(116 A.) IONA SPECIALTY CO. et al. v. GOLD SCHINE et al. (No. 532.) (Supreme Court of Rhode Island. April 19, 1922.) 1. Appeal and error 883-Party consenting to injunction hearing, notwithstanding informalities which were to be corrected, cannot complain on appeal. [er certain other persons were made defendants, and, in a hearing on the matter of the preliminary injunction against these parties, William Goldschine appeared as a witness and after giving his testimony, on motion of the complainants, said William was made a party respondent, and subsequently, upon hearing had, the preliminary injunction was issued against him also. The proceedings were somewhat informal and lacking in regWhere the proceedings by which appellant ularity, and the superior court, upon having was made a respondent below were informal, but appellant, when the court intimated its the state of the record called to its attention readiness to dismiss the proceedings tempo- by the attorney for William Goldschine, rarily against him, stated he preferred to pro- announced its readiness to dismiss the proceed with the hearing on the preliminary in- ceedings temporarily against him. The rejunction with the understanding that the tech-spondent William Goldschine, however, prenical irregularities were to be cured later, he ferred to proceed with the hearing on the cannot complain, on appeal from the temporary preliminary injunction with the understandinjunction, of the existence of such irregular-ing that certain technical irregularities were ities. to be cured later by complainants. Having Where respondent, who had previously been engaged in business, claimed to have sold his business to his daughter, and thereafter, as his daughter's agent, sold the business to complainants with an agreement that the daughter should not engage in the same business within the state for a limited time, and after the sale, respondent began selling to the former custom- The following facts seem to be fairly well ers of his daughter, a temporary injunction was established: The respondent William Goldproperly issued on the ground that the agree-schine is a man of 73 years of age, and his ment that the daughter only should refrain from thereafter engaging therein was made in bad faith and to deceive complainants. daughter May is now about 28 or 29 years old. Some 10 years ago the respondent William testified that he sold his business in this city to his daughter May, who was at that time some 18 or 19 years of age. She then began the business of making confetti and similar products. The father is unable to state with any clearness how or where his daughter secured the money to purchase the business. He says that he became her general manager, received no fixed salary from her, but occasionally got a little money, and that he had no interest in the business after this time. In the year 1920, William Goldschine began negotiations with the Bellin & Bellin, of Providence, for appel- complainants to sell to them the confetti lant William Goldschine. Ira Marcus, of Providence, for appellees. PER CURIAM. This is an appeal by the respondent William Goldschine from a decree of the superior court, whereby he was enjoined by preliminary injunction from manufacturing or selling confetti, paper horns, etc., within the state of Rhode Island until further order of the court. business. In July, 1920, the business was sold to complainants under a written agreement between May Goldschine and the complainants for $6,000. Part payment was made in cash, and the balance of $3,000 was made payable in 12 monthly installments of $250, for each of which a note was given by complainants. William Goldschine was present throughout all of the negotiations for the sale. There is some evidence that the [1] The original bill was brought against sale was effected by the representations of May Goldschine, a daughter of the respond- the father and daughter that the daughter ent William, to enjoin her from manufactur- was the sole owner of the business. The ing or selling confetti, etc., in this state, and cash was paid to the daughter, but the notes upon her failure to appear in court a pre- were made payable to the father, who now liminary injunction issued against her. Lat-claims that this was done by mistake and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the notes should have been made payable to the daughter. As a part of the agreement of sale and as an inducement therefor, May Goldschine agreed with complainants that she would not engage in the business of manufacturing or selling confetti in the state of Rhode Island for a certain term of years. Shortly after this transfer of the business, the respondents moved to New York, and in the spring of 1921 William Goldschine started in to manufacture confetti in New York. Shortly thereafter, William Goldschine employed certain makers of confetti, who had before that worked in Providence for his daughter and who had continued after the sale of the business to work for the complainants, to make confetti in the city of Providence for him. He then began to do business with certain old customers in the city of Providence. It appears that his daughter had visited these customers, but the respondent claims the visits had no connection with the business which was later done with them. His explanation is that he simply sent the goods to these people without having received any orders from in fact the daughter was acting really for and in behalf of her father, we see no reason why he should not be bound by her agreement. If the parties are aggrieved by the continuance of this injunction, it is possible for them to obtain a prompt hearing on the merits. In fact, the preliminary injunction was entered November, 1921, and, so far as appears, no effort has yet been made to have the cause heard on its merits. In view of all the circumstances, we are of the opinion that the preliminary injunction should continue in force until a hearing