Sidor som bilder
PDF
ePub

Company obtained an order vacating the for. (ment of facts "that there has not been at mer ex parte order, and from this last va- any time, and is not now, any understanding cating order an appeal was taken. The ac or agreement between the Herbo-Phosa Com. tion of the lower court was affirmed. The pany, the Mechanics' National Bank, or said appellate court says in its opinion that a Alfred S. and Arthur P. Johnson, or either judgment may be properly satisfied other of them, whereby the payment in full or in wise than by a payment in money, provid- part of said notes, or renewal of them, or ed such payment is made and accepted in substituted obligations for them, by the Hergood faith. The court, however, found that bo-Phosa Company shall be contingent upon the whole proceeding was a mere subter- any happening whatever, or whereby, in any fuge, resorted to for the purpose of making contingency, the Herbo-Phosa Company shall a nominal compliance with the terms of the receive any rebate, discount, payment back, insurance contract.

or credit on account of said transaction.” We think that the case at bar may be The judgment in the Whipple Case has been readily distinguished from the Brown-Corliss paid and the execution therein returned satCompany Case. In the latter the receiver isfied. was not appointed to administer the affairs The note for $2,564.24 given to the Me. of the insolvent corporation for the benefit chanics' Bank, and the note for $300 coverof its creditors generally, but simply in aid ing the legal services of Alfred S. and Arof an execution in favor of a single creditor. thur P. Johnson in defending the Whipple for the sole purpose of collecting the judg. suit, have both been renewed and the interment. The assets of the Brown-Corliss Com. est paid by the Herbo-Phosa Company. pany, with the exception of the insurance These notes, so far as appears, are valid policy, were all in the hands of the trustee claims against the Herbo-Phosa Company, in bankruptcy, and the policy was of no and the agreed facts, above quoted, serve to value to the Brown-Corliss Company until strip the transaction of any collusive feature the judgment was satisfied. The receiver, which could effect any modification of its as such, was not invested with any property liability thereon. We think that the plainformerly of the Brown-Corliss Company. tiff is entitled to recover of the defendant The note was not discounted, but was sim- the amount of the judgment and costs which ply a valueless piece of paper turned over it has paid, together with the counsel fees to the plaintiff in the damage suit in satis incurred in the defense of the suit and infaction, as it was claimed, of his judgment. terest from the date of payment. There is

In the case at bar the Herbo-Phosa Com- no dispute between the parties as to the pany made its note, in an amount sufficient amount of the plaintiff's claim. to pay the judgment and costs, which said Decision for the plaintiff for $3,132.80 and note was discounted at the bank. Such pro costs. The papers in the case are remitted cedure on the part of the plaintiff company, to the superior court, with direction to enunattended by other circumstances, would ter judgment for the plaintiff in accordance come within the ordinary course of business. with such decision. The discounting of its note for this purpose would not tend to prove the insolvency

(236 Pa. 585) of the Herbo-Phosa Company, but would as readily indicate that the company was at the BEATTY v. E. I. DU PONT DE NEMOURS time without the ready money with which

POWDER CO. to pay the judgment.

(Supreme Court of Pennsylvania. May 22,

1912.) The defendant, however, claims that the circumstances attending the making and dis- MINES AND MINERALS (§ 118*)-OIL WELL

EXPLOSION OF GAS. counting of the plaintiff's note, which are Where a boy was injured when defendant fully recited in the agreed statements of was employed to torpedo a well, and the boy, facts, are sufficient to stamp the whole instead of staying on a public road, some 60 transaction as a subterfuge wholly designed safe, went to the well out of curiosity, and was

feet from the well, where he would have been to avoid the terms of the policy, and that the injured when the gas ignited, he cannot recase therefore comes within the law as laid cover. down in Stenbom v. Brown-Corliss Engine

[Ed. Note.-For other cases, see Mines and Company. So far as it appears by the facts Minerals, Cent. Dig. & 240; Dec. Dig. $ 118.*) presented to the court, the note in question

Appeal from Court of Common Pleas, Mcconstitutes a valid claim against the plaintiff

Kean County. company. While it might be contended, by

Action by John Beatty against the E. I. Du way of argument, that the method of arrang. Pont De Nemours Powder Company. From ing this whole matter was only consistent an order refusing to take off a nonsuit, with some prearranged plan to avoid the plaintiff appeals. Affirmed. terms of the policy, yet the pith of the ques- Trespass by a boy twelve years old to retion is in the validity of the note as a claim cover damages for personal injuries. At the legally collectible from the Herbo-Phosa trial the court below entered a compulsory Company. The parties agree in their state-nonsuit which it subsequently refused to

take off; Bouton, P. J., filing the following | it came in contact with a flame of some deopinion: scription. The explosion occurred about 10 minutes after the well had been successfully torpedoed, and what caused the explosion does not appear from the evidence. Whether it came from some one carelessly lighting a match, smoking a cigarette, or otherwise, we can only conjecture. But the evidence fails to show that the gas was ignited from any act, negligent or otherwise, on the part of the defendant, or those in its employ. We are still of opinion that the plaintiff entirely failed to show any negligence on the part of the defendant, which caused the injury.

"And now, to wit, January 17, 1912, the rule to show cause why the compulsory nonsuit should not be taken off is discharged." Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

"From the pleadings and evidence it appears that some time prior to April 2, 1909, Hooker and O'Donnell drilled an oil well on a vacant lot abutting on School street, in the city of Bradford. This lot was located between the lots of H. Bryman and Mrs. Bernstein. The well was from 50 to 60 feet from the sidewalk running along School street. The owners of the well secured permission from Bryman and Mrs. Bernstein, as well as from other property owners in the immediate vicinity, to drill the well on this lot. On April 2, 1909, the well owners employed the defendant company to torpedo the well with solidified nitroglycerine. Permission to torpedo the well was given by the city authorities, and the city sent several police officers to keep the people away from the well, while the same was being torpedoed. It appears that, after the well was torpe doed, the gas therefrom became ignited, and several boys, including the plaintiff, were seriously burned, and this action was brought by the plaintiff, John Beatty, to recover damages for injuries thus sustained. At the close of the plaintiff's case we were asked by defendant's counsel to grant a compulsory nonsuit, on the ground that there was no negligence shown against the defendant.

John G. Johnson, of Philadelphia, and Mullin & Mullin, W. E. Burdick, and Jones & Wick, all of Bradford, for appellant. J. E. Mullin, of Kane, D. H. Jack & Son and R. B. Stone, all of Bradford, and Thomas J. Laffey, of Wilmington, Del., for appellee.

PER CURIAM. This judgment is affirmed, on the opinion of the learned president judge of the court below on refusing to take off the nonsuit.

(236 Pa. 605)

"We were then of opinion that the motion was well taken and granted the nonsuit, which we are now asked to take off. What

CHURCH v. BAER.

we said in granting the nonsuit we now in (Supreme Court of Pennsylvania. May 22,

1912.)

substance repeat. The evidence clearly show-1. ed that the defendant did not have charge of the well; that it was employed to torpedo it, and that its duty was simply to lower the torpedo in the well and explode it. This it did, and with it its duty ended. The injury to the plaintiff, it will be observed, was not caused by any act or omission on the part of the defendant or its employés. The plaintiff was not injured while on a public highway or thoroughfare of the city, but was from 40 to 60 feet off the highway, in close proximity to the well. There were numerous people on the highway, none of whom were injured by this gas explosion. The plaintiff went down near this well merely out of curiosity. There was a sign on the derrick, and one or two other signs immediately near, warning people in the following language: 'Danger! keep out!' The police officers, as well as Mr. Hooker, one of the well owners, and other employés, it appears from the evidence, did their best to keep Action by Isabella D. Church against Jothese boys away from the immediate locali-seph J. Baer. Judgment for plaintiff, and ty. But, as testified by one witness, they defendant appeals. Affirmed.

