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Court of Common Pleas of Lancaster County

Conant and Lusk, trading as Serenado Mig. Co. v. Echternacht. IVritten agreement Oral inducement Misrepresentations as to con

tents-Voluntary payment.

A defendant in a suit cannot set off the amount paid by him on certain promissory notes signed by him in connection with a written agreement to which, he alleges, his signataure was obtained by means of misrepresentations by plaintiff's agent as to what the arrangements would be between the plaintiff and him which he believed were in the written agreement, where he admitted reading a copy of the agreement a month after it was signed and afterwards paid the money on the notes.

Rule for judgment for want of a sufficient affidavit of defense. January Term, 1921, No. 78. B. C. Atlee, for rule.

M. G. Schaeffer, contra. April 16, 1921. Opinion by HASSLER, J.

The plaintiff claims in its statement that it sold and delivered to the defendant a talking machine, on July 13, 1920, for $91.26, which has not been paid. The defendant admits these facts in his affidavit of defense, but claims a set-off, or counter claim, due by the plaintiff to him of $220.00. This set-off is for the amount paid to plaintiff on five notes, upon which he contends that he was not liable. He alleges that these notes were given under the following circumstances: On or about the 26th day of February, 1920, an agent of the plaintiff called upon him, and stated that he had a good proposition in talking machines. He signed a written contract, a copy of which is attached to the affidavit of defense, which he says was not read to him, and alleges that the said agent made certain misrepresentations as to what the arrangements would be between the plaintiff and him. He believed that the agreement contained these representations, though it does not appear that the agent told him they were in the agreement. This agreement is exactly the same as the one involved in the case of Serenado Manufacturing Company v. Sensenig, in an opinion filed on January 15, 1921 [see preceding case], in which we held that defendant could not avoid payment of the notes under circumstances similar to those involved in this case.

We do not think that any misrepresentation of the agent has anything to do with the right of the defendant to set off the amount paid on the notes against plaintiff's claim. The defendant admits that he read a copy of the contract sent to him a month after it was signed, and that he then knew what it contained. He paid the amount of the five notes, which he now seeks to set off against plaintiff's claim, after he had read the contract and knew what it contained. He did not object to the contract then, nor seek to have it set aside until after he had obtained all the benefits under it. The payment of the notes was a voluntary payment with a knowledge of all the circumstances under which they were given, and he could not recover back the amount paid, and consequently cannot set off that amount against plaintiff's claim.

The rule for judgment for want of a sufficient affidavit of defense is therefore made absolute, and judgment is entered for the plaintiff Conant and Lusk, trading as Serenado Mfg. Co. v. Echternacht. for the sum of $91.26, with interest from August 1, 1920, which is $95.16.

Court of Common Pleas of Lancaster County
Isaac Welsh v. Marietta Hollow Ware and Enameling Co. (No. 2).

Action for damages-Rule for more specific statement.
Where in a suit for damages for personal injury by an employee of the de-
fendant the statement avers that “the machinery and car were defective in their
construction and also in their working and operation," that “the brakes and
appliances to control it were out of order or improperly constructed and oper-
ated,” and that the “revolving drum got out of order and pulled the car back,".
it must also state whether the accident was caused by this machinery being out of
order or improperly constructed, or by its improper operation.

Rule for more specific statement. September Term, 1915, No. 63.
B. J. Myers and John E. Malone, for rule. B. F. Davis, contra.
April 16, 1921. Opinion by HASSLER, J.

A rule was granted in this case to show cause why the plaintiff should not file a more specific statement. On December 31, 1920, this Court filed an opinion directing the plaintiff to file a more specific statement setting forth what machinery he refers to in the Eighth Paragraph of the amended statement, and its working, so that the defendant may know definitely what he will be called upon to meet. (See ante, page 470.] On January 25, 1921, the defendant filed an amended statement, but it does not meet the requirements of the opinion. The defendant is entitled to know the facts upon which the plaintiff relies to recover. The statement does not give this information. We, therefore, direct the plaintiff to file a more specific statement in the following particulars:

First. He alleges that “The machinery and the car were defective in their construction or in working or operation, and were unsafe and dangerous.” The plaintiff must set forth whether he relies on the fact to show the cause of the accident that either the machinery or the car was defective in its construction, or whether it was caused by the working or operation of one or the other.