can be had upon the merits. The respondent's appeal is dismissed, the decree of the superior court is affirmed, and the cause is remanded to the superior court for further proceedings. (44 R. I. 246) CITY OF PROVIDENCE, for Benefit of MICHAUD, v. LAURENCE et al. (two cases). (Nos. 5574, 5575.) them on the theory that he supposed they (Supreme Court of Rhode Island. April 19, would be out of this particular kind of goods and that they would take his goods if they wanted them. It thus appears that, at the time these proceedings were begun, the Goldschines, one or both of them, were manufacturing and selling confetti in Providence. [2] There is no rescript in this case, but from the very brief report of the decision of the trial justice, contained in the transcript of evidence, it seems clear that the trial justice considered that there was ample ground for the issuance of the preliminary injunction, either on the ground that May Goldschine was conducting business in New York now under the name of her father, or that William Goldschine had been carrying on business in Rhode Island under his daughter's name and was still continuing to carry on the same line of business in New York and in Rhode Island under his own name. If either of these assumptions later is proven to be true, or if the father and daughter have a common interest in the business, we think that there is sufficient evidence on a preliminary hearing to warrant the issuance of the injunction. There is evidence that the complainants supposed they were buying the business carried on by the Goldschines and, as a partial consideration for the purchase, for a limited time the Goldschines were not to enter into competition with them in this state. This was the basis of the sale which apparently was made on representations of both father and daughter to this effect. It is true that the written agreement was entered into with the daughter only, but if this was made in bad faith and to deceive the complainants, whereas 1922.) Municipal corporations 703 (1)—Surety not liable for negligence of principal outside territorial limits. Under Ordinance of Providence, c. 93, approved May 19, 1915, authorized by Laws 1915, c. 1263, providing for licensing and regulating motor busses and chauffeurs, and requiring a bond conditioned to pay damages sustained by persons injured by negligence or unlawful acts of the principal in the operation of his motor bus within the city, persons injured by negligence of the principal outside the city cannot recover on the bond. Exceptions from Superior Court, Kent County; Chester W. Barrows, Judge. of Pierre Michaud, and by City of ProviActions by City of Providence for benefit dence for benefit of Mary Anne Michaud Demuragainst Victor Laurence and others. rers to declarations were sustained, and plaintiffs except. Exceptions overruled, and cases remitted for further proceedings. Archambault & Archambault and Joshua Bell, all of Providence, for plaintiffs. John F. Murphy, of Providence, for defendants. SWEENEY, J. These are actions of debt on the same bond brought in the name of the city of Providence by residents therein against Joseph O. Laurence as principal and Victor Laurence as surety, both of West Warwick in the county of Kent. The actions are brought by husband and wife, and are based upon personal injuries received by her while riding as a passenger in an automobile operated by the defendant Joseph O. Laurence (116 A.) Each declaration averred that said defend- | visions regulating the operation of said moant Joseph O. Laurence operated an auto- tor busses upon any street or public place in mobile in the so-called jitney business be- said city. tween Warwick Center Square, West Warwick, and the city of Providence; that said Mary Anne Michaud boarded said automobile in West Warwick for the purpose of being transported to the city of Providence; and that while she was being transported in said automobile, over a public highway in the city of Cranston along the route to said Providence, said defendant so negligently operated said automobile that it collided with another automobile, and said Mary Anne Michaud sustained severe bodily injuries. Said ordinance also provides (section 9) that no license shall be issued for any motor bus until there has been filed with said board of police commissioners a bond running to the city of Providence in an amount to be computed at the rate of $500 per seat of the passenger seating capacity thereof, with surety conditioned in substance to pay all damages sustained by any person injured in his person or property by any careless, negligent, or unlawful act on the part of the principal named in such bond or his employees in the conduct of his said business, or in the use or operation of such motor bus employed by him therein, and such bond shall be maintained during the term of the license, and shall run until the liability thereunder has ceased. The declarations also averred that July 2, 1920, the defendants signed, sealed, executed, and delivered their bond to the said city of Providence as obligee, for the purpose of enabling said Joseph O. Laurence to procure a license from the board of police commission- The purpose of the General Assembly in ers of said city to operate a motor bus in passing said chapter 1263 was to empower the business of transporting, in said city, each city and town, desiring to do so, to passengers for hire, and undertook and regulate the business of transporting pasagreed in said bond to pay all damages sus- sengers for hire by means of motor vehicles. tained by any person which might be caused If a municipality does not wish to avail itself by the negligent or unlawful action of said of the power to regulate such business withoperator, or his agents, in the use or opera-in its confines, then any person may engage tion of said motor bus. in said business therein without regulation, Chapter 1263 of the Public Laws, passed at the January Session 