Moyer et al. v. Kennedy.

PORTER, HEAD and KELLER, JJ., dissent.

Dissenting Opinion by KELLER, J.:

The Act of June 28, 1917, P. L. 645, is a penal statute imposing severe penalties for any violation of its provisions. It forbids individuals from carrying on or conducting business in this Commonwealth under any assumed or fictitious name, style or designation. It does not make it a misdemeanor not to include the name of every partner in the firm name or title, nor does it require the partnership to register the names and addresses of all persons interested in the business unless the firm name is assumed or fictitious.

In the present case the plaintiffs' trade name, Moyer & Carpenter, is neither assumed nor fictitious, for it is the real name of two members of the partnership. To apply the Act of 1917 to such a case is to extend the provisions of a penal statute beyond not only its spirit but also its letter. The decision of the Court in this case would make it a misdemeanor for a partnership to have a silent partner. I cannot agree to such a construction of the act.

The fact that appellants' counsel in this case practically conceded that the firm name was assumed or fictitious within the meaning of the Act of 1917 does not affect the question. Admissions of fact are accepted by the Court as binding, but admissions of counsel as to the law involved in a case do not conclude the court. Although an appellant might admit that a devise to A for life with remainder to his heirs in fee passed only a life estate to A, the court would nevertheless apply the rule in Shelley's case. The admissions of counsel on a matter of law cannot be invoked to settle legal rights involving thousands of other partnerships in similar case. If the error is fundamental, an Appellate Court will take notice of it whether assigned or not: Canole v. Allen, 222 Pa. 156; Blake v. Wilson, 268 Pa. 472. The question was raised by one of the judges at the argument and was fully argued before the Court.

I would reverse the judgment and order a procedendo.

As a matter of practice I also call attention to the rule that an affidavit of defense raising a question of law under the Practice Act of 1915 must not contain averments of fact. It is a substitute for a demurrer and must not be in effect a speaking demurrer. Under it the defendant is only entitled to judgment in his favor if the plaintiff's statement on its face fails to make out a case against him. The statement in this case did not aver that the plaintiffs were doing business under an assumed or fictitious name and had not registered as required by the Act of 1917. That averment first appeared in the affidavit of defense and it raised an issue of fact which could not be determined by the Court.

Porter, J., concurs in this dissent.

Court of Common Pleas of Lancaster County

In re East Cocalico Township School District.

Closing of school-Discretion of school directors-Removal of directors -School Code of May 18, 1911, Sec. 217.

The purpose of the proceeding authorized by Section 217 of the School Code was not to interfere with the discretion of school directors, but to apply only where they neglected or refused to perform their duties.

School directors should not be removed under Section 217 of the School Code of May 18, 1911, P. L. 321, because, under advice of the County Superintendent, for the purpose of better gradation and classification they closed a school house, and transferred the pupils to another school house to which they were conveyed by trolley from a point near the former school house, although a large number of citizens of the district testified that it was not proper to have closed the former school.

Rule to remove School Board. Trust Book No. 25, page 168.

John E. Malone, for rule.

S. V. Hosterman, contra.

April 16, 1921. Opinion by HASSLER, J.

This is a proceeding under Section 217 of the Act of May, 1911, P. L. 321, known as the Common School Code, to remove the school board of East Cocalico Township, for the reason, as alleged in the petition, that it has "failed, refused and neglected to establish, equip, furnish and maintain a sufficient number of elementary schools in said district to educate those persons resident in said district between the ages of six and twenty-one years who are desirous of attending school." Section 401 of the same Act of Assembly makes it the duty of the School Directors of any district to do these things. The particular act of negligence alleged is that they have closed up the Muddy Creek school.

Section 406 of the same act authorizes the Board of Directors to close or consolidate schools for the better gradation and classification, and for other purposes, provided that transportation shall be furnished at the expense of the district to all pupils who reside more than a mile and a half from the new school.

It appeared in the testimony that the Board of Directors of East Cocalico Township closed up the secondary school at Muddy Creek, in which there were twenty-two pupils, and transferred them to Reamstown. These pupils boarded a trolley car at a point two hundred yards from the Muddy Creek schoolhouse, and were conveyed at the expense of the School District to Reamstown. It will be observed that they were not required to walk further to the place where they got on the trolley car than they had previously been required to walk to school. The action in closing this school was taken after consultation with the County Superintendent of Schools, Daniel Fleisher, who advised that it be closed. He testified that he gave this advice because there was "Better accommodations at Reamstown; the children got better advan

In re East Cocalico Township School District.

tages; at the secondary school were four grades, and one teacher could not well teach four grades; they could be graded better at Reamstown, and it is the policy of his administration to close every small school that can be possibly closed in accordance with the best thought of educators today." There was also a vocational school at Reamstown, where children who were properly prepared can receive instructions.

Two witnesses testified that in their opinion it was not proper to have closed the Muddy Creek School, and thirty-seven others were present in court who, it was agreed, would testify to the same thing.

Under the School Code quoted above it was the right of the School Directors in their discretion to close any school or schools in the township and consolidate them with others under such conditions as existed here. It was, therefore, a matter within their discretion. They acted, as we have said, under the advice of the County Superintendent. It is possible that they were mistaken in their judgment, but it is not for mistakes in the exercise of their discretion that they can be removed in a proceeding such as this. They have not failed, refused or neglected to establish or equip a sufficient number of schools in the district.

As the school was closed for the better gradation and classification of the schools in the district, and was done under the advice of the County Superintendent, and as it was an exercise of their discretion with which we cannot interfere, no matter how many of the citizens of the district may be dissatisfied with or disagree with the propriety of their act. It is not for purposes of interfering with the discretion of a board of school directors that the Act of Assembly cited above authorizes a proceeding such as this, but only where they neglected or refused to perform their duty.

