Fayer, Assignee, v Hessey Co.

Ejectment Confessed on Lease-Bankruptcy-Covenants-Construction.

A rule to open a judgment in amicable ejectment was made absolute where there had been no default in the payment of the rent, but proceedings in bankruptcy were instituted against the lessee contrary to a clause in the lease which gave the lessor the option of confessing judgment for covenant broken, such proceedings to be deemed "an assignment within the meaning of the lease," in that the lease did not provide that bankruptcy or insolvency, in fact, should be taken as an assignment, and further, a petition was pending for leave to offer a composition to creditors, so that the case was not within the terms of the lease justifying a forfeiture.

Rule to Open Judgment in Ejectment. No. 3858 September Term, 1919. C. P. No. 3, Philadelphia County.

Englander & Cohen, for rule.
G. Stanley Hurlbut, contra.

FERGUSON, J., November 1, 1919.-This is a rule to open a judgment in ejectment entered by confession upon a lease. The lease forbade an assignment without the written consent of the lessor, "it being agreed and provided that any lawful levy or sale or execution or other legal process, and also any assignment or sale in bankruptcy, or insolvency or any compulsory procedure, may, at the option of the lessor, be deemed and taken to be an assignment within the meaning of this lease." There has been no default in the payment of the rent, but proceedings in bankruptcy were instituted against the defendant. These proceedings were based upon an admission in writing made by the defendant of his inability to pay his debts and his willingness to become a bankrupt. Immediately after the proceedings were instituted, defendant filed in the United States District Court a petition for leave to present an offer of composition to his creditors withou adjudication in bankruptcy. That petition is still pending and undetermined. The plaintiff construes the proceedings in bankruptcy and the offer of composition to be an assignment within the meaning of the contract.

Forfeitures are not favored by the law, and when one is invoked, the right must clearly appear. The clause of the contract above quoted provides against the infringement of the right of the landlord to deal only with the tenant of his selection. Any compulsory act, therefore, by competent legal authority tending to introduce another occupant, temporarily or otherwise, in the demised premises, or to disturb or remove the personal property found thereon, would justify a termination of the lease. The whole tenor of the clause is clearly to this effect and cannot be extended.

In our opinion, none of the events provided against has happened. The contract does not provide that bankruptcy or insolvency, in fact, shall be take as an assignment. Only an assignment or sale in bankruptcy or insolvency or by other compulsory procedure can be so regarded.

We cannot regard the facts and circumstances above recited as an assignment within the meaning of the contract. No other default having been alleged, we are obliged to make the rule absolute.

Commonwealth v Speer.

Husband and Wife—Desertion and Non-Support—Nevada Divorce—Revoking First Order-Second Prosecution.

Where defendant, after having been ordered by the court to pay his wife a certain amount per month for desertion and non-support, went to Nevada, obtained a divorce, then returned to Pennsylvania, had this order revoked and married again, it was held that the first wife could again sue defendant for desertion and non-support in another county where the first wife had a residence. The alleged divorce obtained in Nevada would not be a bar to a second prosecution.

The plea that a divorce obtained in Nevada was a bar to a second information for desertion and non-support was overruled where the wife had made a second information in another county after an order in a former information for desertion and non-support had been revoked and defendant had married a second wife. Desertion and Non-Support. No. 1005-1918. C. C. Allegheny County.

Albert G. Liddell, for prosecution.

Carl D. Smith and D. B. Taylor, for defendant.

KENNEDY, P. J., December 31, 1919.-The facts in this case are as follows: The defendant and prosecutrix were husband and wife, living in Indiana County, Pennsylvania.

On the 6th day of July, 1914, the husband, without cause, deserted his wife and subsequently, at No. 42 September Sessions, 1914, of the Court of Quarter Sessions of Indiana County, upon information of the wife, alleging desertion and non-support, the defendant was ordered to pay his wife $40.00 per month, which order on September 3, 1917, despite the protest and objection of the wife, was revoked as of October 11th, 1916, on which date, the defendant secured an alleged decree in divorce from the prosecutrix at Reno, Nevada.

On October 23rd, 1916, but twelve days after his having fraudulently obtained his alleged divorce from the prosecutrix, the defendant, while yet the husband. of the prosecutrix, went through the formality, in Lawrence County, Pennsylvania, of an alleged marriage with another woman, with whom he is now living in Indiana County, Pa.

