(Common Pleas No. 3, Allegheny Co.) WEILER BROTHERS v. WEISS. Liability for debt of another-Original consid- Previous verdict. Where there is an arrangement between the parties whereby A received goods of B and in consideration thereof agreed to pay for goods sold by C to B the statute of frauds does not prevent a recovery against A. After verdict a new trial was granted for the reason that the narr did not contain an averment of liability on the ground on which recovery was allowed. An amended narr was filed setting forth the ground of liability before submitted to the jury, to which defendant demurred. The demurrer being overruled defend ant was not allowed to withdraw the demurrer and go to trial. He had proceeded with his eyes wide open, and the very issue to be tried had once been submitted to a jury and decided against defendant. averring, with some redundant matter, the ground of liability before submitted to the jury. The defendant might have plead to the amended narr; or he might have gone to trial on it without filing any additional plea. He chose, however, to demur. The facts averred by the narr, and admitted by the demurrer, certainly show defendant's liability, and the decision upon the demurrer must be against him. In addition, it seems plain under the circumstances above detailed, that he should not be permitted to withdraw his demurrer and go to trial. He proceeded with his eyes wide open, and in addition the very issue which would now be tried, were the demurrer withdrawn, was once submitted to a jury and decided against defendant. And now, to wit, October 28, 1903, it is ordered that judgment be entered on the demurrer in favor of plaintiffs and against defendant for the amount of the claim as set Demurrer to forth in the statement. No. 650 Feb. T., 1902. plaintiff's amended statement. For plaintiffs, L. K. & S. G. Porter and Opinion by MCCLUNG, J. Filed October Alfred Cohen. 28, 1903. This case was tried on January 29, 1903. There was testimony to the effect that de For defendant, L. C. Barton. fendant in various ways assumed liabilty for Court of Common Pleas No. 1, the present claim of plaintiffs, which was for liquors sold to defendant's son. The jury was instructed that as to other promises or alleged promises the statute of frauds forbade a recovery; but that if they believed the testimony to the effect that if there had been an arrangement between the various parties by which defendant received personal property of his son, and in consideration thereof agreed to pay this debt to plaintiff, then plaintiff could recover. Upon this issue the jury found for the plaintiff. When a motion for a new trial was made, an examination of the statement showed that it did not contain an averment of liability on this ground; and although the testimony was not objected to, it was considered that under all the circumstances the defendant might have been misled, and a new trial was granted. Plaintiffs then amended their statement, ALLEGHENY COUNTY. HUNTER v. BAXTER. Equity-Bill for specific performance-Outstanding title-Res adjudicata. Vendor of real estate filed a bill in equity to com pel the vendee to take title to real estate and pay the purchase price. The answer of the vendee alleged an outstanding title, and he shortly there after filed a cross bill, making the plaintiff in the original proceeding and the owners of the outstanding title (husband and wife) defendants. To the cross bill the vendor demurred, and the owners of the outstanding title filed answers. On hearing on bill and answer it was held— First. That without any allegation to the contrary the defense made by the owners of the alleged outstanding title was the subject-matter in part of another proceeding already adjudicated relating to the land in question where the whole of the defense made in this proceeding by one of the owners of the outstanding title (the husband) should have been set up. gage prior to this proceeding. May term, 1901, brought by W. L. Sloan for use of David Hunter against William S. Robinson, with notice to N. J. P. Yost, terre tenant-being a foreclosure of the $22,000 purchase money mortgage given by Second. The alleged property interest of one of the owners of the outstanding title (the wife) presumptively belonged to her husband, as she had not claimed a separate estate therein, and his interest had been sold at sheriff's sale on a mort-William S. Robinson to W. L. Sloan, dated July 28, 1900, and recorded in the recorder's office in mortgage book 1106, page 26; upon which judgment was obtained April 6, 1901, and subsequently thereon upon lev fa. 66 May term, 1901, the property sold to David Hunter, to whom the sheriff's deed was executed and delivered. No. 766 Sept. T., 1903. David Hunter v. David Hunter V. A. B. Baxter-Original bill. A. B. Baxter v. David Hunter, Frederick Gaertner and Margie Gaertner-Cross bill. Opinion by BROWN, J. Filed December 10, 1903. FINDINGS OF FACT. Upon the 12th of August, 1903, David Hunter filed a bill in equity against A. B. Baxter for the specific performance of a contract for the sale and conveyance by the former to the latter of a lot of ground in the Twentieth ward of the city of Pittsburgh. The defendant in his answer admits the contract and declares his willingness to carry it out, but alleges by way of defense that plaintiff's