with the legal rule above stated? It would be an affectation of learning to cite the authorities on that question, for every judge of this court has repeatedly said that, unless only one inference is possible from the oral evidence, the question is for the jury. That the oral evidence admits of more than one inference here is evident from the fact that defendant in his affidavit of set-off avers the duty of Nolle to purchase the beer was to continue "so long as he could legally purchase the same, for the purpose. of resale"; the court below held it "was understood to exist as long as the plaintiff, Nolle, was a stockholder and a licensed liquor dealer"; the majority opinion says "the evident intention of the parties was that the agreement should continue in force so long as the plaintiff was engaged in the business of selling beer by retail, situated as he then was"; and three of the seven judges of this court are of opinion that there is nothing in the evidence to justify a finding at variance with the rule of reasonable duration.

(Pa.

some length of time, and Nolle was willing to agree to be so; but the question is, For what length of time? On that point both the contract and the evidence are absolutely silent, and there is nothing from which it can be concluded Nolle was to be bound beyond. a reasonable time, which would cover the crucial period in the corporation's existence, namely, when it was building up its trade. To assert anything more on the evidence here is to make a contract, not to construe one.

ten is more compatible with a reasonable duIn my judgment everything said and writration for the contract than with an indefinite one, and therefore nothing in this record justifies a variance from the legal rule. The law of reasonable duration is in accordance with the principle that parties put all of their agreement into the writing, all prior conversations being merged therein; with the presumption that parties intend an equality of obligation, each being bound according to the same rule; with the presumption that` If it is still thought this court may itself certainty, and not indefiniteness, is intended, If it is still thought this court may itself contracting parties being able to see what determine the question at issue by consider- they can do during a reasonable length of ing the circumstances "under which the par- time, but not what lies undisclosed in the ties contracted and the subject-matter of the womb of the future; and because it imposes agreement," the record discloses the former to be as follows: The defendant was being and litigation, and leaves the parties free to a minimum loss, discourages dissatisfaction organized as a brewing company, which contract with others, when, if ever, differwished to sell at least part of its capital ences arise between them. In other words, stock to retailers who would agree to pur- it applies the principles upon which the chase part of its beer. Its subscription agent "reasonable time" and the "restraint of called upon plaintiff and asked him to sub-trade" doctrines are founded, leaving to the scribe to the stock. The only evidence of parties the power to contract otherwise, if what occurred between them is as follows: they see fit so to do, but not assuming that "Q. When you went to see Mr. Nolle, did they so intend when they do not say so. you explain the purposes of this organization? A. Yes; we explained it to Mr. Nolle, the same as to every retail liquor dealer that we went to

see.

"Q. What did you tell him? A. We said to him that we were soliciting stockholders for this brewery, and only such dealers that held a retail license and wholesalers that sold malt liquors; we did not solicit any stock from any one, except they had a licensed place and would be willing to subscribe to a certain amount of beer. Mr. Nolle agreed to that, and we explained it thoroughly, the proposition, and he signed the application for stock."

It will be noticed that nothing is said as to the time Nolle was to continue taking beer from defendant, or that the purpose of the organization was to have only venders of beer as stockholders (though it is said they were the only ones being solicited to purchase stock), or that only stockholders were to purchase defendant's beer. The absence of anything to show that Nolle agreed to be bound for an indefinite length of time is potent evidence that it was not intended he should be, for it would have been easy to say so, had it been so intended. It is evident defendant wished its stockholders, who

On the other hand, no reason is given why the term of plaintiff's continuance in business should be adopted, instead of defendant's continuance in business, or plaintiff's ownership of the stock, or all three combined. or the reasonable duration rule above set forth, any of which could just as well be "derived from the circumstances under which the parties contracted and the subject-matter of the agreement." It is true the conclusion which limits the contract to the period while Nolle was in business at his then present location avoids some of the pitfalls which the opinion of the court below leaves open; but it suggests enough of its own to indicate the lack of safety in accepting it as a conclusion of law. As already quoted, it interprets the contract to mean it "should continue in force so long as plaintiff was engaged in the business of selling beer by retail, situated as it then was." But why "situated as it then was"? Nothing in the contract or conversation implies it. Evidently the conclusion reached would appear too forced without that clause, for otherwise the contract might continue although Nolle sold beer in other places than Pittsburgh. With

(108 A.)

ten; the latter adds to the obligations by which the parties have bound themselves, and is of course quite unauthorized, as well as liable to great practical injustice in the application.'

