-

Rickmond et al. vs. Houston.

plaintiff may suffer cannot be ascertained by an action at law, equity will entertain jurisdiction.

The plaintiffs' loss in the case at bar cannot be ascertained except on the actual attendance based on the paid admissions on the evening at the reception and the number of such guests depend on many conditions that cannot be anticipated.

The essential question in the matter of damages is, would plaintiff be entitled to recover the loss of the revenue or profits derived from the paid admissions?

"Where a vendor or lessor, under an agreement executed in accordance with the requirements of the law, arbitrarily and without reasonable excuse, in order to escape the effects of a bad bargain, refuses to comply with his contract, the vendee or lessee is entitled not only to compensatory damages, but to damages arising from the loss of the bargain, or the money which he would have derived from the completion of the contract: Bitner vs. Brough, 11 Pa., 127; Bartram vs. Hering, 18 Pa. Supr. .Ct., 395.

The defendant in the case at bar arbitrarily, and without any excuse or justification, and after plaintiffs had made all arrangements, refused to carry out his agreement in the case.

Plaintiffs further offered evidence that on breach of agreement they were unable to obtain another hall for their entertainment.

We are, therefore, of the opinion that under the evidence offered on the present hearing the Court has jurisdiction of the subject matter of the Bill and that the injunction was properly issued, and that the evidence offered is sufficient to continue the injunction until final hearing or until disposition of the case.

May, Stern & Co. vs. Lintner et al.

Replevin

Landlord's Warrant-Bailee Goods of Stranger-Affidavit as

to Value-Act of March 19, 1903, P. L. 40, Section. 2.

Where in replevin, on a landlord's warrant, it appeared that the defendant was bailee of the plaintiff of a quantity of household furniture upon the premíses, a verdict for the landlord was properly found in that the constable acted properly under the warrant as the goods were the property of the tenant and not of a stranger.

Where plaintiff, under the Act of March 19, 1903, Section 2, P. L. 40, by affidavit fixes the value of the goods, he thus fixes the amount of defendant's damages, and it is incompetent to offer evidence as to their value, unless the amount thus fixed is appealed from by defendant.

Motion for New Trial and for Judgment N. O. V. No. 1829 July Term, 1914. C. P. Allegheny County.

James T. Buchanan, for plaintiff.

John E. McCalmont, for defendant.

EVANS, J., May 13, 1916.-The defendant Lintner was the bailee of the plaintiff of a quantity of household furniture which she placed upon the premises which she had rented from W. R. Stoughton. Stoughton issued a landlord's warrant, and pending a proceedings on the warrant, the plaintiff issued a writ of replevin. At the trial of the case judgment was directed for the defendant Stoughton, the amount of rent was determined and the value of the goods fixed at the amount stated in the affidavit accompanying the praecipe for the writ of replevin. Plaintiff made a motion for a new trial.

There are two reasons set forth in the motion for new trial which deserve attention. The landlord's warrant issued by Stoughton to the constable, after reciting the rent in arrear, says: "Therefore, you are hereby authorized to levy and make the said rent, together with costs, of the goods and chattels of the said C. G. Lintner, lying or being on said premises, or wheresoever the same may be found, within thirty days after the fraudulent and clandestine removal thereof from said premises, by distress and sale thereof according to law."

It is claimed by the plaintiff that the constable had no authority to levy upon the goods of a stranger upon the premises under the terms of the warrant. It is true that the only authority which the constable had for levying the distress was this warrant and he must follow it strictly; but for the purpose of the collection of this rent, the goods and chattels upon the premises were the property of C. G. Lintner, the tenant, and I think the warrant gave to the constable sufficient authority to levy upon the goods of which the tenant was the bailee.