On August 22nd, 1918, the prosecutrix instituted this proceeding, at the conclusion of which, on April 16th, 1919, the defendant was ordered to pay to the prosecutrix $50.00 per month for four months and $5.00 weekly thereafter, for her support.

The act of 1867 under which this proceeding was instituted is, inter alia, an act for the support of a wife, from whom the husband has separated himself without reasonable cause, or whom the husband has neglected to maintain.

There is no penalty attached for this desertion or failure to support, beyond the fact that the defendant may be imprisoned until he comply with any order of the Court based upon the act.

In this case the husband deserted and failed to support his wife from the 11th of October, 1916, until April, 1919. It has been said that desertion is not a continuing offense, but surely non-support is continuing so long as it exists. The cessation of the husband's payments to his wife from October, 1916, until April, 1919, even though because of the revocation of the Court order authorizing them, was not with her consent, but clearly against her will; the need of support was there, the necessity as great; she is just as much his wife as before. The change in circumstances in the meantime is so marked, he openly and notoriously living and cohabitating with another woman, that any hopes of a reconciliation which the wife may have entertained were by his acts almost hopelessly shattered, and this climax in her

Commonwealth v Speer.

troubles having confronted her, is she debarred by the language of the act from again seeking the remedy which it afforded her? Has the obligation to support his wife been forever extinguished although the necessity recurs daily?

We do not so construe this act and for this reason the plea of the defendant is overruled.

McGrath et ux. v The Sun Publishing Co.

Libel-Interview Not Authorized

-Special Damages Non-Suit.

A motion to take off a compulsory non-suit was refused in an action for was charged with having published an interview with libel where defendant plaintiff concerning a tragedy in her family, plaintiff not having been interAs no special damages had been averred viewed nor authorized the publication.

in plaintiff's statement, there could be no recovery.

Sur Motion to take off Non-Suit. No. 608 April Term, 1916. C. P. Allegheny County.

Ralph P. Tannehill, for plaintiffs.

Reed, Smith, Shaw & Beal for defendant.

re

HAYMAKER, J., December. 16, 1919.-This action is to recover damages for libelling the wife, Mrs. Agnes McGrath, the wife of J. F. McGrath. There is no averment in the statement of claim of special damage and none was Both averment and proof were necessary to a proven on the trial. covery of such. The alleged libelous article was not published "of or concerning her," but of or about one Ward Snyder, her foster brother, who, on the day before the article was published by the defendant, had killed his wife and taken his own life. It is not claimed that the main features of the publication are untrue, or that the article in itself, or on its face, is defamatory of Mrs. McGrath. The publication purports to be the result of an interview by a reporter with her. She was neither interviewed nor did she authorize the publication. The action is based on the theory that she was damaged in the estimation of her friends and relatives, in giving out for publication, an account of a tragedy involving a member of her There being neither own family, whether that account was true or false. averment nor proof of special damage, was the publication actionable per se. thereby giving a right to recover damage, implied or presumed from the fact of publication? If it were we should have sent the case to the jury, but on reading the article and consideration of the evidence we can discover no foundation upon which the action can be supported and cur attention has not been called to any authority sustaining the plaintiffs' contention. It has not been pointed out to us how the words alone contained in the article were fairly calculated to, and would necessarily, expose, or tend to expose, Mrs. McGrath to contempt, ridicule or degradation of character in the minds of persons of ordinary understanding and discretion, and the evidence falls far short of proof of any such effect of the publication.

For these reasons we allowed the motion for judgment of compulsory non-suit, and we see no reason for changing our opinion.

to take off the non-suit is refused.

The motion

Willson v Forney.

Injunction Agreement in Restraint of Trade

sideration-Terms.

-Partnership Liabilities

-Con

An agreement between two partners, when they dissolved the partnership, that defendant would refrain from soliciting insurance for a specified time within the same city, was enforceable and defendant was enjoined from soliciting further business. The payment by plaintiff of the partnership liabilities on specified terms agreeable to both parties was a valid consideration for such an agreement.

In Equity. No. 533 January Term, 1920. C. P. Allegheny County.

Armin H. Friedman, for plaintiff.

Walter L. Riggs, for defendant.

FORD, J., November 17, 1919.-This is a bill in equity to restrain the defendant from engaging in the insurance and renting business in violation of a written agreement. A preliminary injunction issued and upon a motion to continue the injunction until final hearing, testimony was taken.

