cept delivery, and he neglects or refuses to asked for instructions for shipment and do so within a reasonable time, he is liable to the seller for any losses occasioned by his delivery of the same. refusal, and also for reasonable charges for the care and custody of the goods. What is (2) That defendant refused to ac a reasonable time, and what are reasonable cept any of said goods or to give any incharges, under the circumstances of the case structions for their delivery. will be questions of fact for the jury at the trial of the case. (3) That plaintiff then notified the defendant, that if it would not send Action in assumpsit by The Frank instructions for shipment and delivery Pure Food Company, a corporation or- of the goods that they would be stored ganized and existing under the laws of for the defendant's use and benefit, and the State of Wisconsin, vs. William M. at its risk, by the plaintiff. Dodson, H. R. Dodson and George W. (4) That defendant still persisting Dodson, trading and doing business un-in its refusal to receive the goods, one der the firm name of William M. Dod-thousand cases thereof were delivered to son Canning Co., No. 36 August Term, a common carrier at Franksville, Wiscon1919, in the Court of Common Pleas of sin, that being one of the plaintiff's facYork County, Pa. Sur motion for judg-tory points, stipulated for in the conment for defendant on questions of law tract, and shipped to The Ewatt Storage raised by affidavit of defense; and mo- & Tansfer Company, at Milwaukee, tion for judgment for want of a suffi- Wisconsin, and there stored with said cient affidavit of defense. Motions parties as the goods of, and for the use overruled. of the defendant. Hoober for plaintiff. Plaintiff claims that this was a legal delivery of goods, so stored, to the defendant, and fixes its damages at the contract price of said goods, with certain costs and expenses incident to the shipment and storage of the same. The plaintiff's statement does not disclose what disposition was made of the other goods contracted for, or make any claim "Milwaukee, Wis., Feb. 22nd, 1918." for damages, for any breach of the con"The Frank Pure Food Comany, Mil-tract by defendant, with reference to waukee, Wisconsin, has this day sold and them. October 11, 1920, Wanner, P. J.-This is an action of assumpsit, based upon an alleged breach, by the defendant of a written contract between the parties, the material parts of which are as follows: Wm. Dodson Canning Co., York, Pa., The defendant filed an affidavit of has this day purchased 2500 cases defense raising questions of law only, Frank's Quality Sauerkraut, packed in No. 3 Sanitary Tins at $1.35 per dozen, F. O. B. Factory, Wisconsin points, fall 1918 pack. "$1.00 per M. label allowance for buver's labels. as authorized to do by the Practice Act Nineteen Fifteen, P. L. 483, denying that the facts alleged in plaintiff's statement constituted a legal and sufficient delivery of the goods stored for it, by the plaintiff, and contends that the "Labels to be forwarded to The Frank plaintiff's measure of damages, if any Pure Food Company, Frankville, Wis-are recoverable, is not the contract consin, by express or freight, prepaid, at price of the goods in question, but the least six weeks before date specified for difference between that price, and the delivery of kraut. market price of the same at the time of the alleged delivery, or storage of the same, under the provisions of the Sales Act, Nineteen Fifteen, P. L. 543. "Shipments to be made in carload lots, payments to be made for each car on following terms: 12% 10 days or 30 days net from date of invoice." The material allegations of the plaintiff's statement are substantially as follows: (1) That the plaintiff manufactured and prepared for delivery, all the goods specified in said contract, and thereupon notified the defendant of that fact, and Defendant moves the Court for judgment against plaintiff, because its statement does not set forth a good cause of action, and the plaintiff moves the Court for judgment against the defendant for want of a sufficient affidavit of defense. The latter motion obviously cannot be granted because if the defendant's within a reasonable time, he is liable to motion for judgment is refused, it may the seller for any losses occasioned by then file an affidavit of defense to the his refusal, and also for reasonable facts of the case, which its counsel has charges for the care and custody stated its intention of doing. of the goods. What is a reasonable For the purpose of this application time, and what are reasonable charges, the material allegations of fact contain- under the circumstances of the case will ed in the plaintiff's statement must of be a question of fact for the jury at the course be taken as true. trial of the case. There is nothing in They show a clear breach of the writ- the statement itself which shows the ten contract, by the defendant's refusal items set forth therein, to be so clearly to accept the goods or