East End Savings & Trust Company vs. Johnson et al.

for were borrowed by the Poultry Company after Johnson ceased to be i partner and before Manchester ceased to be one, but it is nowhere so stated. It is too plain for argument that the plaintiff can not maintain a joint claim against some of the defendants and individual claims against others. The demurrer is therefore sustained, and the plaintiff is allowed twenty days after notice hereof to amend his statement and his writ, or either of them, as he may be advised.

McKellip vs. Houston.

Interpleader Partnership-Evidence-Question for Jury.

Where plaintiff in sheriff's interpleader claimed to be sole owner of an automobile attached on execution against one alleged to have been his partner, a new trial will not be granted on the ground that evidence was admitted at the trial tending to show such partnership.

A verdict will not be disturbed where the jury passed upon the question of possession of the automobile at the time levy was made and where there was no evidence as to when or how title vested in the plaintiff.

Fi. Fa. No. 34 January Term, 1913. C. P. Allegheny County.

Edward Schreiner, for plaintiff.

Charles K. Robinson and C. Elmer Bown, for defendant.

CARPENTER, J., March 1, 1915.-It appears from the pleadings and evidence that E. W. Houston, a judgment creditor of H. C. Martin, caused a writ of Fi. Fa. to issue, and that pursuant thereto the Sheriff levied upon an automobile then in possession of Aupke Brothers, who did not claim title. It appears also that this automobile had been in possession of Martin, or Dinger and Martin, sometime prior to the levy and that it had been deliverel to Aupke Bros. by the plaintiff, McKellip, who claims that he was the owner. Upon petition and answer the Court awarded an issue wherein the claimant, McKellip became plaintiff, and Houston, the creditor, defendant. The "auto" appears to have been delivered to McKellip, and the cause went to trial upon the question of title. There was no question that the automobile was of sufficient value to satisfy Houston's execution. The verdict was in favor of the defendant. Plaintiff's counsel moves for a new trial, assigning eleven reasons in support of his motion. Several of these reasons were not seriously pressed. The first is that the Court erred in admitting testimony tending to show a partnership between McKellip, Martin and Dinger. Bearing in mind that Mr. McKellip alleged that he was sole owner of the automobile, we were unable to discover any error in permitting evidence to be given that would tend to show that he was not.

The second error assigned is that testimony was received showing the location of the automobile, September 13th, 1912. In view of the testimony offered on behalf of plaintiff, that he had actual possession of the automobile in August, 1912, it would have been error to exclude testimony showing that it was in the actual possession of Martin and Dinger in September.

It is very clear that this was one of the controlling facts so far as the jury was concerned, and the testimony showing that a landlord's warrant had issued and that a levy was made upon goods and chattels on the premises, and that the car in question was among the articles levied upon, was revelant and material.

The third error specified is so closely related to the second that extended discussion of the point raised is unnecessary. If the plaintiff was in fact present and knew of the levy, and if in fact the automobile was then on

McKellip vs. Houston.

the premises as claimed by defendant, this testimony was properly received. Mr. McKellip denied the allegations of Houston and his witnesses, and this with other testimony was considered by the jury.

The fourth specification of error is disposed of in what is said respecting the first. The offer to prove that Mr. McKellip was not sole owner by trying to prove that a partnership existed, even if it resulted in failure to sustain the allegation, was not improper. The landlord's warrants showed that authority was given to the constable to go upon the premises occupied by Martin and Dinger and levy upon personal chattels, and if pursuant thereto levies were made upon goods and chattels including the automobile, we can not see that error was committed in allowing the facts to be shown, and especially so in view of Mr. McKellip's assertion that he had taken the automobile away prior to the second levy. Moreover the evidence in connection with the levies tended to show that the automobile was in possession of Martin and Dinger as late as the day of the second levy, to-wit, September 13, 1912. What has been said makes discussion of the sixth reason unnecessary.

The seventh can not be sustained. As the case wes presented, the burden was on plaintiff.

The eighth, tenth and eleventh reasons may be considered together. If the automobile was in possession of Martin and Dinger and on the premises, when levied upon by landlord's warrant, McKellip had no right to remove it, and his possession under such circumstances could not furnish support for the claim that because the automobile was in the custody of Aupke Brothers to whom he had delivered it the burden of proof was shifted. We do not recall that the question was raised during the trial.

