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The learned judge found that the possession of the grey envelope was in Mrs. Bergner, and awarded the bonds to her administrator. In his opinion, he says:

"Whatever the actual facts were as to the ownership of the money paid for the refunding bonds, their presence in the grey envelope to Mrs. Bergner, where they must have been with other like property belonging exclusively

ness. It was unmarked save for the name of an insurance firm which has no significance in this case. The contents of the grey envelope were: (1) A white envelope indorsed, in the handwriting of Carl F. G. Bergner, "for Anna M. Bergner," and containing two city of Reading improvement bonds of $500 each; (2) four envelopes addressed to Anna M. Bergner, two of which contained corre-placed by, or with the consent of, Dr. Bergner, spondence relating to her property; (3) two bonds of the city of Reading of $1,000 each, with a statement of C. V. Fencil, the person through whom the bonds were purchased, as follows:

"Reading, Pa., April 3, 1909, Dr. C. F. G. Bergner, Reading, Pa., $2,000 city of Reading 4's. 1914, 101.70, $2,034.00 Int. 2 days, 44, $2,034.44. Bonds Nos. 1 & 2. Received Payment.'

The bonds of $1,000 each were numbered respectively, 1 and 2. Clarence V. Fencil, a dealer in bonds, testified, and he was not contradicted, that he sold and delivered the two city of Reading refunding bonds to Dr. Bergner, that the latter paid for them, and that the witness gave him the receipt which was found with the bonds in the grey envelope. The canceled check given by Dr. Bergner in payment of the bonds and the stub of the checkbook of decedent from which the check had been taken were given in evidence. It also appeared by the undisputed evidence that Mrs. Bergner, on March 23, 1907, had purchased and paid for the two city of Reading improvement bonds, Nos. 435 and 436 which were also found in the grey envelope. Dr. Bergner's executor filed an inventory of the estate of his decedent, and under the title "Contents of Grey Envelope claimed by executor of Anna Maria Bergner" included the two city of Reading improvement bonds and the two city of Reading refunding bonds. Mrs. Bergner's administrator c. t. a. filed an exception to the inventory, alleging that the four bonds, contained in the grey envelope, were the property of his decedent and not the property of Dr. Bergner. On these exceptions, the court below heard the parties, found the facts as above stated, held that the four bonds belonged to Mrs. Bergner, and entered a decree sustaining the exceptions to the inventory filed by Mrs. Bergner's administrator. From that decree this appeal was taken.

shows a clear and unmistakable intention on his part when they were placed there, to withdraw or surrender his dominion over them, whatever dominion or element of dominion he may have possessed in them, if any."

In other words, the learned court holds there was a gift of the bonds by her husband to Mrs. Bergner.

We do not agree with the conclusion of the orphans' court that the title to the two refunding bonds was in Mrs. Bergner at the time of her husband's death. It conclusively appears that the bonds were purchased and paid for by Dr. Bergner. While Mrs. Bergner had an estate of her own, there is no evidence whatever before us to show that her money paid for the bonds, or that she refunded the money paid by Dr. Bergner for the bonds. It must therefore be regarded as an uncontroverted fact in the case that Dr. Bergner purchased and paid for the bonds out of his own funds. The case is entirely bare of any declarations or admissions by him of an intention to make a gift of the bonds to his wife. There is not even a suggestion by the appellee of any such evidence of a gift. The only ground on which the appellee asserts title to the bonds in Mrs. Berguer is, as stated by the court below, that she had the legal possession of them at the time of her husband's death. The only evidence of that possession, it is conceded, are the facts as found by the learned orphans'

court and stated above.

