Dietrich v Dietrich.

her, depressing her physically and mentally, and instilling into her mind and consciousness a feeling of dread and terror, causing her nerves to be unstrung and her health to be broken down to such an extent that she was required to summon a physician, and forcing her finally to withdraw from the respondent's home; that during most of the time the parties lived together the respondent was uncleanly and unsanitary in his habits, always sleeping in his underclothes, which he changed but once a week, and not bathing himself, no matter how warm the weather might be, making it impossible for her to occupy the same bed with him at nights, and hanging his outer stable clothes so near to the dining table at meal times as to be nauseating; and that at times he ordered her to leave his house, threatening her that if she did not do so he would throw her out, telling her that he did not want her for an ornament but to cook for him and to do the work about the house.

Most of the material allegations of the libellant were denied by the respondent, and the testimony of the physician called by the libellant did not corroborate the testimony of the libellant as to her alleged nervous condition. The respondent denied that he ever called the libellant vile names or assaulted her with a cane. He testified that at one time his wife called him a German and a liar, and said to him: "You are just like all the rest of the Germans, you lie and then lie out of it;" and that he did say to her in reply thereto : "Damn it, don't call me a German or I will slap your teeth down your throat." And he testified that upon another occasion, at meal time, his wife called him a liar, and told him he ate like an old Hunky, whereupon he said to her: "Look here, lady, I never was called a liar in my life and if it wasn't for the law I would slap your teeth down your throat," and that she then came close to him and said: "You are a liar and I dare you to touch me."

The respondent testified that he and the libellant had sexual intercourse with each other several times before they were married, and that after their marriage he contracted from the libellant a venereal disease. The libellant denied these allegations of the respondent, and her counsel contend that the mere giving of that testimony by the respondent publicly in the presence of the libellant and others, some of them her neighbors, and the making of it a matter of public record, evidences a deliberate intention on the part of the respondent to publicly defame his wife, and of and in itself constitutes such indignities as to render her condition intolerable and life burdensome, and in such public defamation of the libellant as entitles her to a divorce from bed and board, it being urged by counsel that said testimony was immaterial to the issue in this case and therefore incompetent. We find ourselves unable, however, to see the matter as seen by counsel. The sexual relations and other close personal relations of the parties after their marriage were not pleasant, and the testimony of the respondent on the subjects mentioned, and the libellant's denial of her husband's statements in those respects, developed naturally out of the controversy between them, and, to some extent at least, was relevant and competent as affecting the knowledge of each of the other's habits and tendencies prior to their marriage, and their probable attitudes thereafter, and as throwing some light, under the conflicting testimony, on the condition that actually existed between the parties as the time the libellant left her husband's home. Such statements given in evidence by a respondent at a hearing on a divorce application, growing out of the contentions then existing between the parties, stand on an entirely different basis from similar statements made falsely by a husband in defamation of his wife before application for divorce made, constituting part of the cruelty or indignities relied upon at the time of the institution of the proceeding. The respondent testified that in looking through the libellant's dresser drawers while the parties were living together, after, as he alleges, he contracted the venereal disease from his wife, he found in one of the drawers two woman's syringes and a man's syringe and a bottle half full of some kind of medicine. These allegations of the respondent were not denied by the

Dietrich v Dietrich.

libellant, nor were the circumstances explained. The respondent has said that the libellant did not prepare his meals for him half the time. He denies hanging any of his working clothes so near to the dining table as to be nauseating, stating in that connection that he did not even work about the stable, as indicated by the testimony of his wife. He testified that he generally took a bath two or three times a week all through the summer, and that he never knew his wife to take a bath. The libellant admitted that she visited the respondent's home at Point Marion prior to their marriage and knew the character of his home and the kind of business in which the respondent was engaged.

The master has found the material facts to be that threats against the libellant were made by the respondent several times while they lived together, but that such threats were not carried out, and that the life of the libellant was not endangered thereby; that the treatment of the libellant by the respondent during the time they lived together was indelicate and inconsiderate, but was, to a large extent, provoked by the conduct of the libellant, and, being retaliatory, was not excessive; that the respondent provided a suitable home and ample financial support for the libellant during the time they lived together; and that the life of the libellant was not made intolerable or burdensome by the conduct of the respondent. And the master states in his report that the weight of the testimony is in favor of the respondent. We understand full well that the findings of fact of a master in divorce do not have the same force and effect as the findings of fact of a referee in a civil case, or of a court in a case tried by the court without a jury, which will not be disturbed except for manifest error, and that it is the duty of the court to review the case on its merits, to examine and consider the evidence, and to determine by its own judgment the controversy presented, stating its reasons for overruling or sustaining the exceptions to the master's findings. But it is the duty of the court to give consideration to the opinion and report of the master, particularly where the evidence is made up largely of oath against oath and the veracity of the witnesses is involved. The master says in his report that in reaching his conclusions he took into consideration in connection with the testimony the appearance and impression made by the witnesses in giving their testimony, that in his opinion neither of the parties was free from fault, that their unpleasant family life was the result of mutual misconduct and differences, and that it is the opinion of the master that most of the trouble complained of was provoked by the conduct of the libellant.