For other definitions, see Words and Phrases,

vol 5, pp. 4029, 4030, 4063, 4064.]

Appeal from Court of Common Pleas, Fayette County.

ran by the officers like a flock of sheep.'

"We fail to see how the defendant owed the plaintiff any duty which was not performed. The evidence shows that all fires in and about the boiler, which was used for operating the well, had been carefully extin- Argued before FELL, C. J., and POTTER, guished; that gas would not explode, unless | ELKIN, and MOSCHZISKER, JJ.

Case stated to determine marketable title to real estate. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant on case stated.

WILLS (8 597*)-CONSTRUCTION-NATURE

OF ESTATE-FEE SIMPLE.

Where testator devised land to his wife

for life, and after her death to his daughter, and provided that, if his daughter should not outlive her mother and leave no legal heirs, the land should belong to the son, the daughter, on the death of the mother, takes an estate in fee simple in the land.

Dig. 88 1319-1326; Dec. Dig. 597.*]
[Ed. Note. For other cases, see Wills, Cent.

2. WILLS (8 506*)—NATURE OF ESTATE DE-
VISED "LEGAL HEIRS"-"LAWFUL ISSUE."
Where testator devises land to his wife
for life, and after her death to his daughter,
and, if she shall not outlive her mother "and
leave no legal heirs," then to the son, the
words "leave no legal heirs" are equivalent to
"leave no lawful issue."

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1090-1099; Dec. Dig. § 506.*

John S. Christy, of Uniontown, for appel- | refer to the death of the daughter Isabella lant. Thomas H. Hudson, of Uniontown, without issue during the life of his wife for appellee.

Margaret. The testator evidently contemplated that his daughter might die before his wife without lawful issue, in which event he made provision against a lapse by giving the farm to his son John. Isabella outlived her mother, and therefore the situation did not arise against which the testator made provision. We are of opinion that the testator intended his daughter to take an absolute estate if she survived her mother, and only meant his son John to take if Isabella died before her mother without leaving lawful issue.

ELKIN, J. This in effect is an action for purchase money, and the right to recover depends upon whether the plaintiff took an indefeasible estate upon the death of her mother, under the will of her father. The clause of the will under which plaintiff claims title is as follows: "I give and bequeath to my wife, Margaret, one hundred acres of the home farm, with the house and stabling thereunto belonging during her lifetime, and after her death I desire the same shall belong to my daughter Isabella Church. Should my daughter Isabella not outlive her mother and leave no legal heirs, then the said one hundred acres of land is to belong to my son, John Church, subject to the conditions, hereinafter stated. It is also my desire, my daughter, Isabella shall have a home and equal interest with her mother in the property set apart for the latter, during the lifetime of her mother." This is follow

(236 Pa. 608) COMMONWEALTH ex rel. COLE v. MURPHY. (Supreme Court of Pennsylvania. May 22, 1912.) HIGHWAYS ($ 93*) - ROAD SUPERVISORS —

TERM OF OFFICE.

Where a road supervisor was elected in February, 1912, he was entitled, under the constitutional amendment of 1909 and the schedule thereto (5 Purd. Dig. [Stewart's Ed.] p. Monday in December, 1913, though the ballot 5197, § 13), to hold his office until the first specified his term to be one year.

ed by conditions imposed upon his son John in event that he outlive his mother and sister and take title under the will. After the death of the testator in 1883, his widow and the daughter Isabella took possession and lived together upon the home farm as directed by the will until the death of the widow in 1887. Since that time Isabella has been in enjoyment and possession of the farm. She has agreed to sell and convey the property, and the purchaser agrees to buy if she can convey the fee. The testator gave Quo warranto by the Commonwealth, on a life estate to his wife, and upon her death the relation of David Cole, against N. E. an absolute estate in the first instance to Murphy. Judgment for relator on demurrer his daughter Isabella. The question is to answer, and defendant appeals. Afwhether that absolute estate is cut down by the subsequent provisions of the will.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 304-307; Dec. Dig. § 93.*]

Appeal from Court of Common Pleas, Fayette County.

firmed.

