United States of America v Basic Products Co. to corporations engaged in interstate commerce. The defendant is engaged in manufacture. A comprehensive consideration of the lack of constitutional authority over industry is found in the language of Mr. Justice Lamar, who delivered the opinion of the Court in Kidd v Pearson, 128 U. S., 1 (Ibid, 20-21), as follows: "No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation-the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest, and the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and vital interests-interests which in their nature are and must be, local in all the details of their successful management. It is not necessary to enlarge on, but only to suggest the impracticability of such a scheme, when we regard the multitudinous affairs involved, and the almost infinite variety of their minute details." In Hammer v Dagenhart, 247 U. S., 251, the Supreme Court held an Act of Congress to be unconstitutional as exceeding the commerce power of Congress and invading the powers reserved to the States, which Act was intended to prohibit transportation in interstate commerce, of goods made at a factory in which children of tender years might be employed.. In that case. the Court again emphasizes in the strongest language, that Congress has a regulatory power over interstate transportation and its incidents, but that the production of articles intended for interstate commerce is a matter of local regulation. And it appears from the opinion of the Court (p. 273) that argument was made that Congress had authority to control the interstate shipments of child-made goods in order to prevent unfair competition which would operate unjustly upon those who were forbidden by some States to employ child labor. And the Court uses this language: "There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. Many causes may co-operate to give one State, by reason of local laws or conditions, an economic advantage over others. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions." Counsel for the defendant urges upon this Court the necessity of declaring Section 6 of the Trade Commission Act to be unconstitutional, not only "in so far as it authorizes investigations and compulsory disclosures of matters which are beyond the commerce power of Congress," but also United States of America v Basic Products Co. "in so far as it attempts to authorize a search or seizure by an administrative agency of the Government without charge or suspicion of wrong doing." While the contention of counsel is probably sound, this Court does not deem it necessary to go farther than to hold that the Commission have not the power to carry on investigation which they have assumed in the present case. An incident of such investigation is the ascertainment of trade secrets. It is plain that the cost of manufacturing a patented product to which the manufacturer has the exclusive right may be a trade secret, a species of property of great value. This is also true of refinements of method in producing the same. The Act prohibits the disclosure of trade secrets. The assumption that no such disclosure will be made, disappears before the expressed intention to give the information to the Navy Department. We have then, a contemplated search and seizure and a contemplated taking of private property for public use without due process of law, which are violative of the Fourth and Fifth Amendments of the Constitution. With respect to the third reason in support of the demurrer, little need be said. The Act itself authorizes a petition for mandamus in aid of the Commission. "Mandamus issues where, and only when, there is a right to demand, and a corresponding duty to perform, the act required." 19 Standard Encyclopaedia of Procedure, 128. It never was intended that the extent of a free man's duty to perform should be determined by those who demand performance. The demurrer must be overruled and the petition for a writ of mandamus must be refused. Howe v Howe. Divorce · Libel- Affidavit -Taken Outside the State — - Act of 1895, P. L. 105. A libel in divorce was dismissed where the affidavit was taken in South Carolina. Such affidavits must be in "the proper county." That is, where the libel is filed. Divorce. No. 974 October Term, 1918. C. P. Allegheny County. John T. Duff, for libellant. KLINE, J., March 6, 1920.