We are unable to see that the evidence warrants the conclusion that the bonds were in possession of Mrs. Bergner. It is admitted that Dr. Bergner was the owner of the tin box, and that it was deposited at the bank where he kept his account. Presumptively the entire contents of the box belonged to him and not to his wife, and therefore the burden was upon her, if claiming any part of the contents, to satisfy the court of her ownership. The several documents and paThe testimony shows, and the appellant pers contained in the box, excepting the grey concedes, that the two Reading improvement envelope, bore upon their face the names of their owners. Some of these papers did not bonds were purchased by Mrs. Bergner and were her property and he does not complain belong to Dr. Bergner, but their ownership of that part of the decree awarding those was clearly indicated on the papers thembonds to her administrator. The controversy selves. Some belonged to Mrs. Bergner, and arises over the ownership of the two Reading some were owned in common by her and her refunding bonds, and the learned court be-printed on, or contained in, the grey envebrother. There was nothing written low determined that that question depended lope to indicate its ownership, but it was in

upon

"who had the legal possession of the grey envelope and its contents, Mrs. Bergner, or her husband, the owner of the tin box in which the

or

the tin box which belonged to Dr. Bergner. There is no presumption, therefore, that the contents of the envelope belonged to another

The decree of the court below sustaining the exceptions to the inventory is reversed at the costs of the appellee.

(245 Pa. 1)

DEAL et al. v. MILLER et al.
(Supreme Court of Pennsylvania. March 30,
1914.)

CORPORATIONS (8 283*)-OFFICERS-VALIDITY
OF ELECTION-JURISDICTION IN EQUITY-
QUO WARRANTO.

The validity of an election of directors of in equity for an injunction and a new election: a corporation cannot be adjudicated on a bill quo warranto being the proper remedy in such case.

[Ed. Note. For other cases, see Corporations, Cent. Dig. $$ 1195, 1198-1205, 1207 1235; Dec. Dig. § 283.*]

Appeal from Court of Common Pleas, Butler County.

that of the box, indicated their ownership. | observed, there was no evidence of any decThere were four envelopes addressed to Mrs. larations or admissions of the alleged donor Bergner, and contained correspondence relat- that he intended to or had made a gift of the ing to her property. The ownership of the bonds to his wife; and, as pointed out above. two refunding bonds, now in dispute, was the evidence does not show that she had the clearly indicated by the statement attached possession of the bonds at the death of her to them disclosing the fact that Dr. Bergner husband from which a gift could be inferred. had bought and paid for them. They bore Mrs. Bergner having failed to show title by no other marks of ownership, and there is gift or otherwise to the bonds in controversy. nothing whatever to create even a suspicion found in the possession of Dr. Bergner at that they were the property of Mrs. Bergner his death, his executor properly included or any other person than her husband. The them in the inventory of his estate. bonds in the envelope which did belong to Mrs. Berguer were so marked. They were contained in a white envelope indorsed, in Dr. Bergner's handwriting: "For Anna M. Bergner." If the other two bonds in the grey envelope had belonged to Mrs. Bergner, why were they not placed in the white envelope containing the indorsement of her ownership? In view of the fact that every other paper in the box, including those in the grey envelope, indicated its ownership, it is a clear inference that the two refunding bonds were not put in the white envelope because they did not belong to Mrs. Bergner. All the bonds were payable to bearer and passed by delivery, | and hence the necessity for marking those which belonged to another than Dr. Bergner, the owner of the box which contained them. Dr. Bergner evidently knew that fact, and he, therefore, indicated the ownership of the two Reading improvement bonds by indorsing his wife's name on the white envelope which contained them. The two Reading refunding bonds were not so marked, but their owner-poration. ship was clearly indicated by the statement and receipt attached to them which showed that they had been purchased and paid for by Dr. Bergner. With nothing on the grey envelope to show the ownership of its contents these bonds manifestly belonged to the party who had purchased them. Had Dr. Bergner intended to transfer the title to the bonds to his wife, there was no occasion for his declaring, in effect, his ownership by attaching a statement showing that he had purchased and paid for them. The line of demarcation between the bonds of Dr. Bergner and those of his wife was not, as held by the learned court below, the grey envelope, but the white envelope contained within the latter. The larger envelope indicated nothing as to the ownership of its contents except that it was in the possession of Dr. Bergner. [2] It appearing that the bonds in controversy were purchased and paid for by Dr. Bergner, the burden was upon the representative of his wife to show that the title had been transferred to her. It is not alleged that she purchased the bonds from Dr. Bergner, and her only claim to them is as a gifted from voting certain stock owned and held by inter vivos. She was therefore compelled to him at the time of said election. In order to show, by clear and convincing evidence, that an adjudication of the question so presented, the pending bill was filed by the plaintiffs therea fully executed gift of the bonds had been in, playing that the defendants be restrained made to her by her husband. As already from interfering with or molesting the manager,

Bill by Levi Deal and others against Perry C. Miller and others for injunction and to order a new election of directors of a corFrom decree dissolving preliminary injunction and sustaining demurrer to the bill, plaintiffs appeal. Affirmed.

