W. M. Ritter Lumber Co v Director General of Railroads Operating
Pennsylvania Systém.

In Blue Valley Creamery Company v Zimmerman, 60 Sup. 278, an affidavit, in the nature of a demurrer to the sufficiency of the plaintiff's statement, was filed to the effect that the plaintiff, being a foreign corporation and having done business in Pennsylvania, had failed in its statement to allege that it has complied with the Act of June 8, 1911, P. L. 710. The Court said: "His asserting that the plaintiff, before December, 1913, was doing business in the State of Pennsylvania, is a mere legal conclusion and the facts to support it are not stated. As was said in Federal Glass Co. v Lorentz, 49 Pa. Superior Ct. 585: 'It is true the affidavit avers the doing of business in Pennsylvania as a legal conclusion, but it gives no facts upon which we can look and determine that the plaintiff has violated the provisions of the Act of Assembly. All that is here alleged is entirely consistent with the conduct of a foreign corporation engaged in strictly interstate commerce. The affidavit of defense should have stated the facts from which it could be clearly inferred that the particular contract with which we are concerned was violative of the Act. We will not assume that the plaintiff was a violator of the law, when the facts set forth are consistent with the doing of a lawful business. Innocence is to be presumed rather than guilt... "The affidavit should state the character of the business done in violation of the Act': Galena M. & S. Co. v Frazier, 20 Pa. Superior Ct. 394."

In Parnakian v United States Hoffman Machinery Co., 28 Dist. Rep. 524, it was held that a foreign corporation will not be held to be doing business in this State, under the meaning of the Acts of June 8, 1911, P. L. 710, and April 22, 1915, P. L. 170, requiring registration, unless it has capital employed or property located in Pennsylvania, and in an action against the corporation based on its failure to register, the statement must aver facts to bring the defect within the statutory provisions.

It seems to us that at this time, under the bare statement that the plaintiff was a West Virginia corporation, there are no facts upon which a judgment could be entered in favor of the defendant. If an affidavit of defense is filed, and upon the trial it appears that the plaintiff, as a foreign corporation, was doing business within the State, without complying with the Acts of Assembly, and the facts presented bring the case within the prohibitions of the law, it may be our duty to enter judgment for the defendant; but that ought not to be done at the present time.

Therefore, the question of law raised by the defendant is overruled, and the defendant is now permitted within fifteen days to file a supplemental affidavit of defense.

In re John Connor.

Contempt Conduct of Juror-Embracery-Punishment.

A juror who is found guilty of embracery may be punished summarily by the Court or may be indicted and these remedies are concurrent.

Rule upon John Connor. No. 806-J, November Term, 1919. Q. S. Schuylkill County.

R. A. Freiler, for John Connor.

BERGER, J., June 21, 1920.-This is a rule against John Connor of Ashland, Pa., to show cause why he should not be punished for contempt of court for having approached Peter Tretter, a juror sworn to try the case of Commonwealth v Gormley, with the suggestion that the defendants ought to have been tried separately, and for having requested the said juror to vote for a disagreement in the deliberations of the jury. The respondent made answer to the rule, and testimony in support of it was taken. The evidence establishes the facts which are stated as the foundation of the rule.

66 *

It requires no discussion to show that the acts charged against the respondent constitute the crime of embracery, if established according to law, for which an indictment lies. In fact, the respondent has been indicted for that crime. In Greason v Cumberland Ry. Co., 54 Pa. Superior Ct. 595, Orlady, J., in speaking of an attempt to influence a juror, said (p. 599): * a deliberate attempt to influence a juryman while in service, and in attendance upon the court, as such must be regarded as a contempt for the orderly administration of the law, which cannot be tolerated under any subtle definition as to the place where it occurred. Nor do we doubt the authority of the court to punish such an offense summarily."

In Houser's Case, 57 Pa. Superior Ct. 43, it was held that the remedy for the wrong committed when a juror is corruptly approached is by criminal prosecution or by a summary proceeding, and that these remedies are concurrent. We have elected to proceed summarily in this case because it is not an uncommon practice for citizens of our county to speak to jurors or in their presence for the purpose of influencing them, or in a manner calculated to influence them in the discharge of their duties as jurors. This is a flagrant offense against the administration of justice, and as is said in Houser's Case, supra, "such crimes are extremely difficult to prove, and the purpose in imposing punishment is as much to deter the offender and others from committing like offenses, and to protect society, as it is to personally penalize the guilty persons." For the reasons above stated we find John Connor guilty of contempt of court as charged.

And now, June 21, 1920, John Connor, of Ashland, Pa., is adjudged guilty of contempt of court. He is directed to pay the costs of this proceeding and a fine of two hundred and fifty dollars is imposed upon him, the said fine to be paid to the sheriff for the use of the County of Schuylkill.

Medicine Store

1917, P. L. 208.

In Re Druggists.

-Registered Pharmacists-Employment-Act of May 17,

"Medicine store" has the same meaning as "drug store," and its use is prohibited, unless the provisions of the Act of May 17, 1917, P. L. 208, are complied with.

Medicine is defined to be a substance used as a remedy for disease, a substance having, or supposed to have, curative properties. "Drug" is defined as any vegetable, animal or mineral substance used in the composition or preparation of medicine.

OFFICE OF THE ATTORNEY GENERAL,
Harrisburg, Pa.

Honorable Lucius L. Walton,

September 27, 1920.

Secretary, Pennsylvania Board of Pharmacy,

Williamsport, Pa.:

Dear Sir:

Your request for an opinion as to whether certain unregistered persons, employing the title "medicine store" for a place of business, who do not employ or have a registered pharmacist in charge thereof, are doing so in violation of the Act of May 17, 1917, P. L. 208, entitled "An Act to regulate the practice of pharmacy and sale of poisons and drugs," etc., has been received.