1915, authorizes each city and town to regulate, by ordinance, the business of transporting, in such city or town, passengers for hire by means of any motor vehicle. The defendants demurred to the declara-subject only to the general laws relating to tions on the ground that they had not obli- the operation of motor vehicles. The ordigated themselves to pay for any damages nance passed by the city council of Provisustained in the city of Cranston. The de- dence affects the operation of such motor murrers were sustained by a justice of the vehicles only within the limits of the city, superior court, and the plaintiffs have brought and has no extraterritorial effect. The bond the cases to this court upon their bills of ex- required by said ordinance to be given to ception, claiming that said action was con- said city in order to procure a license to trary to law. operate a motor bus is for the manifest purpose of giving a person injured by the negligent operation of such licensed motor bus, within the limits of said city, some opportunity to collect the damage sustained by him. To hold that a person injured by the negligent operation of such motor bus outside of the limits of the city, could sue upon the bond given to said city, might deprive a person injured by the same motor bus, within the limits of said city, of an opportunity to collect the damage sustained by him by suit upon said bond. The bond itself states that it is given for the purpose of enabling the principal to secure a license to operate a motor bus in said city, and the surety on the bond is only chargeable according to its strict terms and conditions. Two cases bearing upon this question are Bartlett et al. v. Lamphier et al., 94 Wash. 354, 162 Pac. 532, and Fischer v. Pollitt (N. J. Sup.) 112 Atl. 305. Acting under the authority conferred by said chapter, the city council of the city of Providence passed an ordinance providing for licensing motor busses, and regulating the operation thereof in said city. Said ordinance is known as chapter 93, and was approved May 19, 1915. It provides, among other things that no person shall engage in the business of transporting in the city of Providence passengers for hire by means of any motor vehicle without first obtaining a special annual license for each vehicle employed by him in such business. It also provides that no person shall operate a motor bus in any street or public place in said city without first obtaining a special annual chauffeur's license therefor. The ordinance fixes the amount of such license fees, and designates the board of police commissioners of said city as the administrative body to issue said licenses. The ordinance contains many pro As the license to operate the motor bus under said ordinance is limited to the city of Providence, and the bond is conditioned to pay damages sustained on account of the negligence of the principal or his employees in the conduct of said business within the limits of said city, there was no error in the action of the court in sustaining the demurrers | formance of a contract to convey lots, Philip to the declarations. All of the plaintiffs' exceptions are overruled, and the cases are remitted to the superior court for further proceedings. (273 Pa. 148) In re LEVY'S ESTATE. (Supreme Court of Pennsylvania. Feb. 20, 1922.) 1. Specific performance 100-After suit by buyer for specific performance, seeking abate ment of price, was dismissed for want of equity, purchaser could not enforce original contract after time had expired. Where, at the time a contract to purchase a lot abutting on an alley was made, the purchaser knew that the vendor's interest in the alley was subject to a public easement, a tender of the full consideration, after the purchaser's suit for specific performance, demanding a deed freed from the public easement, had been dismissed for want of equity, and seven months after the time limit of the contract had expired, and demand of performance, was too late; the property having greatly in creased in value. Green appeals. Assignments of error overruled, and decree affirmed. Argued before MOSCHZISKER, C. J., and FRAZER WALLING, KEPHART, and SCHAFFER, JJ. Grover C. Ladner (of Ladner & Ladner), of Philadelphia, for appellant. Joseph R. Embery, of Philadelphia, for appellee. WALLING, J. Fannie Levy died testate on December 20, 1916, seized, inter alia, of the property known as 4264, 4266 and 4268 Frankford avenue, Philadelphia. Mary Samson and Ray Young were appointed and qualified as her executors, with power to sell real estate, and on March 8, 1919, entered into a written contract to sell and convey the above-described property to Philip Green and Jacob Ash for $16,000, of which $500 was paid in hand. The contract describes the property by lot numbers only, and stipulates that the "parties hereby bind themselves, their heirs, executors and administrators, for the faithful performance of the above agreement within 90 days from the date hereof, said time to be the essence of this agreement, unless extended by 2. Specific performance 8-Rests in discre- mutual consent in writing indorsed hereon." tion of chancellor. A decree for specific performance is not a matter of course, but rests in the sound discretion of the chancellor. 3. Specific performance 39-Oral contract relating to real estate not specifically performed. On February 7, 1920, Green, who had secured Ash's interest, filed his petition in the orphans' court for a specific performance of the contract, to which the executors made answer and the case was referred to a master, who took testimony, made elaborate findWhere lots abutting on a public alley were ings of facts and legal conclusions, and recsold, and the purchaser claimed an oral agree-ommended that the prayer of the petitioner ment that he was to have title to part of the alley freed from the public servitude, such oral agreement, even if established, could not be specifically performed. 