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Court of Common Pleas of Lancaster County

Reisner v. Teachers' Protective Union.

his part.

Receipt in full-Effect of. A verdict is properly directed for the defendant in a suit where it appeared that the plaintiff had given to the defendant a receipt in full for all moneys due, in plain and definite form, and signed by him without any misunderstanding on

A receipt for money is prima facie evidence of payment but it is not conclusive and is subject to explanation.

When a receipt in full represents a balance found to be due on accounts between the parties covering a considerable period of time, it should only be set aside for weighty reasons.

Rule for a new trial. C. P. of Lancaster County. February Term, 1917, No. 43.

John A. Coyle, for plaintiff and rule.
S. V. Hosterman and John E. Malone, for defendant.
January 17, 1920. Opinion by LANDIS, P. J.

The Court in this case directed a verdict in favor of the defendant, whereupon reasons were filed and a rule was granted to show cause why a new trial should not be awarded. The facts, as they appeared upon the trial, were about as follows:

The plaintiff, on January 1, 1914, entered into a verbal agreement with J. W. Ault, who was the secretary of the defendant association, whereby it was agreed that the plaintiff should solicit members for the association. Under his contract, he was to receive, as his compensation, $5.00 for every member accepted by the association, and out of this sum he was to pay all expenses, that is, if he appointed agents, he was to pay them, and also all other costs incurred. The plaintiff claimed that he was employed as the organizer of the association and was the only one authorized to appoint agents, and that his contract covered all applicants accepted, no matter from what source. Whether or not this claim was a correct one is not very important at this time, as the case seems to turn upon other points, and for the purposes of this hearing, we will consider this contention as true.

The verbal agreement was suspended on March 1, 1916, and a written agreement, as the plaintiff said, in “the exact words ” of the verbal agreement, was prepared and substituted. That agreement provided that “ The Teachers' Protective Union of Lancaster, Pa., hereby Covenants and agrees that, as compensation in his position as Supreme Organizer, L. C. Reisner shall receive the sum of Five Dollars ($5.00) on all new applications for membership in said Union, which are accepted and certificate of membership issued thereon, except applications from such certain definite territory as may be mutually agreed upon. In return for this compensation, said L. C. Reisner is to solicit business personally, to employ and train agents, for whose work and actions as agents he will be held responsible, and whom (said agents) he must pay out of the above allowance of five dollars. In fact, all

VOL. XXXVII, No. 23

Reisner v. Teachers' Protective Union. cost of agency work, except in such certain definite territory as may be exempted by mutual agreement, must be defrayed by said L. C. Reisner out of said five dollars per application. As Supreme Organizer, he shall, in addition to the above, receive a salary of twenty-five dollars per calendar month, and his expenses shall be paid whenever it is neces. sary to employ him in special work which is distinct and separate from his regular duties. This agreement shall be in full force and effect until the next annual meeting of the Union, to be held during the month of January, 1917."

On July 10, 1916, the plaintiff resigned his position, and after that time no work of any kind was performed by him for the company. A dispute then arose between him and it as to the amount due when he ceased to perform his duties, and thereupon, at the instance of J. W. Meminger, the president, a meeting was had at the office of the company. There were present at that time Mr. Meminger, Mr. Ault, Rufus D. Helm, the treasurer of the Union, and the plaintiff. They discussed the matter and came to a settlement. The plaintiff testified: “I said, “I will accept the $600 in payment, and you will renew, on the back of this written agreement, the same terms as heretofore.' That was agreed upon. They said, 'We will.'” All of the other parties denied that any such conversation took place; but both sides agreed that, at that time, a check was prepared and signed by Mr. Helm, as treasurer, for $611.00. Thereupon, the following receipt was prepared by Mr. Ault and signed by Mr. Reisner:

LANCASTER, PA., Aug. 15, 1916.
“I, L. C. Reisner, do hereby certify that I have this day
received in full all moneys due me from the Teachers' Pro-
tective Union to date.

“ L. C. REISNER." It was then suggested by Mr. Helm that, after certain payments were made to the company, there would be some additional amount due to the plaintiff, and this they promised to pay him. Subsequently, a check was sent to him, which reads as follows: “ Farmers' Trust COMPANY.

“ LANCASTER, PA., Dec. 28, 1916. Pay to the order of L. C. Reisner

$23. 00/100
Twenty-three & 00/100

Dollars.
In full to date.

“R. D. Helm, Treasurer." Mr. Reisner testified that a stated account accompanied the check, and that it was correct. It was also admitted by him that he read and knew the contents of the receipt and the check when he signed and endorsed them respectively. He afterwards, through his attorney, made a claim for $14,000, for moneys due for services antedating the receipt, and in this suit he claims on the same grounds the sum of $7,050. During the time that he was acting for the company, he was paid $10,575, and he also collected $5.00 each from a number of members whom he personally solicited and secured for the Union. The number of applications thus secured, according to the secretary, was 2,040.

66

Reisner v. Teachers' Protective Union. We held that, as the receipt was plain and definite in form, and was signed without any misunderstanding on his part, and as the collateral agreements which he asserted were not supported by any testimony outside his own, and did not affect the amounts precedently earned, but, on the contrary, were denied by three witnesses, the receipt ought to govern. We therefore gave binding instructions for the defendant.

In Guhl v. Frank, 20 LANC. Law REVIEW 249, it was said: A receipt for money is prima facie evidence of payment, but it is not conclusive and is subject to explanation. When a receipt in full represents the balance found to be due upon an account stated between the parties involving mutual dealings covering a long period of time, it should only be set aside for weighty reasons. Fraud, accident or mistake would be sufficient to avoid such an instrument, but in such a case the cause of avoidance should clearly appear. 'Such receipts then are placed in the same category as other written instruments which are made the depositories of the solemn agreements of contracting parties. The rules as to setting aside or disregarding such contracts are too familiar to need recital here.' Rhoads' Estate, 189 Pa. 460. When parol testimony tending to impeach such a receipt is evenly balanced by contradictory evidence of like character, the receipt must control and cannot be set aside: McDonald v. Piper, 193 Pa. 312; Flynn v. Hurlock, 194 Pa. 462 ; Ogden v. Traction Company, 202 Pa. 480." In Stanton v. The Lancaster Gas Light & Fuel Co., 21 LANC. Law ReVIEW 204, it was held that, “when a receipt is in full and represents a balance found to be due on accounts between the parties covering a considerable period of time, it should only be set aside for weighty reasons," and the unsupported evidence of the plaintiff is insufficient. In Flaccus v. Wood, 260 Pa. 161, it was held that, “ although a receipt is always open to explanation, it is prima facie evidence of payment and settlement and will not be set aside except for weighty reasons and by proof clear and satisfactory, especially after a lapse of years."

After reviewing the testimony presented by the plaintiff and giving it

proper weight, we are of the opinion that he has no right in this way to disregard and set aside his own receipt, and that he can make no valid claim at this time against the defendant. We therefore discharge the rule to show cause why a new trial should not be granted.

Rule discharged.

Orphans' Court of Lancaster County

Estate of Charles W. Bitner, dec'd. Widow's $500 exemption-Separation-Evidence. A widow's five-hundred-dollar exemption should be allowed where the widow and the decedent had entered into articles of separation and lived apart but it appeared that marital relations were later re-established between them.

In such case the widow is competent to testify in support of her claim as against a legatee.

Estate of Charles W. Bitner, dec'd. Rule to show cause why executrix should not appraise and set aside the widow's exemption of $500. June Term, 1919, No. 125.

Chas W. Eaby, for rule.
Bernard J. Myers, contra.
March 25, 1920. Opinion by SMITH, P. J.

This rule and matters relating to the distribution of the estate of Charles W. Bitner were by agreement jointly considered at the audit, and the notes of testimony are commingled.

The executrix has refused to have set apart the widow's exemption because, as she contends, the widow, who is the petitioner, “had entered into articles of separation with the said Charles W. Bitner, by the terms of which she relinquished all claims in the estate.” That this is a fact is not disputed, but it is answered by testimony to prove that marital relations were later re-established between Charles W. Bitner and his wife, and the testimony offered in support of the contention has not been contradicted. A recapitulation of it is unnecessary, but it leads consistently to the culminating act of Bitner buying a house, No. 134 Pearl Street, Lancaster, Pennsylvania, in which his wife and he lived with Sylvia Tevis Bitner, their granddaughter, whom they had adopted, until within two weeks of his death when he was at a hospital, which was for about eleven months. During this period their attitude indicated conjugal affiliation ; and when recalled for cross-examination the widow testified to the biological complement.

It was urged that the widow was not a competent witness. The affirming of this contention would not have accomplished its purpose, because without her testimony the crucial fact that continued marital relations had been renewed between Bitner and his wife was not shaken. Section 5 (e) of the Act of May 24, 1887, P. L. 158, makes all parties competent witnesses who by devolution claim property of a deceased owner. It must be conceded that a widow's exemption is not analogous to property coming by devolution, for it vested in the wife at her marriage, and of the husband's estate ended with his death. (Hildebrand's Estate, 262 Pa. 112.) With the fact, about which there is no dispute, that the petitioner is the decedent's widow, her prima facie case is complete. The issue raised is between the widow and the legatee, and the burden was on the latter to show that the property to be embraced by what is known as the widow's exemption was not the widow's. Surely, as between these two neither was incompetent to testify to the title of the property claimed by each. The widow's testimony was not offered to annul or in any way qualify the articles of separation. Its covenants were not only not assailed by her, but were admitted to be as they purported. Furthermore, the widow was competent to testify as to the interest in the estate which she claimed had devolved to her by reason of her having refused to take under the will. (Hayes's Estate, 23 Sup. Ct. 570; Ehrhart, Appellant v. Bear, 51 Sup. Ct. 39.) And as no testimony applicable to either this rule or the distribution was to be excluded, it was by agreement admissible for that purpose.

Rule made absolute. Costs to be paid out of estate.

Court of Common Pleas of Allegheny County

Smith v. Smith. TrespassWife injured while riding in husband's automobile-Action

against himStatutory demurrer.

A wife who was injured while riding in her husband's automobile by his losing control of the machine, and going over an embankment, cannot sue her husband in trespass for damages. Such an action is not within the Act of June 8, 1893, P. L. 344, or the amended Act of March 27, 1913, P. L. 14. The term

property " has been defined as the interest one can have in external things. This does not include the right of action in tort.

The intention of the legislature in passing the Married Women's Acts of 1893 and 1913 was not to change the law governing the relations of husband and wife as between themselves except as might be necessary for the protection of her separate property, so that a wife injured while riding in her husband's automobile cannot maintain an action against him for personal injuries, and judgment entered on statutory demurrer. Statutory demurrer.

January Term, 1919, No. 1592.
R. P. â M. R. Marshall, for plaintiff.
H. J. Nesbit, for defendant.
July 15, 1919. Opinion by FORD, J.

The action is in trespass to recover for personal injuries alleged to have been caused by the negligence of the defendant.

The parties plaintiff and defendant are husband and wife. The statement of claims sets forth that on August 30, 1918, the defendant invited plaintiff to take a ride in his automobile. She accepted the invitation, and when the machine was on a hill the defendant lost control, the automobile ran over an embankment and plaintiff was thrown to the ground and injured. The negligence alleged is using the automobile when the brakes, as defendant well knew, were defective and unsafe, and in operating the machine carelessly, negligently and at a high rate of speed.

The affidavit is in the nature of a demurrer, raising a question of law, the ground assigned being that plaintiff has no legal right to maintain the action.

Actions between husband and wife were not authorized at common law and can be maintained only by virtue of a statute. Section 3 of the Act of June 8, 1893, P. L. 344, provides that a wife “may not sue her husband except in proceedings for divorce or in a proceeding to protect or recover her separate property whensoever he may have deserted her or separated himself from her without cause or may have neglected her or refused to support her.”

In a suit by a wife against her husband, it was necessary to bring herself, by affirmative proof, within one of the exceptions, otherwise she could not maintain the action. The Act of March 27, 1913, P. L. 14, amending Sections 3 and 4 of the Act of 1893, omits the exceptions contained in the latter Act, and reads: “but she may not sue her husband except in proceedings for divorce or in a proceeding to protect and recover her separate property."

The term “property has been defined as the interest one can have in external things. The separate property of a married woman is that which belongs to her over which her husband has no equity and

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