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Elizabeth L. Gardner et al. v. Lancaster Sanitary Milk Co. jury, a finding in favor of the plaintiff will not be set aside, unless, upon a review of the evidence in the light most favorable to the plaintiff, it is inconceivable that a mind, desiring only a just and proper determination of the question, could reasonably reach any other conclusion than that the plaintiff had brought about or contributed to the injury by his own carelessness—that is, after determining all doubts and drawing all inferences in favor of the plaintiff, it must be clear that he was guilty of contributory negligence before it can be so ruled as a matter of law' (Cramer 1. Aluminum Co., 239 Pa. 120, 125), it becomes manifest the court below erred in holding the deceased guilty of contributory negligence.”

It is a proper inference from the testimony that the plaintiff was not guilty of contributory negligence, that is, she was injured without standing in the dangerous place between the front wheel and the stepIt is a legitimate inference from the testimony and the construction of the wagon, and fully justified the jury in finding that fact by their verdict. We, therefore, refuse to enter judgment for the defendant 11. 0. V., and discharge the rule to show cause why it should not be done.

Court of Common Pleas of Lancaster County

Leibowitz v. Keim.

Magistrate-Jurisdiction-Damages-Automobile collision.

A justice of the peace has jurisdiction in an action to recover the cost of repairing the plaintiff's automobile which was damaged by a collision with the defendant's automobile.

Certiorari. September Term, 1920, No. 25.

J. E. Senft, for certiorari.

September 25, 1920. Opinion by HASSLER, J.

The only question raised by the exceptions to the proceedings before the justice of the peace, in this case, is whether he had jurisdiction of the subject matter of the suit. The claim of the plaintiff is for the cost of repairing his automobile which was injured and damaged by a collision with the defendant's automobile, which collision was the fault of the defendant.

The Act of 22 March, 1814, 6 Smith Laws 182, Section 1, provided that justices of the peace shall have jurisdiction in all actions brought for the recovery of damages for injury done or committed on real or personal property where the damages do not exceed $100.00. This has since been made $300.00.

In Grosky v. Wright, 2 Kulp 415, Judge Rice says: "A justice Leibowitz v. Keim. has jurisdiction of actions of trespass brought for the recovery of damages for injury done or committed on real and personal estate. It has been many times decided that the damages for which a plaintiff may sue in this form of action are such as arise where an injury is immediate, and would be recoverable in the common law action of trespass vi et armis, and not such as are consequential, and would be recoverable, if at all, only in an action of trespass on the case. Where the plaintiff has an election of actions, and chooses to proceed for the recovery of consequential damages, rather than for those arising immediately from the injury, it is equally clear that his remedy is in the Common Pleas, and not before a justice of the peace. These principles, we think, too well decided to need a citation of authorities in their support." In Gingrich v. Sheaffer, 16 Sup. 299, the rule is stated in nearly the same language, and the court says, in addition, “ It is the nature of the demand, not merely the form of action in which the summons issues, that determines the justice's jurisdiction.” In that case the court below was careful to exclude all testimony of any loss sustained by reason of the plaintiff having been deprived of the use of the damaged team, as they were consequential damages of which the justice had no jurisdiction. This distinction between the claims for damages which the justice has jurisdiction to entertain an action for, and those of which he does not have such jurisdiction, runs through all the cases on the subject. We have followed them in Becker v. Palm, 27 L. L. R. 175; Morrison v. Lefever, 29 L. L. R. 370; Garber v. Lockard, 35 L. L. R. 287, and Sprout v. Kirk, 36 L. L. R. 129; in all of which we held that the justice had jurisdiction to entertain an action for damages, such as are claimed here, and we are convinced of the correctness of what we there decided. There are other Common Pleas cases to the same effect, among which are Shirer v. Gross, 7 Leh. 11; Patschaga v. Musco, 9 Luzerne 262.

