of the world. In Schnader's and of such contract, an express statement in Storey's Pennsylvania Workmen's Compen- writing, from either party to the other, that sation Law, Section 106, it is said: "Every the provisions of article three of this act are elective workmen's compensation act which not intended to apply, and unless a true has been attacked before a state court of copy of such written statement, accompanied last resort has been held constitutional. by proof of service upon the other party, The acceptance of the compensation plan setting forth under oath or affirmation the contained in the Pennsylvania Compensa- time, place, and manner of such service, be tion Act is optional and not compulsory filed with the bureau within ten days after

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* * Sec

Affidavit for Defense - Averments--Suffisuch service and before any accident has occurred. Every contract of hiring, oral,

ciencyNot Delivered on Sundar. written, or implied from circumstances, now in operation, or made or implied on or be- !

In a suit against defendant as accommodation fore December thirty-first, one thousand tiff, an affidavit of defense is sutficient to prevent

endorses on a promissory note payable to plainnine hundred and fifteen, shall be conclu- judgment which avers that the note was endorsed sively presumed to continue subject to the and delivered by defendant on a Sunday. provisions of article three hereof, unless A note, bond or contract although executed on either party shall, on or before said date, in a Sunday is nevertheless valid if delivered on a writing, have notified the other party ro

week day. such contract that the provisions of article three hereof are not intended to apply, and

Rule for judgment for want of a sufficient unless there shail be filed with the bureau a

affidavit of defense. true copy of such notice, together with proof of service, within the time and in the Gunster for plaintiff.

Il'eilis, Stocker Torrey and John M. manner hereinafter prescribed. tion 303. Such agreement shall constitute C. B. Little for defendant. an acceptance of all the provisions of article three of this act, and shall operate as a sur- December 20, 1917. EDWARDS, P. J.render by the parties thereto of their rights. This is a suit against the defendant as acto any form or amount of compensation or commodation endorser for M. S. Trucker, damages for any injury or death occurring on a promissory note payable to the plaintiff. in the course of the employment, or to any Regardless of the question of the liability of method of determination thereof, other than the defendant on the note in the face of the as provided in article three of this act. Such fact of that the affidavit of defense alleges a agreement shall bind the employer and his failure of consideration as between Trucker personal representatives, and the employe, and the plaintiff, there is one other question his or her wife or husband, widow or raised in the affidavit, which, in itself, is widower, next of kin, and other depend-suffic.ent to prevent judgment on the pleadents.” It was the plain du'y of the plaintiff ings. It is averied by the defendant that to set forth that he was exempted by the the note in suit was endorsed and delivered exceptions to the act. The rule is that by him on Sunday, November 12, 1916. where a statute is relied on for a defense, Plaintiff's counsel, in the citation of authorithe party relying on it, need not refer to, or ties, must have overlooked the allegation as negative an exception or proviso unless it is to delivery on Sunday, because the cases cited contained in the enacting clause. In the establish the proposition that a note, bond absence of any such averment the presump- or contract executed on Sunday is neverthetion is "conclusive" that the parties accept-less valid if delivered on a week day. One ed the provisions of the act. The whole of the early cases in Pennsylvania is authorsubject both as to practice and as to the law, ity on this point, viz., Com. v. Kendig, 2 is, however, set at rest in Pennsylvania by Pa. 4+8, wherein it is decided that “a bond Anderson v. Carnegie Steel Co., supra. is not perfected until delivery, and that a Mr. Chief Justice Brown discusses every mere signing on Sunday does not render it phase of the questions raised by the learned void if not delivered until the day followcounsel for the plaintiff in the present case, ing." The same ruling is made by Judge adversely to him. It would be waste of Rice in Stevens v. Hallock & Co. et al., 7 time to quote what he so well said.

Kulp 260. We refer also to Beitenman's In the opinion of the court, the decision Appeal, 55 Pa. 183; Sherman v. Roberts, of the question of law, raised by the state

Gr. 261, and Williams v. Transit Co., ment and affidavit of defense, disposes of the 257 Pa. 354. whole of the plaintiff's claim, and the court The exceptions in this case are overruled hereby enters judgment for the defendant, and the rule for judgment is discharged.