5. Specific performance 114(4) Where plaintiff relied on waiver of time limit of contract, it should have been averred in bill. Where, in a suit for specific performance of a contract to convey lots, plaintiff relied on a waiver of the time limit of the contract, such waiver should have been averred in the bill. Appeal from Orphans' Court, Philadelphia County; Henry C. Thompson, Jr., Judge. be granted. The court below, however, sustained an exception to the master's final conclusion and entered a decree dismissing the petition, from which Green brought this appeal. [1] The decree was rightly entered. There is and has been for over 30 years a common public alley, 13 feet wide, extending westerly from Frankford avenue to Griscom street, and abutting upon the north side of lot 4268. It is paved with cement, is as visible as a public street, and petitioner well knew of its existence when he made the contract, but later insisted that the executors give him a warranty deed, including one-half of the alley, freed of the public easement, or make an abatement of $1,300 from the agreed price. This being refused, Green, in September, 1919, filed a bill in equity in the court of common pleas for specific performance of bill was dismissed in December for lack of the contract on the terms just stated. The merit and because the orphans' court has In the matter of the estate of Fannie Levy, exclusive jurisdiction over such contracts by deceased. From a decree of the orphans' executors. Thereafter on January 2, 1920, court, dismissing his petition for specific per- the executors entered into a written agree (116 A.) waiver, and, this being an equitable proceeding, both in form and substance, relief must conform to the pleadings as well as to the proofs. Luther v. Luther, 216 Pa. 1, 64 Atl. 868; Massey v. Massey, 267 Pa. 239, 248, 110 Atl. 341; Mansfield v. Redding, 269 Pa. 357, 362, 112 Atl. 437. Where plaintiff relies upon a waiver of the time limit in such a contract, it must be averred in his bill. Doughty v. Cooney et al., 266 Pa. 337, 109 Atl. 619. The assignments of error are overruled, and the decree is affirmed, at the costs of appellant. ment for the sale of lots 4266 and 4268 to the petition contains no suggestion of a Alexander Mackie, a bona fide purchaser, for $15,000, on which he paid $1,000. Then on January 29, 1920, Green for the first time tendered respondents full consideration and a deed for execution drawn subject to the public easement in the alley. It was refused. The tender came too late, especially as the property had greatly increased in value and the situation of the parties had changed. Green's contention that he was entitled to an abatement because of the alley was wholly unwarranted; but as he elected to take that position, and persist in it through a vexatious litigation, he cannot thereafter, and seven months after the time limit has expired, change his position (Farber v. Blubaker Coal Co., 216 Pa. 209, 65 Atl. 551) and compel specific performance of the contract, especially when it would be inequitable to grant such relief. "The rule may be laid down as general, applying to either the vendor or the vendee, that where there has been a change of circumstances or relations which render the execution of the contract a hardship to the defendant, and this change grows out of or is accompanied by an unexcused delay on the part of the plaintiff, the change and the delay together will constitute a sufficient ground for denying a specific performance when sought by the one who was thus in default." Pomeroy's Specific Performance of Contracts (2d Ed.) § 408. (273 Pa. 158) SMITH et al. v. BLANCHARD et al. (Supreme Court of Pennsylvania. Feb. 20, 1922.) Suit by Clement V. Smith and others against William G. Blanchard and another. From a decree dissolving a preliminary injunction, plaintiffs appeal. Appeal dismissed. [2] Moreover, a decree for specific perform-President Judge. ance is not a matter of course, but rests in the sound discretion of the chancellor (Friend v. Lamb, 152 Pa. 529, 25 Atl. 577, 34 Am. St. Rep. 672; Caton v Wellershouse et ux., 77 Pa. Super. Ct. 331, 333), which was here properly exercised. [3] The fact that an owner's title to land may extend to the center of an open street or alley will not enable him to exclude the public therefrom, nor, in the absence of a special covenant, to recover damages from his grantor because of such servitude. Green bought by numbers, and the lots as inclosed upon the ground exclude the alley. The alleged oral agreement that he was to have a clear title to one-half of the alley could not, if established, be specifically performed. Manufacturers' L. & H. Co. v. Lamp, 269 Pa. 517, 112 Atl. 679; S. Dep. & T. Co. v. Coal & Coke Co., 234 Pa. 100, 108, 83 Atl. 54, L. R. A. 1917A, 596. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ. John E. Kunkle, of Greensburg, for appellants. H. E. Marker and William S. Rial, both of Greensburg, George W. Flowers, of Pittsburgh, and P. K. Shaner and R. D. Laird, both of Greensburg, for appellees. PER CURIAM. This is an equity proceeding wherein a preliminary injunction was granted, which was subsequently dissolved on condition that defendants pay into court an amount the chancellor deemed sufficient to indemnify plaintiffs in event of the final decree being in their favor; plaintiffs have appealed from this decree. [4, 5] Furthermore, the time, which expired June 7, 1919, was made the essence of the contract, and that is a sufficient answer It is sufficient for present purposes to to the petition. McKuen v. Serody et al., say, without deciding whether or not the rul269 Pa. 284, 112 Atl. 460. True, appellant ing complained of is an appealable order, contends, and the master found, the conduct we are not convinced of an abuse of discreof respondents' attorney amounted to to a tion. waiver of that clause of the contract; but Appeal dismissed at cost of appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |