of one year from April 1, 1912. That the said George W. Richardson, in consideration of said services, will pay the said M. Harvey a yearly sum of Three Hundred Dollars in twelve equal payments, also house and garden attached.. The plaintiff's statement asserts that the defendant, in the latter part of August, 1912, annulled this agreement, and that the plaintiff performed manual labor for defendant during the month of September, 1912, for which there is due to him the sum of $25.00, with interest. the written agreement was annulled or revoked by the defendant. It alleges that, in accordance therewith, the plaintiff performed services during the months of April, May, June, July and August, and that he was regularly paid for them. It, however, avers that, on September 29th, without just cause and without the defendant's consent, the plaintiff left the employment, though he continued to occupy the "house" mentioned in the agreement until October 8th. It is further alleged, as a matter of set-off, that the defendant was, because of the plaintiff's conduct, unable to rent the house before April 1, 1913, and he thereby lost $75.00. The affidavit of defense denies that Without regard to the set-off claimed by the defendant, should judgment be entered in favor of the plaintiff at this time? The assertion that the written agreement was abrogated is denied by the defendant, and, of course, on the conthat the latter claim is true. It follows, sideration of this rule, we must assume therefore, that, if this was an entire contract, it rested upon the plaintiff to show that he performed his part of it, or he at least must show that he performed so December 27, 1913. Opinion by LAN- much of it as entitles him to recover the DIS, P. J. monthly stipulation. Admittedly, he was paid for all his services except for the month of September, and if he left on September 29th, that month's wages was not yet due when he saw fit to break the contract, without just cause for his leavirg. It is established law that, where one enters into an entire contract, he must perform his part of it before he can call upon the other party to do his part. Thus, in Wilson v. Lile, 1 Mona., 199, where it was claimed that the employment was for ten hours a day, and the plaintiff only worked for a portion of each day, it was held that he could not recover for the hours he actually worked, unless he had been prevented from working the full ten hours by interference on the part of the employer. See, also, Stover 7. Flanigan, 2 W. N. C., 683. But, when the contract is for services payable monthly, an action on the same is severable after each month's payment becomes due. In Clay Commercial Telephone Company v. Root, 4 Atl., 828, it appeared that Root entered into a written agreement, whereby he was "to devote his entire time and abilities to the interest of said company . . . for which services he is to receive the compensation of $100.00 per month, the same to be guaranteed to him by this company for the period of one year." It was said, by Sterrett, J., that, "while the services were to continue for a specified time, it is very evident, from the language of the contract, that they were to be compensated by monthly payments of $100.00," and that, moreover, the nature of the contract relations between the parties is such as to indicate that it could not have been their intention to withhold all com pensation until the services were fully performed." In Lucesco Oil Company v. Brewer, 66 Pa., 351, it was held that "the consideration to be paid, not the thing to be performed, determines the class to which the contract belongs." Easton v. Jones, 193 Pa., 147. The wages were payable monthly, and, in the absence of any other stipulation, this meant that they were payable at the end of the month after the service had been performed. See Amer. & Eng. En- Sale Degen & Pioso v. Sondheimer. Warranty -Notice -Rescission. In a suit for the price of a horse, an affidavit of defense is sufficient which avers that the horse was not as warranted and that on Saturday, March 14th, the day after he replaintiff, who directed him to send the horse back, and he made arrangements to do so on Monday, but the horse was too sick to move on Monday, and died on Wednesday. ceived the horse, the defendant notified the C. P. of Lancaster County. May Term, 1913. No. 37. Rule for judgment for want of a sufficient affidavit of defense. Geisenberger & Rosenthal, for rule. On March 12, 1913, the plaintiffs, who are horse dealers, sold at public sale, at Blue Ball, this county, to the defendant, The horse was then delivered to the dea bay horse, for the sum of $205.00. place of business in Lancaster City. fendant, and was brought by him to his It that, at the time the horse was offered is asserted in the affidavit of defense horse to be sound, family broke, fearless for sale, the plaintiffs warranted the of street cars, automobiles or anything chaser, it might be returned. The deelse, and that, if it did not suit the purfendant claims that, relying upon this warranty, he bought the horse; but that he found the horse was suffering from sickness and disease, and was not family broke, nor fearless of street cars and automobiles. The horse was delivered fendant having, on March 15, 1913, ason Friday, March 14, 1913, and the decertained the above facts, at once notified represented and did not suit, and he the plaintiffs that the horse was not as avers that thereupon Gabe Pioso, one of the plaintiffs, directed him to send the horse to Blue Ball, and agreed they would take him back. On the afternoon of March 15, 1913, John D. Bair, from whose stables the horse was sold and to which the same was to be returned, told the defendant that he was going to take