Galbreath, P. J., filed the following opinion in the court below:

The individual defendants are the acting directors of the Erie Coal & Coke Company, a corporation, under the laws of Pennsylvania, whose place of business is Somerset, Pa., but whose plant is located and its operations carried on at Ferris, in Butler county, said state. Its manager for several years last past has who, together with the other plaintiffs, are the been Levi Deal, one of the plaintiffs herein, owners of a majority of the stock of said corporation. The individual defendants, claiming to have been elected, as directors of said corporation at a stockholders' meeting held on the 23d day of August, 1913, are seeking to effect a change in the management of their said plant, and on said 23d day of August, 1913, served management of said company and to turn over written notice upon said Levi Deal to quit the the books, moneys, contracts, and business thereof to the said directors; to themselves as direetors of said corporation. This Deal refuses to do, claiming that the alleged election of said defendants, as directors, was illegal and fraudulent. Illegal, because the stockholders voting at said election did not represent the majority of the stock of said corporation, and fraudu lent because said Deal was wrongfully prevent

Levi Deal, in the management and operation of said company's business or from taking possession of the same, and asking the court further, to direct an election of a board of directors for said company and supervise the same and for that purpose to appoint a master to, hold said election and also that a receiver be appointed for the purpose of conducting the business of said corporation, pending the final decree.

While it is true that the bill in this case was brought to prevent any interference on part of defendants with the management of said property by said Levi Deal and to order an election, as above set forth, yet the real controversy fundamental to all other questions raised in said bill is upon the validity of the election of the defendants, as directors of said company. If they were lawfully elected, they are entitled to the control and management of the property of the corporation and cannot be interfered with in their efforts to so control and manage it. On part of the defendants it is contended that the question thus raised cannot be determined on a bill in equity, but must be adjudicated on a writ of quo warranto in a court of law and not in equity.

Speaking generally, equity will not interfere by way of injunction except where the right of the complainant is clear or is admitted or has been adjudicated on the law side of the court. In the pending case the defendants do not admit the plaintiffs' right, neither has it been adjudicated in any proceeding at law, and, unless it appear clearly from the matters alleged in the plaintiffs' bill, it is quite evident that a court of equity cannot interfere.

setting up that the validity of the election could not be decided in a court of equity. The demurrer was overruled by the lower court. On appeal, however, the action of the court in overruling the demurrer was reversed. In disposing of the question the court says: "It was the right of the plaintiffs to contest the validity of this election, if they so desired, but the method was by writ of quo warranto, as provided by the Act of June 14, 1836 (P. L. 621)." To the same effect is the decision of the court in the case of Bedford Springs Co. v. McMeen, 161 Pa. 639, 29 Atl. 99. In that case the bill was brought to compel the delivery of the property of the company to the plaintiffs therein, who were the duly elected officers of the company. The court held that the real question at issue was the validity of the election of the defendants, as officers of the corporation and that this could only be determined by quo warranto. We have examined with some degree of care the authorities cited by counsel for the plaintiffs and defendants herein, as well as such other authorities as were available, but do not find any decision which will warrant the court in passing upon the validity of the election of the defendants in a proceeding in equity. Were the determination of the validity of such election an incidental question arising in the consideration of a substantive complaint of which equity had jurisdiction, the matter would be wholly different; but, as already said, the real question at issue and the fundamental one herein is the validity of the election of the defendants, as directors of the company. Nor do we think that the allegation contained in the plaintiffs' bill that Levi There is no averment that the defendants are Deal, one of the plaintiffs, was fraudulently seeking to get possession of the property of prevented from voting certain stock held by him, the corporation with a view to its mismanage is sufficient to give equity jurisdiction after the ment or to waste it or in any way to control election has actually taken place, although such it to the prejudice of the stockholders of the a wrong might have been prevented in advance, company. The only complaint is that at a meet- by the exercise of equitable powers. The reaing of the stockholders, held at a proper time son for the difference we apprehend is this: and place, one of the plaintiffs was prevented That, before the threatened wrong has been confrom voting certain stock he claimed the right summated, there is no remedy at law to preto vote and that thereupon he, together with vent it, and recourse can only be had to equiothers of the plaintiffs, withdrew from said | table remedies; but after the election has been meeting, leaving but a minority representation | held, and even if fraud has entered into it, the of the stock to conduct the election. That an whole question of its validity can be ascertainelection was actually held under these circum-ed and declared in a proceeding on the law side stances is not denied, and for the purpose of of the court. That is, by quo warranto. a decision of the question now before us, it must be assumed to be true, and if we assume not only that the election was by a minority of the stock of the corporation, but also that Levi Deal, aforesaid, was fraudulently prevented from voting certain stock held by him, yet we do not still avoid the fact that an election was actually held at which the defendants were elected by the stock there represented to the directorate of the corporation. Flad an application been made to a court of equity in advance of such election setting forth that it was the purpose and design of those who would be in charge of said election to fraudulently prevent the voting of stock held by certain stockholders, or that there was reasonable apprehension of disorder or fraud at said election, a court of equity would on a proper showing of these facts have put forth its hand to stay the threatened wrong. In the case of Jenkins v. Baxter, 160 Pa. 199, 28 Atl. 682, the election was had by a minority representation of the stock.

There was a controversy as to the right of certain stockholders to vote certain shares of stock held by a trust company. The plaintiffs in the bill and their associates withdrew from the meeting and elected a board of directors. The others, representing a minority of the stock, remained and elected the defendants in the bill as directors of the company. A bill was filed by those elected by the withdrawing stockhold ers asking that they be declared elected and asking that a new election be held under the

It may be observed that in some of the states of the Union, by statutory enactment, courts of equity are given jurisdiction to determine the legality of the election of corporate officers, notably in the states of New York and New Jersey. We have not, however, been able to find a single case wherein the validity of an election of corporate officers can be adjudicated on a bill in equity, except where such statutory provision exists. Under these circumstances, we deem it the duty of the court to grant the motion of defendants' counsel and dissolve the preliminary injunction heretofore issued, which is done accordingly.

The court dissolved the preliminary injunction, and on demurrer dismissed the bill.

Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ.

T. C. Campbell and A. M. Christley, both of Butler, for appellants. J. A. Berkey, of Somerset, John B. Greer and Thomas H. Greer, both of Butler, and C. L. Shaver, of Somerset, for appellees.

PER CURIAM. Appeal No. 29 is from a decree dissolving a preliminary injunction restraining the defendants from interfering with the management of a corporation of

peal No. 59 is from a decree sustaining the defendants' demurrer and dismissing the bill. The controlling question, the power of a court of equity to determine the validity of the election, is the same in each appeal.

Nothing can be added with profit to what has been so well said by the learned judge of the common pleas on whose opinion we affirm both decrees at the cost of the appel

lants.

(245 Pa. 9)

EARLE et al. v. WILEY et al. (Supreme Court of Pennsylvania. March 30, 1914.)

DEEDS (§ 211*)-SUIT TO ENFORCE DELIVERY

EVIDENCE-SUFFICIENCY.

Where, in a suit to require the delivery of a deed executed by defendant and placed in escrow, the evidence conclusively showed that defendant, a man 70 years of age and of defective hearing, was induced by plaintiffs' agent to execute for $400 a deed to land worth $9,000, that the land had been conveyed to defendant at a tax sale in 1876, and that another tract was conveyed at a similar sale in 1880, that the deed involved in suit described the land acquired in 1876, but recited that it was acquired in 1880, that defendant, relying on the agent's representations, believed that he was conveying the land acquired in 1880, and that, though plaintiffs lived in the state, they sent their agent to make the purchase from him while he was temporarily in another state, where he did not have access to his deeds or title papers from which he could have detected the error, the court properly dismissed the bill.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*]

sylvania and waited until he was in Indiana to attempt their negotiations, and then repredefendant from J. Henry Cochran, treasurer, insented the tract_to have been purchased by the stead of from John G. Bryan, treasurer, from whom he actually bought, gives color at least, whether it be true or not to the defendant's allegation of attempted sharp practice on the part of the plaintiffs, which we cannot ignore."

