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Court of Common Pleas of Lancaster County

Smith v. Pearce. Sale-Warranty-Recovery of considerationJudgment paid for con

sideration.

A plaintiff cannot recover the amount of a judgment paid by him to save execution where the judgment was entered on a note given to defendant in payment of a horse, alleged to be not as warranted but which the defendant refused to take back. The proper remedy was an action for damages for breach of warranty.

Point of law raised by affidavit. February Term, 1921, No. 57.
J. B. Senft, for plaintiff.
C. N. Berntheizel and Chas. W. Eaby, for defendant.

June 25, 1921. Opinion by LANDIS, P. J.

In the Statement it is alleged that, during the month of April, 1920, the plaintiff traded a horse to the defendant for a light bay mare, and in the transaction gave the defendant a note for $50.00. This note was made payable at the Central National Bank, and, upon maturity, it was paid by the plaintiff.

It is stated that the mare was warranted to be solid, sound and all right, and would answer plaintiff's purposes; but, as it was afterwards ascertained that she was off in the wind and too light, the plaintiff returned her to the defendant, and received instead and under the same terms and conditions a sorrel horse. This sorrel horse was unsafe to drive, and in about five weeks he was returned to the defendant and accepted. When the defendant accepted this horse, he told the plaintiff he should continue to return the horses or mares given him by the defendant until he (the plaintiff) was satisfied.

In lieu of the horse thus returned, the plaintiff received from the defendant another sorrel horse, and gave the defendant an additional note for $100.00. It is claimed that the horse was heavy and unable to do the plaintiff's work, and the plaintiff on this account offered to make return of this horse, but the defendant refused to accept him, and thereupon the plaintiff offered him at public sale in the stockyards at Mount Joy, and sold him for the sum of $100.00.

It appears that the $100.00 note, which was given for the third horse, contained a confession of judgment. The defendant entered it as a judgment in this Court and issued execution upon it. Thereupon the plaintiff paid the debt and costs. Subsequently, he appeared before a justice of the peace, and brought suit to recover back “ One hundred dollars due on sale and transfer of horse," with interest from May 5, 1920. The justice gave judgment for the sum of $50.00, and the defendant appealed. Upon this state of facts the case is before this Court, and the question is now raised whether or not, as a matter of law, the plaintiff can recover back his one hundred dollars.

If the defendant warranted these horses to be sound and all right,
VOL. XXXVII, No. 97

Smith v. Pearce. and they proved not to be as warranted, and he refused to deliver a horse sound and all right as promised, he could no doubt have maintained an action for breach of the warranty and could have recovered such damages as he sustained thereby. The claim as contained in the Statement does not, however, seem to be based upon this ground. As I understand it, he gave a note for $100.00, containing a confession of judgment, and when this note was entered as a judgment and execution was issued thereon, he paid the full amount of it, and now he is attempting to recover back the money thus paid on the judgment. He cannot do this, and I am of the opinion that, under the law, the motion should be sustained and judgment entered in favor of the defendant.

Judgment for defendant.

Court of Common pleas of Lancaster County

Hilton v. Sharpless. Practice-Petition to strike out set-offs in affidavit of defense-Practice

Act of May 14, 1915, P. L. 483.

There is nothing in the Practice Act of May 14, 1915, which authorizes a plaintiff to petition the court to set aside certain counter claims and set-offs contained in the affidavit of defense. Irrelevant matter in the affidavit can be excluded on the trial.

Section 21 giving the court power to strike off pleadings refers to those insufficient in form and not in substance.

Rule to set aside counter claims and set-offs. June Term, 1920, No. 49.

B. F. Davis, for rule.

D. F. Magee and John A. Nauman, contra.
June 25, 1921. Opinion by LANDIS, P. J.

On August 31, 1920, the plaintiff filed his statement in the above case, and on September 21, 1920, the defendant filed an affidavit of defense. On March 14, 1921, the plaintiff presented a petition, in which he asserted that certain counter-claims and set-offs contained in the affidavit of defense should be set aside. The proceeding is, to say the least, unique. When the petition was presented, it was refused; but it appears that later, upon it, this rule was granted. In my opinion, the rule ought not to have been allowed. If the affidavit of defense is insufficient, that question can be raised on a motion for judgment on that account; or if anything contained in it is irrelevant, such matter, on objection, can be excluded upon the trial. A defendant can make any defense he sees fit, taking the risks of elimination if his matter is not pertinent to the issue.

There is nothing in the Practice Act of May 14, 1915, which authorizes such a proceeding. It is true that Section 21 declares that “ the Court upon motion may strike from the record a pleading which

Hilton v. Sharpless. does not conform to the provisions of this Act, and may allow an amend. ment on a new pleading to be filed upon such terms as it may direct.” This, however, goes merely to the insufficiency in form of the pleading, and does not deal with the substance. It has no application to the situation raised in the petition.

For these reasons, I am of the opinion that the rule should be discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

Clark v. Reardon (No. 2). Taxation of costs-Jury fee-Witnesses fees-Service of subpæna.

A plaintiff may have his costs taxed on obtaining a verdict, before he has paid the jury fee and had judgment entered, but costs can only be collected after the case is finally disposed of.

Witness fees are properly charged for witnesses who were notified not to appear but failed to receive the notices, and for witnesses who were present but not called and for serving a subpæna where the case was afterwards continued.

Appeal from taxation of costs. Febrbuary Term, 1920, No. 16.

John A. Coyle, B. F. Davis and K. L. Shirk, for defendant and appeal.

