"Second. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are "Third. Where goods are delivered Through a series of telegraphic com- a reasonable opportunity of examining munications between the parties, origin- them for the purpose of ascertaining ating in a letter written by defendant to whether they are in conformity with the plaintiffs, a contract was concluded be- contract. tween them for the sale by plaintiffs to defendants of a carload of Petaluma large white eggs, consisting of five hundred cases or fifteen hundred dozen Petaluma large white eggs, at fifty-four cents per dozen, as ordered, the price of which amounted to $8,100, plus $7.50 in conformity with the contract. for packing straw, which were shipped by freight according to contract, on Jan- to a carrier by the seller, in accordance uary 24, 1919, from San Francisco to de- with an order from or agreement with fendants at Pittsburgh, under a bill of the buyer, upon the terms that the goods lading directing notification to defend shall not be delivered by the carrier to ants and for which plaintiffs aver de- the buyer until he has paid the price, fendants agreed to pay on delivery and whether such terms are indicated by which in any event they were liable to marking the goods and the words, 'coldo under the Sales Act of May 19, 1915, lect on delivery' or otherwise, the buyer P. L. 543. The said draft for $8,107.50 is not entitled to examine the goods beand bill of lading were mailed to the fore payment of the price, in the absence Union National Bank of Pittsburgh on of agreement and proper written authorFebruary 3, 1919, and were duly pre-ity to the carrier permitting such examsented to defendants for payment. De-ination." fendants refused to pay same or to ac- Plaintiffs contend that under said cept said goods so shipped. clause of said 49th Section of said Act defendants were not entitled to the right of inspection before payment, inasmuch as the contract was to pay on delivery and that payment is made a condition precedent to delivery by the terms of the 42nd Section of said Act, which reads as follows: "Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods." The refusal of defendants to accept said shipment was, as alleged in defendants' answer, because of the denial of defendants' demand to be permitted to inspect the shipment before payment, which right defendants' answer avers exists under and by virtue of a wellknown, recognized and established custom or usage in the wholesale egg trade throughout the United States, which is that in all sales of eggs, and more particularly fresh eggs, on sight draft against Bills-of-Lading attached, that the buyer shall have the right of inspection to ascertain whether the eggs are of the kind and quality purchased, before paying the draft against the Bill-of-Lad- But this does not necessarily prevent ing, even though such right is not ex-insrection before payment. pressly given to the buyer in the contract The 3rd clause of Article 49 of "Sales of sale, citing among other cases, Roach Act" would seem to be in conflict with v. Lane, 116 N. E., 470. Defendants the 73rd Section thereof in that thereby further aver in their answer that such the existence of the custom invoked by right also exists by virtue of and under the defendants may be shown on trial the 49th Section of the Pennsylvania and which, if proven, would have en"Sales Act" of May 19, 1915, P. L. 543, titled the defendants to the right of inwhich reads as follows: spection, said 73rd Section reading as follows: "First. Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had "Where any right, duty, or liability would arise under a contract to sell or a sale, by implication of law, it may be neg atived or varied by express agreement or are not entitled to judgment now under by the course of dealing between the parties, or by custom if the custom be such as to bind both parties to the contract or sale. All implications from surrounding circumstances, or from the nature of a contract or agreement, shall be regarded as forming part of the contract or agreement." these conditions. Having taken a rule for an entire, and not a partial judgment for the items which they contend defendants are liable for in connection with the New York consignment, we cannot enter judgment for such extra outlays, if even the rule was for partial judgment, these extra expenses being the This section seems to preserve the result of their own disregard of the law, privilege of proving a long established which required them to sell in Pittsgeneral custom. However, whatever burgh, if possible, or at least attempt to may be the true interpretation of those do so, if the market price in Pittsburgh provisions of said "Sales Act" pertaining was equal to or greater than in New to "custom" in their application to this York, which it in fact was at the time, pending rule, the same cannot be made as alleged by defendants in their answer absolute for the further reason that and not denied. This the plaintiffs do plaintiffs include in their demand costs not allege to have done. The motion for of protest on draft, freight and war tax judgment for want of a sufficient affidato Pittsburgh, demurrage and war tax, vit of defense is thereby unanimously costs of reconsigning car to New York, refused. as well as freight and war tax from Pittsburgh to New York, amouting in Allegheny Co. Bruckmiller v. Bruckmiller all to $914.34, in addition to the agreed C. P. of -Evidence as to period of absence- master. to In a divorce proceeding, the fact of desertion cannot be established by asking the li bellant leading questions which are mere conclusions and having them answered in that manner. To support a decree in divorce, there must statutory period. The mere statement that this shipment from Pittsburgh to New Divorce-Desertion-Leading questions York and selling said eggs there at 47 cents, amounting to $7,050, from which they deduct traveling expenses for one J. J. Smith from California to New York, leaving a balance, arising from sale of said eggs, as they contend, of $6,642, realized by the New York sale, which, deducted from their total demand of $9,021.84, leaves due to them, from defendants, as claimed, the sum of $2.379.84. This motion, however, can-be affirmative evidence that the desertion not prevail, defendants' answer alleging complained of continued for the required that the market price for said eggs at respondent "went out" from his home on a Pittsburgh at the time when plaintiff shipped same from Pittsburgh to New York for sale was 54 cents a dozen, which they offer to prove on trial hereof, and which plaintiffs have not denied. Plaintiffs set forth in their statement that the market price in New York, at which they sold the eggs, to wit, 47 cents, was a better price than could have been obtained at Pittsburgh, which defendants' answer denies. The measure of damage being the difference in the market price of such eggs at Pittsburgh at the time, as compared with the contract price, it is evident that plaintiffs particular day without proof that his absence continued for the required period or in fact any period is insufficient. Where it was apparent that the libellant could testify to a state of facts which would probably entitle her to a decree the court sent the case back to the master so that libellant may have an opportunity to enlighten the court as to the real facts of the case. In divorce. T. C. Pitcairn, for libellant. September 23, 1920, Haymaker, J.The libel charges desertion, in the language of the Act. Three witnesses appeared before the master, namely: the libellant, Miss Lange, a neighbor, and We would be justified in dismissing this Mr. Bauer, a city patrolman. When the libel, but as it is apparent that the libellibellant was on the stand, after the pre- lant can testify to the state of facts that liminary questions as to her marriage, would probably entitle her to a decree the different places at which they had we will send the case back to the master lived, her counsel put this question to so that she may have an opportunity to the witness: "How long did you live enlighten the court as to the real facts of there?" (A.) "From the 1st of March, the case. 1914, until the 21st of November, 1917;" and this was followed by the question: "At which time he deserted you?" and that question was answered: "Yes, sir, at that time he deserted me." The fact of the desertion cannot be established by asking a leading question which is a mere conclusion, and having it answered in that manner. Then counsel assumed legal desertion had been established and C. P. of asked the following question: "What was the cause, if you know, why he deserted you?" and was answered: "I don't know of any cause why he deserted me, And now, September 23rd, 1920: The record is returned to the master with direction that the libellant be given an opportunity to testify to any facts within her knowledge material to the question involved in this issue. Street.v. Street York Co. he deliberately stood up and went out." Divorce-Practice-Sufficience of libel -Amendment of libel. There is not another word in her testimony to indicate that after "he went out" he continued to absent himself from the home for the statutory length of time, or in fact, for any other period person, rendering her condition intolerable of time. Miss Lange was asked the following and very leading question: "You know yourself that he deserted her," and the witness answered: "Well, yes, I do." She also testified that she knew that they had not lived together since 1917. The officer or patrolman also testified that they had not lived together since the desertion. A libel in divorce by a wife against her husband, under the Act of 1815, which charges specific acts of indignities to her and life burdensome, and also with cruel and barbarous treatment, endangering her life and health, is not vitally defective beto withdraw from the respondent's home. cause it does not allege that she was forced A libel in divorce may be amended to remedy a technical defect, after the appointment of a master to take testimony. Sur petition to amend the libel in divorce in Naomi W. Street v. Alfred A. Street, No. 2 August Term, 1920, in the Court of Common Pleas of York County, Pa. Amendment allowed. E. E. Allen, for petition. Miss Lange was a neighbor, and there is nothing in her testimony to indicate. the frequency of her visits to the house of the libellant; and the officer only knew December 6, 1920, Ross, J.-This is that they lived on a certain street on the a petition praying that the libellant may north side. This witness does not indi-be allowed to amend her libel in divorce. cate how often he visited the home. It appears from the records that the For anything that appears in the evi- libel in divorce was filed in open court, dence the defendant in this case might April 19th, 1920, setting forth that the have been to his home frequently during libellant, Naomi W. Street, was marthe time of the alleged desertion, and ried to Alfred A. Street, on the 20th day certainly it was in the power of the li- of October, 1917; from that time to Janbellant to say whether her husband had uary 10th, 1919, she lived and cohabited ever been to the house after the time she with the said Alfred A. Street; "that the says that he deserted her. said Alfred A. Street has by a continuIt is certainly reprehensible practice ous course of cruel and barbarous treatfor counsel to ask a leading question and ment, personal violence, and repeated have that question answered in the way indignities, indecent and brutal, upon her his question was answered in this case. the libellant inflicted and done, as well as to her small boy not quite two years opinion of the master, is not sufficient, old, rendered her life burdensome, and the court lacks jurisdiction.” unsafe for her and her child to live with The report of the master was filed him, as well as on account of his threats September 13th, 1920. of bodily harm to her and her child. The petition which engages the presThat libellant has received no support ent inquiry was filed the same day. At from the said respondent, for herself or the time the petition was filed, the court child, for the past sixteen months, and granted a. rule, directed to the respondsince his abandonment of her and his ent named in the libel for divorce, to child, does not know his postoffice ad- show cause, if any he had, why the dress or exact whereabouts; that his prayer of the petition should not be alpresent place of residence is somewhere lowed and the original libel be