On demurrer to answer to petition for quo [1, 2] Appellant relies on the provision, warranto. The petition for the writ set "should my daughter Isabella not outlive forth that the relator was elected road su her mother and leave no legal heirs, then the pervisor of North Union township at the elecsaid one hundred acres of land is to belong tion held on the third Tuesday of February, to my son John Church," to sustain his con- 1910, that a certificate of election was given tention that Isabella did not take an abso- to him, and that he subscribed to the oath lute estate upon the death of her mother. of office and continued to discharge the duThis depends upon what the testator meant ties of the office until the defendant usurped by the words "not outlive her mother and the office. The respondent by his answer obleave no legal heirs." There cannot be the jected that the petition did not show the relaslightest doubt that the testator used the tor entitled to the office, and further set words "legal heirs" in the sense of "issue forth that on the third Tuesday of Februof the body." This appears from the con-ary, 1908, William C. Bowers was elected text and the manifest intention of the tes-road supervisor for the term of three years, tator in providing for the different members and that he served for the period of one of his family. When an absolute estate is year, when he resigned, and N. E. Murphy followed by these words, they will be under- was appointed to fill the vacancy; that at stood as referring to death without issue in the regular election in February, 1910, the the lifetime of the testator, if the devise is relator was elected on a ballot which specifimmediate, or during the continuance of the ically mentioned a term of one year; that life estate, if it is not. Mayer v. Walker, the term of the relator expired on the first 214 Pa. 440, 63 Atl. 1011. In the case at Monday of December, 1911; and that in bar the words "leave no legal heirs" are November, 1911, respondent was duly electequivalent to "leave no lawful issue," and ed township supervisor under the act of

The learned court below gave the case thorough and exhaustive consideration, and properly disposed of it. Judgment affirmed.

1911 to fill the vacancy caused by the ex-IL. 942) appears to follow this construction piration of the term of relator.

of the constitutional amendments. Argued before FELL, C. J., and MESTRE- We conclude that the court below commitZAT, POTTER, ELKIN, and MOSCHZIS- ted no error. The assignments are overKER, JJ.

ruled, and the judgment is affirmed. E. C. Higbee and George Patterson, both of Uniontown, for appellant. H. S. Dum

(236 Pa. 560) bauld and David E. Bane, both of Uniontown, for appellee.

RUSSELL v. CITY OF PHILADELPHIA. (Supreme Court of Pennsylvania. May 22,

1912.) MOSCHZISKER, J. The learned court

COURTS (8 57*)-COURT STENOGRAPHERS-PAYbelow correctly stated the question for deci

MENT OF FEES. sion to be "whether or not the term of of- Under Act May 1, 1907 (P. L. 135), a fice of the relator expired in 1911, leaving duly appointed stenographer of the court of a vacancy to be filled at the November elec- to have his fees paid by the county in a di?

common pleas is entitled, on order of the court, tion of that year.” The relator was chosen vorce case or a case involving an application a township supervisor at the February elec- for a charter. tion, 1910. There was a vacancy in the of

[Ed. Note.-For other cases, see Courts, Cent. fice to be filled by election at that time, and Dig. $$ 198–200; Dec. Dig. $ 57.*] the ballot specified the term to be one year.

