Page. Subject. Subject. ecuted a Declaration of Trust stipulating "that I will, upon request made by said company, convey the same to it or its assigns at any time desired" A provision in a lease, reading "It is agreed by the Lessor to give the Lessee the privilege of renting said store room for two years from the expiration of this lease" was held to be abrogated by a subsequent lease with an assignee of the original lease omiting specific reference to a renewal and plaintiff was not entitled to equitable relief when the owner ordered him to vacate the premises An assignment by a beneficiary of his interest in decedent's estate served upon accountant on January 16, 1913, was held to have priority over an execution attachment based upon a judgment on bond and mortgage served on August 16th, 1913 a 237 474 taken would waived where Page. be considered as the evidence of defendant showed the claim had been refused although the method 0vided had not been regularly followed and defendant's motion for new trial refused. In such a the rules of the association would not apply warrant to case ..... 198 the repre A rule to compel an attorney to file a of attorney authorizing him enter suit was discharged where suit was entered in names of co-payees on a promissory note in that the attorney sented one of the payces who was not obliged to obtain the consent of his co-payee to enter suit to enforce his rights. The law gave him that right, even against the wishes of the other 204 725 to A township cannot recover in assumpsit for the cost of grading, paving and curbing, where the claim was not filed in the Court of Common Pleas 217 goods for the the defendant No particular form is necessary constitute a valid assignment of a debt or other chose in action. If words are used which show an intention to transfer :he chose in action to the assignee for a valuable consideration, this is sufficient.... action in assumpsit based on a judment recovered in New York, an insufficient affidavit of defense would not prevent entry of judgment for plaintiff, but where it appeared that an appeal on the judgment was still pending in New York, an order was made delaying issue of process until the appeal proceedings in New York had been concluded When it appears that the rights of several plaintiffs in the subject matter of a suit is several, and not joint, and the defendant sees fit to take defense and go to trial on the merits without objection to the joinder, he is too late to raise the question at the conclusion of the trial. The referee properly refused a request to hold that the suit had not been well brought for that reason In 794 60 101 in 108 an action on a promissory note, where a copy of the note was corporated in plaintiff's statement, it was not necessary under the Practice Act of 1915 to aver specifically that the contract sued upon was oral or written. A promissory note implies a writing and statutory demurrer overruled The failure to have two subscribing witnesses present at the execution of an assignment, as required by the Act of May 28, 1715, 1 Sm. Laws, 90. does not invalidate the assignment, but only prevents the assignee from proceeding on it in his own name and requires him to use the name of the assignor.. 152 In assumpsit over the sale of an automobile, evidence which explained but did not vary or contradict the terms of the written agreement was competent and appeal by defendant from County to Common Fleas refused. It was also Corapetent to explain the meaning of an abbreviation so as to identfy the car...... 193 At the trial in court, against a beneficial corporation, the provision of the by-laws requiring claims to bo passed upon by a committee before an appeal to the courts could be Where plaintiff sued to recover commissions on sale of defendant company, could not escape liability by setting up a provision in the contract that commissions were to be paid cn orders "subject to the acceptance" of such orders and "for goods actually shipped." Such a construction would open the doors to fraud which could be used to the detriment of others. Whether orders accepted but not shipped were refused arbitrarily was a question for the jury and new trial refused after verdict for plaintiff. An accommodation maker of a promissory note is liable thereon to an accommodation endorser of the payee who becomes the holder of the note in due course.. Plaintiffs, who were the employees of the purchaser of a steam shovel to do his work and inform him of its condition, cannot recover a commission from the seller, the defendant, for the sale of the machine on an agreement of which the purchaser was ignorant. It is against the policy of the law to enforce such an agreement as plaintiffs could not act as agents of the defendant when the alleged sale was made through their recommendations to their own employer that the machine was in good working order Where executors paid a legacy on the advice of counsel who correctly stated the law but had been a misapprehension as to the clear terms of a will, assumpsit will lie to rerecover the amount paid. This was a mistake of fact not cf law, arising out of a careless reading