As already pointed out, in the present case we do not have even "words of recital or reference [which] manifest a clear [or any] intention" that Nolle should be bound for an indefinite period, yet the majority propose to bind him by doing here what we have repeatedly said could not be done. In my judgment the courts should never add a term to a written contract, especially one in antagonism to a general rule of law on the subject, unless the term to be added appears with certainty, as inevitably arising out of the contract, and as being the only term which could be added to make the contract reasonable and certain. Here, as above shown, the opposite conclusion is true.

the next street, and have escaped liability? [ of a rule of construction to that which is writOr, if not, how far away must he have moved to be rid of it? Or might he have ceased to sell beer at retail the day after the contract was made, and have thereby avoided it, and could he have later started again without renewing it? And is he at the mercy of defendant, who may either sell or refuse to sell to him, as it chooses, he continuing bound until it pleases defendant to release him by refusing to sell to him further? And if the duty to sell is also to be implied, what is the extent of the implication? Must defendant be at its present location, or near by, or does its duty continue, though Nolle and it, one or both, in the approaching prohibition times, move to other places where beer may be sold? And is it legally bound to brew and sell so long as any of its numerous stockholders, who are venders of beer, desire it to continue doing so, though but one purchaser is left, and it is selling at a loss? It is no answer to these questions to say they will be solved when they arise, for the fact that it is possible for them to arise under the construction the majority place on the contract makes them important in determining what the contract really means.

From those doubts and uncertainties one can safely turn to the rule of law above stated, for it is both certain and equitable, and perhaps is nowhere better expressed than by Lord Denman, in Apsden v. Austin, 5 Ad. & Ellis (N. S.) 671, quoted and followed by us in Coffin v. Landis, supra:

"It will be found that, where words of recital

I would, therefore, reverse the judgment, and award a new venire, that a jury might determine what would be a reasonable time, from and after August 13, 1910, during which Nolle should be held liable for his refusal to take the 10 barrels a week as agreed upon.

MOSCHZISKER and KEPHART, JJ., join in this dissent.

(265 Pa. 1)

FURMANSKI et al. v. IWANOWSKI et al.
(Supreme Court of Pennsylvania. May 5, 1919.)
1. RELIGIOUS SOCIETIES 5 - INJUNCTION

WILL BE GRANTED ON REFUSAL OF MEMBERS
TO CONFORM TO LAWS.

In matters relating to a church or other voluntary organization, its members are bound by and required to conform to its laws, and on a proper occasion will be enjoined from acting otherwise.

2. RELIGIOUS SOCIETIES 12(5) DECISION

OF ECCLESIASTICAL TRIBUNALS BINDING UN-
LESS IN VIOLATION OF LAW.

Where a church has appropriate tribunals to decide what are the scope and effect of its laws, their decisions duly made are binding on the members, unless in violation of the laws of the land.

or reference manifest a clear intention that the parties should do certain acts, the courts have from them inferred a covenant to do such acts, and sustained actions of covenant for the nonperformance, as if the instruments had contained express covenants to perform them. But it is a manifest extension of that principle to hold that, where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants. When parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption being that, having expressed some, they have expressed all, the conditions by which they intend to be bound under that instrument. It is possible that each party to the present instrument may have contracted on the supposition that the business would in fact be carried on, and the service in fact continued, during the three years, and yet neither party might have been willing to bind himself to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they may have even imperfectly expressed themselves, and another to add to the instruments all such covenants as upon a full consideration the court may deem fitting for completing the intention of the parties, but which they either purposely or unintentionally Where the question is solely one of the auhave omitted. The former is but the application 'thority of the bishop to remove a priest, and

SOCIETIES 3. RELIGIOUS mm 27(2) CIVIL COURTS WILL NOT RESTORE PRIEST, REMOVED ACCORDING TO USAGES OF HIS CHURCH.

If by the laws and usages of the Roman Catholic Church the bishop has a right, without a formal accusation and trial, to summarily remove a priest from his office in a particular church, the priest has no cause of complaint, except to any appellate ecclesiastical tribunals provided, and the civil courts will not maintain his position in the church.

