S. K. Bitner & Co., Inc. v. H. T. Warfel.

Rule for judgment for want of a sufficient affidavit of defense. November Term, 1920, No. 62.

J. Andrew Frantz, for rule.

John M. Groff, contra.

January 15, 1921. Opinion by HASSLER, J.

The plaintiff seeks to recover a balance due from the defendant for candy sold to him. In its statement it alleges that it sold and delivered candies on the dates, in the quantities and at the prices set forth, to the defendant. A copy of its book of account against the defendant is attached to the statement. This shows that candies were sold and delivered to the defendant to the amount of $358.70, of which $305.80 was paid, leaving due the sum of $52.90.

The defendant, in his affidavit of defense, admits the correctness of the account attached to plaintiff's statement, and that he received the candies and that the prices charged are correct. He alleges, in addition, that the agent of the plaintiff called on him to sell him a punch-board and candies, and that he refused to buy because the punch-board was a gambling device, whereupon the agent represented that one of the judges of this court had been consulted, and had advised the plaintiff to sell the goods, and said that they could not be confiscated and that the punch-board was not a gambling device. The defendant alleges that he made the purchase, operated the punch-board, was arrested, plead guilty and sentenced for operating a gambling device, and that the punch-board was then confiscated.

We do not think this is a good defense to plaintiff's claim. There was nothing to prevent the plaintiff selling a punch-board to the defendant. The violation of law for which the defendant was punished, and on account of which the punch-board was confiscated, was its operation, and not the sale or purchase or possession of it. We assume that it was the intention of the defendant to resist payment of plaintiff's claim because of fraud in representing to the defendant that a judge of this court had been consulted and said that it could not be confiscated and was not a gambling device. This would only be a defense if it is alleged that the representation was not true and was therefore a fraud upon the defendant. We, of course, know that neither of the judges of this court was consulted, nor did either give the advice quoted, but we cannot take judicial notice of that knowledge in disposing of this rule. The defendant must set forth all the facts necessary, to constitute a good defense, in his affidavit to prevent judgment, so that he must allege that the statement of the agent was not true. This he has not done. We are not convinced that it would be a good defense even though he had done so, but it certainly is not a good defense without this averment. The defendant admits the purchase and receipt of the candies and that the prices are charged as agreed upon, and he must pay for them. The rule for judgment is made absolute and judgment entered for the plaintiff for the sum of $58.70.

Court of Common Pleas of Lancaster County

Mowery v. Weaver.

Order to produce books and papers - When petition not sufficiently specific-Act of February 27, 1798, 3 Sm. L. 303.

The court will refuse an order permitting a plaintiff to inspect a certain alleged written contract between the plaintiff and the defendant, and the books of the defendant relating to their mutual transactions, for the purpose of drawing a statement, where the alleged contract is not in any way described, nor any particular books designated or what they contain specified, and the defendant denies the existence of a written contract.

The court will not order the production of books called for as a mere fishing expedition in search of evidence to support a plaintiff's claim.

Rule to permit plaintiff to inspect a certain alleged written contract and the books of defendant. May Term, 1920, No. 65.

B. F. Davis, for plaintiff.

John A. Nauman, for defendant.

December 31, 1920. Opinion by LANDIS, P. J.

On May 7, 1920, the plaintiff issued a writ of summons in assumpsit against the defendant, and on September 11, 1920, she presented a petition to this Court, in which she averred that the suit was brought to recover commissions or bonus owing by the defendant for services rendered by the plaintiff's decedent during a long period as foreman and buyer and seller of tobacco for the defendant; that "in order to enable her to prepare her statement with the necessary accuracy and precision, it is necessary that she or parties representing her should have an opportunity to inspect the books or accounts of the defendant, in so far as they relate to transactions conducted between the plaintiff's decedent and the defendant." She does not designate any particular book or books, nor does she specify what they contain. She also says that she is informed and believes that there was a written contract between the plaintiff's decedent and the defendant; but this alleged contract is not in any way described. Upon these allegations she obtained this rule.