Appeal from Court of Common Pleas, PhilBut the court below decided that the con- adelphia County. stitutional amendments of 1909 and the Action by James H. Russell against the schedule thereto, which were then in force City of Philadelphia. From a judgment of and effect, had expressly fixed and de the Superior Court (18 Pa. Super. Ct. 622), termined the period during which all such affirming a judgment of the common pleas, officers elected in February, 1910, should defendant appeals. Affirmed. serve, and that they gave the relator the See, also, Russell v. Philadelphia, 48 Pa. right to hold the office to which he had been Super. Ct. 622. elected until the first Monday in December,

Argued before BROWN, POTTER, ELKIN, 1913.

STEWART, and MOSCHZISKER, JJ. The fourth paragraph of the schedule (5 Glenn C. Mead, Asst. City Sol., and Michael Purd. Dig. [Stewart's Ed.] p. 5197, § 13) pro J. Kyan, City Sol., both of Philadelphia, for vides: "In the year 1910 the municipal elec- åppellant. John G. Johnson and Murdoch tion shall be held on the third Tuesday of Kendrick, both of Philadelphia, for appellee. February, as heretofore; but

all officers chosen at that election to offices the

MOSCHZISKER, J. This was a case statterm of which is now four years, or is ed involving the fees of a court stenographer made four years by the operation of these for services rendered under and by virtue amendments or this schedule, shall serve un of the act of May 1, 1907 (P. L. 135). It til the first Monday in December in the year was agreed, inter alia, that "the plaintiff 1913.” The office of supervisor is one whose served as stenographer before masters apterm was made four years by the operation pointed in divorce cases and before a referee of the amendments, and the case of the on application for a charter, as directed by relator is affected thereby. The language of the judges of the court of common pleas, the schedule is not that persons elected to No. 5, of Philadelphia county, as set forth offices for a term of four years, or for a in Exhibit A (the exhibit being attached and term of any number of years, shall hold until stating the details of the charges in a numDecember, 1913, but that “all officers chosen ber of specified cases), and furnished acat that election to offices the term of which curate typewritten copies of his notes of is now four years or is made four years” testimony to the said masters and referee, shall serve until December, 1913. The regu- which copies were duly filed of record. In lar fixed term of the office, and not the length all the said suits

there was an of the term as stated on the ballot, deter- absence of agreement between the parties or mines whether or not a person chosen at the their counsel as to the compensation that February election, 1910, is affected by this should be paid the official stenographer, and provision of the schedule. The words are he has not received any compensation thereclear, and “it is not for the courts to say for. The court thereupon approved the plainthat the people did not mean what is so tiff's bill for services in the said plainly said in the amendment to the Con-cases and directed that the same be paid by stitution which by their votes was adopted the county of Philadelphia at the rate of in 1909.” Etter v. McAfee, 229 Pa. 315, at 15 cents per 100 words, as provided for in page 318, 78 Atl. 275, at page 276. It is to section 8 of said act.” The defendant rebe noted that the legislative scheme of ad-fused payment, questioning the authority of justment of the terms of supervisors of the the court of common pleas to incur the exgrade of the relator (Act June 14, 1911; P. I pense or order the payment. Judgment was

$

*

[ocr errors]

*

DENCE,

*

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

given for the plaintiff, and affirmed by the

(236 Pa. 622) Superior Court.

REICHNER v. TRUST CO. OF NORTH The title of the act in question is broad,

AMERICA. and indicates an intention to deal with the (Supreme Court of Pennsylvania. May 22, appointment, employment, and compensation

1912.) of stenographers in all proceedings in the BiLLS AND NOTES (8 537*)—ACTIONS-Eviseveral courts. It reads: "Relating to the

