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Court of Common Pleas of Lancaster County

Frymyer v. Wenger. Sale-Retention of goods by vendor-DeteriorationTime of delivery.

Where a vendor agrees to keep the goods for the vendee until notified to deliver them he is bound to keep them safely.

Plaintiff bought and paid for twenty-five bushels of potatoes from the defendant, which the latter agreed to hold for the plaintiff until notified to deliver them, as defendant claimed, within a specified time. Plaintiff, who denied that there was a time limit, notified defendant to deliver half of the potatoes after the alleged time limit had expired, and he delivered all of them, but plaintiff claimed they were unfit for use and he sued for the purchase price.

Heid, that the case was for the jury and a verdict for the plaintiff should not be disturbed.

Rules for judgment n. 0. v. and for a new trial.
May Term, 1918, No. 68.
John A. Coyle, for rules.
Harvey B. Lutz, contra.
December 27, 1919. Opinion by LANDIS, P. J.

In the fall of 1917, the defendant sold to the plaintiff 25 bushels of potatoes at $1.00 per bushel, and the plaintiff at that time paid to the defendant the stipulated contract price. The agreement between them was, that the potatoes were to be delivered to Frymyer at a subsequent date.

Frymyer claimed that, as his cellar was warm and he could not keep them there without spoiling, he was to give notice of the time of delivery. The defendant claimed that the potatoes were to be delivered by the holidays. They, however, were not delivered at that time, and the defendant made no offer to then deliver them. Some time in the following February, Frymyer notified the defendant to deliver 10 or 12 bushels of potatoes. Wenger, however, delivered the whole 25 bushels, and it was claimed by Frymyer that when they were delivered to him they were frozen, and that he could not use them. He, therefore, sued to recover back the amount of the purchase price. It was admitted that the potatoes were frozen in Wenger's cellar, and Wenger testified that he offered to take back and pay $1.00 a bushel for all the potatoes that were frozen, but that Frymyer never returned any of them. Frymyer testified that he notified Wenger to come and get them and take them away; but that he never came, and they were thrown out and were never used. This was the issue between the parties. It was a pure question of fact, and as such was left to the jury, who found in favor of the plaintiff.

The defendant submitted a point that, “under the law and evidence in this case, the verdict should be for the defendant,” but I do not see how such a proposition could have been sustained. If Wenger undertook to keep the potatoes until a certain time, he was bound to keep them safely, and if he had them in a place where they were frozen, it was his loss and not that of the person to whom he had sold them.

Frymyer v. Wenger. The defendant's testimony was as follows: “I agreed to do that, to hold 25 bushels of potatoes up until to the holidays for this man And this time came on and came on, and Mr. Frymyer never said any. thing about the potatoes; and, when the holidays had left, the weather was mild, and I didn't fear of the potatoes freezing; but, still, I thought they were at Frymyer's risk then. I didn't bother about them; didn't ask Mr. Frymyer. And, then, the Friday, I don't know the date, it was Friday; then he called me up over the telephone, and asked me to deliver ten bushels of potatoes, or ten or twelve. I didn't want to do that. We had no agreement, at all, whatever; it was to be the whole amount to deliver, the 25 bushels. And then I said, Saturday, I couldn't, I was busy; but Monday or Tuesday, I would deliver them. Then I delivered the 25 bushels on Tuesday, and he wasn't home, not Mr. Frymyer nor Mrs. Frymyer. Then that was Tuesday. On Friday evening they called me up, and Mrs. Frymyer was warm, and I got excited over the telephone, and I didn't know right what to say, I was embarrassed, all this and that, and she said she would report me to the Pure Food Law, and we had a fuss. I knew the potatoes were frozen. I admitted to bring him sound potatoes, and I knew I brought him frozen potatoes." In the face of this testimony, there is no use, it seems to me, to enter upon a theoretical discussion concerning the retention or re-delivery of the goods.