4. RELIGIOUS SOCIETIES 27(3)

REMOVAL

OF PRIEST BY BISHOP VALID THOUGH RESULT-
ING IN LOSS OF EMOLUMENT.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

where the court below finds on competent evi- | him written directions "to call a meeting of dence that under the laws of the church, the the Congregation of Holy Trinity, Nanticoke, bishop may summarily remove a priest for for Sunday, January 17th, for the purpose of refusing to call a meeting of the congregation, considering matters of general interest to the decree will be sustained, though it takes from the priest the emoluments he would other- the parish," the bishop verbally stating he wise have received, as his only property right desired to know the views of the congregation therein depends on a legal right to the office in regard to the complaints. Iwanowski at and terminates when that ceases. first objected to calling the meeting, but, on 5. RELIGIOUS SOCIETIES being told he would be subject to suspension if he did not, requested a letter directing him to call it, and, on receiving the one from which the above quotation is taken, said he would do so, but the next day, January 14, 1915, telephoned the bishop he would not, was told by the latter suspension would follow if he did not and defiantly retorted, "If I don't call the meeting you as bishop can suspend me, and I will call the matter higher." Be

27(2)-INCORPORATION UNDER RULES OF CERTAIN CHURCH RECOGNITION OF ITS POWER TO APPOINT AND

REMOVE PRIEST.

Obtaining a corporate charter for the purpose of the support of public worship according to the faith, doctrine, and usages of a particular church is an express recognition of the right of the proper officials to appoint and remove its pastor in the manner prescribed by its laws.

Appeal from Court of Common Pleas, Lu- cause thereof the bishop forthwith suspended zerne County.

Bill for injunction by Adelbert Furmanski and others, members, for themselves and such of the members of the Holy Trinity Roman Catholic Polish Church and Congregation of Nanticoke, Pa., as might join, against Rev. B. Iwanowski, and Stanislaw Drozdowski and others, trustees of the church. From a decree enjoining defendant Rev. B. Iwanowski from exercising any of the functions of the office of parish priest for the congregation, and enjoining the trustees, etc., from interfering with any other duly appointed priest in the performance of his duties as to priest in the performance of his duties as to the congregation, defendants appeal. Affirmed, and appeal dismissed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON, and KEPHART, JJ.

W. N. Trinkle, of Philadelphia, and Abram Salsburg and Thos. D. Shea, both of WilkesBarre, for appellants.

John McGahren and Frank P. Slattery, both of Wilkes-Barre, for appellees.

SIMPSON, J. The evidence and argument in this case took a wide range, but we shall consider only the few important facts and the principles of law applicable thereto.

him from the exercise of the office of priest in said church; whereupon Iwanowski, apparently recognizing an appeal would not lie, presented complaints of nullity to the Apostolic Delegate at Baltimore, then to the Sacred Roman Rota (which transferred it to the Sacred Congregation of the Council as the proper body to decide the complaint), and finally to the Holy See at Rome; the first two being the tribunals provided by the Roman Catholic Church to consider such matters, and the latter being ex gratia the authority to review proceedings where all other he asserted he had been suspended on Januremedies have failed. In all his complaints ary 14, 1915, for refusing to call the meeting, and each of these tribunals in turn decided against him and sustained the bishop. It is alleged the decision of the Holy See has not been properly proved, but inasmuch as the decision of the Sacred Congregation of the Council would stand until reversed, and any action by the Holy See is purely ex gratia, we need not further consider the objection.

Notwithstanding his suspension, and notwithstanding the temporary appointment of another priest to fill the vacancy caused thereby, Iwanowski, acting in conjunction with the other defendants, who are trustees of the church, retained possession thereof, and exercised the usual priestly functions "The Holy Trinity Roman Catholic Polish therein, and at the trial announced his deChurch and Congregation of Nanticoke, Pa.," termination to continue so doing, "irrespecis a corporation of this commonwealth, form- tive of what the bishop directs." Plaintiffs, ed "for the purpose of the support of public who are members of the church, filed the worship according to the faith, doctrine, and present bill, praying that he be enjoined usage of the Roman Catholic Church." It is from holding any services or performing or located in the Scranton Diocese, and the bish- exercising any of the functions of the office op thereof appointed B. Iwanowski, one of of parish priest for said congregation, and the defendants, as priest of the church. that the remaining defendants be enjoined Written complaints having been made to the and restrained from obstructing or interferbishop regarding the conduct of Iwanowskiing with any other duly appointed priest in and the nonpayment of the debts of the the performance of his duties in regard to church, the bishop on January 13, 1915, show- said church. Defendants answered the bill, ed the complaints to Iwanowski, and gave the case was tried in due course, a final de

(108 A.)

cree was entered as prayed for, and this ap- ki of any of the emoluments he had theretopeal taken.

fore received; on the contrary, the finding is he still has "the right to remain in the benefice, but the ceremonies must be performed by some one sent by the bishop to perform them for the suspended priest." We prefer, however, to plant our decision on broader grounds than a defect in the pleadings and proofs.