Section 15 of the Act provides as follows:

"That it shall be unlawful for any person, firm, or corporation to use the title, 'pharmacist,' 'assistant pharmacist,' 'druggist,' or 'apothecary,' except as authorized under this Act of Assembly. It shall further be unlawful to use the title, "drug store' or 'pharmacy,' or any title having the same meaning, for a place where drugs are sold at retail except by persons registered as pharmacists under the provisions of this Act: Provided, however, it shall not be unlawful for the owner of a pharmacy, who is not registered under this Act as a pharmacist, to employ such titles when his pharmacy is conducted by a pharmacist duly registered under this Act. Any person violating this section of this Act of Assembly shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine of not less than fifty dollars ($50.00) and the costs of prosecution."

The question which arises here, therefore, is whether the title "medicine store" has the same meaning as "drug store" or "pharmacy." "Medicine" is defined to be a substance used as a remedy for disease, a substance having, or supposed to have, curative properties. "Drug" is defined as any vegetable, animal or mineral substance used in the composition or preparation of medicine.

While medicines are compounded or prepared from drugs, this distinction is not ordinarily recognized, and it seems to me that the title "medicine store" is used by persons not registered as pharmacists for the purpose of inducing others to believe that the ordinary drug store is therein conducted.

The Act provides that it shall be unlawful for any person other than a registered pharmacist to use the title "drug store" or any title having the same meaning.

In my opinion the title "medicine store" has the same meaning as "drug store," and its use, therefore, prohibited by Section 15 of the Act of May 17, 1917.

Very truly yours,

BERNARD J. MYERS,

Deputy Attorney General.

Contracts

Schulz v. Gloeckner, et al.

Coal Mine-Misrepresentations-Evidence-Appeals.

Where the defense was partial failure of consideration in the purchase of a coal mine in that there was less coal than represented by plaintiff, it was error for the Court to strike out testimony relating to alleged representation on the ground that it varied the terms of a written agreement. This evidence was necessary to prove the actual amount of coal and the loss. It did not alter or vary the written terms but showed failure of consideration.

Petition to Appeal. No. 2029 July Term, 1920. C. P. Allegheny County.

L. K. & S. G. Porter, for plaintiff.
John F. Gloeckner, for defendant.

Before BROWN, MACFARLANE and CARNAHAN, JJ.

MACFARLANE, J., September 30, 1920.-The consideration for the purchase of the coal mine owned by the plaintiff and Kirk was $13,000, payable in twenty-four notes, including the four upon which this suit was brought. The affidavit of defense does not aver in so many words that the purchase was made on the representation that there were 24 acres of coal, but states that the coal acreage was made the basis of the deal. It was further alleged that there was about three-fourths of an acre, to the damage of defendant in at least $10,000. The testimony of Mr. Gloeckner was that this representation was made in the presence of the plaintiff; that he (Gloeckner) said that there were 9,000 tons of coal to an acre, and that if they wanted $12,000 for 18,000 tons of coal they would prefer to pay a royalty. This was at the time of the first representation that there were two acres of coal. That at a later interview Kirk said that they had 24 acres and asked an additional $1,000, and the agreement was drawn up on that basis.

At the close of his testimony, the Court sustained a motion to strike out the testimony relating to any misrepresentation. This was on the ground that evidence could not be admitted to vary the written agreement of sale, in which the amount of coal was not specified.

We think this was error. The defense was partial failure of consideration and the testimony was admissible to prove the consideration, the actual amount of coal and the loss. Machin v Trust Co., 210 Pa., 253, holds that it is competent for a defendant to prove that he was induced to execute a written agreement by fraudulent representations effecting the consideration. Such testimony does not alter nor vary the terms of the contract, but shows the failure of consideration, which entitled the defendant to relief from the written obligation. Evidence is receivable that the consideration has failed: McCulloch v McKee, 16 Pa., 289.

Whether the defendant had any corroboration of his testimony does not appear, for the ruling of the Court was adverse to his claim and no further evidence was offered.

ORDER.

September 30, 1920: Rule absolute and appeal from the judgment of the County Court is granted.

While there seems to be no objection to the use of a family or historic name as a part of a corporate name, to incorporate a historic or other revered name alone for purely commercial reasons, is entirely different. It fails to commend itself to one's sense of propriety and offends against good taste and sound public policy. Application for charter for a general or department store under the name of "Ben Franklin, Inc.," refused.

I have before me the application of certain persons to secure a charter for the purpose of conducting a general or department store under the name "Ben Franklin, Inc."

You ask to be advised whether this charter should be granted.

There seems to be a growing tendency to incorporate companies under the name of some historic character. The tendency should be curbed without delay. The field from which to select names of corporations is so broad that no possible hardship will follow the refusal to establish a precedent which will result in encouraging applicants for charters to select names of this kind. To permit the forming of a corporation to conduct the character of business indicated by this application under the name of "Ben Franklin, Inc." tends to commercialize the name of a great national character and one especially revered in Pennsylvania. It seems to me that the case is entirely different from the granting of a charter under such a name as "The John Hancock Insurance Company." While there seems to be no objection to the use of a family or historic name as a part of a corporate name, to incorporate a historic or other name alone is essentially different. It fails to commend itself to one's sense of propriety, and offends against good taste and sound public policy.

I recommend, therefore, that the application for this charter be refused until an appropriate name is selected.

Respectfully yours,

WM. I. SCHAFFER,

Attorney General.