Chas. W. Eaby, contra.
July 2, 1921. Opinion by HASSIER, J.

This is an appeal from taxation of costs. Both parties were present before the Prothonotary when the costs were taxed. It is contended that the taxation of costs was premature in that the jury fee was not paid, and therefore no final judgment was entered in the case. We do not agree with this. The parties were entitled to have their costs taxed after the verdict, but can only collect them after the case is finally disposed of.

No proof is offered to show that the finding of the Prothonotary in regard to the witness costs was erroneous. It is contended that the witnesses at one of the terms, when it is claimed the case was continued before that week, were notified, but did not receive the notices and attended court. Under these circumstances, of course, the costs would follow the verdict. The same is true of the service of the subpæna. It was the duty of the plaintiff to subpæna such witnesses as she thought she needed at the trial, and if before the time of trial she discovered that some of them were not needed, we think the defendant should not complain that the witnesses were excused, as this saved the additional expense which would have been incurred by their attendance at court. It is also objected that three witnesses were subpænaed to court, but not heard. At the trial it is possible that the plaintiff found that she did not need these witnesses. In the absence of proof that they were Clark v. Reardon (No. 2). not proper witnesses or that there was some abuse in having them attend court, we cannot refuse to allow the plaintiff their fees. The appeal is dismissed, and the finding of the Prothonotary confirmed.

Conrt of Quarter Sessions of Lancaster County

In re Road in East Donegal Twp.
Roads-Opening of-Report of viewersDamages-Appeal.

Where viewers to lay out a public road, state in their report that the benefits fully offset the damages and therefore no damages are allowed, it is not necessary to also state what the damages and benefits were to each property-owner. If a land-owner was injured he has his remedy in an appeal, but it is not a reason why the report should not be confirmed.

Exceptions to report of viewers. September Session, 1920, Minute 105.

John A. Coyle, for exceptions.
John E. Malone, contra.
July 2, 1921. Opinion by HASSLER, J.

Ten exceptions have been filed to the report of the viewers in this case. The second and seventh exceptions are to the effect that the report should not be confirmed because no damages are allowed to the exceptant. In their report the viewers say that the benefits derived from the opening of the road fully offset the damages to the respective land owners. This, therefore, is the reason that no damages were allowed to the exceptant. If the exceptant is injured by this finding he has his remedy in an appeal, but it is not a reason why the report should not be confirmed.

The third exception is that the viewers failed to assess benefits to the land owners whose land is taken. The fourth exception is that they erred in finding that the benefits fully offset the damages. The fifth is that the viewers erred in not mentioning all the owners of the land through which the road passes.

None of these matters are reasons for refusing to confirm the report of the viewers, as there is no proof that they erred in the facts set forth in the exceptions.

In the sixth and eighth exceptions it is complained that the viewers do not find that the road is necessary. An examination of the report shows that this is not the fact. The viewers report that they find that there is occasion for said road, and “judge the same necessary for a public road.” The ninth exception is that the viewers did not endeavor to secure release of damages. They report that they did endeavor to do so, and there is no proof that that allegation in the report is not true. The tenth exception is that the viewers have omitted to note in their report any improvements along the road. There is no proof that there are any improvements. The exceptions are dismissed, and the report of the viewers is confirmed.

Court of Common Pleas of Lancaster County

Stettero v. Martin.

Damages for death of child struck by automobile in city street-Negli

gence-Evidence-Speed of car- Failure to blow horn-Non-suit. .

In an action to recover damages for the death of the plaintiff's seven-year-old daughter who was struck by the defendant's automobile on a city street, a nonsuit was properly entered where it appeared that the child stepped from the sidewalk quickly about fifteen feet in front of the automobile and there was no testimony to show that the defendant could have stopped his car in time to avoid striking her, but it appeared that he had slowed up before reaching the intersection of two streets just before the accident happened.

Under these circumstances, there being other evidence as to the speed of the car, it was proper to refuse to allow the jury to take into consideration the distance the automobile ran after it struck the child, from measurements of its tracks after it had gone away.

The failure of the defendant to blow his horn at a crossing is not negligence in regard to an accident which occurred not at the crossing but beyond it.

Lorah v. Rinehart, 243 Pa, 231, distinguished.

Rule to strike off judgment of non-suit. January Term, 1919, No. 71.

Chas. G. Baker, for rule.

Amos E. Burkholder and John E. Malone, contra.

July 2, 1921.' Opinion by HASSLER, J.

In this action the plaintiff seeks to recover damages for the death of his seven-year-old daughter, Felicia Steffero. It appeared in the testimony at the trial that on the thirty-first of December, 1918, she, with a companion of the same age named Usa Kittle, was at the intersection of Marshall and Chestnut Streets in this City. Usa Kittle walked across Chestnut Street on the west crossing, but Felicia continued west on the north side of Chestnut Street until she was about twenty feet beyond the crossing. Then she went out into the street for the purpose of crossing it and was hit and killed by an automobile driven by the defendant.

In his statement the plaintiff charges that the defendant was unlawfully driving and operating the said automobile in a reckless, dangerous, careless and negligent manner, without regard to the traffic in said highway and the requirements of the State of Pennsylvania, and the traffic regulations of the City of Lancaster. At the trial the plaintiff tried to show that the defendant was operating his automobile at a too high rate of speed, and that he failed to sound his horn when approaching the crossing.

The only witness, called at the trial, who saw the accident is Isaac
VOL. XXXVII, No. 98

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