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L. F. Grammes & Sons v. Landis Brothers. car promptly, the engine remained on their premises at the time it was destroyed by fire. It never was delivered in accordance with the terms of the contract. For this reason, under the Act of Assembly and the law as determined by the authorities, the title to the property never passed to the plaintiffs. It remained in the defendants, and the loss occasioned by the fire must necessarily be borne by them. It follows that they were bound to pay back the money paid under such conditions.
For these reasons, the rule for judgment for the defendants non obstante veredicto is now discharged.
Court of Common Pleas of Lancaster County
Harnish v. Kauffman.
Landlord and tenant-Sublease—Levy on goods of sublessee—Writ of
possession-Petition to order possession of premises to sublessees.
A lessee who had sublet the premises, having defaulted in his rent, the landlord under the terms of his lease issued a writ of possession and levied on property of the sub-tenants, who thereupon petitioned the court to stay the writ and make an order allowing them to retain possession of the premises :
Held, that even if the sublease was valid, the court had no power to summarily release the property claimed by the petitioners, who had their proper remedy if the property was not subject to levy, and they had no standing to ask for the relief sought as they were bound by the terms of the original lease, but their sublease was invalid in the absence of anything to show a waiver by the landlord of a stipulation against subletting except by his written consent, he having merely expressed his willingness to permit the subletting.
Rule to give Conrad & Rice possession of the premises. November Term, 1920, No. 10, Ex. Doc.
B. F. Davis, for rule.
D. L. Harnish is the owner of a two-story brick building on North Prince Street in this city. On December 19, 1918, he leased it to F. C. Kauffman for a period of one year, with the privilege of releasing from year to year, for three years more, on the same terms. The lease contained a provision that the premises shall not be sublet, except with the written consent of the lessor. Some time in April, 1920, Conrad & Rice entered into negotiations with F. C. Kauffman for the purpose of purchasing the business that he was carrying on in the property, and John H. Conrad, one of the firm, called upon D. L. Harnish, and asked him whether there would be any trouble about it, and he said, no, that there would be no trouble, whether they leased from Kauffman or himself. F. C. Kauffman then, on the seventeenth of April, 1920, entered into a new lease with the said D. L. Harnish for the premises, surrendering the old one. In this new lease it is provided that Kauffman is privileged to re-lease the premises to Conrad & Harnish v. Kauffman. Rice, John Suttie, and Harry Taylor, for the term of the lease. The term mentioned in this lease is eight months. It appears also that on the fifteenth day of April Conrad & Rice, the petitioners, entered into a lease with F. C. Kauffman for the premises. It does not appear that Harnish gave his written consent for such subletting. From Mr. Conrad's own testimony of his conversations with Harnish, it cannot be seriously contended that there was any waiver of this clause in the original lease. Mr. Harnish expressed his willingness to permit Kauffman to sublet, but this did not justify Conrad & Rice in assuming that Kauffman could sublet without his written consent.
On September 16, 1920, Kauffman was in arrears in the payment of his rent for four months to the amount of $840.00. It is provided in the lease that in case the lessee defaults in the payment of his rent, the lessor can enter an amicable judgment in ejection for the premises, and issue a writ of habere facias possessionum with clause of fi. fa. for the costs and rent. When this writ was served Conrad & Rice presented their petition to this Court, asking us to order that they have custody of the premises according to the terms of their lease with Kauffman, and that their goods and chattels levied upon be relieved or released from the levy of the execution, so that they may have possession thereof. Upon this petition the present rule was granted.