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American Insulation Co. v. Lindemuth April 25th, 1917, the defen«'ant agreed
Engineering Co.

to accept the plaintiff's offer, provided that

it would also furnish a bond for the proper Contract- Acceptance of Offer-Reasona- completion of the work on time. bie Time.

April 26th, 1917, plaintiff replied objectPlaintiff offered to furnish and erect for de ing to furnishing the bond because the cost fendant certain covering material. Defendant of so doing had not been included in its bid agreed to accept said offer if plaintiff would give for the work, but proposed to furnish the bönd for the proper completion of the work on bond if the defendant paid the expense. time. Plaintiff consented to give the bond if defendant would pay the cust thereof. To this de- April 28th, 1917, the defendant wrote the fendant replied that it would pay half the cost. plaintiff insisting upon a bond being given Not having received an answer in five days as a protection owing to the condition of defendant placed its order elsewhere. Plaintiff then brought suit to recover the profits it would the market and the scarcity of materials," have made on the contract. The affidavit of de- and offered to bear half the expense of the fense denied liability, owing to the plaintiff's same, if the plaintiff would pay the other unreasonable delay in answering defendant's last half. offer. Held, that a motion for judgment for want of a sufficient affidavit of defense must be It is entirely clear that up to this point denied.

neither party had unconditionally accepted The general rule of law in Pennsylvania is that the proposal of the other and that no cona contract is concluded at the time of the mailing of the acceptance of an offer, and not at the time tract had been closed between them; Jaxof its receipt by the party addressed.

theimer v. Sharpville Boro., 238 Pa. 42; If the offer itself fixes a time within which it Dougherty v. Briggs, 231 Pa. 68. must be accepted, the acceptance thereof must be made within the period specified. If no such time

Six days after the date of its letter of is fixed, as in this case, the acceptance must April 28th, 1917, viz; May 4th, 1917, the nevertheless be mailed within a reasonable time defendant received a letter from the plainafter the receipt of the offer or it will lapse. What is a reasonable time in any case depends

tiff, dated May 3rd, 1917, stating that the upon the location of the parties, the nature of the plaintiff had procured the bond desired, and transaction, the usages of the trade or business in bad charged the defendant with half the which the parties are engaged, and slso upon the costs therefor, viz; $2.50. previous rules of conduct between the parties themselves in the matters in controversy, and is a

May 5th, 1917, the defendant replied question for the jury,

that the contract had been given to another The statement must show clearly what items of party on May 3rd, 1917, because up to that damages or profits are claimed, and the defendant time the plaintiff had not answered the decannot be expected to deny in detail these matters connected with plaintiff's business of which it can

fendant's letter of April 28th, 1917. The have no personal knowledge.

plaintiff thereupon brought this suit, No. 96, October Term, 1917.

The main question involved in the case is Motion for judgment for want of a suffi- whether or not the plaintiff's acceptance on cient affidavit of defense.

May 3rd, 1917, was in time to hold the de

fendant to its offer of April 28th, 1917. Cochran, Williams & Kain for motion.

The general rule of law in Pennsylvania J. T. Atkins, contra.

is that a contract is concluded at the time of March 11, 1918. WANNER, P. J.—The the mailing of the acceptance of an offer, and plaintiff seeks to recover damages from the not at the time of its receipt by the party defendant for breach of a contract which

hich addressed. the latter contends was never closed between If the offer itself fixes a time within the parties. Their entire negotiations are which it must be accepted, the acceptance contained in certain letters set forth in the thereof must be made within the period pleadings.

specified. If no such time is fixed, as in this The defendant company, located at York, case, the acceptance must nevertheless be Pennsylvania, in April 1917, was soliciting mailed within a reasonable time after the bids for certain non-conducting covering receipt of the offer or it will lapse. materials for use in the erection of a school The case of Boyd y. Peanut Company, 25 building at West Chester, Pennsylvania. Pa. Super. Ct. 199, qualifies the general

On April 23rd, 1917, the plaintiff offered rule as to the conclusiveness of the mailing to furnish and to erect the same and to of an acceptance by holding that it depends fully guarantee the work and materials, for upon whether or not it was mailed within a the sum of $305.00.

i reasonable time after the receipt of the offer.

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What is a reasonable time in any case de- Anicipated profits are not always recoverpends upon the location of the parties, the able as damages for the breach of a contract nature of the transaction, the usages of trade and this statement is obviously not specific or business in which the parties are engaged, enough to show that the plaintiff is entitled and also upon the previous rules of conduct to recover profits or *o show the items which between the parties themselves in the matters; constitute the lumping sum demanded. in controversy.

Having failed to show clearly and unThe defendant contends that in due course questionably to what items of damage or of mail, its letter of April 28th, 1917, must profits it may be entitled, in this case, that have reached the plaintiff on April 30, 1917, question most necessarily be referred to a and that the plaintiff's delay in answering it jury. until Vlay 3rd, 1917, was unreasonable, as The defendant cannot be expected to the letter only involved the question of deny in detail these matters connected with whether or not plaintiff would bear half the plaintiff's business of which it can have no expense of procuring the desired bind. The personal knowledge. plaintiff had answered the defendant's letter The plaintiff's motion for judgment for of April 25th, 1917 on the next day, and want of a suficient affidavit of defense is defendant contends that it should also have overruled and refused. done so in this case, instead of consuming three days in procuring the bond before c. P. of

Schuylkill Co. sending an acceptance of the defendant's offer. It is also alleged in the affidavit of de

Siiler's Appeal fense, that there was an extraordinary rise in tre price of labor and materials durine de pecil irom School Auditor's Report-I'xico

and--I ppointment -Suretius. the period of these negotiations which made it risky for the defendant to wait longer for An appeil from the report of school auditors an answer to defendant's letter of April will not be sustained upon the ground that the

Court appointed another collector and gave him 28th, 1917, before letting the contract.

the duplicates; such appointment will not relieve Plaintiff's attention had been called in the sureties on the former collector's bond. that letter to the "condition of the market

J. 0. Ulrich for appeal. and the scarcity of materials" as the reason for requiring a bond. Though these secm

8. L. Shus, contra. to be substantial reasons for a prompt December Joth, 1917. KOCH, J.-The answer to defendant's letter, we are of the appeal in this case was filed by Clinton E. opinion that the question whether or not the, Sisler, collector of taxes in the Borough of plaintiff's aceptance of defendant's offer Tamaqua, who, having filed a proper bond, was made within a reasonable time after its was entitled to collect the taxes levied and recept, is a question of fact for the deter- assessed in said school district for the year mination of a jury, and not of law for the 1915. The auditors found that at the time decision of the Court. This subject is fully of this audit there was a balance of $13,considered in Boyd v Peanut Company, 25 771.29 owing to the school district by said Pa. Super. Ct. 199-205.

Sitler on the tax duplicate for the year 1915. The motion for judgment for want of a The report of the auditors of she said school sufficient affi 'avit of defense must, therefore, district (u hich is of the third class) for the be refused. But there is another sufficient year ending the first llonday of July, 1916, reason why judgment could not be granted was filed on the 29th day of August, 1916, for the lump sum of damages claimed in this and this appeal was filed on the 21st day of case, viz; $74.20. The only item stated in September, 1916 sufficiently specific form in the plaintiff's! The school district, by its attorney, moved statement to make it recoverable, is that of the court on the 22nd day of December, $2.50, for one-half of the expenses of pro- 1916, to strike off the appeal, the principal curing the bond required by the defendant. reasons for the motion being, that the appel

The defendant's general denial that the lant "did not present his claim before the plaintiff has suffered the damages claimed in said auditors when they sat to settle his the statement is, therefore, suficient to put accounts;" that "the appellant filed no explair riff to specific proofs of the itenis of its ceptions to the findings of the auditors, claim at the trial; Robertson v. Interna- althoug! the appeal was taken in September, tional Textbook Co., 27 Dist. Rep. 18. | 1916;" and that appellant failed to take