amended in York County in the State of Penn- as prayed for, returnable September sylvania; that he is a citizen of Pennsyl-20th, 1920. vania, and she (the libellant) is a citi- respondent September 13th, 1920, but zen of the Commonwealth of Pennsylno answer or appearance was entered by vania and hath resided therein for the the respondent. period of one whole year previous to the filing of her petition or libel, and that her residence is at present at Shrewsbury in the County of York, State of Pennsylvania." The master, so appointed by the court, gave due and legal notice of the time and place at which he would hold a meeting to take testimony in support of the libel in divorce, of which meeting the respondent was duly notified. In pursuance of the notice, the master held the said meeting, when and where the respondent did not appear in person or by representation. The libellant with her attorney and witnesses did appear. The rule was served on the The prayer of the petition is that "she her original petition for divorce by (the petitioner) be permitted to amend adding the words to the allegations contained therein, thereby endangering her life and forcing her to withdraw from respondent's house and family and that the cause be referred back to the master, for hearing the testimony in the above recited cause of action.” The causes which allow a decree of divorce in this State are described by the statutes. The Act Assembly, approved March 13th, 1815, 6 Sm. 286, Purdon's Digest of Laws, 13 Edition, Vol. 1, pg. 1230, says: "When any husband shall have, by cruel and barbarous treatment, endangered his wife's life, or offered such indignities to her person as to render her condition intolerable, and life burdensome, and thereby force her to withdraw from his house and family, in every such case, it shall and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony." The master, in his report, says: "It is evidently the purpose of the pleader to set forth as a cause for a divorce either cruel and barbarous treatment, or indignities to the person of the wife." We think the master is correct in that conclusion. The master did not hear any testimony, but decided that there is no ground for divorce set forth in the libel The Act says, "When any husband sufficient to satisfy the statutory re- shall have, by cruel and barbarous treatquirements of the Act of March 13, ment, endangered his wife's life, or of1815, and reported that "since the entire fered such indignities to her person as basis and foundation of the action rests to render her condition intolerable and upon the libel and since the libel, in the life burdensome * It shall and * * * may be lawful lute and the libel as amended is referred back to the master for proper considera The libel presented by the petitioner tion, in accordance with his duties as expressly represented that the respond- master in divorce, and in accordance ent, “Alfred A. Street has by a contin- with this opinion. uous course of cruel and barbarous treatment, personal violence, and re Philadelphia Co. Commonwealth v. Brines peated indignities" inflicted and done to O. and T. of "A libel in divorce by a wife against hsr husband, under the Act of 1815. which charges specific acts of indignities to her person, rendering her condition intolerable and life burdensome, and also with cruel and barbarous treatment, endangering her health and life, is not demurrable, because it does not allege that she was forced to withdraw from the respondent's home and family." Jurisdiction and practice, O. and T.— Order to bring an accused prisoner from the county jail to the district attorney's office. Accused, but untried, prisoners are not to be brought from the prison to which they have been committed by informal "orders." Their presence may be secured at proper places by writ of habeas corpus. An untried prisoner's desire for the presence of his counsel at any inspection of his person by the Commonwealth's witnesses is reasonable, and no such inspection should be made in the absence of counsel. Untried prisoners are in the custody of the Court. Neither the police nor the District "If the facts set forth and proved are Attorney have any control of them. equivalent to the requirements of statute, a divorce will be granted, though the charges are not in the exact language of the Act.": Dietrick V. Dietrick, 14 Phila. 649. Their detention before trial is an evil justhe tified only by strong necessity. It should al-not be aggravated by the infliction of any unnecessary indignity. Application by District Attorney for order to bring prisoner from jail to district attorney's office. "The requirements of the Act of March 13th, 1815 (Divorce), are satisfied by setting out in the libel the causes of complaint, without time, place and cir-Attorney, for Commonwealth. cumstance." J. G. Gordon, Jr., Assistant District "A special statement of cause is all that is required.": Hancock's Appeal, 64 Pa. 470; Realf v. Realf, 77 Pa. 31: Breinig v. Breinig, 26 Pa. 161. William A. Gray, for defendant. Nov. 23, 1920, Finletter, J.-The District Attorney made application recently for an order to bring the accused from It has been decided that "after a mas-the county jail to the district attorney's ter in divorce has been appointed upon a office for the purpose of submitting him rule and notice thereof, the court will al- to the observation of certain persons, a low an amendment of the libel by adding dozen or fifteen in number, so that they an allegation of cruel and barbarous might have an opportunity to identify treatment to a charge of offering indig-him, and by their testimony against him nities to libellant's person.": Dasey v. Dasey, 13 D. R. 612. Upon the principles illustrated by the foregoing decisions, it would be just to allow the amendment prayed for to be made to the original petition of libel in divorce. at the trial connect him with the murder. I do not see that I have any power, by my mere order, to take the defendant against his will from the county prison, to which he has been lawfully committed to await trial, for any other purpose connected with his case except the trial. And now, December 6th, 1920, the By the terms of the commitment, he is rule granted in this case is made abso-to remain in the county prison to answer |