An answer was filed to the petition. It appears from it that I. H. Weaver, the defendant, died on October 1, 1920, and letters of administration on his estate were granted to Edith B. Weaver and Herbert B. Weaver. The administrators, in this answer, deny that there was any written contract between Ellis F. Mowery and I. H. Weaver in the possession of I. H. Weaver, and they assert that there never was any written agreement between the said parties. They also deny the right of the plaintiff to inspect generally the books of the defendant. Depositions were taken on the part of the plaintiff. The testimony there appearing is, in effect, that I. H. Weaver told the plaintiff and her sister, after the death of the decedent, that they might "look over the books"; that there was eight hundred and some odd dollars commis

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Mowery v. Weaver.

sion due Mr. Mowery up to the time of his death; that he had drawn two hundred and some odd dollars on account, which would be deducted on his commission after the rest of the tobacco was sold. Harry Mowery, a brother, testified that Mr. Weaver informed him that the decedent had drawn $247.00, but that that was not all the commission; that when the tobacco should be sold and he knew the amount, Mowery's family would get the rest of it. There was no evidence produced of any written agreement.

Under this state of facts, should an order be made in accordance with the prayer of the petition? In 23 Amer. & Eng. Encycl. of Law, 179, it is said: "The Courts uniformly decline to grant an application for production and inspection where it is merely for the purpose of a fishing examination, as where it is made to discover whether or not there is evidence contained in the documents whcih will be useful to the applicant, or for the purpose of determining whether he has a cause of action, or a defense, or in anticipation of a defense, or to gratify curiosity." See, also, Hazlett's Estate, 8 Dist. Rep. 201. And in Davenport v. Pennsylvania R. R. Co., 2 Dist. Rep. 784 (affirmed in 166 Pa. 480), Thayer, P. J., said: "We regard the application for an order for the production of the books called for as a mere fishing expedition in search of evidence to support the plaintiff's claim. Such experiments are not to be encouraged. If the plaintiff will swear that any particular book contains evidence material to his case, and will sufficiently describe it, and the nature of the contents and particular entries, he can have an order. But he has no right to compel the defendant to produce cart-loads of books, containing what may or may not be entries relating to his case, in order that he may ransack them in search of evidence to make out his case."

In Brown v. Ruth, 24 LANC. LAW REVIEW 60, this Court at length considered the very question now at issue. There, the petition set forth: That said suit is an action of assumpsit for services, etc.; that it is alleged that some paper or agreement executed by the parties thereto is in the hands or custody of the defendant; that she has not a copy thereof, nor does she know what the contents thereof are; that she is not able to proceed with her suit or file a statement unless her counsel has an opportunity to inspect said writing. She therefore prays the Court to make an order on said defendant, commanding him to produce said writing in Court, so that her counsel may be able to inspect the same and prepare her case for trial, or that the Court make whatever order they may deem fit in the premises." After a lengthy discussion of the law, the petition was dismissed. We there said: "The Act of February 27, 1798, sec. 1, 3 Sm. L. 303, provides that 'the Supreme Court and several Courts of Common Pleas in this state shall have power, in any action depending before them, on motion, and upon good and sufficient cause shown, by affidavit or affirmation, and due notice thereof being given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.' . . . It is, therefore, requisite for the petitioner to conclusively establish certain propositions: 1st. That the

Mowery v. Weaver.

writing desired has been described with sufficient certainty to enable the opposite party to produce it or intelligently make answer as to its non-production, and 2d, that the allegation has been supported by an affidavit that the writing contains evidence pertinent to the issue, or 3d, that the petitioner has a common interest with the defendant in the instrument of evidence called for. In Philadelphia Co. v. Park Bros. & Co., 138 Pa. 347, it was held that an order for the production of books and writings alleged to be in the adverse party's possession or power, and to contain evidence pertinent to the issue, will not be made under section 1 of the Act of February 27, 1798, unless the petition therefor describe with reasonable certainty the books or writings desired. . . . Was the paper or agreement between the parties to this suit? When was it made, and what does it purport? Does it in any way refer to the matters involved in the present suit, and what would be the order of the Court in case it thought proper to grant the plaintiff's request? It certainly will be conceded that the order should be so entered so that it may be intelligently enforced against a nonresponding defendant. Surely some of these questions should be answered by the petition, for if it does not present sufficient light, how can the Court act properly in the premises? It would be both dangerous and perhaps worse to attempt to enforce the penal provisions of the statute when the papers necessary to give jurisdiction are wholly insufficient."