The evidence fully warrants the finding that the price was grossly inadequate and that Wiley, a man of 70 years of age and of very defective hearing, was induced to execute the deed by fraud and misrepresentation of the plaintiffs' agent. There can be no doubt whatever, under the testimony in the case, that Quigley represented to Wiley that the tract he desired to purchase was the one Wiley had purchased from J. Henry Cochran, treasurer, and not the tract purchased by Wiley from John G. Bryan, treasurer. Wiley so testified, and the deed itself confirms his testimony. It recites that the property conveyed is "the same piece of land deeded by the treasurer of Cameron county, said state, in the year 1880, deed given by J. Henry Cochran to Lyman Wiley at the time of sale, was assessed in the name of H. J. Robinson." That was the land Wiley purchased at a tax sale and was conveyed to him by J. Henry Cochran, treasurer, and which he intended to sell and which the deed would have conveyed had not Quigley falsely represented that the land was contained in warrant No. 4987, which warrant was purchased by Wiley at a tax sale in 1876 and

Appeal from Court of Common Pleas, Cam- was conveyed to him by deed of John G. eron County.

Bryan, treasurer. As pointed out by the Bill in equity for delivery of a deed by learned chancellor, the plaintiffs, although Alice Pardee Earle and others against Grant living within 75 miles of the defendant in S. Wiley and another, administrators of the this state, sent their agent to make the purestate of Lyman Wiley, deceased. From a chase from the defendant while he was temdecree for defendants, plaintiffs appeal. Af-porarily in the state of Indiana, where he firmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, JJ. W. C. Kress and B. F. Geary, both of Lock Haven, and Johnson & McNarney, of Emporium, for appellants. Don M. Larrabee, of Williamsport, Green & Felt, of Emporium, and Nicholas M. Edwards, of Williamsport, for appellees.

did not have access to his deeds or title papers by which he could detect the misrepresentation as to the number of the warrant which contained the land conveyed to him by the Cochran deed. A night's reflection aroused Wiley's suspicions as to the correctness of the number of the warrant inserted in the deed, and the next morning after he

had delivered the deed to Burton, the cashier, he recalled it. His suspicions of Quigley's MESTREZAT, J. The learned chancellor misrepresentations subsequently proved to be was fully justified under his findings of fact, well grounded. It is clear, under the eviwhich are supported by the evidence, in re-dence, that Wiley never intended to sell the fusing to grant the prayer of the bill and direct the defendants to deliver the deed in question to the plaintiffs. In his opinion he

says:

land conveyed to him by the Bryan deed, and that the number of the warrant containing the land was inserted in the deed to the plaintiffs by reason of the fraud and misrepresentation of their agent. Equity will not enforce a contract procured by such means and under such circumstances.

"In the present case, so far as the evidence shows, the defendant had a valid title to a tract of land worth about $9,000, to which he was induced to make a deed for the sum of $400. And in view of the fact that plaintiffs' manager, Burton Pardee, and their agent, Quigley, the bill at the costs of the plaintiffs is aflived within 75 miles of the defendant in Penn- | firmed.

The decree of the court below dismissing

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

SWEENEY V. BROW. (No. 243.)
(Supreme Court of Rhode Island. July 10,
1914.)

EQUITY (§ 429*)-DECREE-MOTION TO AMEND.
A decree of the superior court cannot be
amended on complainant's motion in the Su-
preme Court; the statutes authorizing no such
procedure.
[Ed. Note.-For other cases, see Equity, Cent.
Dig. §§ 1020-1033; Dec. Dig. § 429.*]

Bill by Michael Sweeney against George H. Brow. On complainant's motion to amend decree entered in the superior court. Motion dismissed.

