Court of Common Pleas of Lancaster County

Minnick v. Denny.

Breach of promise to marry-Oral or written promise-Statement signed by attorney-Practice Act of May 14, 1915, P. L. 483-Amendment.

Under the Practice Act of 1915 it is necessary for the statement in an action for breach of promise to marry, to set forth whether the promise was oral or written.

Under the Practice Act of 1915 a statement must be signed by the plaintiff's attorney, if there be an attorney.

Under the Practice Act of 1915, the statement may be sworn to by some one other than the plaintiff, having knowledge of the facts. If he alleges that he has such knowledge the affidavit is sufficient without giving the source of his knowledge.

Statements not signed by the plaintiff's attorney or not stating whether the contract sued upon is oral or written may be corrected by amendment.

Affidavit of defense raising questions of law. April Term, 1921, No. 20.

Chester A. Diller and Louis Appelbaum, for plaintiff.

John E. Malone, for defendant.

July 21, 1921. Opinion by HASSLER, J.

On March 16, 1921, the plaintiff filed a statement in this case, in which it is alleged that the defendant, on December 25, 1919, promised to marry the plaintiff, and the plaintiff then and there promised to marry the defendant. The statement was signed by William H. Barnhurst, who, in an affidavit, deposes and says that he is well acquainted with the facts set forth in the foregoing statement, and that he makes the affidavit in behalf of the plaintiff because she is detained out of the jurisdiction of the court on account of business reasons. This statement is not signed by the plaintiff's attorneys. The defendant has filed an affidavit raising questions of law which are, first, whether the statement is defective in that it does not set forth whether the promises sued on were verbal or in writing, and, secondly, whether it is necessary to be signed by the attorneys for the plaintiff.

The Act of May 14, 1915, Section 9, P. L. 483, provides that a statement of claim shall be as brief as the nature of the case will admit. In actions on contracts it shall state whether the contract is oral or in writing. It shall be sworn to by the plaintiff, or some persosn having knowedge of the facts, and if there be an attorney, it shall be signed by him.

The requirements of this Act must be complied with to make the statement a valid one: Philadelphia Gear Co. v. Climax Machine Co., 36 L. L. R. 272; Zullinger v. Grebe, 33 L. L. R. 401; Sorrick v. Scheetz, 33 L. L. R. 401; Ferraro v. P. R. R., 34 L. L. R. 403; Berger

Minnick v. Denny.

v. Haas, 32 York 134. As the Practice Act requires the plaintiff to state whether a contract is oral or in writing, and that it be signed by the plaintiff's attorney, it must be done, and can be done at any time, as such matters are amendable: Encore Hosiery Co. v. Mills Co., 32 York 160. It may be taken for granted that such a promise as is the subject matter of this suit is oral, but in compliance with the requirements of the Act of Assembly it will be necessary for the plaintiff to state that fact.

A question was raised at the argument as to the sufficiency of the affidavit to the statement, it having been made by William H. Barnhurst without stating his means of knowledge. Section 9 of the Act of 1815 provides that a statement may be sworn to by the plaintiff or some person having knowledge of the facts. As he alleged he had such knowledge, the affidavit made by him is sufficient. The plaintiff is, therefore, directed to amend her statement by stating whether the contract sued on is oral or written, and the attorneys for the plaintiff are directed to sign the statement.

Practice Act of 1915.

A second edition of The Pennsylvania Practice Act of 1915, by David Werner Amram, will be published in October, 1921, with text and notes revised and rewritten and with Forms of Pleadings and Other Procedure added. This work, well known to the profession by its first edition, will cover the law and practice under the Act, based on a study of all the cases decided in the Supreme, Superior, Common Pleas and U. S. District Courts interpreting the Act and reported to August, 1921, with Index and Table of Cases. 112 pages; price, $2.00 postpaid. Orders filled by B. M. Snover, 3400 Chestnut St., Philadelphia, Pa.

C. P. AND Q. S. OPINIONS.

September 10, 1921. By JUDGE LANDIS.

