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Laughner et al., Etc., v Wally.

of each of the co-tenants that it should be put down, and it was an undertaking which was appropriate to tenants in common, since it would increase the production of the common property. In the absence of a distinct agreement between them that their relations to the property and to each other should be changed, the presumption is that the old relation continued and that they treated with each other as owners of separate interests in an undivided lease.

It is an elementary law that a partnership is created only by a contract express or implied, and the burden of showing its existence on him who alleges it. There was unity of possession which is one of the distinguishing characteristics of a tenancy in common. There was contribution to the cost of operating the well or wells, but this would be compelled between tenants of common, by proper remedy at law. There was a division of the profits but this was in accordance with the rights of the co-tenants, as each had a right to share in the profits in proportion to his interest in the estate.

There is, therefore, no circumstance relating to the business done upon, or in the development of the lease, not fairly and naturally referable to the relations of the parties sustained to each other as tenants in common. There is no agreement shown that tenants in common might not properly make with each other for the development of the property in which each held a separate title, but an undivided possession.

Between persons so situated, a partnership does not result by implication of law. It must be created by an agreement, and no such agreement is shown. Tenants in common may become partners, like other persons, where they agree to assume that relation toward each other; but the law will not create the relation for them as the consequence of a course of conduct and dealing naturally referable to a relation existing between them, which made such a course of conduct to their common advantage.

Dunham v Loverock, 158 Pa., 197.

We are therefore of the opinion that the motion ex parte defendant for judgment non obstante veredicto should be refused.

Harris et al. v Brinton.

Contracts Coal Mine

- Appeal.

Pleadings-Averments-Compulsory Non-Suit

In an action to recover the balance due on a written contract for the transfer of a coal mine and its equipment, where defendant, after an initial payment, was placed in possession, it was not error to refuse to sustain objections to defendant's offer to prove the circumstances which led to the making of the agreement, defendant being familiar with the mine and not having alleged fraud, accident or mistake.

Where the testimony as to certain payments made on a contract in the transfer of a coal mine was conflicting the question was for the jury and the court committed no error in refusing defendant's motion for a compulsory nonsuit.

Petition for Appeal. No. 619 July Term, 1919. C. P. Allegheny County.
A. L. Petty and Jas. A. Nugent, for plaintiffs.
Alfred M. Lee, for defendants.

FORD, J., March 20, 1920.– This action was brought in the County Court to recover a balance alleged to be due on a contract. The contract is dated December 7, 1916, is between the parties plaintiff and defendant and therein plaintiffs transfer a coal mine, with its equipment, and defendant agrees to pay therefor the sum of $2,000; $125 on signing the agreement and the balance in certain installments.

The plaintiffs obtained a verdict upon which judgment was entered and the cause is now before the Court on a petition for leave to appeal. In his petition, the defendant alleges that the Court erred:

(a) In refusing defendant's offer to prove what was to be transferred under the agreement; (b) sustaining objections to defendant's offer to prove the circumstances which led up to the making of the agreement; and (c) in refusing defendant's motion for a compulsory non-suit.

It appears that plaintiffs operated a coal mine located near Wilmerding, In, or prior to September, 1916, they advertised the mine for sale, and defendant, who resided at Arnold, saw the advertisement, visited Wilmerding and, after some negotiation between plaintiffs and defendant, he took possession of the mine and its equipment. The testimony as to when he entered into possession is disputed, but defendant admitted that he had charge of the mine and conducted operations for at least one month prior to making the contract.

The plaintiffs having rested, defendant moved the Court for a cumpulsory non-suit, alleging that plaintiffs had not proved that a satisfactory transfer had been made.

The agreement was prepared by or under the direction of the defendant, he was in possession and knew the character of the equipment. Mr. Harris, one of the plaintiffs, testified that plaintiffs transferred a lease obtained from the Valley Coal Company, plaintiffs' right, title and interest in the mine, the equipment and the trade. Since the execution of the agreement, defendant has operated the mine, sold the product and exercised the rights of an owner. He does not allege that he has been disturbed 'n his occupancy nor that he was misled or deceived by any statement made by the plaintiffs, nor that he notified the plaintiffs of a defect in the title. In his affidavit of defense he does not set forth in what respect the transfer was defective or unsatisfactory. He did not allege fraud, accident or mistake, nor that the making of the contract was induced by a parol, contemporaneous promise or agreement. Refusing the offer to show the circumstances attending the purchase was not error.

Harris et al. v Brinton.

Defendant denies that plaintiffs were the owners of the mine and equipment and avers that "it was verbally agreed that no further payments were to be made until title to the property was cleared up."

In his brief, counsel for defendant contends that plaintiffs did not have a lease and defendant was compelled to "buy in other leases."

It is to be noted that in the affidavit of defense, defendant does not allege that it was necessary to purchase additional leases nor from whom the leases were obtained or what amount was paid therefor. It is manifest that defendant relied upon his claim of set off and alleged an amount exceeding plaintiffs' demand. The counter claim was based upon payments alleged to have been made upon behalf of plaintiffs. Of the payments, plaintiffs admitted various amounts aggregating $809.30. Notwithstanding the admission, defendant sought to interrogate witness concerning the identity of the payees and for what the debt was contracted. We see no error in sustaining the objection made to the questions. The names of the payees were set forth in the affidavit of defense and the amounts were undisputed."