a pair of black horses down on the following Monday, and would take this one along. For this, reason, the horse was not sent on that day (Saturday), and, between that time and Monday, Sondheimer ascertained that it was sick and not fit to move. He sent for a horse doctor, but the horse got worse, and died on Wednesday, March 19, 1913. Sondheimer contends he was prevented from sending back the horse by reason of its sickness and death. It will be observed that the defense in this case is based upon two grounds: The first, that the horse was not as warranted; and the second, that there was a mutual rescission of the contract in accordance with the original agreement. In a sale of an article on trial, the vendor is entitled, in the event of disapproval by the vendee, to receive notice. If no time be fixed, a reasonable time is implied. There, notice must be given in due season, or the contract will become binding upon the vendee, and title will pass out of the vendor “by the resolution of the condition": Hickman v. Shimp, 109 Pa., 16. Mr. Justice Clark, in delivering the opinion of the Court in that case, said: "The contract was a conditional one. It provided for subjection of the engine to trial, and became absolute only on approval; but such a contract created a condition which must be satisfied before the promise it qualifies becomes effectual. It is, therefore, a condition precedent, and the title will not pass until the option is determined. In this respect, it differs from what is denominated among merchants as a sale and return,' which creates a condition subsequent merely, and passes the title at once, subject to the right to rescind and return." See, also, Etna Manufacturing Company v. Enos, 31 Sup., 393. In Benjamin on Sales (Am. Ed.), Vol. 1. section 366, it is said that, "where the buyer is, by the contract, bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." See Brown v. Reber, 30 Sup., 114. It is true that, if the horse was not unsound at the time of the sale, and the defendant, for breach of the warranty, did not desire to retain the horse, he was bound to make that fact known with a fair degree of promptness; and, if such determination was not arrived at in a reasonable time, and the horse then took sick and died from a cause not resulting from a condition existing at the time of the sale, the loss might perhaps fall upon the purchaser and not upon the vendor, though even then the measure of damages might, in such case, not be the purchase price, but the actual value of the horse at the time of sale. This question is, however, not before us, and we do not mean to decide it. Therefore, be this as it may, it is averred that, in the present case, the sale had been actually cancelled at the time the horse died, and there is nothing to show that any act of negligence or want of care on the part of the defendant brought about its death, nor is the suit maintained for any such cause. The failure to return the horse on Saturday would not have passed the title to the defendant, for a return on the following Monday was not, in our judgment, unreasonable. As, however, the contract was cancelled on Friday, this question does not arise. We are of the opinion that the affidavit of defense sets out a sufficient defense, and, for that reason, we discharge this rule. Rule discharged. York Utility Co. v. Fisher. Stay of suit-Bankruptcy. A rule for judgment for want of a sufficient affidavit of defense will be suspended and the suit stayed where, since its institution, the defendant has been adjudicated a bankrupt. C. P. of Lancaster County. October Term, 1913. No. 52. Rule for judgment for want of a sufficient affidavit of defense. Geisenberger & Rosenthal, for rule. Isaac R. Herr, contra. December 27, 1913. Opinion by LANDIS, P. J. Without regard to whether or not the affidavit of defense filed in this case is sufficient, it is requested that the proceedings be suspended, for the reason that, since the institution of this suit, the defendant has been adjudicated a bankrupt. That such is the present condition is admitted by all parties. Ought, under such circumstances, a judgment to be entered? In Blumenthal & Co. v. Denver Shoe Co., Inc., 25 Lancaster Law Review, 241, we incidentally discussed this very question. We there said: "It has been determined, under the former Bankrupt Act, that a State Court in which an action against a bankrupt upon a debt provable in bankruptcy is pending must; on the application of the bankrupt, stay all proceedings to await the determination of the Court 'in Bankruptcy on the question of his discharge, unless unreasonable delay is shown. Hill v. Harding, 107 U. S., 631; Boyton v. Ball, 121 U. S., 457. The injunction against such proceedings should usually be granted: (1) If the bankrupt is threatened with arrest or will be needlessly harassed; (2) if the suit is not yet in judgment; and (3), even after judgment, if (a) the rights of the general creditors, not parties to the suit, will be jeopardized by further proceedings in the State Court, or (b) the judgment is founded on a transaction which is an act of bank- | ruptcy or a fraud on creditors or the law; but in the absence of either or both of the latter elements (a or b), it should never be granted after the judgment has ripened into an execution sale, provided the State Court has or can be given jurisdiction of all parties interested in the distribution, including the general creditors represented by the trustee in bankruptcy.' In re Globe Cycle Works, 2 Am. Bank. R., 447; Southern Loan & Trust Co. v. Benbow, 3 Am. Bank. R., 9. 