The fifth reason asserts that “the Court erred in excluding testimony offered by defendant to show the condition of other potatoes of defendant, as evidence of the condition of potatoes in question." It is evident, in view of the testimony above recited, that such testimony was wholly irrelevant. The defendant admitted the condition of the potatoes when he delivered them, and what the condition was of other potatoes that he had could throw no light upon the subject. It would have been manifest error to permit evidence of this character to be introduced.

I am of the opinion that the case was properly disposed of, and I therefore discharge the rule for a new trial, and deny the motion for judgment for defendant non obstante veredicto.

Rule for a new trial discharged, and motion for judgment for defendant non obstante veredicto denied.

Court of Common Pleas of Lancaster County

Roth v. R

sel.

Husband and wife-Separation under agreement-Funeral expenses.

A husband living separate from his wife by agreement under which he paid a stipulated sum and was released from all claims, liabilities and interests by reason of the marriage, is not liable for the funeral expenses of his wife not incurred by his order.

Rule for judgment for defendant non obstante veredicto.
April Term, 1919, No. 15.

Roth v. Rensel
Isaac R. Herr and S. V. Hosterman, for rule.
Amos E. Burkholder and John E. Malone, contra.
December 27, 1919. Opinion by HASSLER, J.

The facts shown at the trial of this case are not in dispute. The plaintiff is an undertaker, and as such buried the wife of the defendant, having been requested to do so by her daughter, at whose house she

The defendant did not employ the plaintiff to perform these services, nor did he agree to pay for them. He has not lived with his wife for some years. On August 7, 1915, they entered into a written agreement to live separate and apart, in which agreement the defendant bound himself to pay her a sum of money, which has been paid. His wife agreed to and did release and discharge him from any and all liability for maintenance and support during her lifetime. Each of them released the estate of the other from all claims and rights to which they were entitled by reason of the marriage, so that neither should have any interest whatsoever in the estate or property of the other. When the agreement was made both the defendant and his wife resided in Elizabethtown, Lancaster County. About a year prior to her death she moved to Middletown, Dauphin County, where she died and where the plaintiff resides. At the trial we directed a verdict for the plaintiff, having refused the point submitted by the defendant for binding instructions, and we are now asked to enter judgment for the defendant on this point n. 0. v.

Agreements of separation are recognized in law and are interpreted the same as any other contract: Shimp v. Gray, 41 Sup. 542. A husband is primarily liable for the expenses of his wife's funeral: Coyle's Estate, 1 L. L. R. 234; Waesch's Estate, 166 Pa. 204. Judge Dallett, in Beck's Estate, 19 D. R. 620, decided that she may relieve him from the liability for her funeral expenses either in her will or by some act during her lifetime.

In this case we are of the opinion that the wife of the defendant released him from that liability in the articles of separation, as she relieved his estate from all claims and interests she had in it by reason of the marriage, and of all claims for support and maintenance. The services were not rendered at the request of the defendant, nor upon his credit, as she was not living with him at the time of the funeral. We, therefore, make absolute the rule for judgment n. 0. v. and enter judgment for the defendant.

Rule made absolute.

Court af Common Pleas of Lancastec Connty

Baumgartner, trading as The Contractor, v. Druschel, trading as O. K.

Clutch and Machinery Co. (No. 2). The plaintiff, a publisher, cannot recover in a suit for the price agreed upon for an advertisement under a contract which specified that if copy was not forwarded the publisher might make it up but the cony was to be 0.K.'d by the defendant, and the latter neither furnished nor O.K.'d any copy. In such case, however, the plaintiff might sue for a breach of contract.

Baumgartner, trading as The Contractor, v. Druschel, trading as 0. K. Clutch

and Machinery Co. (No. 2). Rule for judgment for defendant n. 0. v.

December Term, 1918, No. 41.

John E. Malone, for rule.

John A. Coyle, contra.

December 27, 1919. Opinion by LANDIS, P. J.

