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The arguments used by the plaintiff's said directors, sufficient to furnish the council might apply in ordinary cases, necessary funds to purchase said lands, but in the case at bar it seems the Su-pay for said plans and specifications, to preme and Superior Courts have already erect said buildings and furnish the ruled the question of law raised by the same, in connection with any sum or affidavit of defence.

sums of money in the hands or control Corroborative of those decisions, the of the said directors of the poor and any Legislature passed an Act, approved sum of money realized from the sale of March 20, 1917, P. L. 4, which supple- the site and buildings of the present mented the said Act of 1804, as fol- | almshouse, together with all moneys now low's:

rightfully belonging to the poor board, "Section 1. Be it enacted, &c., that by whomever the same may be held or the directors of the poor and of the deposited, which moneys shall be turned house of employment for the County

over to the use of the county commisof York, whenever in the opinion of a sioners for such purposes only. majority of said directors the lands,

"The directors of the poor, with the buildings, and furnishings for maintain approval of the court of quarter sesing the poor in said county of York are sions of the County of York, are authinadequate, unsuitable, and unsafe for orized to sell the site and buildings of the proper maintaining of the poor the present almshouse, and apply the within the said County of York, be, and proceeds of such sale as herein above they are hereby, authorized to meet and directed. to determine and fix upon, and to purchase, such land or lands as to them, or

“The said commissioners shall have a majority of them, may appear most the power, and it shall be their duty, to eligible and suitable, for the purpose of assess, levy, and collect, together with the erection of proper, adequate, and other county rates and levies, and on the secure buildings for the employment and same subjects of taxation, an amount support of the poor in the County of sufficient to gradually reduce the said York. The said directors, or a majority loan and entirely cancel the same within of them, are authorized to have pre-thirty years. Whenever the said buildpared plans and specifications for any ings shall be finished and completed the building or buildings to be erected upon said directors of the poor shall certify lands so purchased by the said directors, their proceedings to the clerk of the and to cause the necessary buildings to court of quarter sessions of said York be erected upon the said lands accord- County; whereupon the said court shall ing to the said plans and specifications : appoint three competent and disinterestProvided, however, that before the said ed persons

persons viewers, to view and directors shall purchase any lands or let thoroughly examine said buildings, and any contract for the erection of said report to the court whether the said conbuildings, according to plans and speci-tract or contracts have been faithfully fications adopted, they shall advertise in and fully performed and completed, and two or more newspapers of general cir- until such report be so made final payculation in the County of York for bids ment on said contract or contracts shall or offers of lands for said purposes, and not be made and paid. The said viewers for bids for the erection of buildings on shall be entitled to five dollars per day said lands according to the said plans for each day necessarily engaged in the and specifications, and the letting of the performance of their duties. contract or contracts for the erection of It is not necessary to answer in desaid buildings, shall first be approved by tail the various arguments advanced by the court of quarter sessions of the the counsel for plaintiff, because it is County of York.

apparent to this court that the law con“To carry out the provisions of this trolling the rights and duties of the Diact, the county commissioners of York rectors of the Poor and of the House of County shall have the power, and it Employment for the County of York shall be their duty, to procure a loan, at were prescribed by the Acts creating the a rate of interest not exceeding six per Poor District of York County, viz: the centum, on estimates furnished by the said Act of 1804, and the Act of 1866,

P. L. 110, as described by the Supreme Schaeffer, P. J., January 31, 1925. — and Superior Courts. Even if state of The appellant is engaged in the business

. ficers did order or direct the said direc- of plumbing and steam heating. It aptors to erect a new almshouse, such or-pears from the agreed statement of facts ders or directions could not carry with that he maintains a shop in the City of them such an authority as would allow Reading, at which he keeps on hand a more privileges than the legislature small supply of fixtures and material which created them gave.

necessary in his business. He installs As said by Mr. Justice Head, in ren- plumbing and heating plants in buildings dering the opinion for the Superior owned by others, upon receipt of orders Court in the case of Taylor vs. Poor or in pursuance of contracts duly made; District, 50 Pa. Supr. Ct., page 322: he makes repairs to plumbing and heat“In considering the question whether oring systems. He purchases from others not the power here claimed exists by the material consisting of pipes, valves, implication, it is to be remembered that radiators, boilers, toilets, bathtubs, the general fundamental principle re necessary fixtures, etc., which in the qquires a strict construction of such year 1923 amounted to $21,175.80, and grants by the legislature. The power tits, adapts and assembles such material claimed by the corporation must be to the work for which he has been emfound clearly written within its charter.” | ploved or for which he has contracted.