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testimony. No testimony was taken in sup-ceived by the school district or $2014.12, port of the reasons assigned on the motion which added to the amount received by the to quash. The appellant, on the same day, school district makes the sum of $40,282.39, to wit, December 22nd, 1916, filed an affor $9554.36 less than the face of the duplidavit setting forth the reasons why he cate. The appeal will, therefore, be susappealed from the auditor's report. An in- tained as to the difference between $13,771.20 spection of a statement of the account by the stated by the auditors as "balance due school auditors attached to the appeal shows that district" and $9554.36, which difference is "from the above (balance) there are to be $4216.84. The appellant claims something deducted commissions and exonerations at should be allowed him by way of exonera. settlement of duplicate." In view of this tions and, perhaps, something should be so later fact, we disposed of the motion to allowed, but he has not taken the necessary quash on the 29th of January, 1917, and steps to obtain the allowance. Having directed "that the testimony necessary to failed to avail himself of all opportunities enable us to decide" what the true balance to have the amount of exonerations, if any, due to the school district is, “be taken with ascertained and allowed in the proper way, out delay and submitted to us with the entire we

are not required to make up for lack of record in the case.” But, without taking his diligence and to guess at the amonnt. testimony, the parties to this controversy When Sitler was an absconder in the have filed certain affidavits and we are now west and Krell, one of his bondsmen, was asked to dispose of this controversy on those appointed collector of taxes, the latter apaffidavits. The appellant filed three and plied for a writ of mandamus to compel the defendant filed two, as answers. Refer- delivery of the duplicate to him, the same ence to said affidavits enables us to state the having been in charge of Sitler's brother as following facts. Sitler was elected Collec- his deputy. The deputy delivered possession tor of Taxes sometime prior to the year of the duplicate, etc. In the writer's opin1913; that he was in default upon the ion, the appointment of Krell was made duplicate for the year 1913, and, being so in without proper legal authority (see 109 default, left the Borough of Tamaqua in March Term, 1916), and that opinion was September, 1915, and went to Oregon, expressed in such a way as appellant cannot where he was subsequently apprehended on claim ignorance of it. He has rested on his the charge of embezzlement, was brought oars ever since the appointment and has back to this county, tried, convicted and allowed matters to remain in status quo and sentenced in our Court of Quarter Sessions, now tries to make argument out of his deand the said sentence was affirmed by the fault and neglect in permitting the duplicate Superior Court. After the appellant ab- to remain in Krell's hands for over two sconded, nine of his bondsment petitioned years. He claims he is unable to make setthe court on the first day of November, tlement of the duplicate until he has posses1915, to appoint George M. Krell, one of sion of the same and says “All proceedings their number, to the office of tax collector upon this appeal should be postponed until for said borough to fill the vacancy appar- such time as the appellant regains possession ently caused by Sitler's absconding. George of his books and papers and has time to M. Krell was appointed in accordance with make the proper collection, examination, adthe prayer of the petition. The respondent ditions, exonerations and report.” He canwas brought back to Tamaqua in December, not complain that we have not been patient 1915.

As already stated, Sitler was given and waited now long enough. We will, the duplicate for the year 1915. The therefore, pass over the points based upon amount of taxes therein levied and assessed these facts. is $19,836.75.

The appellant also claims that the audiBefore Sitler absconded, he paid over to tors were remiss in making the audit. They, the school treasurer, $29,347.24 on account like every other officer, are presumed to do of said duplicate. His bondsmen later paid their duty, and, in the absence of evidence $5600 on account of said duplicate and the that they have not done it, the presumption said George M. Krell, who had been ap- will stand that they have performed it. pointed as above stated, paid over $3321.03, "Such auditors shall begin their duties on or making a total of $38,298.27. Allow- the fiast Monday of July each year and ing five per cent. for commissions, would be promptly audit the accounts of the school equal to one-nineteenth of the amount re- district for which they were appointed,"

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