assent to their unreasonable, that the Court could redelivery, for which breach the plaintiff ject them now as a matter of law. has his action of assumpsit for dam- And now to wit, October 11, 1920: ages. The defendant's motion for judgment The only substantial question raised against the plaintiff, and the plaintiff's by the defendant relates to the measure motion for judgment against the deof damages recoverable for the alleged fendant for want of sufficient affidavit breach of the contract. But though this of defense are both overruled and remay be a material question at the trial fused, with leave to the defendant to of the case, and must then be determined file a supplementary affidavit of defense upon the basis of the proven facts of within fifteen days from this date. the case, it is not at this time conclusive of the plaintiff's right to recover damages for the defendant's alleged breach o, C. of of this contract. An error in his state ment as to the amount recoverable, or as to what is the correct legal measure of damages, would not be fatal to his Philadelphia Co Donahue's Estate case, if his statement shows a right to Decedent's estates-Distribution-Mortrecover damages, on the very facts alleged therein according to another legal rule for their ascertainment. gage of decedent, right of heir to exoneration from. An heir is entitled to have land which descends to him exonerated from a mortgage securing decedent's bond, where there is sufficient personal estate to pay the debt. This is true, even if the personal estate is not sufficient to pay the mortgage debt in dit of the account of the administrator, di full. In that event, the court will, at the au The defendant's objection that the plaintiff's statement does not specifically allege that the goods were offered for delivery in "car lots" as stipulated for, in the contract is not effective, because the statement alleges a general and absolute refusal to accept any of the goods, or to give any instructions what-rect him to pay the balance of personalty on ever for their delivery. A refusal to accept delivery specifically because the goods were not offered in "car lots", or because instructions to that effect had been disregarded might have availed as an excuse for not receiving them, but such is not the state of facts disclosed by the pleadings. account of the mortgage debt. Maskell Ewing, Jr., for exceptant. May 20, 1920. Henderson, J.— James A. Donahue died June 20, 1915, Defendant also denies its liability for intestate, leaving to survive him his widthe items of freight, insurance, and ow, Mary A. Donahue, and a minor other expenses of the shipment and stor-daughter by a former marriage, Rose age of the goods for defendant's use. Donahue, of whose estate Hugh Scullin But section 51 of The Sales Act Nine- has been appointed guardian. teen Fifteen, P. L. 557, provides that There is a fund of personalty before when the seller is ready for delivery the court for distribution, amounting to and requests the buyer to accept deliv-about $1100, which the guardian asks to ery, and he neglects or refuses to do sobe applied to the payment on account of an overdue bond of the decedent of $2700, secured by a mortgage on a property at Fifth and Poplar streets, part of the estate of the decedent. additional assets before the filing of the second account. At the audit of the second account, the decedent's bond was presented. In his adjudication Judge The auditing judge, on the authority Penrose held: "While this sale of of Greenberg's Estate, 22 Dist. R. 1055, course, did not discharge the obligation and the numerous cases therein cited, of the decedent's estate upon the bond awarded the fund as requested by the given by him, it created on the part of guardian, whereupon the widow filed ex- the purchaser a duty to indemnify the ceptions, complaining that thereby she is estate; and as between it and himself, he deprived of any interest in the personal became the party primarily liable-the estate, that there is no way in which to relation of the estate to him (as between compel the mortgagee to accept part pay-themselves, and between themselves ment of a mortgage debt, and, further, only) being that of surety merely." that under the Act of June 24, 1885, P. It should be noted that in that estate L. 157, there is no authority to compel the conveyance was made “under and the assignment of the mortgage to the subject," and, hence, not only was the guardian if the mortgagee should refuse real estate liable, but the grantee was to accept part payment and the guardian personally liable as at common law, the pay the balance, unless the consent of the conveyance having been made before widow appears: Weimer v. Karch, 5 Pa. the adoption of the Act of June 11, 1878, C. C. Reps. 203. With the latter ques- P. L. 205, exempting a grantee from the tions we have no present concern, for it personal liability arising from the use of may be that the mortgagee will accept the words "under and subject" to the a payment on