of the will Judgment was entered for defendant in an action to recover tract for drilling an oil or gas well, plaintiff having "refused to proceed further with said work until defendant made a payment on account," where there was an entire contract, and under its terms payment was contemplated only after the well had been completed... One co-tenant is liable in assumpsit to his co-tenants, all being engaged in a common enterprise of developing an oil lease, to recover certainmaterials appropriated by him and and belonging to all the co-tenants, where a partnership did not arise either by implication or ment 241 276 287 296 329 369 due on transfer a of written contract for the and mine a ecal equipment, where defendant, after an initial payment, was placed in possession, it was not error to refuse to sustain objection to defendants's offer to prove the circumstances which led to the making of the agreement, defendant being familiar with the mine and nat haying alleged fraud, accident or mistake Plaintiff's statement of clair baset upon a verbal contract and which allege did not an express or implied contract on the part of defor fendant to pay definite sum a services rendered will not support a judgment in default of an affidavit of defense. said judgment being fixed at a definite amount as damages and rule to open judgment A absolute terms steamaccepted In assumpsit to recover the balance due on a lease of a coal mine, it was a question of fact for the jury to determine what credits were to be allowed where plaintiff and defendant differed on the several amounts under the of the contract and new trial refused... bank which maintained a ship department and money for the transportation of certain persons from Poland to the United States upon a contract which provided: "It is agreed between purchaser and this bank that to unable in case passengers are come, refund will be made, at the prevailing rate of exchange less advances made to passengers and expenses incurred. Passengers to be located and passage to be advised by railograph. No refund will De be made if passengers are returned from New York by the United States Immigration Authorities," and then forwarded the money to but company ocean steamship failed to transport the passengers, was held liable in assumpsit for the return of the money and it was defense that state of and the taking over of the property of the steamship company by the custodian of alien property had made difficult more the performance of the contract. The contract an no a war is in the alternative and could be performed at any time by defendant returning the money 371 382 429 449 In assumpsit on a book account, evidence to prove that credits claimed were paid on an old account, was excluded where properly plaintiff filed a reply to the affidavit of defense admitting the amounts claimed as shown in plaintiff's claim, but alleged payment in full. This was the issue joined....... 491 foreign to was held that plaintiff could not recover a special bonus for work done on a contract where it was impossible to determine just what he was to do to entitle him to this sum aside from his duties as superintendent, for which he received a stated monthly salary attempted to be committed, before or after the signing of the agreement in the matter of the procurement of said insurance, or of the presentation of the claim for loss, or ascertainment of the amount of the loss, or any other matter connected with the subject matter of the insurance and property covered thereby," and after the loss had been determined by the company's adjuster, but refused payment because it was not proved that the goods were stored as provided in the policy. The defense of fraud having been decided against defendant by the jury, the verdict would not be disturbed 521 528 magistrate's record should show that he had jurisdiction of the parties and of the subject-matter, and it is not sufficient to say that the claim is "for moneys in the possession of the defendant belonging to the plaintiff material man may maintain an action in his own name against the surety on a bond given by the contractor for the construction of a State highway under the Act of May 31, 1911, P. L. 468, where the contractor neglected and refused to pay for the materials furnished... 540 a benefit certificate In assumpsit on a verdict was directed in favor of the defendant where the beneficiary's deceased husband, being in default of his monthly dues, it was sought to that her when prove husband in her presence had told the collector that he had the money to pay what was due but that the collector had suggested taking out a new policy and the two had discussed other terms to be accepted and or refused at a later date nothing more had been done in the matter prior to the insured's death, this could not be adjudged a tender be that the could not allowed to go to the jury......... 555 Whatever may have been the law of prior to the passage Pennsylvania of the Act of 1901, since the enactment of that statute, it is the recognized rule, that a transfer of holder in due note made by a after macourse, A was was pre 571 a partnership had been