[3] After our decision in O'Hara v. Stack, supra, the priest sued the bishop to recover the emoluments of which he alleged the unlawful action of the bishop had deprived him, and we held (Stack v. O'Hara, 98 Pa. 213) that under the laws and usages of the Ro

In our foregoing summary of the important facts we have not found it necessary, despite the elaborate arguments of appellants in regard thereto, to consider the different methods of expression used by the bishop when testifying as to the "suspension" or "removal" of Iwanowski. Many, if not all, of these differences are purely verbal, owing to the use of those words interchangeably and as synonymous in meaning. The court below has found, upon ample evidence, that the only intention and effect were to remove Iwanowski from the office of priest in the particular church, leaving him as a duly or-man Catholic Church the bishop had a right, dained priest, capable of being appointed to any other church, and of being reinstated in this church if and when he shall have complied with the legal requirements of his superiors, and so he has been treated through out. Especially is discussion on this point unnecessary, inasmuch as neither by the bill in equity nor the decree appealed from is the action of the bishop given or sought to be given any greater effect than the limited one above stated.

without a formal accusation and trial, to summarily remove a priest from his office in a particular church, because

"His profession is that of a priest in the church. He acquired it by compact. He holds it under a promise to obey the laws of the church and the proper orders of the bishop. *** *** The profession of priest or minister in any denomination is taken subject to its laws. These he agrees to obey. If they become distasteful to him he can withdraw-no power can functions; but if he violates the laws of his compel him to remain and perform his priestly church, or disobeys the lawful commands made in accord with his compact, the civil courts will not maintain his footing in the church. If the plaintiff was removed in accord with the law of the church, he has no cause of complaint. If such laws provide that the bishop may remove a priest without trial, he has no right have recourse to the bishop's superior in case to a trial; and if they provide that he shall of wrongful removal, his remedy is by such recourse, for this is his contract."

Am. Rep. 727. Admittedly the laws of the
Roman Catholic Church
Catholic Church have not been
changed in this respect since then, and we
have no inclination to alter our judgment as
thus expressed, for to hold otherwise might
result in the demoralization of the particular
congregation and injuriously affect
affect the
church at large and religion generally.

[1, 2] In matters relating to a church or other voluntary organization its members are bound by and required to conform to its laws, and on a proper occasion will be enjoined from acting otherwise. Where it has appropriate tribunals to decide what are the scope and effect of its laws, their decisions duly made are binding on the members unless in violation of the law of the land. German Reformed Church v. Com. ex rel. Seibert, 3 Pa. 282; Henderson v. Hunter, 59 Pa. 335; Tuigg v. Treacy, 104 Pa. 493; Krecker v. Shirey, 163 Pa. 534, 30 Atl. 440, 29 L. R. A. 476; Ir- This conclusion was approved and followed vine v. Elliott, 206 Pa. 154, 55 Atl. 859; Wat-in Tuigg v. Sheehan, 101 Pa. 363, 370, 47 son v. Jones, 13 Wall. 679, 20 L. Ed. 666. Defendants do not challenge these principles, but contend that the law of the land would be violated if the bishop was permitted to remove Iwanowski without an accusation, trial, and judgment in due course, and for this they refer to O'Hara v. Stack, 90 Pa. 477, 490, where it was said by two of the five judges of this court that, "When rights of property are in question, civil courts will inquire whether the organic rules and forms of proceeding prescribed by the ecclesiastical body have been followed, and if followed whether they are in conflict with the law of the land," a conclusion against which no one contends, but which, because of an alleged property right in the emoluments of the office, was there erroneously held to require a formal accusation, trial, and finding of guilty, before a priest could be deprived of the right to officiate in a particular church. Perhaps it would be sufficient to say in the present case that there is neither averment nor proof that the effect of sustaining the bishop's action would be to deprive Iwanows

The underlying thought in the minds of the two judges who spoke for the court in O'Hara v. Stack, supra, evidently was to assimilate this class of cases to others of removal from office, and to give to each incumbent the like legal protection. That thought was laudable, and with it we are in entire accord; but it was there erroneously applied, because they overlooked the rule that in all such cases the question is one of authority to do the particular thing complained of, and if the superior has a right to remove the official in the way he does, the incidental effect of a loss of fees or salary will not change that right into a wrong, and hence will not give the courts jurisdiction to interfere. risdiction to interfere. For this reason we have held that where power has been given

so to do, an appointed officer may be removed summarily by the power which appointed him (Lane v. Commonwealth ex rel., 103 Pa. 481); an elective officer may be legislated out of an office not constitutional (Commonwealth v. Weir, 165 Pa. 284, 30 Atl. 835; Commonwealth v. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801), each during his term of office, without notice or a hearing, and irrespective of the emoluments of the office; and an officer de jure is entitled to his salary although by reason of a contest of his election he was not able to perform its duties (Rink v. City of Phila., 17 Phila. 205, affirmed in City of Phila. v. Rink, 1 Sad. 390, 2 Atl. 505).