Suit was brought by the plaintiff against the defendant on a written contract, of which the following is a copy:

All agreements are specified in this contract.
To the Publisher of
THE CONTRACTOR

Nov. 5–1915.
Chicago

You will please insert our advertisement every issue in The
CONTRACTOR to occupy minimum of 3 pages space during year from
when copy is 0.K.'d for which we agree to pay you the rate payment
to be made monthly, of $39.00 per page. Space to be used any size.

This contract is subject to approval at THE CONTRACTOR
main office. All agreements are herein mentioned. If copy is not
forwarded the publisher may make it up.
Accepted

0. K. CLUTCHI & MACHINERY COMPANY,
THE CONTRACTOR
C. H. PAUGH

H. DRUSCHEL.

and the amount claimed under the same was $117.00, with interest from the date of the suit.

On the trial, it was admitted that the plaintiff had requested Druschel to forward a copy of the advertisement which the defendant had instructed the plaintiff by the above writing to insert in his paper, but that the defendant refused to do so, and notified the plaintiff that “ he had not 0.K.'d the copy as the paper of November 5, 1915, called for, and that he should not insert an advertisement of his in the newspaper, and that, if he did, he did it at his own risk, as defendant would not pay for the same."

It will be observed that the plaintiff was authorized to make up the advertisement if the defendant did not do so, but copy was to be O.K.'d by the defendant, and it is admitted that this was never done. Under these circumstances, even though the plaintiff could sue for breach of the contract if it was wrongfully broken by the defendant, he could not maintain an action for the advertisement gotten up by himself and inserted in his paper without the defendant's O.K. I am, therefore, of the opinion that the plaintiff is not entitled to recover, and that judgment should be entered in favor of the defendant.

The rule for judgment for the defendant non obstante veredicto is, therefore, made absolute, and judgment is now entered in favor of the defendant, notwithstanding the verdict.

Rule made absolute.

Court of Common Pleas of Lancaster County

Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and

Engineers.

Unincorporated benevolent societies-Suit against-Service of writ.

In an action brought in Lancaster County against an unincorporated beneficial society, having no office or agent in that county, the writ is improperly served, and the service will be set aside, where it was served in Lancaster on a resident of Philadelphia who was an officer of a subordinate lodge in Philadelphia but not of the Grand Lodge, which pays all claims, and transacts the business in Cleveland, Ohio, the subordinate lodges having no by-laws and being merely parts of the Grand Lodge.

Rule to set aside service of summons and quash writ.

John A. Coyle, for rule.

B. F. Davis, contra.

January 17, 1920. Opinion by LANDIS, P. J.

A summons in this case was issued to May Term, 1919, No. 34, which was returned unserved. Whereupon, on June 3, 1919, an alias summons was issued to the above number and term, which the sheriff returned as served on George L. Bittner, financial secretary of Quaker City Lodge No. 869. Thereupon a petition was presented to set aside the service, in which it is set forth that The Brotherhood of Locomotive Firemen and Enginemen is an unincorporated association, doing business in the State of Pennsylvania and elsewhere; that it transacts no business in the County of Lancaster, and has no agent nor property there, nor does it maintain an office, depot or place of business in said county, nor do any of its directors, officers or agents reside therein; that the cause of action did not arise in said county, and that the Quaker City Lodge No. 869 is not the same as the defendant.

The depositions show that the writ was served upon George L. Bittner, in Lancaster City; that he lives in the City of Philadelphia and is a member of Quaker City Lodge since its organization in September, 1918, and is its financial secretary and treasurer. That Lodge is also located in the City of Philadelphia. He sent the copy, which he received from the sheriff, to A. H. Hawley, Cleveland, Ohio, and also notified his own Lodge. Mr. Hawley is the financial secretary and treasurer of the Grand Lodge of Locomotive Firemen and Enginemen. Cleveland, Ohio, is where the Grand Lodge does its business. The subordinate Lodges are in every town where there is a railroad, and they have a Lodge in Columbia, this county. Some men, living in Lancaster, are connected with Lodges in Columbia and Harrisburg. There are four Lodges in Philadelphia. The payment of death claims is made

VOL. XXXVII, No. 13

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