dissolved by the of one agreement stated sum for partner to pay a his partner's interest, said sum being paid partly in cash and the balance by a check, the court gave instructions in favor binding of plaintiff in an action on the check. An alleged collateral agreement varying the terms of the written agreement would not avail as a defense reference in plaintiff's statement that the case comes into the Common Pleas Court on an appeal by defendants from the judgment of an alderman is improper. This is a fact that should not appear in the pleadings Plaintiff recovered the amount of his claim for work and labor done where defendant, a corporation, 573 574 produced a receipt in full signed by plaintiff, the evidence showing that at the time the receipt was given, plaintiff took a promissory note to his order, the note having been made by a clerk who had no authority to execute the same. Defendant not having suffered any loss, the jury was justified in disregarding the receipt Where defendant admitted a certain amount of a claim to be due and tendered that amount to plaintiffs, he was not liable for costs accrued prior to the time that he filed his affidavit of defense Living as a domestic in a school district is sufficient to establish a residence within the meaning of the School Code of 1911, and that district is liable to another school district for the cost of educating the children of a domestic whose children are kept in a home for widows and orphans located in the district in which they attended the public school 587 590 595 602 606 Where plaintiff sued defendant to recover damages for breach of a contract to deliver coal during a stated period, the amount of damages could not be determined when the only evidence of plaintiff was that he was unable to buy any coal in the market, but did not prove that it was impossible to buy. This did not comply with the Sales Act of 1915, P. L. 543, Section 67. Motion to take off non-suit refused.. The defendant was held liable for the average demurrage charges on a carload of frozen gravel, where oral, but not written notice (as expressly required and a condition precedent to the extending of free time) was given the agent or employe of plaintiff, the railroad company, at the station, within the free time as stipulated in an agreement as to instances where impossible to unload a carload of frozen gravel. Defendant was bound by the terms to which he had in writing assented when he signed the agreement, and it was not within the power of the Court to reform the written agreement and to waive the graduated penalties incurred by the defendant's default in not complying with the mandatory terms and condition precedent in the written agreement entered into with the common carrier, the defendant not having shown that the said employes or station agents had any authority to waive the terms and conditions of the existing written agreement between the parties Assumpsit can be sustained only where there is an express contract or the law will imply one.... Plaintiffs were employed by a railroad and recovered a verdict on a contract for materials furnished the railroad company contrary to Section 1 of the Act of May 15, 1874, P. L. 178, and of Section 6 of Article XVII, of the Constitution of Pennsylvania. Where plaintiff failed to prove that it was a Pennsylvania corporation or did business. in the state, the Court could not take judicial notice of these facts. 705 An affidavit of defense by a distributor of goods who guaranteed the payment of all goods received 625 638 Page. from plaintiff company was insufficient, which averred that plaintiff, not having paid the rent, defendant had vacated the office without removing the goods sued upon. The affidavit did not aver that plaintiff was to furnish an office and suretyship... the was liable to the full extent of his guarantee or The provision of the policy first is not waived by the fixing of the amount of the loss on the basis of other insurance under a "non-waiver" agreement entered into by parties merely for the purpose of fixing the amount of the loss for which defendant would be liable if liable at all, when the agreement specifically provided that any action taken by either of the parties to determine the amount of the loss should not be construed as a waiver of any of the rights of the parties, and that the acts of thed defendant in endeavoring to ascertain the amount of the loss should not be considered a waiver of any of the condtions of the policy.. Prior to the Practice Act of 1915, the failure to deny was not an admission, except districts where rule of court so provided. The rule requiring full statement in the affidavit of claim (or statement), of the averments referred to prevents injustice to the defendant on a rule for judgment, but the reason does not apply to an admission.. Where an architect recovered a dict for commissions on drawing plans for a structure that exceeded the estimates a new trial was granted in that the opinions and estimates of contractors in determining the cost of constructing a building under a given set of plans and specifications would be much more satisfactory in