It seems to us that the mere statement of these facts show that the petitioners have no standing for the relief sought. Even though we should hold that the lease from Kauffman to the petitioners is valid, and that the consent of Harnish was not necessary, it would not entitle them to the relief asked for, but we do not think that their lease is good under the facts proven. Before Kauffman could make a lease as tenant under his original lease, the written consent of Harnish was necessary to make it valid. That consent was not obtained, nor is there anything in the testimony to show that by anything he said or did, Harnish waived the right to insist upon that stipulation in the lease. But even though the petitioners' arrangement with Kauffman could be considered a lease of the premises, which he held under the lease from Harnish dated April 17, 1920, upon which this judgment was entered, we do not see how we could grant the relief they ask for. They would then be tenants, subject to the conditions contained in the lease between their lessor, Kauffman, and the owner of the premises, Harnish. One of these conditions is that if Kauffman defaulted in the payment of rent that a judgment such as was entered here could be entered, and the owner of the premises take possession thereof. It is not denied that the rent was in arrears. The plaintiff, therefore, was authorized under the lease to enter the judgment and proceed as he did, and to obtain possession of the premises either from Kauffman, or from any one claiming under him, as such one was subject to the conditions contained in the lease to Kauffman. Nor could we, in a proceeding such as this, order the release of personal property claimed by the petitioners. If it is not subject to levy, they have their remedy, but it cannot be decided in such a summary proceeding as this. The rule granted is, therefore, discharged.
To Take Action on the Death of A. C. Bruner, Esq.
Alfred Cookman Bruner was born in Columbia in 1858.
He graduated from Wesleyan College of Middletown, Conn., with the class of 1879.
He studied law in the office of Wm. B. Given, Esq., at Columbia, Pa.
He died suddenly at Atlanta, Ga., while traveling, on January 31, 1921.
A meeting of the Lancaster Bar was held in the large Court Room at 11 o'clock a. m., Saturday, February 5th, 1921, to take action on the death of A. C. Bruner, with John E. Malone in the chair and B. J. Myers, acting as secretary.
Remarks eulogistic of Mr. Bruner were made by John E. Malone, John A. Coyle, B. F. Davis, B. C. Atlee, H. R. Fulton and I. C. Arnold.
A committee, consisting of John A. Coyle, John A. Nauman, B. F. Davis, Frank S. Groff and B. C. Atlee, was, on motion, appointed by the chair to draw up suitable resolutions, and reported the following, which was adopted :
“Alfred Cookman Bruner, a member of this Bar, died suddenly on January 31st, 1921. He was admitted to this Bar on June 16, 1884, having studied law with William B. Given, at Columbia, Pa., and soon after his admission achieved high standing as a lawyer and counselor.
“As a citizen he was connected with nearly all of the enterprises of his native town and worked hard for their betterment and the advancement of all the best interests of Columbia.
"His social and family life were of the highest type, and his death will be a severe loss to both his town and his family. He was an able, industrious and careful lawyer, a man of the strictest probity, of the best type of citizen, and was a devoted husband and father, and his career in public and private life was a matter of pride to ourselves as members of this Bar, to his family and to his friends. We miss him and severely mourn his death.
“Resolved. That this tribute of respect be spread upon the minutes of the Bar and published in the daily newspapers of Lancaster and Columbia, and in the LANCASTER LAW REVIEW, and that a copy thereof be transmitted to the family of the deceased."
Court of Common Pleas of Lancaster County
J. G. Usner et al. v. W. H. Gass, defendant, and Samuel Ruth, Aaron Gass
and John L. Mumma, garnishees. Fraudulent conveyance — Attachment of purchase moneys - Board and
services to parent-Contract and quantum meruit-Evidence.
The defendant gave bond as a tax collector with the plaintiffs as sureties at a time when he owned real estate. Subsequently he sold this real estate, and six months later a shortage was discovered in his accounts, which the sureties paid and attached the purchase money, naming his son and son-in-law as garnishees, on the trial of which attachment it appeared that part of the money was used to pay off liens against his son-in-law's property, and that the defendant being too ill to go to the bank, a check to his order for the balance was endorsed and handed over to his son.
Held, that the principal could not, while indebted on the bond, give away his property to his son, son-in-law or daughter, and the question as to whether or not he had endeavored to do so was for the jury, whose verdict for the plaintiffs estab lished the fact that he had and the verdict should stand.
If the money to satisfy the liens was paid to the daughter for her father's board under a contract, the burden was on her to establish the contract.
Services and board given by a daughter and son-in-law to her father are presumed to be gratuitous.
Where a claimant makes claim under an alleged contract, evidence as to a quantum meruit is properly disallowed.