It is well known to this court that the He and his employees expend labor upon almshouse was not destroyed, but was the material in so fitting, adapting and still in use, and, despite the orders which assembling it; during the year 1923 he were given, as related in plaintiff's state-I paid for labor employed in this work ment, it is still used as a harbor and re-| the sum of $11,738.86. At his shop he fuse for the poor of York County. also sold certain articles and material at

And now, March 9, 1925, the question retail aggregating the sum of $310.18. of law raised by the affidavit of defence

Is the appellant a "retail vender of or is decided in favor of the defendants.

retail dealer in goods, wares and mer

chandise" within the provisions of the C. P. of

Berks Co.

Act of May 2, 1899, P. L. 184, and as Miller's Appeal

such subject to the annual tax upon gross volume of business transacted?

I vender or dealer in the popular and Taration-l/ercantile license

license tax- therefore in the statuory sense of the ilct 2 May, 1899, P. L. 1814--1ct word, is not one who buys to keep, or

makes to sell, but one who buys to sell 9.1 pril, 1870, P. L. 50Plumbers.

again : Norris Brothers v. The Commonengaged in the business of wealth, 27 Pa. 494. plumbing and steam heating is not a retail

In considering this question, we have, vender of or dealer in goods, wares and merchandise subject to the annual tax upon the fortunately, several decisions for our gross volume of business transacted under guidance. In the case of Com. the provisions of the Act ay 1899, Pica Gormly; 173 Pa. 586, the issue was sub181, with respect to the material supplied by him in the execution of his contracts, or stantially the same as that now presentin the installation of plumbing, or of heated: was a plumber a “dealer in goods, ing plants upon order, or in his repairs to plumbing or heating systems; but he is a wares and merchandise" and as such dealer within the meaning of said Act as liable to the mercantile license tax under to the goods, wares and merchandise sold in his shop and, if such sales exceed the "sum the then existing law's imposing such or value of five hundred dollars per annum," tax? The court, in the opinion by Mr. the total amount of such sales is taxable, as provided by the Act 9 April 1870, P. L. 59 Justice Green, says that the plumber is

neither a manufacturer nor a dealer, in Appeal from rating of appraiser for the strict sense of the latter term. "He mercantile tax.

does not buy to sell the articles he uses. C. H. Ruhl, for the appellant.

He does not sell them in the literal sense

and he only buys them when he has a Charles W. l/attern, for County! job of work to do for which he requires Treasurer.

them. As between the dealer and him



VS. was

self, he is the consumer. He needs the and that he also pay the cost of this aparticles in his business. He puts them peal; and that judgment is hereby directin building's putting his own work upon ed to be entered to that extent in favor them, but when they are placed there of the Commonwealth and against the they are not in the same shape as when apellant. he received them, but as a compact

a whole composed of all the materials re- C. P. of

Lancaster Co. quired for the purpose, no matter from Donovan Co. v. Troup Music House what source he obtained them."

lle also have before us the exhaustive opinion recently filed by Judge Hargest of the Court of Common Pleas of

Conversion of bailed goods--AssumpDauphin County, in the case of Com- sit-Waiver of tort. monwealth of Pennsylvania v. James H. Though a defendant dealt in good faith Lutz, Jr., No. 1 Commonwealth Docket, with an apparent owner and thus obtained

posession of chattels belonging to another, 19244, in which practically the same it is a conversion if such defendant refuses question as that now before us or is unable to return such chattels to the passed upon. In that case Lutz was himself liable in damages to such rightful

rightful owner on request and he renders also a plumber. After considering the owner, or the owner may waive the tort principles of interpretation, the history and recover from him in an action for goods

sold and delivered though the defendant of all the mercantile acts and the con- made no promise to pay. struction of them by the courts, and applying them to the agreed facts of the

Affidavit of defence raising question

of law. case before him, the learned judge decided that the defendent's contracting,