determining the actual fact than the mere opinion or estimate of an a in a ver 734 735 749 a car load of eggs, plaintiff shipped the same to another market and sued for the difference in the contract price and the amount realized and added the costs incident to the re-sale. This extra outlay was a matter of proof outside the contract, and not having taken a rule for a partial judgment on the contract, plaintiff was not entitled to judgment.. Where a plaintiff alleges in his statement in assumpsit that the defendant took and carried away a stated sum of money and refuses to return the same, the cause of action. is sufficiently set forth. The law implies the promise to return the money and the plaintiff need not state in so many words that his claim is based on a contract...... 816 Binding instructions for the beneficiary named in a certificate of life insurance will be sustained, where the only defense was that the insured made false statements in her application before the examining physician, but where there was no allegation in the affidavit of defense and no facts set up therein or proved by the evidence offered tending to show that the alleged false statements were material to the risk assumed by defendant's certifi See also Execution Attachment, Garnishee, Foreign Attachment. At the trial of an issue of an attachment, it was a question of fact for the jury to determine whether or not, under all the evidence as to the custom, Course of dealing or understanding, if any, the title to a draft passed to the plaintiff bank which had collected the amount and had been summoned as garnishee, or remained in the drawees. The jury having found in favor of the attaching creditor, motion for new trial was refused.. It is not essential that the attachment under the Act of March 17, 1869, P. L., 9, be based on an averment sale of actual fraud in the of merchandise, fixtures, etc...... An attachment issued on the ground that defendant was about to move to another state and outside the jurisdiction of the court was dissolved where it appeared that plaintiff knew of defendant's intended removal, advised him about it and no effort was made to conceal the fact. Men who desire to remove to another state for the purpose of cheating their creditors do not usually publicly declare their tention to remove ATTORNEY AND CLIENT. See also Fees. 859 130 336 in 563 A lease with warrant to attorney to confess judgment in a lease in case of default by the lessee need not bear a revenue stamp as required by the United States Revenue Act of 1918, Title VIII, Schedule 4, Par. 12. Such a warrant is not within the meaning of the Act. When an attorney appears in court he appears and as an attorney-at-law, not as an attorney-in-fact, and his authority SO to appear is presumed The district attorney in his address to the jury did not exceed the proprieties when he referred to existing prosecutions and the time in which yet other prosecutions might be brought, in a manner which was harmful to the defendant, when it had been testified to that an information had been made for forgery A rule to compel an attorney to file a warrant of attorney authorizing him to enter suit was discharged where suit was entered in the names of co-payees on a promissory note in that the attorney represented one of the payees who was not obliged to obtain the consent of his co-payee to enter suit to enforce his rights. The law gave him that right, even against the wishes of the other Where the rules of Court require that all agreements of attorneys touching the business of the Court shall be in writing, otherwise they shall be considered of no validity and during vacation period judgment 71 81 204 Page. was entered by plaintiff for default of an affidavit of defense it could not be successfully contended by defendant on a rule to open the judgment that there was a tacit understanding between the members of the bar that judgments by default should not be entered in vacation time, where such contention was not sustained by anything on the record, nor by any understanding, either formal or tacit, among the members of the bar.. Attorneys at law stand in a position entirely different from that of ordinary persons, Upon the latter are imposed the usual duties of citizenship and loyalty. The former are educated and trained so as to fit them for high duties in administering and maintaining the laws of the land. The obligation of the oath they have taken must at all times be observed in spirit as well as in letter, and they must continue to be fit to exercise their high office, or be disbarred.. A rule to strike off a demurrer to a counter-claim was discharged in a special action under the Act of June 16, 1836, P. L. 793, relating to rules on attorneys at law in that a demurrer was the proper practice, such a proceeding not being within the Practice Act of 1915.......... AUDIT. See also Descent and Distribution. When the date testatrix directed the scrivener to put in the will, which was clearly intentional, is not conclusive of the time when the will was actually made, this fact must be ascertained at the audit, and not on an appeal from the decision of the