-The libellant, William T. Howe, Jr., filed his libel in divorce August 14th, 1918, and the oath taken in support of his libel, as appears thereon, was taken in the state of South Carolina. The Act of Assembly requires that libels must be sworn to before one of the Judges, or a Justice of the Peace, "Of the proper County." The Act of 1895, P. L. 105, conferring like forms as to libels in divorce did not in any way modify existing laws as to, "The proper County." We are therefore of the opinion that the libel should be dismissed at the cost of the libellant. Assumpsit ment McSorley v Mamaux et al., etc. Conveyance of Real Estate Mortgages-Merger-Amend- A contract for the sale of real estate encumbered by a mortgage would be merged in the deed only to the extent of the land sold and that covered by the deed. There would be no merger where the land conveyed was not included in the deed, and assumpsit would lie to recover on the mortgage. Ar amendment to a statement of claim is allowable where it did not set up a new cause of action or change the form of action and was not barred by the statute of limitations. The purpose of the Act of April 22, 1856, was to quiet litigation arising out of trusts. arising out of executed contracts but not executory contracts. It has no application where defendant entered into a contract to pay a mortgage and failed to perform. The court has no authority to set aside a verdict simply because à different verdict might have been found. A verdict can be set aside only where after giving proper weight to all the evidence it cannot be right. Motion for New Trial. No. 1142 April Term, 1917. “B.” C. P. Allegheny County. James F. McNaul, for plaintiff. H. M. Irons, for defendant. Before KLINE, HAYMAKER, CARPENTER, JJ. KLINE, J., February 14, 1920.-This action is against executors upon a contract made by the plaintiff with the testator, by which the testator, agreed to assume and pay as part of the purchase money, of certain land bought by him from the plaintiff; a mortgage thereon, which covered the land so bought and other land of the plaintiff. A deed was made in accordance with the agreement of sale and the defendant's testator entered into possession, but failed to pay the mortgages as he had agreed to do. After his death this suit was brought against the executors on February 19th, 1917. The defense contends that the Court erred in admitting the agreement of September 4th, 1909, between John McSorley and Albert L. Mamaux, as evidence in the case, in that the deed made in pursuance of the said agreement simply says that the conveyance is made subject to the lien of the mortgage, and does not contain the agreement to pay the same, from which it is argued that the contract to pay contained in the article of agreement is merged in the deed. We are unable to see how there could be any merger as to the land not conveyed by the deed; the execution of the deed, superseded the contract only, to the extent, that the deed included its provisions, and the provisions which were not included still remain in force: Lehman v Paxton, 7 Sup. Ct., 259. In the case of Blatz v Denniston, 7 Pa. Sup. Ct., 310, the Court refers to the first named case and says: "Here by agreement the purchaser of real estate covenanted to assume the payment of a certain mortgage on the property to be conveyed. The grantee failing to perform his said promise, the grantor was obliged to discharge the balance remaining unpaid after a foreclosure sale by the sheriff under the mortgage.” In Stewart v Trimble, 15 Pa. Sup. Ct., 517. "In Lehman v Paxton, 7 Pa. Sup. Ct., 259 and Blatz v Denniston, 7 Pa. Sup. Ct., 310, we held that by the vendee's acceptance of the deed, the vendor is not relieved from the performance of the stipulations of his McSorley v Mamaux et al., etc. contract of sale in respect to which the delivery of the deed did not work a performance." This principle has been held to obtain in: McGowan v Bailey, 146 Pa., 572 and 155 Pa., 256. Stockham v Gould, 149 Pa., 68. Townsend v Lacock, 222 Pa., 330. The defense further contends that the Court erred in admitting the agreement made on the 25th day of September, 1914, between John McSorly and Albert L. Mamaux, as evidence in the case, which agreement, was known as the "Driveway Agreement." It appears after suit was brought, the plaintiff asked leave to amend its statement of claim by setting up the loss of rights under a “Driveway Agreement," for the loss of the driveway itself, and damages sustained by reason of the garage built with view to the permanent use of the "Driveway Agreement." Subsequently, plaintiff's counsel presented to the Court, a further amendment of and a supplemental statement of claim and which was the amendment on which this branch of the case was tried. The Court ordered the amendments to go upon the argument list in connection with the previous amendment. The defendants filed an answer, briefs were submitted and the matter was fully heard upon general argument list and the Court held that the amendments were proper and ordered the same to be filed as a part of the pleadings in the case. We fail to see where there was anything unusual in allowing the amendments to be made to the statement of claim, as it did not set up a new cause of action or change the form of the action and was not barred by the statute of limitations; the breach not occurring until October, 1916; a right very liberally construed in favor of the parties asking to amend. Mitchell v The Railroad, 241 Pa., 536. Hall v The Railroad, 257 Pa., 54. It appears further from the evidence that on