It appears that the plaintiff, Sydney G. Willson and the defendant, Byron B. Forney, associated as co-partners under the nane of Forney and Willson, were engaged in the real estate and insurance business at No. 409 Peoples Bank Building, McKeesport.

By an agreement dated March 1, 1919, defendant withdrew from the firm and for a recited consideration of One Thousand Dollars, sold and assigned all his right, title and interest in the co-partnership, including the goodwill, furniture, fixtures. insurance expirations and leases held or controlled by the co-partnership to the plaintiff. By the terms of the agreement the recited consideration was not to be paid in cash, it being provided that "in lieu of the receipt by Byron B. Forney of One Thousand Dollars" Sydney. G. Willson assumed and agreed to pay all outstanding obligations of the firm, provided the liabilities did not exceed Two Thousand Dollars, but if the liabilities exceeded that amount, each of the contracting parties agreed to pay one-half of the excess.

The agreement was to become effective and binding on May 1, 1919. On or about that day the parties met and defendant submitted a statement prepared by him or under his direction, showing the assets and liabilities of the copartnership. From the statement it appeared that the liabilities exceeded the assets by about $2,127.14. The statement was approved by both parties and defendant paid plaintiff $63.57, being one-half of the excess and also paid one-half of a sum owing by the firm, which in preparing the statement had been overlooked.

The plaintiff is now and since May 1, 1919 has been in possession of the assets of the co-partnership and has conducted a real estate and insurance business in the place formerly occupied by the firm.

The agreement contains the following stipulation:

"It is further agreed between the parties hereto that said B. B. Forney shall refrain from entering into or personally conducting an insurance and renting business in the City of McKeesport for a period of three and onehalf years from and after May 1st, 1919. unless the written consent shall first have been obtained from S. G. Willson, party of the second part, granting him permission so to do, or unless the said S. G. Willson should die in the meantime or sell or dispose of his said business. The said B. B. Forney however is granted permission to broker insurance or renting business through S. G. Willson, the party of the second part and is to receive therefore the usual brokerage commission."

Thereafter, until August 1, the defendant engaged in a real estate business in the City of McKeesport and accounted to plaintiff for any in

Willson v Forney.

surance business transacted by him. On or about August 1, he requested plaintiff's permission to engage in the business of writing insurance and of conducting a renting business. The plaintiff did not definitely reply but said that it would be necessary to consult other parties. Without having first obtained plaintiff's permission the defendant re-entered the insurance and renting business and since then has been engaged in that business. He has not accounted for the commissions earned by him, nor has he conducted the business through the plaintiff.

The defendant admits being engaged in the business of soliciting and writing insurance but contends that the agreement was without consideration and therefore void or voidable at the election of either of the parties. With this contention we cannot agree. The recited consideration was an estimate of the probable liabilities less the assets. As between themselves, each of the parties was liable for one-half of the debts. The plaintiff agreed to pay the entire indebtedness, provided that the aggregate amount was not more than Two Thousand Dollars. In the event that the indebtedness exceeded that amount, plaintiff and defendant each agreed to pay one-half of the excess. Plaintiff was obligated to assume and pay Two Thousand Dollars of the indebtedness, in addition to one-half of the excess. There is no question but that there was a valid consideration, one acceptable to the parties.

It is urged that the good-will, fixtures and insurance expirations were not valued or itemized, but the statement of assets and liabilities was prepared by the defendant any by him submitted to the plaintiff. There is no claim nor can there be a claim that defendant was misled by any act of plaintiff. Defendant had possession of the books and papers and without consulting plaintiff prepared the statement and so far as appears never expressed any dissatisfaction with the consideration agreed to be paid until the filing of the bill in this case.

Defendant further contends that the damages are liquidated and plaintiff has a full and adequate remedy at law. The defendant is competing with the plaintiff in the very business in which he agreed to refrain from entering for a definite fixed period; he is advertising that he is engaged in that business and has issued a circular letter soliciting the writing of policies. Conceding that an action at law might disclose the amount due plaintiff on policies heretofore written by the defendant, yet, unless restrained the defendant might, in violation of his covenant, continue the business to the loss and detriment of the plaintiff.

Defendant urges a number of other reasons why the injunction should not be continued. Many of the objections arise out of facts not fully disclosed, and we are of opinion that they can be more satisfactorily disposed of after final hearing.