register of wills. Then the construction of the will and the disposition of her estate are within the jurisdiction of the court, and it is for the court to determine the validity or invalidity of the will or certain provisions in it.... A disputed claim against a decedent's estate is properly litigated at the audit, at which time the court is fully authorized to determine every question upon which the distribution depends The Absentee Act of 1895 does not provide an exclusive method for establishing the presumption of death, so that an audit in the Orphans' Court should not be suspended pending proceedings under the Act Decedent's estate was held not liable for the fee of counsel employed by one of the heirs in resisting the payment of a note purporting to have been given by decedent where the executors had their own counsel, and it could not be said that the services rendered were necessary to the estate... 513 609 751 136 145 301 472 29 Plaintiff, a passenger in one of defendant's taxicabs, was injured by a collision with a rapidly moving truck, and recovered a verdict where the evidence showed that the collision could have been avoided had defendant's chauffeur had his car under control and looked and watched for approaching vehicles.. 131 cars. The Act of June 30, 1919, P. L. 702, regulating motor vehicles, is an exercise of police power of the State. Its regulations are reasonable and apply uniformly to all persons, whether natural or artificial, So that a corporation organized under the General Incorporation Law of 1874 to "buy, sell, handle, lease, repair, build and deal in all kinds of automobiles" must take out a license to buy and sell used Its charter does not exempt it from the requirements of the Act... Section 29 of the Motor Vehicle Act of June 30, 1919, P. L. 678, providing that no person shall be convicted of exceeding the speed limit of one mile in two minutes except on the evidence of two witnesses, applies only to where the speed is taken over a measured stretch of road The Automobile Division of the State Highway Departinent may assign a maker's number or an engine number only in case application is made for the registration of the car under Section 3 of the Act of June 30, 1919, P. L. 702. After numbers have been once obliterated, this is the only method that can be pursued so as to buy or sell such a car By sections 26 and 33 of the Act of June 30, 1919, P. L. 678, refusing to stop a motor car is defined and made punishable by fine to be collected by process of summary conviction, subject to the right of the accused, at his option, to be tried by a judge of the court of quarter sessions, rather than by the magistrate, upon entering security; but this gives no general jurisdiction to the quarter sessions to be exercised by indictment AUCTIONEERS. 190 194 197 300 Subject. Page. of May 3, 1909, P. L. 423, that sodawater apparatus is not the property of the occupant of the premises... 551 BANKRUPTCY. When a party consents to the juris- a 53 .... 277 A creditor in a bankrupt's estate, who with the consent of the trustee prosecuted a claim under the name of the trustee, and with the consent of the other creditors, was entitled to deduct the necessary expenses, costs and counsel fees from the fund recovered prior to filing his account with the referee. The law does not require him to pay over the entire amount and then come knocking at the door of the estate for a repayment of his just share.. 794 BANKS AND BANKING. See also Bills and Notes. a As between a defendant in an attachment execution and a bank served as garnishee, the latter could effect payment of overdrafts by setting them off against or applying to them the deposits as made subsequent to the service of the writ, but it could not ignore the writ except at its peril, and when it permitted defendant to overdraw his account for varying advances, the bank waived its rights and was liable to the execution plaintiff.. The cashier of State bank, incorporated under the Act of May 13, 1876, can, at the same time, hold the office of secretary of a building and loan association.. Where a bank discounted a draft and credited the proceeds to the drawer's account, it acquired a title that would enable it to recover the proceeds of the draft after payment by a foreign attachment, and the fact that the proceeds had been immediately attached by the payee in the hands of the collecting bank on another foreign attachment naming the original drawer as defendant would not defeat the bank's claim It cannot be accepted as a fixed rule that crediting the account of a customer with checks, drafts, etc., deposited in the ordinary course of business does not vest title thereto in the bank. Each case is dependent upon its facts... The Commonwealth has no right to tax National and State banks engaged in fiduciary business under authority of the Federal Reserve Act and the Act of July 17, 1919, P. L. 1032, as trust companies under the Act of June 15. 1907, P. L. 640, and impose upon the value of their capital stock a tax of five mills BASEBALL. See Injunction, Sunday. BASTARDS. See Criminal Law, Illegitimate Children. 22 239 433 436 763 |