Another reason urged by the plaintiff for a new trial was the refusal of the Court to permit the plaintiff to offer evidence as to the value of the goods replevined. Gibbs vs. Bartlett, 2 W. & S., 29, and several other cases have been cited in support of the plaintiff's contention, and his contention would be sound if it were not for the Act of March 19, 1903, Section 2, P. L. 40, which provides as follows: "In order to determine the amount of bail the plaintiff shall make an affidavit of the value of the goods and chattels, which value shall be the cost to the defendant of replacing them, should the issue be decided in his favor." Prior to this Act there was nothing in the law requiring the plaintiff in a writ of replevin to state in his declaration the value of the goods. He was nowhere required to make an averment as to their value and, therefore, in Gibbs vs. Bartlett it was held that a mere statement of the value of the goods in his praecipe for writ of replevin was a loose statement made without serious consideration

May, Stern & Co. vs. Lintner et al.

and that it might do an injustice to hold the plaintiff to the value of the goods so fixed by him. But the Act of 1903 certainly intended to make some change in the law as it existed prior to the passage of that Act. It requires, in the first place, that the plaintiff shall not only state the value of the goods, but that he shall verify the statement by affidavit, and not only that he shall make affidavit to the value of the goods, but, having done so, the amount that he fixes "shall be the cost to the defendant of replacing the goods, should the issue be decided in his favor." That can only mean one thing, that the plaintiff has fixed the defendant's damages, to wit, the cost to him of replacing the goods by the amount fixed in his affidavit if the amount fixed in the affidavit is not appealed from by the defendant..

Motion for new trial is refused. Eo die, motion for judgment non obstante veredicto refused.

First National Bank of New Cumberland vs. Smith.

New Trial-Signature to Promissory Note-Notice-
Jury.

Questions for the

A new trial will be refused where at the trial it appeared that the only questions before the court were whether defendant had signed a promissory note and whether defendant had had notice of another suit, and the jury having found for plaintiff, the verdict would not be disturbed.

Motion for New Trial. No. 784 July Term, 1915. C. P. Allegheny County.

Brown, Stewart & Bostwick, for plaintiff.
Richard Townsend, for defendant.

DAVIS, J., May 17, 1916.-The plaintiff's action to recover from the defendant is on two claims-the first on a judgment of $1,348.50 of the Circuit Court of Hancock County, West Virginia; the second on a promissory note for $885.

The undisputed evidence shows that the judgment was on a promissory note that had been renewed for a considerable length of time by the plaintiff bank, and also that the promissory note was a renewal note discounted and renewed from time to time by the plaintiff.

The trial of the case raised only two questions of fact to be submitted to the jury. The plaintiff alleged that she was not served with the summons issued by the Circuit Court of West Virginia. She further alleged that she had not signed the promissory note. The plaintiff offered evidence that the defendant was duly served with the summons, and evidence that

the signature to the note was in defendant's own handwriting.

The evidence, therefore, was limited to these two questions of fact, and the jury was instructed that the burden was upon the defendant as against the sheriff's return to show that she had not been duly served, and the jury was instructed that the defendant having denied her signature to the note the burden was upon the plaintiff to satisfy the jury that it was the actual signature of the defendant.

The jury has found a verdict for the plaintiff upon both of these disputed questions and upon sufficient evidence, and, therefore, a is refused.

new trial

Mortgages

Dickson vs. Wissler, Etc.

-Scire Facias-Affidavit of Defense-Taxes-Verbal Agreement--Nudum Pactum.

An affidavit of defense to a scire facias on a mortgage is insufficient, where it is set up as a defense that no demand had been made and payment refused on taxes that were overdue, in that the taxes are assessed against the mortgaged premises, which, until foreclosure, are regarded as the property of the mortgagor, and under the legal obligation to pay under the terms of the mortgage, there was no necessity to make a demand on the terre tenants.

A verbal agreement for the postponement of the payment of taxes after they were due and payable is no defense to a scire facias on a mortgage in It is that the agreement was without consideration and was nudum pactum. not fraudulent for a mortgagee to pursue his legal remedies, unless he has committed a fraud or estopped himself by a legal contract.

Rule for Judgment. No. 1474 July Term, 1916. C. P. Allegheny County.

Ferd H. Phillips, for plaintiff.