September 25th, 1914, the plaintiff and Albert L. Mamaux entered into a covenant whereby the parties were to mutually enjoy a right of way over both of their properties, as there was not sufficient property in either of them for a driveway between their properties, which agreement, was duly executed by the parties and entered of record. We are of the opinion, that there was no merger, as the land not conveyed in the deed and the provisions which were not included. still remain in force, the non-payment of the mortgage according to the terms of the contract, and upon which execution was issued, was a right existing prior to the "Roadway Agreement," and upon execution of the same wiped away all subsequent covenants entered into between the parties affecting the land, and would be naturally a subject of inquiry as to damages and was, therefore, properly admitted. The defendants counsel upon the trial of the cause, called the attention to the Court to the Act of April 22nd, 1856, which reads as follows: "No right of entry shall accrue, or action be maintained for a specific performance of any contract for the sale of any real estate or for damages for non-compliance with any such contract or to enforce any equity of redemption after reentry made for any condition broken, or to enforce any implied or resulting trust as to reality, but within five years after such contract was made or such equity or trust accrued, with the right to entry; unless such contract shall give a longer time for its performance, or there has been, in part, a substantial performance, or such contract, equity of redemption, or trust, shall have been acknowledged by writing, to subsist, by the party to be charged therewith within the same period; provided, that as to any one affected with a trust, by reason of his fraud, the said limita McSorley v Mamaux et al., etc. tion shall begin to run only from the discovery thereof, or when, by reasonable diligence, the party defrauded might have discovered the same; but no bona fide purchaser from him shall be affected thereby or deprived of the protection of the said limitations; and provided that any person who would be sooner barred by this section, shall not be thereby barred for two years from the date thereof." The mere reading of this Act is sufficient answer to the contention of defendant's counsel. It is placed in Purdon under the head of "Trusts and Trustees." The purpose of the Act was to quiet litigations arising out of trusts, arising out of executed contracts but not executory contracts. It barred an implied or resulting trust after the expiration of five years from the time when it accrued. If the Act could apply in a case such as the one at bar, then a man might make a contract to pay a mortgage and if five years elapsed before the breach arose, although the contract was under seal as in this case, yet the Act could prevent a recovery and the injured party would be helpless. Here, defendants are under contract to pay a mortgage, there has been a breach and damages have arisen out of that breach, and by no flight of the imagination can the Act be construed to apply in this case. That the Court erred in directing the jury to return the verdict on three different causes of action, is without merit as we have already discussed this phase of the case in the discussion of the amendments of the original statement of claim deciding that the amendments did not set up a new cause of action or change the form of the action and that the three separate verdicts were based merely upon matters growing out of the breach of the original contract entered into between the parties hearing the date of September 4th, 1909, the basis of this action and was done merely to aid and assist the jury should they determine the plaintiff was entitled to damages in the instances peresented to him. That the verdict was against the evidence and grossly excessive. We have carefully reviewed and considered the evidence in this case, and as the evidence was solely of experts as to values of property and although, they varied much which is not uncommon in cases of this character, the questions were of fact and depend upon the credit to be given the testimony of the witness. It cannot be said that the verdict is so clearly contrary to the weight of the evidence as to warrant the granting of a new trial. The Court has no authority to set aside a verdict simply because, if they had been on the jury they would have found a different verdict, it is not sufficient that the verdict may possibly be wrong, but after giving proper weight to all the evidence it cannot be right. The verdict was not excessive; the evidence would have justified a larger verdict. The testimony of the plaintiff's witness as to the amount of damages sustained by the plaintiff was not materially contradicted, and yet the jury brought in a verdict for less than that which under the overwhelming weight of the testimony could have been rendered. New trial refused. |