As to the ninth specification of error, we can only say that the point could not be affirmed in the light of all the evidence, and we think the charge upon this phase of the case did no harm to plaintiff. What has been said respecting the ninth reason for a new trial is applicable to the eleventh. That the car in question was purchased by Martin and Dinger and that there was no evidence of a transfer of title from them to McKellip can scarcely be doubted, in the light of the evidence. In fact, Mr. McKellip's own testimony furnishes a conclusive answer to any question touching the purchase, and it is not claimed that he acquired title subsequently.

Under the undisputed testimony we do not think it would have been error to give binding instructions in favor of defendant, but owing to the duties imposed upon the jury in the trial of a Sheriff's Interpleader, we thought it proper to submit the whole case. Plaintiff's motion is overruled. New trial refused.

Heck vs. Lofink.

Judgment-Opening

Payment-Evidence-Affidavit by Husband.

A rule to open a confessed judgment will be made absolute where payment is alleged, and there is conflict in the evidence as to amount paid and whether note was given as additional security or was an independent obligation.

Affidavit by husband on behalf of his wife should show his authority.

Rule to open judgment. D. S. B. No. 41 January Term, 1915. C. P. Allegheny County.

Jacob Greenberger, for plaintiff.
Edmund K. Trent, for defendant.

MACFARLANE, J., April 1, 1915. This is a rule to open judgment entered on a note dated January .29, 1913, for $500 at six months, the petition alleging payment, giving items to the amount of $519.50. The testimony shows payments in a larger amount, but these are the only ones claimed by the defendant to apply to the note. One of the checks for $50 was paid, so that the total amount of alleged payments is $469.50.

Heck was agent for Lofink in the purchase of a hotel and in securing certain loans and Lofink gave him three writings: (1) agreement dated December 6, 1912, to pay four per cent. on $11,500, viz., $4.60; (2) agreement dated January 16, 1913, to pay $400 additional for services in the purchase of the hotel, and (3) January 29, 1913, this judgment note. February 5, 1913, all three were assigned by John Heck to his wife, A. A. Heck.

The answer is made by John Heck on behalf of his wife and himself and in it he refers to himself as the "respondent," mentions the "plaintiffs," and does not show why A. A. Heck could not make the affidavit nor show his authority. Further, the affidavit is "to the best of his knowledge, information and belief." It cannot be considered as a responsive answer and although the burden is upon the petitioner he is not bound by the ordinary rule in making out his case.

The business between these two men is in confusion and it is plain that John Heck could produce more evidence than he did. He said there was another judgment note, the amount of which he could not recollect, but which we assume is the one for $300 upon which a rule was taken. That he had loaned Lofink small amounts and that Mrs. Heck had two other judgments, one for $125 and the other for $150, he is not sure which, for his services in connection with the hotel purchase. He also stated that the $300 note was in connection with the hotel purchase. In addition, that he had gone on a note for $400 borrowed from the Dollar Savings & Trust Company, and another for $250, and another for $1,500 at the German National Bank, afterwards transferred to the Real Estate Savings & Trust Company, and a note at the Metropolitan Bank for about $400.

Lofink claims that this note was given as security for the prior agreements and this is denied. He says he made the payments on account of the note, but Heck does not make it clear to which of the securities he made application.

The judgment should be opened that a jury may pass on the question whether Lofink had paid $469.50 on account of this judgment note, this involving the question whether the note was additional security or whether it was an independent obligation.

April 1, 1915, rule absolute and judgment opened as to the amount of $469.50.

Building Contract

Halferty et al. vs. Marsch.

-Set-Off-Superintending Work and Attorney's Fees.

Plaintiff sued to recover balance due on a construction contract which was never completed by the original parties, but which was finished under the direction of the defendant, who filed an affidavit, setting up as a set off, a claim for superintending the unfinished work, and for attorney's fees. Plaintiff took a rule for judgment for the amount of these items, without prejudice.

Held, that these were not proper items for a claim set-off and judgment for plaintiff for these items, and that plaintiff was entitled to a statement of all items of expense for which it is sought to charge him.

Assumpsit. No. 812 July Term, 1914. Docket "D." C. P. Allegheny County.

George B. Lewis, for plaintiff.

J. L. Ritchie and Ernest C. Irwin, for defendant.

CARPENTER, J., March 19, 1915.-Plaintiff sues to recover the sum of $8,319.65 with interest, and for cause of action recites a contract for certain parts of construction work for the doing of which the defendant was the principal contractor. The particular work for which plaintiff claims there is due a balance of $8,319.65 with interest is set out at length and a copy of the contract attached to the statement.