In Rose v. King, 5 S. & R. 241, Gibson, J., says: "Every order to produce papers under the Act of Assembly must be founded on a previous affidavit, which as the law is highly penal should set forth with precision every fact necessary to authorize the Court to proceed. The party is to have due notice of the motion, and as he is to come prepared to contest the truth of the facts, he ought to have the same length of time previous to the hearing as would be sufficient for preparation for the trial of an issue before a jury. The notice should describe the book or paper required with sufficient certainty, and the question on the motion, being only incidental, should be decided previously to the trial of the issue. . . . According to the mode which I have indicated, the application for the order should be grounded on an affidavit describing with reasonable certainty the books or papers alleged to be withheld, and containing a positive averment that they are material to the issue, and exclusively in the power of the party against whom relief is sought."

In Raub v. Van Horn, 133 Pa. 573, it was decided that the right to an order upon the opposite party for the production of the books and papers of the latter, under section 1, Act of February 27, 1798, 3 Sm. L. 303, is confined to their production on the trial of the cause, unless where the parties have a common interest in the instruments of evidence called for."

We are, therefore, of opinion that, under the facts as they have been presented, the power which the plaintiff is endeavoring to invoke should not be granted, and that the rule should be discharged.

Rule discharged and petition dismissed.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Reinhold.

Joinder of misdemeanor and felony in one count-Rape-Assault with intent-Evidence-Remarks of prosecutrix-Appearance of de

fendant-Good character.

A count for rape may be joined in the same indictment with one for assault and battery with intent to ravish.

In a prosecution for rape, evidence of the prosecutrix and of other witnesses as to what she said immediately after the commission of the offense is admissible. In a prosecution for rape, evidence of witnesses who saw the defendant immediately after the commission of the offense as to his conduct and appearance is admissible.

Where the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.

Rule for a new trial. November Sessions, 1920, No. 48.

John M. Groff and B. F. Davis, for rule.

W. R. Rehm, Dist. Atty., and S. V. Hosterman, Asst. Dist. Atty.,

contra.

March 26, 1921. Opinion by LANDIS, P. J.

An examination of the reasons filed in this case has not impressed me with their force; but, as the crime charged is a serious one and it is attended with grave consequences to the defendant, I will examine the objections contained in the reasons seriatum and with more particularity than I think they actually merit.

The first three reasons are general in their nature, and therefore need not be dwelt upon; and the fourth reason carries with it little weight. The first count in the indictment charged the defendant with an assault and battery with intent to ravish; the second count charged him with having committed rape. The evidence, if believed, established the second offense, and therefore the Court, in the Charge, said: "If from the evidence you conclude that he has committed this offense, that he raped this woman, then you ought to convict him in manner and form as he stands indicted, and then you will say that you find him guilty under the second count of the indictment." The suggestion that a count for a misdemeanor cannot be joined with one charging a felony is not correct. In the recent case of Commonwealth v. Greevy, 75 Sup. 116, it was said: "Later decisions definitely determine that upon an indictment for a felony, not capital, there can be a conviction of a misdemeanor which is included in the felony charged: Henwood v. Commonwealth, 52 Pa. 424; Stevick v. Commonwealth, 78 Pa. 460; Hunter v. Commonwealth, 79 Pa. 503; Staeger v. Commonwealth, 103 Pa. 469; Commonwealth v. Shutte, 130 Pa. 272; Commonwealth v. Arner, 149 Pa. 35." Commonwealth v. Lewis, 140 Pa. 561; Commonwealth v. Parker, 146 Pa. 343.