The distinction between damages recoverable in an action of trespass and those recoverable in an action of trespass on the case, is clearly pointed out in Stephen on Pleading. On page 16 it is stated that trespass vi et armis is an injury committed with violence where the injury is of a direct and immediate kind and committed on the person or property of the plaintiff. Damages for such an injury are recoverable in an action of trespass. It is further stated that trespass on the case lies where the party sues for damages for any wrong or cause of complaint to which covenant or trespass alone apply. This would be where an injury is not committed with violence, or is not of a direct or immediate kind. Where trespass on the case is the proper remedy, a justice of the peace does not have jurisdiction.

Plaintiff's action before the justice was, in the case at bar, to recover only the direct and immediate damages caused by the violent act of the defendant in running into his automobile, and the cases cited clearly show that the jutsice had jurisdiction. We must, therefore, dismiss the exceptions and confirm his proceedings.

Exceptions dismissed.

Court of Common Pleas of Lancaster County

Esbbach & Eshbach v. Hoffmeister (No. 1).

Written contract-Inducement of by oral promise. In a suit upon a written contract, one party thereto may defend on the ground that he was induced to sign it by reason of a parol contemporaneous agreement or promise which the other repudiates. In such case it need not be averred that the inducing promise was omitted from the writing by fraud, accident or mistake.

Rule for judgment for want of a sufficient affidavit of defense. May Term, 1920, No. 21.

F. Lyman Windolph, for rule.
Harnish & Harnish, contra.
July 3, 1920. Opinion by LANDIS, P. J.

The plaintiffs, who were co-partners under the firm name of Eshbach & Eshbach, on September 20, 1919, entered into a written agreement with the defendant, whereby they sold unto the defendant “ their entire automobile garage and machinery business located in Millersville, Penn'a, in the rear of Harry Lintner's property; that they are selling their good will, line shafts, motor generator sets, drill press, emery wheel, and all the garage equipment, excepting tools.” The consideration named therein was $4,000, of which $500 was to be paid in cash on the execution of the agreement, $2,000 on November 15, 1919, and the remaining $1,500 on April 1, 1920. Pursuant to this agreement, the plaintiffs delivered to the defendant possession of the premises and the personal property, &c., set forth therein, and, on September 20, 1919, the defendant paid them the sum of $500, and on November 15, 1919, the sum of $2,000. The balance of $1,500 remains unpaid, and on April 13, 1920, this suit was brought to recover

the same.

On May 3, 1920, the defendant filed his affidavit of defense. He therein avers that the agreement of sale between him and the plaintiffs was partly written and partly parol. He alleges that immediately before and at the same time the written part of the contract was entered into the plaintiffs entered into a parol contemporaneous agreement with him, that if he would sign the written part of the contract, the plaintiffs, individually and as co-partners, would discontinue in Millersville and the vicinity the automobile garage and machinery business, and would not in the future engage in said business in Millersville and the vicinity, and would sign a written agreement to that effect later, when C. H. Eshbach, who was absent, would come with H. H. Eshbach to Mr. Herr's office. He alleges that he was induced to sign the written part of the contract on the faith of the parol contemporaneous agreement and promises ; that the plaintiffs violated and repudiated this promise, in that they are continuing the said business in Millersville and vicinity, and they still continue the same, and refuse either to discontinue or to sign a written agreement to that effect; that the value of the property transferred was not more than $500, and the remaining consideration

Vol. XXXVII, No.57

Eshbach & Eshbach v. Hoffmaster (No. 1). money, or $3,500, was for the business, good will and the parol contemporaneous agreement to go out of business and to discontinue the same in Millersville and vicinity. The defendant, therefore, claims that the plaintiffs are indebted to him in the amount paid on the agreement, or $2,500, as a counter-claim.

We think that the point raised in this case is ruled by Gandy 1'. Weckerly, 220 Pa. 285, and cases of similar import. Mr. Justice Brown, after reciting the facts in that case, said: "The affidavit of defense was held to be insufficient by the Court of Common Pleas because it contains no allegation of fraud, accident or mistake in the making of the note, and there is no averment that it was signed by the defendant upon the faith of a promise by the plaintiff that it would not be used by him as a note. It may be conceded that no fraud was practiced upon the appellant by the appellee when he received the note, and that at that time he honestly intended to keep his promise as to how it should be paid ; but, however honest and upright his intention may then have been, if, to procure an unfair advantage to himself, he now attempts to exact payment from the appellant in violation of his promise, without which the note would not have been given, he is guilty of a fraud, against which the appellant may defend; and the latter is not defending on the ground that the plaintiff had agreed that he would not use the note as a note, but that he is attempting to use it differently from the use which he promised he would make of it. The authorities relied upon by the learned judge of the Common Pleas for directing judgment are Anspach 2. Bast, 52 Pa. 356; Phillips v. Meily, 106 Pa. 536, and Appleby v. Barrett, 28 Pa. Superior Ct. 349. In the first case, the question of a promise as the inducement to the execution of the obligation was not involved. The affidavit of defense was held to be insufficient because there was nothing but an averment of a contemporaneous agreement that the note should not mature absolutely in six months, according to its terms. The question here involved was not in that case.

The other two, instead of justifying the judgment against the appellant, rather support his defense. In Phillips v. Meily, 106 Pa. 536, we said: 'The cases in this state in which parol evidence has been allowed to contradict or vary written instruments, may be classed under two heads : 1st. Where there was fraud, accident or mistake in the creation of the instrument itself, and 2d. Where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed. To the latter class belong Renshaw v. Gans, 7 Barr 118; Rearich v. Swinehart, 1 Jones 233, and Lippincott v. Whitman, 2 Norris 244." Therefore, it was held that, where a person is induced by a contemporaneous parol promise to sign a promissory note which he would not have signed except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note, and prove the promise by parol evidence."

In Faux v. Fitler, 223 Pa. 568, it was held that “the existence of a contemporaneous parol agreement between the parties under the Eshbach & Eshbach v. Hoffmaster (No. 1). influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its terms regardless of the contemporaneous agreement without which it would never have been signed at all."

In Kerr v. McClure, 266 Pa. 103, it was held that, “in a suit upon a written instrument, one party thereto may defend upon the ground that he was induced to sign it by reason of a promise which the other made and, in the suit, now attempts to repudiate ;" that "in such a case, it need not be averred or proved that the inducing promise was omitted from the writing by fraud, accident or mistake.” See, also, Federal Sales Co. v. Farrell, 264 Pa. 149; Noel v. Kessler, 252 Pa. 244.

The rule for judgment for the plaintiffs for want of a sufficient affidavit of defense is, therefore, discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

Eshbach & Eshbach v. Hoffmaster (No. 2).

Same set-off claimed in two suitsPractice. Where a defendant claims the same set-off in two suits, judgment may be taken for want of a sufficient affidavit of defense for the amount admitted in the affidavit to be due, subject with leave to the plaintiff to proceed to collect the balance of the claim, in one case, and if the set-off is allowed in his other case, he can take judgment for the full amount in this case.

Rule for judgment for want of a sufficient affidavit of defense. May Term, 1920, No. 22.

F. Lyman Windolph, for rule.
Harnish & Harnish, contra.
July 3, 1920. Opinion by LANDIS, P. J.

In this case the plaintiffs' statement alleges that the plaintiffs orally agreed to sell to the defendant certain articles of personal property, which are enumerated and set forth in a schedule attached thereto; that, immediately after the making of the oral contract, the plaintiffs delivered to the defendant the said articles, and the defendant received and accepted the same; that the total price, as agreed upon, was $4,374.58, and that certain credits were allowable to the defendant, amounting to $425.00, leaving the amount due at this time $3,949.58, with interest from October 10, 1919.

The defendant has filed an affidavit of defense, in which he alleges that the property sold to him by the plaintiffs, as agreed upon in the

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