'An application to stay suits may be made to the State Court in which the suit is pending or to a Court of Bankruptcy. The provision of the Bankruptcy Act relating to staying suits is binding upon the State Courts, and is applied and enforced by them quite as much as by the Bankruptcy Courts.'" It is proper to suspend the proceedings in the present case, and the suit is, therefore, stayed. Proceedings stayed. Quarter Sessions. Commonwealth v. Diehm. Maintenance-Divorce and remarriage. An order for maintenance will not be revoked because the defendant has since been divorced and re-married and is supporting a step-child and two children by his second wife. Q. S. of Lancaster County. April Sessions, 1905, No. 80. Rule to revoke order of maintenance. Harnish & Harnish, for rule. J. I'. Brown and Chas. W. Eaby, Assistant District Attorney, contra. December 27, 1913. Opinion by LANDIS, P. J. On February 25, 1905, a charge was made against the defendant by his then wife for the purpose of securing maintenance for their minor child, Charles R. Diehm. The case was duly heard by the Court, and an order was made that the defendant should pay to his wife, Anna B. Diehm, the sum of $1.50 per week for the support of said minor. This order has been since complied with, and the child, who has been with his mother, is at the present time eleven years of age. The defendant now asks that this order be revoked, asserting that, in 1906, he was divorced from Anna B. Diehm; that in 1907, he married a second time; that since that time he has been supporting his present wife and a child of hers by a former marriage, and also two small children who have been born to them. He also asserts that he is in bad health and unable to comply with the order. The answer filed denies his allegations. and depositions were then taken by both parties. I have examined these depositions and am unable to say that the defendant's health is such that he cannot support his child. The fact that he has since brought two more children into the world and is also supporting his stepchild is without doubt no reason why he should not also support his first born, until such time as the boy is able to make a living for himself. I, therefore, do not see why the order should be revoked. The rule is now discharged and the petition dismissed, at the cost of the petitioner. Rule discharged. Legal Miscellany. Detention of Witness without A short time ago some small comment was made upon a decision that when a witness for the people in a criminal case was detained, pursuant to section 6186 of the Code of Criminal Procedure, he was not entitled to any compensation or witness fees for the time of his detention except for the days on which he was actually in attendance at court, no matter how long he was detained; and that, under section 616, as amended in 1895, his claim was further limited to the same fees and mileage as a witness in a civil action, such fees being fifty cents a day (People v. Sharp, 78 Misc., 528). The case was a peculiarly unfortunate one, for the witness was a laboring man, unable to furnish the necessary undertaking with sureties, or the cash deposit required by the court, to insure his attendance, and was incarcerated in the county jail of Monroe county for about five months (from June 21st to November 15th), during which period his attendance at court was required on only five days, so that his compensation for all that time amounted to only two dollars and a half, while he was, of course, deprived of the chance of earning any money by his labor. The opinion contains a careful and critical review of the law, and in deciding against the petitioner's claim that he was entitled to a witness fee for each day of his detention, Sawyer, J., said: "I have reached this conclusion with much reluctance. Petitioner is a laboring man, and apparently an honest and in dustrious citizen; because of his misfortune in witnessing this homicide and certain conditions for which he now seems not to have been at fault he was, without warning, taken from employment which enabled him to comfortably support himself and incarcerated for practically five months. He was then released only to find himself without either employment or money, and at a time of year when it is even forbidden to turn a criminal convict loose to shift for himself. If this be the law, and I think it is, we are more considerate of the welfare of evil-doers than of those whose only offense is their unfortunate ability to serve the state. "In justice and equity this man should be compensated. It is not within the power of the court to do this; the remedy for such hardships must come from the legislature" (p. 532). This subject was discussed about two years ago in a vigorous pamphlet by Willis Bruce Dowd, of the New York City Bar, based on the apparently unjustifiable detention, for a long time and under very distressing circumstances, of a young woman who was desired as a witness against a lawyer by whose firm she had been employed as a stenographer. It is said that her loss of salary during her detention amounted to more than $1,600, but that she received no recompense whatever. Mr. Dowd cited other instances of unjust detention, somewhat similar to those we have mentioned. (United States v. Lloyd, 4 Blatchf., 427; Marshall County v. Tidmore, 74 Miss., 317.) We are advised that a movement is being made to amend our Code of Criminal Procedure so as to provide for compensation to persons detained as witnesses for the people. In our opinion, the reform is a wise and necessary one. It should not be defeated by the objection that the compensation could not be made adequate in every case. A provision for compensation to such persons as were shown to be in needy circumstances, leaving much to the discretion of the court, would go a long way toward correcting the abuses that have been shown to exist.-Bench and Bar. |