The rule to show cause why the School Directors of East Cocalico Township should not be removed is, therefore, discharged, and the petition dismissed at the cost of petitioners.

Bar Meeting.

The regular semi-annual meeting of the Lancaster County Bar Association was held in the large court room at 2 o'clock p. m., Monday, June 13th, with Judge Landis in the chair.

The report of the Treasurer, John A. Nauman, showed a balance of $62.80.

Walter S. Mellinger was elected a member of the association. Chairman T. Roberts Appel of the committee on enlarging the Court House submitted a report setting forth what changes were recommended by the committee, including the extension of the front to the street line. The report was accepted and the committee continued.

Secretary Bernard J. Myers was authorized to sign the credentials of attorneys who would act as delegates to the American Bar Association meeting at Cincinnati beginning August 30.

A resolution was passed endorsing Justice William I. Shaffer for nomination for the full term as a Justice of the Supreme Court.

Court of Common Pleas of Lancaster County

Lonker & Stevens v. Cohen.

Sale-Affidavit of defense-Return of part of goods.

In a suit for the price of goods, an affidavit of defense is insufficient which claims credit for part of the order returned.

Rule for judgment for want of a sufficient affidavit of defense. February Term, 1921, No. 72.

L. R. Geisenberger, for rule.

B. F. Davis, contra.

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

The plaintiffs brought suit against the defendant to recover the sum of $149.00, with interest from December 17, 1920. It is averred that, under a verbal contract, they sold to the defendant merchandise to the amount of $390.50; that the goods were received by the defendant, and that he paid thereon $241.50, leaving the above balance due and unpaid. The items contained in the statement are:

that, under the purchase, he received the goods and paid $241.50 on account. He alleges, however, that the goods were not up to sample, and that therefore he returned to the plaintiffs a balance of $149.00, consisting of:

Lot No. 693 two suits at $25.00
Lot No. 3025 three suits at $22.00
Lot No. 701 two suits at $16.50

$50.00

99.00

33.00

$149.00

It follows that he retained the rest. I suppose the item of $99.00 means $66.00, and it is now treated as an error. These goods, after having been sent to and fro between the parties, are, according to his information, in the postoffice at Philadelphia. He also asserted that one suit of the lot which he had sold was returned to him, and a loss was thereby occasioned to him of $26.50. The Lot No. 693 above mentioned was not from any of the merchandise sued for by the plaintiffs. It must have arisen out of another transaction; but when that arose, and how, is not disclosed.

The real question raised as to both lots of goods is: Could the defendant return some of the merchandise and keep some of it and defend to the extent of the goods returned? This proposition is well settled, and has been discussed in a number of cases. The most recent one arising in this Court is Ben. Felsenthal & Co. v. S. Kurtz Zook, 37 VOL. XXXVII, No. 87

Lonker & Stevens v. Cohen.

LANC. LAW REVIEW 367. We there held that a vendee who is dissatisfied with part of a quantity of goods purchased may either retain all and claim a deduction, or return all, but he cannot, unless his contract specifically so provides, return only those alleged by him to be inferior to the sample, and retain the rest. In a suit for the price of the goods, an affidavit of defense is insufficient which claims credit for part of the order returned. Under a sale without condition, he is bound to keep all the merchandise or return it all, and when, as in this case, he retains some and returns the rest, he renders himself liable to pay the whole bill. See, also, Greenwich Hat Works v. Samuels, 30 LANC. LAW REVIEW 286; Estes v. Kauffman, 44 Sup. 114.

The principle applies to all the merchandise covered by the bill sued on. As to the other item arising out of another transaction, the amount is not claimed as a counter-claim, and none of the facts out of which it arose are stated. It, therefore, cannot be considered.

In our judgment, the defendant has not presented a legal defense to any part of the claim, and the rule is therefore made absolute, and judgment is now entered in favor of the plaintiffs against the defendant for the sum of $149.00, with interest, amounting to $151.47.

Rule made absolute.

Court of Common Pleas of Allegheny County

Smith v. City of Pittsburgh et al.

Injunction - Daylight saving-Ordinance-Power of municipalities— Evidence-Act of April 13, 1887, P. L. 21.

By an Act of the Legislature of Pennsylvania, approved April 13, 1887, P. L 21, what is known as Eastern standard time, that is, the time of the 75th meridian west of Greenwich, was declared to be the standard for computing time for legal purposes in Pennsylvania, so that any ordinance passed by a subordinate municipality or township changing the legal time thus established has no legal force or effect.

An injunction to restrain the city in the enforcement of an ordinance passed by the City of Pittsburgh, December 29, 1919, which undertakes to fix the standard legal time throughout the city as one hour earlier than Eastern standard time during the summer months, was refused where there was nothing to show that the city proposed to put the ordinance into any sort of execution or to do any thing about it, nor did it appear what was meant by putting it into execution.

There is nothing unlawful or in violation of the Act of April 13, 1887, P. L. 21, fixing the standard time, for any individual or institution or the public generally to move back their activities one hour and to set their clocks forward accordingly. Whenever, however, any specific hour of the day is fixed for the performance of any legal duty it must, of course, be taken to be Eastern standard time. In Equity. Sur motion for preliminary injunction. July Term, 1921, No. 655.

Wm. J. Brennen and Roy G. Bostwick, for plaintiff.

Chas. B. Prichard, City Solicitor, and Thos. M. Benner, Assistant City Solicitor, for defendants.