While the testimony of the respondent in some respects is blunt and not couched in very elegant language, it has a frankness about it that causes it in our opinion to ring true. The principal trouble seems to have been that the respondent's personal habits and consideration for his wife did not quite measure up to the libellant's notion of marital ethics and politeness, which of itself is not ground for divorce-although the libellant's estimate of her husband on that basis may have been a true one-and that through her dissatisfaction with the respondent on that account she brought whatever real trouble there was upon herself. We have read and considered every word of the testimony, and all that is said by counsel in their written briefs and arguments. In our opinion, from a reading of the testimony alone, the case is at least as strong for the respondent as it is for the libellant. In a divorce case, as in other civil cases, the burden is on the libellant to prove his case by a fair preponderance of the credible evidence, and where the court hearing the case is not convinced by a fair preponderance of the credible evidence of the truth of the allegations made by the libellant against the respondent a decree of divorce will be refused. The libellant in this case has not successfully carried the burden imposed upon her by the law. If she has a good case, she has not proved it by the weight of evidence that the law requires. If, in addition to this view of the case reached from a reading of the testimony, we give any consideration whatever to the report of the master, who states that he took into consideration the appearance and impression made by the witnesses

Dietrich v Dietrich.

in giving their testimony, and is of opinion that most of the trouble complained of was provoked by the conduct of the libellant, and finds as facts that the life of the libellant was not endangered, and was not made intolerable or burdensome, by the conduct of the respondent, we certainly can do nothing but refuse the prayer of the libellant. For these reasons we shall sustain the report of the master and following his recommendation.

And now, October 12, 1920, the exceptions to the master's report are overruled and dismissed, the findings and report of the master are sustained, and a decree of divorce is refused.

In re Dog Licenses.

Failure to Take Out License-Running at Large-Killing—Act of July 11, 1917, P. L. 818.

The only recourse against the owner of a dog or harborer of a dog who permits it to run at large or who killed it subsequent to January 15, and who failed to take out a license prior or on that date is a prosecution for the failure or refusal to comply with the provisions of the Act of July 11, 1917, P. L. 818, by taking out a license within the time therein prescribed.

I have your communication of the third instant in which you substantially inquire whether a person who procured a 1919 dog license and who was assessed in that year as owning a dog, can be compelled to pay a license fee for the year 1920 if the dog be found running at large after January 15, 1920, without a license tag for the year last mentioned, or it the owner, himself, kills the dog after said 15th day of January.

Section 4 of the Act of July 11, 1917, P. L. 818, substantially provides that on or before the 15th day of January of every year the owner of a dog six months old or over must apply to the County Treasurer for a license for each dog owned or kept by him, accompanying such application with a fee, the amount of which is regulated by the Act.

Section 17 makes it unlawful for any person to own or harbor such a dog unless it is licensed as aforesaid, and Section 35 imposes a penalty on persons who fail or refuse to comply with the provisions of the statute.

Under the provisions of this Act I am of the opinion that the owner or harborer of a dog, who fails or neglects to take out a license on or before the 15th day of January, cannot be compelled to pay the license fee if the dog be found running at large by the constable, or if the owner, himself, kills the unlicensed dog, subsequent to that date.

I am of the opinion that the only recourse against the owner or harborer of the dog is a prosecution for the failure or refusal to comply with the provisions of the Act by taking out a license within the time therein prescribed, and you are now accordingly so advised.

Morledge v Consolidated Expanded Metal Co.

Equity Corporations- Shares of Stock Purchased on Default of Collateral Note-Notice-New Certificate.

Plaintiff having purchased the capital shares of stock put up as collateral for a promissory note after default, was entitled to have a new certificate issued and to have all the rights of a stockholder in the corporation even though the original stockholder had by agreement assigned all his rights in the stock to the corporation.

The holder of a collateral note is not required to give notice to the corporation of the sale and purchase of shares of capital stock upon default and upon presentation of the certificate in proper form is entitled to a new certificate and to all the rights of a stockholder.

In Equity. No. 293 July Term, 1919. C. P. Allegheny County.

Miller & Nesbitt, for plaintiff.

Sterrett & Acheson, Joseph Stadtfeld, for defendant.