In assumpsit by the indorsee of a pote appointment of stenographers

to

against the executor of the maker, the plainreport proceedings in the several courts of tiff offered the note with an indorsement in common pleas

of this common- blank of the payee on the back. The note also wealth, as well as before commissioners, order of the plaintiff, dated several months

bore a special indorsement of the payee to the masters and special masters in chancery, after maturity, which indorsement, however, referees, examiners, auditors, and other offi- was not offered in evidence by either party. cers; prescribing their powers and duties; It was shown that the note had been discount

ed by a bank on the date of its execution, that prescribing their compensation and

some one had paid the full amount to the bank allowances for expenses, when the same shall at maturity, and that the proceeds had been be paid by the county,

and when placed to the credit of the payee on the books by the parties to such proceedings." Section of the bank. In rebuttal plaintiff offered the

affidavit of defense to show an admission that 6 provides the per diem compensation or the payee had the note discounted at the bank salary to be paid court stenographers for, at maturity, and paid the note in full. There inter alia, “taking notes by the direction of was no evidence that the note had been signed any judge or judges of any of the courts dict and judgment for plaintiff should be sus

by an accommodation maker. Held, that ver. aforesaid”; and section 8, that "every offi- tained, since plaintiff was entitled to binding cial stenographer shall be paid in addition to instructions. the compensation provided in section 6 of

[Ed. Note.-For other cases, see Bills and this act, fifteen cents for each one hundred Notes, Cent. Dig. $8 1862-1894; Dec. Dig. 9

537.*] words of every copy of the stenographic notes of trials and of other matters in con

Appeal from Court of Common Pleas, Phil. nection with the business of the court, that adelphia County. are furnished to the court or filed of record; Assumpsit by Winfield K. Reichner against

payment for such copies to be made the Trust Company of North America, exby the county in which the case is pending, ecutor of the last will and testament of Caroor for which the work is performed, upon line Vautier, on a promissory note. From a the order of the presiding judge."

judgment for defendant non obstante vereThe services rendered by the plaintiff in dicto, plaintiff appeals. Reversed and renthis case are comprehended within the words

dered. "other matters in connection with the busi- The note in suit was as follows: "$1,200. ness of the court, that are furnished to the Philadelphia, 3, 10, 1905. Four months after court or filed of record." They were per- date I promise to pay to the order of Samuel formed at the direction of the court, and the K. Reichner twelve hundred dollars at 1503 copies were for the use of its officers. In East Passyunk Ave. Without defalcation, each instance they were filed of record with for value received. No:

Due such officer's report, and the "presiding Caroline Vautier, 1503 Passyunk Ave.” Injudge” of the court approved the plaintiff's dorsed: "Samuel K. Reichner.” "Mar. 1st. charges and ordered payment thereof. The 1906. For value received I assign, sell and correctness of notes of testimony upon which transfer all my right, title and interest in courts base their decisions in divorce and the within note to Winfield K. Reichner. charter cases is a matter of vital public im- Saml. K. Reichner.” portance. "The statute (Act May 1, 1907, The facts are stated in the opinion of the supra) has general reference to public judi- Supreme Court. At the trial the jury recial proceedings.

The public gen- turned a verdict for the plaintiff for $1,672.erally

have interest in the 80. Subsequently the court entered judgment prompt, efficient, and certain administration for defendant non obstante veredicto. of justice. It is therefore to the

Argued before FELL, C. J., and BROWN, interest of all the people that every proper MESTREZAT, POTTER, and ELKIN, JJ. safeguard should be provided to guard W. W. Porter and Albert T. Bauerle, both against mistakes in the administration of of Philadelphia, for appellant. George Henjustice.” Clift v. Philadelphia, 41 Pa. Super. derson, of Philadelphia, for appellee. Ct. 638, 642, 643. The act having conferred authority upon the courts of common pleas ELKIN, J. This suit was brought by the to order payment for services of the char- indorsee against the maker of a promissory acter performed by the plaintiff, judgment note. At the trial the jury found in favor of in his favor was properly rendered below the plaintiff, and returned a verdict for the and sustained by the superior court. principal and interest of the note. On mo

The assignments are overruled, and the tion, judgment non obstante veredicto for de. judgment is affirmed.

fendant was entered upon the whole record.

*

an

« FöregåendeFortsätt »