[4] As stated above, the question is solely one of authority; and as the court below found, upon competent evidence, that under the laws of the church the bishop had a right to summarily remove Iwanowski for refusing to call a meeting of the congregation, we would be compelled to sustain the decree, even if its effect was to take from him the emoluments he would otherwise have received, for his only property right therein is dependent on a legal right to the office, and terminates when that legal right ceases.

[5] It is not necessary to separately consider the other questions argued, save to say the claim that the effect of the incorporation of the church is to render it independent in the matter of the selection of its priests, has been fully answered in Kicinko v. Petruska, 259 Pa. 1, 102 Atl. 286.

The decree of the court below is affirmed, and the appeal dismissed, at the cost of appellants.

(264 Pa. 557)

GUARANTY MOTORS CO. v. HUDFORD
PHILADELPHIA SALES CO.

(Supreme Court of Pennsylvania. May 5, 1919.)
1. PLEADING 142 - SUFFICIENCY OF PLEA
OF COUNTERCLAIM.

A counterclaim should be set forth with as much precision and exactness as is required in a statement of a cause of action upon which proceedings are instituted. 2. SALES 354(9)

OF COUNTERCLAIM.

Even if contracts to furnish automobile the averment as to the damages suffered was inunits were well pleaded by way of counterclaim, complete where no facts were set out from which the loss of anticipated profits could be reasonably ascertained, even if recoverable.

5. MASTER AND SERVANT 39-SUFFICIENCY OF PLEA OF COUNTERCLAIM FOR WRONGFUL DISCHARGE FROM EMPLOYMENT.

A counterclaim for unpaid salary after a discharge from employment which does not show how it was to be paid, nor that employé had been wrongfully discharged or tendered performance after discharge, is insufficient to sustain a claim for wrongful discharge. 6. CORPORATIONS 145 SUFFICIENCY OF PLEA OF COUNTERCLAIM AS TO PROMOTER'S SERVICES.

An affidavit of defense counterclaiming for plaintiff's breach of its agreement to transfer its business assets to a corporation to be formed, and to transfer a percentage of its stock for services performed, was not sufficiently pleaded, where it did not aver when services were to be performed, when corporation was to be formed, or that there had been a reasonable time to organize, or that plaintiff had been notified to keep its agreement. 7. PLEADING

281-SUFFICIENCY OF AFFIDA

VIT OF DEFENSE SETTING UP COUNTERCLAIM
ON CONTRACT.

A supplemental affidavit of defense did not cure defects in a counterclaim against plaintiff for services of a promoter, where the subsequent agreement referred to was not attached to such affidavit as it should be if in writing, or specifically averred as it should be if oral.,

Appeal from Court of Common Pleas, Philadelphia County.

Action by Samuel W. Prussian, trading as the Guaranty Motors Company, against the Hudford Philadelphia Sales Company, in which the affidavit of defense set up a number of counterclaims which the court concluded were not properly pleaded and diSUFFICIENCY OF PLEA rected judgment for plaintiff for $7,870.60, being the amount sued for less the sum of $1,721.38. From a judgment making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Af

firmed.

Counterclaims for damages for breach of oral agreements to furnish certain automobile units, not specifying the time within which they were to be furnished or averring that plaintiff knew that they were for immediate use, or anything requiring them to be furnished before plaintiffs' alleged default before contract to fur-WALLING, SIMPSON, and KEPHART, JJ. Argued before MOSCHZISKER, FRAZER, nish them expired, were not sufficiently pleaded. 3. SALES 174-ON DEFAULT BY BUYER A

Walter Willard and Bronte Greenwood,

REFUSAL OF FURTHER SHIPMENTS JUSTIFIED. Jr., both of Philadelphia, for appellant. Where defendant, sued for automobile equip- Wm. Findlay Brown and Charles B. Downs, ment sold to it, refused to pay for all equip-both of Philadelphia, for appellee.