SHAFER, P. J., June 29, 1920.—The bill is for an injunction requiring the transfer of stock in the defendant company to the plaintiff.

FINDINGS OF FACT.

1. The defendant, the Consolidated Expanded Metal Companies, has an authorized capital stock of $450,000.00, of which $125,000.00 is common stock of the par value of $100.00 per share.

2. On August 30, 1909, one W. C. Charlton was the owner of a considerable number of shares of common stock of that company, and on that day made his promissory note to the plaintiff for one thousand dollars and deposited with her certificate No. 19 for fifty shares of capital stock of the company as collateral security for the payment of the note, the note authorizing the sale of the stock without notice upon default. The note contains an agreement that "this will entitle the holder to participate pro rata in dividends and earnings of stock to the extent of two-sevenths (2/7) of par value of collateral stock."

3. On October 18, 1918, default having been made in the payment of the note, plaintiff caused the stock in question to be sold, as provided by the terms of the note, and the same was purchased by her.

4. She thereupon presented to the defendant company the certificate No. 19 above mentioned, duly endorsed in blank by Walter Chess, together with evidence of the sale of the same and the purchase of it by her, and demanded that a new certificate be issued to her, which request was refused.

5. This refusal on the part of the defendant company was founded upon the allegation which we find to be true in fact, that for a certain consideration William M. Charlton had in December, 1914, made an assignment to the defendant company of all his stock, being 150 shares of his common stock, including the fifty shares above mentioned, and surrendered to the company the certificates for one hundred shares of stock, alleging that the certificate for the fifty shares in controversy had been lost by him, and upon the further claim that the plaintiff knew of the existence of this agreement before she purchased the stock, and that it was her duty to give notice to the defendant of the time and place of the sale. We find as a fact that the plaintiff did not know of the agreement referred to when she purchased the stock.

CONCLUSIONS OF LAW.

1. No question has been raised as to the jurisdiction of court to grant the relief prayed for.

Morledge v Consolidated Expanded Metal Co.

2. The plaintiff was under no duty to give any notice to the defendant of the sale of the stock in question.

3. The plaintiff is entitled to a decree requiring the defendant to transfer the stock represented by said certificate No. 19 to the plaintiff upon the books of the company, and to issue proper certificates for the same in her name, and to accord to the plaintiff all the rights of a stockholder in said company. The plaintiff is also entitled to the dividends on said stock which she may not have received, either in person or through W. C. Charlton, under the arrangement contained in the note as to her participating in dividends. We do not understand that there is any controversy between the parties as to the dividends. If, however, they should be unable to agree as to them, either party has leave to apply to the court for further order. Let a decree be drawn accordingly, with direction that the defendant pay the costs.

Rick, Trustee, v Bell.

Pleading and Practice Joint Contract-Suit by Trustee for Parties Plaintiff Several and Joint Actions.

A joint contract gives a right of joint action, not a separate action by each of the parties jointly interested; but there seems to be no principle of law which forbids a number of parties jointly concerned in a contract to permit one of them to represent all and act for all in suing for their joint rights, so long as the record protects the defendant against a multiplicity of suits.

Statutory Demurrer. No. 29 March Term, 1920. C. P. Berks County.

Robert G. Bushong, for plaintiff.

H. Robert Mays, for defendant.

ENDLICH, P. J., April 19, 1920.—This is a suit on an option to buy certain real estate. The option agreement is signed by "George A. Rick, Trustee," and the suit is brought by him in that form, the declaration averring that in the transaction George A. Rick acted as trustee for himself and five others (naming them) jointly and equally interested with him in the option agreement. The affidavit of defence raises the question of law whether the plaintiff, George A. Rick, one of the parties interested in the joint contract, can sue and maintain an action to recover damages, if any, due on said contract to the said George A. Rick, George W. Carr, George E. Weis, John A. Moore, James M. Kase and Wilson E. F. Miller jointly, and asks for judgment on the ground that this action cannot be maintained in its present form.

Undoubtedly a joint contract gives a right of joint action, not a separate action by each of the parties jointly interested: Marys v Anderson, 24 Pa. 272; McGara v Ake, 226 Pa. 228. But there seems to be no principle of law which forbids a number of parties jointly concerned in a contract to permit one of them to reprseent all and act for all in suing for their joint rights. That is virtually what has occurred here. And so long as the record protects the defendant against a multiplicity of suits, it is not apparent that the defendant has any standing to object. About such protection there seems to be no trouble here, the record disclosing all the parties in interest. Hence, the question raised by the defendant and now before the court is not controlling of the case, and the application for judgment must be refused, with leave to defendant within fifteen days to file a supplemental affidavit to the plaintiff's averments of fact.