Susan Galvin v. C. F. Bowman & Co. Motion to withdraw affidavit of defense refused with leave to amend.

Milton B. Weitzel v. P. & R. R. R. Co. Rules for judgment for defendant n. o. v. and for a new trial. Rule for new trial dismissed and judgment entered for defendant as to lien for freight, etc., $499.49.

Commonwealth v. George Murr and Clayton Kise. Rules for new trial discharged.

Court of Common Pleas of Lancaster County

Fehl v. Pfaeffle.

Landlord and tenant - Proceedings for possession - Proof of damages to defendant-Practice-Evidence-Re-lease of premises-Burden of proof-Newly-discovered evidence-Act of December 14, 1863.

In a proceeding under the Act of December 14, 1863, P. L. 1125, by a landlord to obtain possession of leased premises at the end of the term, the defendant can prove damages for his ejectment. No pleading is necessary and an affidavit of defense is not required.

In such case where the defendant sets up a parol agreement to extend the lease, the burden is on him to show that both parties so understood the agreement.

The fact that the plaintiff did not attempt to renew the license of the premises, a hotel property, but the defendant did, was admissible as evidence to sustain the defendant's contention that the lease had been extended.

A witness may refresh his memory from a book showing entries of receipts and expenditures made by him at the time when the money was received and spent. Newly-discovered evidence, as a reason for a new trial, must have been since discovered, such that it could not have been obtained before by due diligence, not cumulative, on the merits of the case and sufficient to change the verdict.

Rule for a new trial. August Term, 1918, No. 143.

John A. Nauman and B. F. Davis, for plaintiff and rule.

Joseph B. Wissler, Bernard J. Myers and John E. Malone, for defendant.

July 2, 1921. Opinion by HASSLER, J.

We are satisfied that a new trial should be granted in this case because of after-discovered testimony. We will, however, consider several of the reasons filed for a new trial, so that our views may be known at the next trial of the case.

The plaintiff contends that in a proceeding such as this the defendant cannot prove his damages. This is a proceeding under the Act of December 14, 1863, section 1, P. L. (1864) 1125, in which a landlord seeks to obtain possession of leased premises from a tenant at the expiration of the term. It provides the manner of proceeding when an appeal shall be taken, which "shall be tried in the same manner as acts of ejectment, and if the jury shall find in favor of the tenant, they shall assess the damages he has sustained by reason of his removal from the premises, &c." We do not think that it is necessary to say anything further to show that there was no error in permitting the defendant to prove the damages sustained by reason of his having been ejected from the premises, as the jury could not assess such damages without proof of what they were. No pleading is necessary under the Act of Assembly to enable the defendant to do this. An affidavit of defense was not required, as none were required in actions of ejectment in 1863, when the Act was passed. As the defendant claimed a right to remain on the premises until the fifteenth of April, 1919, it was certainly not error to permit him to prove what loss he sustained up until that time. We are VOL. XXXVII, No. 101

Fehl v. Pfaeffle.

satisfied that the fourth, sixth and eighth reasons which raise these questions are without merit.

The fifth reason is that we permitted the defendant to testify from a book, prepared for the purpose of showing profits in the business of conducting the said hotel, etc. This reason is not in accordance with the facts. The book was the defendant's book of account of his business of conducting the hotel during the time he was there. It contained all his receipts and all his expenditures in connection with the business, and he testified that the entries were made at the time the amounts stated were received or expended. It was, therefore, certainly a proper book with which to refresh his recollection, as the entries were made at the time amounts were received and paid out.