Several of the items of set off were contraverted. Plaintiffs claimed that defendant had not paid the amount alleged to have been paid by him and that they were not liable upon certain notes which had been purchased or paid by defendant, after maturity.

At the time of the sale of the mine and equipment, the plaintiffs were indebted to various persons and on the theory that he had a right to perfect his title, the defendant was permitted to show all payments made on behalf of plaintiffs. The defendant admitted that he paid C. W. Christopher $200 for notes calling for $500, and the latter amount he claims as a set off. Immediately, or shortly after obtaining the notes, he turned them over to C. W. Sweet in payment of a debt, whereupon Mr. Sweet notified defendant to make no further payments upon the coal property recently purchased by him from John Harris and John L. Rhodes.

The testimony respecting the amount paid by defendant was conflicting and the jury was instructed: "If*the plaintiffs failed and neglected to transfer a good title, and defendant in good faith was obligated make his own title good, equity and justice would suggest that he reimburse himself out of the deferred payments."

We have carefully examined the record and reviewed the testimony and are not convinced that the motion should be allowed.

Leave to appeal is therefore refused.

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Kelly v Silverman.
-Award -Claimant's Wages Room and Board

Workmen's Compensation

-Appeal.

An appeal in a Workmen's Compensation case was dismissed, where objection was made as to the amount of the award based upon claimant's wages, but the record showed there was evidence to sustain the finding of the referee.

No. 510 January

Sur Appeal from Workmen's Compensation Board.
Term, 1920. C. P. Allegheny County.

Linus P. McGuiness, for plaintiff.
Wishart & Dickie, for defendant, appellant.

SHAFER, P. J., March 12, 1920.—The appeal is by the defendant as to the amount of compensation allowed the claimant. The claimant's wages were $10 dollars a week and room and board. The referee has awarded compensation as upon a wage of $20 per week, counting the room and board at $10 a week, and the only question in the case is whether or not there is evidence from which the referee could find that the money value of the board and room had been fixed and agreed upon at the time of the hearing. The evidence as to what was said at the time of the hearing is somewhat contradictory, but in one part of the testimony of the man who actually hired the claimant it appears that the claimant was told at the time he was employed that the room and board would amount to $10. We think this is a sufficient fixing of the value within the statute, and the appeal is therefore dismissed.

Director General of Railroads v Keefer. Assumpsit-Subpoena Duces TecumExpenses -Action to Recover

Appeal.

The service of a subpoena duces tecum does not raise an assumpsit to pay for whatever trouble or difficulty the witness may have in finding the papers called for, and in an action by plaintiff to recover for said expense from defendant, judgment entered for defendant.

Certiorari to County Court. No. 1018 January Term, 1920. C. P. Allegheny County.

Patterson, Crawford & Miller, for plaintiff.
W. H. Coleman, for defendant.

SHAFER, P. J., March 12, 1920.—The action in the County Court was by the Director General of Railroads for his expenses in finding books and papers in an answer to a subpoena duces tecum, served upon him by the defendant. The charge is for the wages of a certain number of clerks, for a certain number of hours' time spent in hunting out these records, the bill amounting to $140.71. The County Court entered judgment for the defendant. No precedent has been shown us of a recovery upon any such claim, nor has the plaintiff pointed out any statute upon which he relies. We are clearly of poinion that the service of a subpoena duces tecum does not raise an assumpsit to pay for whatever trouble or difficulty the witness may have in finding the papers called for. In the present instance it seems to us that the plaintiff should either have called the attention of the parties serving the subpoena, to the difficulty of responding to it, and demanded

Director General of Railroads v Keerer.

compensation in advance, and if no proper arrangments could have been made, he should have applied to the court out of which the subpoena issued for relief. We are of opinion therefore that the judgment of the County Court was right, and it is therefore affirmed.

Katalenich v Katalenich.

Divorce Variance in Names-Publication Procedure.

Where the name in a divorce libel differed from the name in the sheriff's proclamation, as well as in the master's notice of hearing, the Court returned the papers with directions for readvertising and the reappointment of the master.

In Divorce. No.1532 April Term, 1919. C. P. Allegheny County.
Alfred Cahen, for libellant.

REID, J., March 13, 1920.-On examination of the papers in this case, we find that the libel was filed in the name of Josip Katalenich. However, when the sheriff's proclamation was made, it was advertised in the name of Josip Katalemich. Then, when the master's notice was published, the name was transformed to Katalenish. Thus we have two different names appearing in the proceedings, neither of which corresponds with the correct name of the libellant.

In view of the fact that any decree in this case must be based upon notice by publication, it is apparent that we can not proceed with such errors confronting us.

The result is that the proceedings must be taken up de novo, beginning with the republication of the sheriff's proclamation in the correct name, to be followed by the reappointment of a master, the republishing of notice of the master's hearing, and the taking of testimony anew.

As this may be a meritorious case, we do not refuse the decree on account of the condition of the record, but return it to the files.

ORDER.

And now, March 13, 1920, we return this case to the files with permission to libellant, if he sees fit thus to proceed, to readvertise the sheriff's proclamation and procure the reappointment of the master, who shall proceed to give such notice as the law may require before hearing the testimony.

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