E. A. Sefler, for defendant.

SWEARINGEN, J., July 11, 1916.-This was a writ of scire facias sur mortgage, dated June 20, 1913, and of record in the Recorder's office of Allegheny County, Pa., in Mortgage Book Vol. 1524, page 12. A rule for judgment for want of sufficient affidavit of defense was taken, and the same was argued in accordance with an order made under the rules of Court. June 20, 1913, Erhard Wissler executed and delivered to Finley S. Dickson a mortgage of the land described in the scire facias, to secure payment of $1,000 at the expiration of three years from date, with interest payable semi-annually. Theresia Wissler, Mike Bukozac and John Turza, the other defendants named, are now the real owners of the premises. The mortgage contained an express covenant for payment of all taxes assessed against the premises, and provided that the whole debt and interest should become due on default in payment of taxes for the period of thirty days after same became payable, and a writ of scire facias might forthwith issue. The interest on the debt was paid to December 20, 1915-none has since been paid. The school and township taxes for the years 1914 and 1915, and the county taxes for the year 1915 have not been paid. All were due and payable for a period of more than thirty days at the date of the issuing of the writ of scire facias.

In the affidavit of defense it is denied that the payment of said taxes "has been demanded by the plaintiff of the defendants and payment has been refused." This is immaterial. The taxes were assessed against the mortgaged premises which, until foreclosure, are regarded as the property of the mortgagor. There was, in addition to the legal obligation to pay, the express covenant aforesaid. Hence there was no necessity for making any demand upon the defendants. If an attempt were made to include the taxes in the judgment herein sought, a demand upon the mortgagors might be required. But no such question is here presented.

*

The defendant further alleged that "the plaintiff on several occasions, to wit, on or about December 3, 1915, and on or about May 1, 1916, agreed to postponement of the payment of the taxes for the years 1914 and 1915 * and permitted defendants to allow said taxes to become delinquent." It will be observed that this agreement was made long after said taxes became due. No consideration therefor is stated, and the absence of such an averment is to be taken against the affiant. Consequently the alleged agreement for postponement was nudum pactum. It is not fraudulent for a mortgagee to pursue his legal remedies, and it does not appear that this plaintiff has done more. He cannot be prevented from exercising his legal

Dickson vs. Wissler, Etc.

right unless he be shown guilty of some fraud or has estopped himself by a valid contract. Neither circumstance is sufficiently averred in this affidavit of defense.

The remaining averments of the affidavit of defense are statements of conclusions, and are, therefore, insufficient to prevent judgment,

Jorden vs. Jorden.

Divorce- -Cruel and Barbarous Treatment Failure to Make Out a CaseLibellant in Fault.

a

A libel in divorce will be dismissed where the evidence does not make out case of cruel and barbarous treatment and indignities to the person as to render the condition of libellant intolerable and life burdensome, as it appeared that respondent ordered libellant from the house because she discovered he had a venereal disease, and he failed to perform the duties of a husband toward the respondent.

In Re Master's Report. No. 640 April Term, 1915. Docket "B." C. P. Allegheny County.

C. E. Theobald, for libellant.

Chas. A. Waldschmidt, for respondent.

DAVIS, J., January 11, 1916.-The libel in this case sets forth the grounds of divorce as cruel and barbarous treatment and indignities to the person as to render the condition of libellant intolerable and life burdensome, and thereby forcing him to withdraw from their habitation.

The Master in this case has filed a report that "under all the evidence in the case, the Master is of the opinion that libellant has not established his right to a divorce, and we therefore recommend that the libel be dismissed."

We have examined the testimony in the case and the reasons upon which the Master bases his conclusion, and are satisfied that the Master's report should be sustained.

The Master had the witnesses before him and is better able to test the credibility of the evidence than the Court. It is apparent, however, that upon the entire testimony the respondent has not made out a proper case. The evidence is of such a nature as to lead the Court to the conclusion that the respondent has a better ground for divorce for the cause set forth in the libel than the libellant himself, and that the course of conduct of the libellant was such that the respondent is the grieved party, especially as the evidence discloses that the reason that she ordered him from the house at the time he left was because she had discovered he had a venereal disease, and that all the actions of the respondent complained of by the libellant were due to his not performing the duties required of him as a husband toward the respondent.

We, therefore, concur in all the conclusions reached by the Master and make the following order:

ORDER.

And now, January 11, 1916, the Master's report in this case is confirmed, and it is ordered and directed that the libel in this case be dismissed at the costs of the libellant.