At the argument the plaintiff raised the point that the testimony of the re-leasing of the premises by the defendant was not sufficient, and cites the case of Lutz v. Wainwright, 193 Pa. 541, to the effect that the burden of proof, that the premises were re-leased, is upon the defendant, and he must show that both the plaintiff and defendant understood that the premises were being re-leased when the arrangement was made. We are satisfied with the correctness of that position, and are also satisfied that the facts in this case are in exact accordance with the requirements of that case. The defendant testified that he received the proper notice to quit from the plaintiff in December, and that it contained a clause as follows: "If you wish to re-rent for another term, please call and make the required arrangements on or before January 10"; that on January 8, two days before the time fixed, he called up the plaintiff, who came out to the hotel. They had some conversation about re-renting, and the plaintiff wanted the defendant to open the whole of the hotel instead of the part which the defendant had previously rented. The defendant refused to do so except under certain conditions, and then the plaintiff said, "We will let it go at that." His wife testified that he said, “We will let it go that way." The plaintiff denied that such an arrangement was made. If this conversation did take place, as the defendant tesified it did, there can be no question that the plaintiff understood that he was re-leasing the premises for another year. We submitted this question to the jury very carefully, as being the vital one in the case, and they found in favor of the defendant.

The matter complained of in the seventh reason for a new trial we think was proper on the question of a re-leasing of the premises, as it showed that the plaintiff did not attempt to renew the license to the property, but the defendant did. Neither would have acted in this way had they not understood that the premises were re-leased in the conversation of January 8. The first three reasons are without merit. We are of the opinion, therefore, that none of the reasons for a new trial. excepting the ninth and tenth reasons, which ask for it on the ground of after-discovered testimony, have any merit.

The plaintiff at the argument before the Court asks for a new trial because he has discovered since the trial that the defendant told several witnesses that he had not rented the premises for the year beginning April, 1919. He alleges that this could not have been discovered before

Fehl v. Pfaeffle.

the time. In the depositions Jacob Neiss testifies that along about April, 1919, Mr. Pfaeffle told him he could not rent the place from Fehl, the plaintiff, but Mr. Armstrong was going to rent the whole and he would run the bar. This was about April 1. Hilen P. Dunn testified that Mr. Pfaeffle told him that he had been ordered out of the hotel. "Later when he was there I asked him about re-renting it, and he said, 'No, I tried to rent the hotel, but Mr. Fehl would not give me a lease; I will fix him; I am too smart for him." This was some time before Pfaeffle left the hotel when he was ordered out.

Motions for a new trial on the ground of after-discovered evidence are regarded with disfavor, both because of the danger of perjury and because of the manifest injustice of allowing a party to allege what may be the consequence of his own negligence or wilful fault to defeat an adverse verdict. Such testimony, therefore, must meet the following requirements: first, it must have been discovered since the trial; second, it must be such testimony that it could not have been obtained at the former trial by the exercise of due diligence; third, it must not be simply cumulative, or corroborative of the other testimony in the case; fourth, it must go to the merits of the case, and not merely impeach the credibility of other witnesses; and fifth, it must be of such a character that it should and probably would produce a different verdict if a new trial were to be granted: Com. v. Williams, 2 Ashmead 69; Heiss v. Lancaster, 18 L. L. R. 289; Com. v. Albert, 16 D. R. 759; Swartley v. Steigerwalt, 23 L. L. R. 390; Denlinger v. Conestoga Light Co., 23 L. L. R. 117; Peoples Bank v. Eberly, 21 L. L. R. 89.

This after-discovered testimony we think meets all these requirements, and a new trial should be granted on account of it.

The testimony offered to show that Mrs. Pfaeffle at a hearing of the case before the alderman testified that she did not hear what the conversation was between her husband, the defendant, and the plaintiff on January 8, is an additional reason for granting a new trial, for the same reasons as given above. All this testimony is important, would have great weight and likely produce a different verdict on a new trial, and as it meets all the requirements of the cases above cited, the rule for a new trial is made absolute.

Court of Common Pleas of Lancaster County

Harvey D. Abel v. John B. Payne, Federal Agent for Director General of Railroads.

Accident at railroad crossing-Negligence-Contributory negligenceWhen for court.

The law requires one about to drive across the tracks at a railroad crossing to stop, look and listen at a point where he has the best view from a reasonably safe distance, and he must continue to look and listen as he drives across, and he cannot be heard to say that he did not see an approaching train when he must have seen it had he complied with this rule.