I. Andrew Frants, for plaintiff. jobbing and repairing business was not subject to the mercantile license tax and

Harry L. Raub, Jr., for defendant. that only the total sales made in his sales room or shop were so taxable if Hassler, J., January 17, 1925.—In its they exceeded the "sum or value of five statement, the plaintiff alleges as its hundred dollars per annum:" Act of action the following facts: On February April 9, 1870, P. L. 59. We are led to 18, 1918, it leased a l'ictrola to one, the same conclusion, to wit: that the de- William A. Cooper, retaining title in the fendant as to the material supplied by same. On or about August 15, 1921, him in the execution of his contracts, or the said Cooper traded the said Victrola, in the installation of plumbing or of so belonging to the plaintiff, to the deheating plants upon order, or in his re- fendant, who took posession of it. Subpairs to plumbing or heating systems is sequently, plaintiff made demand on the not a retail vender of or dealer in goods, defendant for a return of the Victrola wares and merchandise within the mean- or payment of its value. This demand ing of the Act of 1899.

was not complied with. It is further It is apparent, however, that as to the alleged that the defendant has disposed goods, wares and merchandise sold in of the Victrola. An affidavit of defense his shop, the defendant is a dealer, for raising a question of law has been fild these articles he bought to sell again. by the defendant, which questions the He did not manufacture them; he per-right of the plaintiff to recover, for the formed no work upon them; nor were reason that as it is not alleged in the they joined by his labor to other articles statement that any contractual relation, to make an entirely different, compact either oral or written, express or imwhole. As the sum or value of the plied, exists between the plaintiff and the goods so sold by him in 1923, exceeded defendant, it sets forth no cause of acthe sum of five hundred dollars, the de- tion. fendant is taxable upon the whole of Even though a defendant dealt in such sales: Act of April 9, 1870, P. L. good faith with an apparent owner and 59.

thus obtained posession of chattles beIt is therefore ordered that this de- longing to another, it is a conversion, if fendant pay a mercantile license tax for such defendant refuses or is unable to the year 1923 upon the sum of $310.18,' return to the rightful owner such chattels upon request, and he renders him- pay, just as if the sale had been proven." self liable in damages to such rightful The facts alleged in the plaintiff's owner. Rice v. Yocum, 155 Pa. 538. statement meet all the requirements of

In Deysher v. Triebel, 64 Pa. 383, these cases to show a good cause of acJustice Sharswood said: “ 'In many cas- tion. It is alleged in it that it, the plaines,' says Mr. Leigh, 'where the defen- tiff, is the owner of the Victrola ; that it dant has received goods wrongfully, a was taken by the defendant from a third contract for the purchase will be in-person who had possession of it; that ferred, and the plaintiff may waive the the defendant refused upon request to tort and recover the maount in an action return it to the plaintiff, the rightful for goods sold and delivered.'

owner; and that the defendant has disIn Balliet v. Brown, 103 Pa. 546, it is posed (that is, parted with possession) decided that where there is a conversion of it. Under these circumstances, the of chattels, there is an implied sale of cases above cited show that, even though them, and the owner can waive the tort the defendant did not in fact promise or and sue in assumpsit for goods sold and intend to promise to pay for it, the law delivered upon the implied contract. makes such promise for him, and on it

In Reese & Sons Company v. Western the plaintiff's right to sue in assumpsit Exposition Society, 44 Pa. Superior Ct. rests. 381, Judge Head, after reference to the The question of law raised in the affigeneral rule that assumpsit will not lie davit of defense is decided against the in all cases for goods wrongfully taken defendant, and it is given fifteen days by another and still in his possession, from the date of this opinion to file an says: “There can be no doubt of the ex- affidavit of defense. istence of a general rule which in substance declares that, where the personal C. P. of

Lackawanna Co. property of one has been wrongfully taken by another and remains in his pos- | Incorporation of America Lithuanian session, the owner cannot recover its

Political Club price or value in an action of assumpsit.

There are, however, and have been long a number of exceptions to the

Charter application-More than one general rule, as widely and as completely recognized as the rule itself. Thus, purpose contained-Act of July 15, 1897, where is could be shown that the goods

P. L. 283 wrongfully converted had been sold, it has been held that the owner might A petition for a charter for a corporation waive the tort and maintain an action of of the first class, not for profit, must be deassumpsit for their price. The principle the Act of 1874 or Act of 1897.

voted to a single purpose mentioned in either on which the exception appears to rest is, that the wrongdoer has, by selling the

Petition for incorporation. Refused. goods, asserted in the strongest manner P. H. Maxey, for petitioners. his title to and right of dominion over them. He has put it out of his power