Sheffield & Harvey, of Newport, for complainant. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for respondent.

W certified to this court upon an agreed statement of facts.

[1] The deceit of the defendant alleged in the declaration is that, by reason of false representations, the defendant induced the plaintiff to accept the defendant as surety upon a bond given to release an attachment of personal property made in a suit in which the Plaintiff in this suit was plaintiff and the Narragansett Narrow Fabric Company, a corporation, was defendant. To recover, in an action for deceit based on alse representations, a plaintiff must show, not only that false representations have been made by the defendant to the plaintiff, but that, acting in reliance upon such false representations the plaintiff has been injured.

[2] We must determine the case upon the facts included in the agreed statement. There are facts set out in the statement from which

it might be found that the defendant made the false representations alleged in the decla

PER CURIAM. The complainant's motion to amend the decree entered in the superior court is dismissed. The statute does not pro-ration, and that the plaintiff acted upon the vide for the amendment of a decree of the superior court through the procedure adopted by the complainant; neither does good practice or justice require it. The rights of the parties can be fully protected by the superior court upon the coming in of the master's report, or by this court upon appeal from the

final decree of the superior court.

DUNN & McCARTHY v. BISHOP.

(No. 4697.)

same. Until the plaintiff obtains judgment in its favor in its action against the Narragansett Narrow Fabric Company, the plaintiff's injury resulting from the defendant's deceit is entirely contingent and uncertain; for the event has not happened, and may never hap pen, which gives the plaintiff the right to

look to the surety, and its action upon the false representations cannot be maintained. It is not a part of the agreed statement of facts, nor is it alleged in the declaration that the plaintiff has recovered judgment in

(Supreme Court of Rhode Island. July 10, its action against said Narragansett Nar

1914.)

1. FRAUD (8 9*)-DECEPTION CONSTITUTING FRAUD-INJURY FROM FRAUD.

Plaintiff, in an action for false representations, must show, not only that false repreBentations were made by defendant, but that, relying thereon, he was injured.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. 8; Dec. Dig. § 9.*]

2. FRAUD (§ 25*)-DECEPTION CONSTITUTING FRAUD-INJURY FROM FRAUD.

In an action for deceit for inducing plaintiff to accept defendant as surety on a bond given to release an attachment made in a suit between plaintiff and a third party, plaintiff could not recover until he had obtained judgment against such third party, since, until then, the injury would be contingent and uncertain.

[Ed. Note. For other cases, see Fraud, Cent. Dig. 24: Dec. Dig. § 25.*]

row Fabric Company. The plaintiff is not entitled to recover.

Decision is given in favor of the defendant for costs by nonsuit of the plaintiff.

The papers in the case are sent back to the superior court, with the decision of this court certified thereon.

(37 R. I. 46)

COAKLEY v. MASON MFG. CO.
(No. 4713.)

(Supreme Court of Rhode Island. July 7,
1914.)

MASTER AND SERVANT (§ 872, New, vol. 16
Key-No. Series)-WORKMEN'S COMPENSA-
TION ACT-ACCEPTANCE-TIME,

Workmen's Compensation Act (Pub. Laws 1912, c. 831) provides, article 1, section 5, that

Case Certified from Superior Court, Provi- an employer may bring himself within its providence and Bristol Counties.

Action by Dunn & McCarthy against L. W. Bishop, certified to the Supreme Court. De cision for defendant and remanded to the superior court.

sions by filing with the Commissioner of Industrial Statistics a written statement that he accepts the provisions of the act and by giving reasonable notice of such election to workmen by posting and keeping continuously posted copies of such statement in conspicuous places about the working place. The act was approved April 29,

Edward C. Stiness and Frederick W. O'Con-1912, and became effective in October following. nell, both of Providence, for plaintiff. James E. Brennan, of Pawtucket, for defendant.

PER CURIAM. This is an action of trespass on the case for deceit. The case was

Held, that an employer was not required to wait until after the act took effect before filing his acceptance, but that an acceptance filed five days before the act took effect would be regardthe benefits of the act from the very time that ed as valid and as conferring on the employer the act took effect.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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