Defendant admits the contract, but alleges failure to perform and abandonment of the work by the legal plaintiffs. He alleges that the work was completed by him, defendant, at a heavy expenses and gives the items which he claims go in reduction of or as a credit against the balance claimed by plaintiff. He admits a small balance due plaintiff. In the schedule of items for which he claims credit are two which plaintiff claims are not proper items, that is, conceding the other items to be proper matters for a jury to consider, he contends that the two mentioned are in no event a proper set-off or counter claim. These items are 15 per cent. on total work alleged to have been done by defendant, amounting to $1,532.17, for superintending work, and $100.00 claimed and charged for attorney's fees in this suit.

Plaintiff has taken a rule for judgment for the amount of these items, without prejudice, etc.

Defendant has filed a supplemental affidavit in support of his claim for the 15 per cent. above mentioned. We cannot find anything in the contract to support the claim for attorneys fees. The claim for allowance of 15 per cent., $1,532.17, must be a legal demand which the defendant could enforce in an action against plaintiff. In the original affidavit, this item was charged but no reason for the charge was specified. In the supplemental affidavit of defense, it is set out that this item is added to the total cost of materials and labor actually paid for by the defendant, to take care of the cost of superintendence and direction of the work performed by the defendant in completion of the contract abandoned by the plaintiff. It is also alleged that in addition to the payment for materials and labor, it was necessary for defendant to oversee the work, and that it was necessary for the defendant's superintendent and assistants to devote a large part of their time to the direction and superintendence of said work, etc., and that defendant has charged a proportionate part of the salary of said superintendent and assistants for the oversight of said work. It is further claimed that such oversight and superintendence occupied at least 50 days of time of said superintendent's force and that the charge of $1,532.17 is fair and reasonable and was an actual expense in performing said work abandoned by plaintiff. The judges who heard the arguments on the rule for judgment have given the question careful consideration and are of the opinion that defendant has failed to state any legal reason why he should be allowed to go to trial as to this item. Just why 15 per cent. should be added to the total

Halferty et al. vs. Marsch.

cost of material and labor to pay for superintendence of the work done in completing a general contract, or the basis on which the apportionment for cost of superintendence was based does not appear. The averments respecting this matter, if made the basis of an action, would not, in our opinion, constitute a sufficient statement to carry the case to a jury. The set-off claimed is "to take care of the cost of superintendence" and the charge is for a "proportionate part of the salary of the superintendent and assistant superintendents," which it is said "occupied at least 50 days of time of said superintendent's force."

The contract provides that in case the work is abandoned the principal may complete it by contract, or may employ necessary labor, etc., and that the cost of doing such work shall be charged to and paid by the Contractor and the expense so charged shall be deducted, etc. The plaintiff is entitled to a statement of all items of expenses for which it is sought to charge him. We think that plaintiff is entitled to judgment for the items specified in the rule to show cause, and the rule is made absolute.

McClure Company vs. Washington Tin Plate Company.

Charge of the Court-Province of Court and Jury.

Binding instructions will not be given, nor will a verdict be disturbed where the court referred to the one question in the case in the following language: "You have to pass upon a very simple question of fact, and the one question of fact is that of the transferring of this indebtedness from the Washington Tin Plate Company to J. J. O'Connor." Then again: "So you come down to this one question: Did these three men who controlled both of these corporations come together and agree that the claim of the McClure Company against the Washington Tin Plate Company should be transferred to a claim of the McClure Company against J. J. O'Connor and the Washington Tin Plate Company be released."

Motion for new trial and judgment non obstante veredicto. No. 2287 October Term, 1913. C. P. Allegheny County.

Burleigh & Challener, for plaintiff.

Reed, Smith, Shaw & Beal, for defendant.

EVANS, J., May 19, 1915. — This case comes before the Court on motions ex parte defendant for a new trial and for judgment non obstante veredicto. The only reason for a new trial urged on the argument of the case was that the Court had erred in its reference to the question as to whether there had been an agreement between the Washington Tin Plate Company and the McClure Company by which the Washington Tin Plate Company was to pay fifty per cent of the McClure claim, the remainder to be assumed by J. J. O'Connor.

In four different places in my general charge I stated to the jury that there was just one question of fact for it to pass upon, and that was whether the McClure Company had agreed to release the Washington Tin Plate Company and accept J. J. O'Connor as its debtor. I told the jury this in four different places, two of which I quote: "You have to pass upon a very simple question of fact, and the one question of fact is that of the transferring of this indebtedness from the Washington Tin Plate Company to J. J. O'Connor." Then again: "So you come down to this one question: 'Did these three men who controlled both of these corporations come together and agree that the claim of the McClure Company against the Washington Tin Plate Company should be transferred to a claim of the McClure Company against J. J. O'Connor and the Washington Tin Plate Company be released?"