While one of several defendants named as garnishees cannot be called for cross-examination against his co-defendants, he can against himself although the others are thereby affected.
Attachment ad lev. deb. Verdict and judgment for plaintiffs. Rule for a new trial. December Term, 1918, No. 33.
B. F. Davis, for rule.
John A. Coyle, contra.
On March 25, 1912, William H. Gass, who was the tax-collector of Warwick Township, gave his bond with sureties in the sum of $17,000 for the tax duplicate. The sureties on that bond were J. G. Usner, S. W. Buch, Christian H. Bomberger and C. B. Risser, who are the plaintiffs in the present action. On March 24, 1913, he also gave a bond as tax-collector for the same amount and with the same sureties. On November 29, 1916, it was ascertained that certain sums were due by him on these tax duplicates, and therefore the township authorities entered the bonds against him and his sureties, with the statement that there was due on the first bond the sum of $71.17, and on the second bond the sum of $328.01. On June 27, 1917, the sureties paid these shortages, and then brought suit against Gass, to January Term, 1918, No. 17, for the aggregate amount. Judgment was, on November 9, 1918, entered for want of a sufficient affidavit of defense for the sum of $455.75. Gass at that time apparently had no real or personal property, but an attachment ad lev. deb. was issued on the judgment, and the other defendants in this action were summoned as garnishees.
The undisputed evidence showed that, when the bonds were given,
J. G. Usner et al. v. W. H. Gass, defendant, and Samuel Ruth, Aaron Gass
and John L. Mumma, garnishees. Gass owned some real estate in the Village of Rothsville. On April 1, 1916, he sold it to Monroe R. Pfautz for $1,725.00. He at this time was very ill and could not leave his house. That transaction was closed up at the office of Samuel M. Ruth, a justice of the peace, who lived in the same village, but some distance away. In fact, the whole matter was placed in the hands of 'Squire Ruth for adjustment, and the 'Squire was directed to receive the purchase money and pay it out. This is the way it was done:
There was a dower, amounting to $338.36, against certain property owned by John L. Mumma, who was the son-in-law of Gass. This dower, by Gass's directions, was paid with the exception of $56.36, which yet remains in 'Squire Ruth's hands. There was also a mortgage of $600.00 against the same property, which John F. Ruth held against John L. Mumma. This, also, in accordance with Gass's instructions, was paid out of the above-mentioned purchase money. There then remained in Ruth's hands the sum of $825.00. A check was made out for the amount to the order of William H. Gass and given to his son, Aaron Gass. That check was presented at the Farmers' National Bank of Lititz on the same day and was paid. Who got that money the bank clerk was unable at this time to say. Gass, by reason of his infirmities, could not go to the bank, as the distance from his home was about three miles, and there was no evidence that he got the money, though his name appeared on the back of the check. Aaron Gass sat in Court beside his counsel at the trial, but was not called, and he gave no explanation as to what he did with the check he received, or whether or not he received the money on it. Under this state of facts, the case was submitted to the jury, and a verdict was rendered in favor of the plaintiffs.
That the money of William H. Gass was used to pay the dower, except $56.36 yet remaining in Ruth's hands, and the mortgage against Mumma's property, is an admitted fact. As against this, Mumma claimed that the money he received was his “ wife's money that she got from the old man.” The wife said her father boarded with her; that there was a bargain and that he came in December, 1917. As the attachment was issued on December 4, 1918, the Court said it would permit her to answer anything that was done between them up to that time, but not after. What the bargain was, Mrs. Mumma never stated; but counsel, in the face of this statement, endeavored to prove, by Dr. Henry Walter, a quantum meruit. This the Court disallowed. It seems to me to be a proposition not to be gainsaid that Gass could not, when indebted on the bonds, give away his property to his daughter; and if there was a contract, she was bound to show it. This whole proposition was submitted to the jury.
In like manner, the question whether Aaron Gass received the money on the check was submitted. The whole transaction had the appearance of fraud. It was an endeavor on the part of Gass to get rid of his property before any action for the collection of his deficit was taken on the part of the township. He sold his property on April