Second. He alleges that the brakes and appliances to control it were also out of order, or were improperly constructed and operated by the defendant. He must state specifically whether it was the brakes or other appliances that were out of order that caused the accident, or whether it was because they were improperly constructed or improperly operated.

Third. He states that "A revolving drum around which a chain or cable was wrapped got out of order or beyond control, and in the reaction or rebound it pulled the car or truck back. He must state whether the accident was caused by reason of the chain or cable being out of order or whether it was caused by its being beyond control.

The rule for a more specific statement is made absolute, and the plaintiff is directed to file one more specific in the particulars which we have pointed out. Rule made absolute.

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Court of Common Pleas of Lancaster County

Harry Dabler v. Eli Mann. Cross-road collision Statement-Sufficiency of - Evidence - Practice

Act of May 14, 1915, P. L. 483-Act of June 20, 1919, P. L. 678.

In an action for damages to an automobile for injury caused by a cross-road collision, a statement which avers that the plaintiff had the right of way and the defendant's car was being driven at an unlawful rate of speed, is sufficient without further stating which party was nearer the intersection of the streets, what the proximate speed of each car was, and what, if any, other persons on foot or automobiles were in the vicinity. These are properly matters of evidence for proof at the trial.

Question of law raised by affidavit of defense. November Term, 1920, No. 43.

Charles W. Eaby, for plaintiff.
H. Frank Eshleman, for defendant.
April 16, 1920. Opinion by HASSLER, J.

The defendant asks for judgment on a question of law raised in an affidavit of defense. In this affidavit he questions the sufficiency of plaintiff's statement because, as he alleges, it does not contain the material facts upon which he, the plaintiff, relies to recover, and asks that judgment be entered in his favor.

The plaintiff, after stating that the defendant's automobile, being operated by his agent, collided with him, alleges that he, the plaintiff, had the right of way at the place where the accident occurred, as he was going south on Broad Street, and the defendant's automobile was going west on East King Street, and was being driven “ at an unlawful, illegal and high rate of speed, without any warning at the intersection of Broad and East King Streets, Lancaster, Pennsylvania, carelessly, recklessly, and negligently ran into and damaged the machine of the plaintiff that the said collision was entirely and wholly due to the wilful, reckless, unlawful and negligent manner in which the defendant's machine was operated, without giving due warning, and without having regard for the fact that the plaintiff had the right of way.”

It is argued by the defendant that a statement should show which party was nearer the intersection of the two streets, what the proximate speed of each car was, and what, if any other, persons on foot and automobiles were in the vicinity, for the purpose of showing which of the parties had the right of way. This we do not think necessary. The Act of 14 May, 1915, P. L. 483, Sec. 5, requires that the plaintiff's statement shall contain a statement in a concise and summary form of the material facts upon which the party pleading relies, but not the evidence by which they are to be proved. Here the plaintiff relies on the fact that he had a right of way. It is not necessary for him to state the evidence upon which he relies to prove this. The mere statement of the fact that he had it is sufficient. But he has done more than this, as he alleged that he was going south on the west side of Broad

VOL. XXXVII, No. 84

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Harry Dabler v. Eli Mann. Street, where it intersects East King Street, being the point where the accident occurred, so that he was on the right of defendant's automobile. The Act of June 30, 1919, P. L. 678, Sec. 25, gives one in an automobile approaching the intersection of two public highways on the right, as plaintiff was doing, the right of way. Then, too, he alleges that the defendant's machine was being operated at an unlawful, illegal and high rate of speed. The Act of Assembly fixes the rate of speed at which an automobile may be driven. It follows that it must have been in excess of that rate, else it was not illegal. Plaintiff must prove at the trial that it was in excess of the rate allowed by the Act of Assembly, but need not state that fact in his statement.

We are satisfied that the statement sets forth such material facts as show a good cause of action, and therefore discharge the rule for judgment for the defendant, and direct the defendant to file an affidavit of defense within fifteen days of the date of the filing of this opinion.

Court of Common Pleas of Lancaster County

Tansy Tobacco Corp. v. Robert M. Granat & Co.

Question of fact for jury-New trial. Where a case turns on questions of fact, and conflicting evidence as to the claim and set-off and sufficient to sustain the verdict has been submitted to the jury, and there is no complaint that it was not fairly submitted, a new trial will not be granted.

Rule for a new trial. August Term, 1918, No. 104.
John E. Malone, for defendant and rule.

B. C. Atlee, contra.

April 2, 1921. Opinion by LANDIS, P. J.

There were but two exceptions taken by the defendants during this trial, and these were of no consequence in the ultimate result. There were no points presented, and no exceptions were taken to the Charge of the Court. Apparently the trial gave satisfaction to all the parties, until after the verdict.

The suit was brought by the plaintiff to recover from the defendants a book account amounting to $870.10. It was admitted that the tobacco which was the basis of the charge had been received by the defendants, and had never been paid. It was also admitted that, at a later date, the parties entered into an agreement, whereby the claim was reduced by $158.20. The jury were, therefore, instructed that, under no circumstances, could a verdict be found for more than $711.90, which was the full amount, less that credit. The verdict was for that amount with interest.

The real dispute was concerning a certain off-set, which the defendants contended should be allowed. It appeared that a company

Tansy Tobacco Corp. v. Robert M. Granat & Co. called the George A. Watson Company, located at Danville, in the State of Virginia, sold to the plaintiff company a lot of damaged Brazilian tobacco, consisting of thirty hogsheads, for the sum of $2,565.68. The Tansy Company paid the sum of $1,000.00 on account. The Watson Company and the Tansy Company purchased on joint account some Austrian tobacco, for $19,663.75, and sold it for $21,545.35, leaving a profit for the Tansy Company of $816.18. This transaction was handled by the Watson Company, and it retained this profit and credited it on the balance of $1,565.68 due it on the first transaction. This left a net balance due to the Watson Company of $749.50. This balance the Watson Company transferred to the defendants, and they now offer the same as a set-off against the plaintiff's claim. If it had been allowed, the plaintiff would have owed the defendants the sum of $37.60. But the plaintiff contended and showed that the Brazilian tobacco proved to be bad, and that, at a meeting in New York between James C. Tansy, representing the plaintiff, and George A. Watson, representing the Watson Company, it was agreed that the balance of $749.60 due on the Brazilian tobacco should be adjusted and credited and reduced, so that each side of the account should balance, and that the Tansy Company should not be called upon to pay any more of the purchase price of this tobacco. If this was so, then the Watson Company had nothing to transfer, and the set-off was of no avail. This was the issue between the parties, which was determined in favor of the plaintiff. It was purely a question of fact, and there is no complaint that it was not fairly submitted. All the letters and papers, as well as the oral testimony, were before the jury, and they passed upon the whole transaction.

Under such circumstances, I do not think a new trial should be allowed. The rule is, therefore, discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

New Holland Nat'l Bank, to use of Weaver v. Gehman.

Sunday contracts-Promissory note-Delivery. While a contract executed on Sunday is invalid, it is not so when anything further is necessary to be done to complete it.

An instrument which does not take effect until delivery is not void because signed on Sunday.

A note given in renewal of a prior note held by a bank, though signed and endorsed on a Sunday but not delivered until Tuesday, is valid although, it not being dated, the clerk who received it at the bank inserted the date of the expiration of the prior note, which was Sunday instead of the date on which it was received.

Rule for judgment for defendant n. 0. v. December Term, 1919, No. 62.

John E. Malone, for rule.
M. G. Schaeffer and Frank S. Groff, contra.

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