account, or on the other mortgage debt. contingency may consent to give the guardian an assignment thereof. Sufficient unto the day is the evil, etc. Counsel for the widow admits the authority of Greenberg's Estate, 22 Dist. The exceptions are dismissed and the adjudication is confirmed absolutely. R. 1055, but urges that due considera-Q. S. of York Co. tion should now be given to the fact that Commonwealth v. Margaret Miller it is the widow who is exceptant, and in support of his position he cites Gould's Estate, 6 W. N. C. 562. While the re by wife. There is no statute which authorizes the court to make an order for the maintenance of the husband by the wife; and at common law the wife was not bound to support her husband. port of Greenberg Estate, 22 Dist. R. Maintenance-Maintenance of husband 1055, does not show that the widow was the exceptant, an examination of the record confirms that fact, so that this case is on all fours with Greenberg's Estate. In Gould's Estate, 6 W. N. C. 562, an entirely different question arose. Therein Judge Penrose held that, as between Complaint by Peter D. Miller against a widow and a stranger, the stranger his wife Margaret N. Miller, charging having two funds from which to realize her with non-support, in the Court of his claim, the widow was to be preferred Quarter Sessions of York County, Pa.. and the stranger compelled first to ex-No. 23 February Term, 1920. Dishaust the fund which could not enure missed. to her benefit. It appears that in Gould's Estate the executor, in December, 1876, sold a piece of real estate belonging to the decedent "under and subject" to the payment of a mortgage debt thereon secured and which was accompanied by the October 11, 1920, Wanner, P. J.-The decedent's bond. The holder of the prosecutor in this case asks for an orbond made no claim for payment of the der of maintenance against his wife, same at the audit of the first account, Margaret R. Miller, for his own supand thereafter the executor distributed port, and the only statutory authority Bentzel, special counsel for Commonwealth. Herrmann, for defendant. He was contradicted as to these matters and it also appeared from the wife's evidence, that his discontent, at times took the form of threats of personal vio for making such an order, which has been cited is the Act of June 15th 1911, P. L. 973. An examination of that statute, however, fails to disclose any specific grant of such authority to the lence to herself. Court. Its title clearly indicates the The tract of land farmed by the wife scope and intent of the Act, as follows: is small and but little more grain was "Providing a method of enforcing orders produced thereon than was used by the of maintenance in all cases where an or- family. The proceeds of the other salder has been made for the support of a able products of the farm would seem husband, wife, parent, child, grandpar- to leave too small a surplus over the ent, or a grandchild" &c. cost of tilling the land and meeting The body of the statute also goes no household expenses, to justify an order further than to provide additional means of court for the husband's maintenance of enforcement of orders made under elsewhere than at the wife's house, the provisions of former former enactments. where she is willing to maintain him as The acts of assembly establishing recip-well as she can under the circumstances. rocal obligations to support each other And now to wit. Octobr 11, 1920: as between parents and children, and This complaint is dismissed and the grandparents and grandchildren, are County of York is directed to pay the quite specific in designating the parties costs of prosecution. to whom they apply: Act of June 13. 1836, Sec. 28, P. L. 547; Act of June 25. 1895, P. L. 269. C. P. of tition. Dauphin Co. Emerick's Petition This is also true of statutes fixing the liability of husbands for the support of their wives and giving the courts power to make and enforce orders of maintenance, in such cases: Act of April 13. 1867, P. L. 78; Act of February 27, 1867, P. L. 271. But we find no statute Election laws-Invalid nominating pein this Commonwealth specifically authorizing an order for the maintenance of the husband by the wife. The wife was not bound at the common law to support her husband. The marital obli- cannot be amended, since permission to gation to support his wife and their chil-amend would amount to permission to ale dren, rested exclusively upon the hus- after the last day for filing as fixed by law. band, and that duty under the provisApplication to set aside nominating ions of our statutes is constantly enforcpetition. ed by the courts: McCreery v. Scully, 67 Pa. Super. Ct. 524. A nominating petition which does not have the requisite number of signatures of qua'. ified electors is in effect no petition, and t Oscar G. Wickersham, for application. But aside from the court's apparent lack of authority to make such an order, we are not convinced that it should May 1, 1920, Henry, P. J., 52nd judibe