Edwards, P. J., January 5, 1925.to respond in an action against him for Looking at the title of the proposed corthe recovery of the goods themselves. poration it would appear that the intenHe has voluntarily placed himself in the tion of the petitioners is to form a politiattitude of one who had bought the cal club. There are several common goods, and although he did not in fact pleas decisions which hold that an incorpromise or intend to promise to pay for poration for such a purpose does not them, the law makes such promise for come within any of the provisions of the him, and it is upon the promise thus Act of 1897, P. L. 283, relating to the raised by the law the plaintiff's right to creation of corporations "not for profit." maintain assumpsit rests. Even where Regardless, however, of this question, the no such sale has been in fact shown, the present application must be refused for law under certain circumstances, other reasons. An examination of the presumed such sale and again raised the petition shows that more than one purpromise on the part of the defendant to pose is set forth therein. According to


York Co.

of stock alleged to have been sold to the de






the words of the petition it is stated that tion of the "American Lithuanian Politi“the purposes of the American Lithuan- cal Club," of Carbondale, is refused. ian Club are as follows." Then follows the statement in these words:

C. P. of “To promote an interest in a knowl-| Automotive Stores Corporation v. edge of local and national political questions among Americans of Lithuanian

Leachey ancestry; to encourage and aid persons of Lithuanian ancestry and citizenship in becoming citizens of the United States;

Plaintiff's statement Sufficiency to provide a meeting place where those General averments— Averments of conpersons of Lithuanian parentage and clusion of law. their friends may meet for social purposes; and to provide for members of the In an action by a corporation for the price intended club or corporation a system of endant, an averinent that the plaintiff acsick and death benefits to be conducted Icepted the defendant's subscription and de

livered to him the stock is an expression of mutual and non-profit making

a conclusion of law based on facts not disbasis."

closed; the defendant is entitled to know by A fair inference from the somewhat ceptance and delivery are alleged to have

what party, when and where the alleged acvague language of the first part of the been made; and if the acceptance was statement is that the petitioners intend to writing a copy of the same should be set


a plaintiff's form a political club. In the same para- statement which contained only such general graph two other purposes are mentioned, averments was stricken off. viz., a club for social purposes, and a so- Votion to strike off the plaintiff's ciety for beneficial or protective pur- statement in Automotive Stores Corpoposes. In other words, we find before us ration vs. William N. Leschey, No. II, an attempt to form a club or corporation August Term, 1924, in the Court of for two of the fourteen purposes named Common Pleas of York Co., Pa. Motion in section 2 of the Act of 1897 providing allowed. for corporations of the first class--not for profit, in addition to the political liams & Kain, for defendant and motion.

Robert C. Fluhrer and Cochran, Wilitem. It should be understood that under liams & Kain, for defendant and motion. the Act of 1897, as well as under the Niles & Neff, contra. prior Act of 1874, a corporation not for

Wanner, P. J., April 20th, 1925.-- It is profit must be devoted to a single pur- contended that because the plaintiff is a pose mentioned in either act. If a peti- corporation, acting through agents, offition for incorporation may include two cers, or duly authorized representatives purposes, it would follow that such peti- of some kind, the mere allegation that it tion may also include the fourteen pur-"accepted” certain subscriptions, and poses named in the act, which, of course, that it "delivered” certain stocks, is not would be an anomaly, and contrary to specific enough to show what the speciany rule of practice.

fic acts were, or by whom they were perWe are leaving undecided the question formed, which constituted an acceptance of granting a charter for a purely poli- or a delivery. tical purpose. However, if such an in- Whether or not they amounted to a lecorporation were legal it could not be gal acceptance, or a legal delivery, is a granted on the present petition, because question of law, and the mere statement of the discrimination contained in the that the plaintiff "accepted" or "delivseventh paragraph, which confines the ered" anything, is the expression of a prospective membership to members of conclusion of law, based on facts not disthe Roman Catholic Church. Such a re- closed. The defendant is entitled to striction would be perfectly proper in a know by what party, and when and petition for a charter under the first or where, the alleged acceptance and delivsecond purpose enumerated in the act|ery respectively are alleged to have been providing for the incorporation of cor- made, so that he may know whether to porations of the first class.

admit or whether to deny the said allegaNow, January 5, 1925, the incorpora-' tions. If the alleged acceptance was in

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