made in this case. The husband is a cial district, specially presiding-The very aged and eccentric man whose nominating petition in this case contains memory and mental faculties are so se-10 signers, the required number for a riously impaired, that the effect of his candidate for membership upon the personal testimony in the case is neces- Democratic County Committee. The sarily qualified by those circumstances, evidence submitted in support of the obespecially where it conflicts with that of other witnesses. He left his wife's house where there was apparently sufficient food and shelter for him and went to his children, alleging that his wife refused to give him good and sufficient food. jections indicates that J. W. Moyer, one of the signers, is a Republican, residing in the 2nd precinct of the 9th Ward of the City of Harrisburg. Section 6 of the Act of July 12, 1913, P. L. 719. provides that the names of candidates for nomination for party offices shall be printed upon the official ballot of the designated and tacitly but unmistakably manifested party only upon filing of nominating pe- his assent, to the separation. The Mastitions signed by qualified electors of the ter found for the libellant on both issues, proper political division or district, etc. that the testimony adduced by the libelSub-division b of section 7 of the act re- lant, if believed, amply warranted his quires the signatures of 10 qualified elec- doing so. Nor is there any on the retors to the nominating petition of a can- spondent's side stronger or equally didate for membership upon a party strong to the contrary, quite aside from committee. It is clearly established the fact that it consists entirely of the here that only 9 qualified electors have deposition of the respondent. The obsigned the petition; consequently, there jectionable conduct alleged in the anis no valid petition and nothing to amend. swer comes down to the fact that the To permit an amendment in a case of home furnished by the libellant was this character would be legislation, and small and in some respects inconvenient, in effect would be permitting the filing lacking modern improvements, such as of a nominating petition by the required running water in the house, etc..-that number of electors subsequent to the the libellant's poverty at times imposed last day for filing of such petitions, as privations upon the family in the way fixed by the act of assembly. of food and fuel supplies, and similar And now, to wit, May 1, 1920, the ob- grounds of dissatisfaction on the part of jections to the nominating petition of of the respondent, which, however, Morris Emerick are sustained, and said neither singly nor collectively amount to nominating petition is hereby set aside. causes of divorce under the law of this The prothonotary is directed to certi-State. The same is true of various sugfy this order to the Commissioners of gestions which the respondent deposes Dauphin County. C. P. of Frees v. Frees Divorce-Desertion. (and the libellant denies) the latter made to her from time to time, looking toward the breaking up of their marriage relation. And if he permitted her to Berks Co. pack her things the night before the separation without remonstrating, it must be overlooked that he says he meant to make his objection in the morning and was prevented from doing so. At all events, it does not appear in any way that his interference with the respondent's action would have been of any use. Lex non cogit ad vana seu inutilia. A wife is not justified in leaving her hus band on the ground that a home furnished by him was small and in some respects inconvenient, lacking modern improvements, that his poverty at times imposed privations upon the family, and that he permitted her to tion without remonstrating, it not appearing that his interference would have been of any pack her things the night before the separa use. In such a case the husband is entitled to a divorce on the ground of desertion. Divorce. J. Milton Miller for libellant. Foster S. Biehl for respondent. It cannot be questioned that upon all the matters referred to there was a contrariety of evidence. What the conclusion concerning them should be was an inquiry peculiarly for the Master, who had the witneses before him and was better able than we are to determine the weight to be given to each. He found for the libellant, and we cannot say that he is wrong. For the legal propositions involved it is needless to cite any authorities. They are familiar and April 12, 1920, Endlich, P. J.-This is settle every question which is raised The learned Master has cited an application by a husband for a di-here. conclusive effect. vorce on the ground of desertion. The them in their proper connection and with respondent has filed an answer to the libel, alleging that the libellant's conduct towards her was such as to justify her in leaving him, and that he assented The report of the Master is confirmed, and counsel may prepare and submit the proper decree of divorce. |