title is not a marketable one in fee simple as called for by the contract-in this, that there is an outstanding title in Frederick Gaertner and Margie Gaertner, his wife. In order that this outstanding title might be determined in this proceeding, the defendant on the 23d of September, 1903, filed a cross bill against the Gaertners and said plaintiff in the original bill. To the cross bill the plaintiff in the original bill filed a demurrer, and the Gaertners an answer; and thereafter on the 23d of November, 1903, at the written direction of counsel for plaintiff and defendant, the cause was ordered down on the argument list and heard on bill, answer and the other pleadings. The answer to the cross bill is exceedingly lengthy; much of it a repetition of the subject matter of prior bills in equity that had been adjusted by decrees and settlements referred to in the pleadings; and all of the matters set out in the answer to the cross bill are matters that might have been and should have been raised by the Gaertners for they have asserted no reason why they were not raised by them by intervener or otherwise in the proceedings at No. 230 The alleged property interest of Mrs. Gaertner arose after the execution of said $22,000 mortgage and long prior to the foreclosure at No. 230 May term, 1901, and was divested by the sale under said mortgage. Presumptively any interest she had in the property was the interest of her husband and subject to seizure and sale by his creditors; Jack v. Kintz et al., 177 Pa. 571, for she has not alleged that she had any separate estate as a basis for ownership in her own right. CONCLUSIONS OF LAW. The Gaertners are barred from asserting any title or interest in the realty in controversy, because (a) presumptively their interest-whatever it was-was solely that of the husband, Jack v. Kintz et al., 177 Pa. 571; (b) without allegation to the contrary the defense made by them was the subject-matter in part of the bills in equity filed by Frederick Gaertner against W. L. Sloan, and the whole defense might have, and should have, been set up in said proceedings foreclosing the $22,000 mortgage. True, they were not parties to that foreclosure; but in the light of their allegation that said foreclosure was in bad faith and for the purpose of defrauding them, they must have had knowledge of the suit in time to intervene and defend-presumptively must have had knowledge of it, for they do not allege the contrary; (c) the charges of fraud, so far as affecting David Hunter, are not specific in form, are vague and indefinite and wholly insufficient; and the remedy upon the charges of fraud asserted against other persons who are not parties to the bill-as to said other parties-is not through the present bill. From these conclusions it follows: (a) That the Gaertners have no right or interest in the real estate in controversy or in its proceeds, so far as affecting David Hunter and A. B. Baxter. (b) That the sole legal title in fee simple is in David Hunter; and that a deed of conveyance from him to said A. B. Baxter, in accordance with the terms of the written agreement between them, dated July 1, 1903, will vest a good marketable and indefeasible title in fee simple clear of all incumbrances. In accordance with this opinion let a decree nisi be drawn and entered for specific performance of the contract. For plaintiff, Noah W. Shaffer. a proper notice to the owners to do said work. This is an extraordinary remedy afforded the plaintiff and it should strictly follow the requirements of the act granting the remedy. Plaintiff avers that such has been done in this case, but upon argument, September 26, 1902, moved to amend the statement so as to the more particularly specify the items entering into the claim and more definitely set forth the time and manner of notice given. It is urged that the request comes too late. Under the Act of June 4, 1901, P. L. 364, For defendant, John S. Ferguson and Jas. different requirements in filing a lien of this Fitzsimmons. Court of Common Pleas, CRAWFORD COUNTY. MEADVILLE CITY v. MAHONEY, Municipal liens-Notice-Parties—Act of June No. 44 Feb. T., 1902, M. L. D. Sur rule to show cause why the lien in this case should not be stricken off. character are made than had been theretofore imposed and it becomes necessary to determine whether the same have been sufficiently complied with. The Act of 1901 requires that notice to do. the work such as this lien is filed for must be given for such length of time as may be prescribed by ordinance. Inasmuch as the requirement for notice is by Act of Assembly, but the length of time the same must be given before the work may be done by the city is fixed by ordinance, which is not brought onto the record, but whose terms are subject of proof, the fact that notice was given must be averred in the claim, which was done in this case. The requirements of said act are that the claim shall set forth when and how such notice was given. The claim states that the "said owners (which must have referred to those set forth in the claim as John Mahoney Opinion by THOMAS, P. J. Filed October and the heirs of David Mahoney) had been 31, 1903. duly notified to do said work by notice This lien was filed January 9, 1902, served on them more than ten days before against John Mahoney and the heirs of December 6, 1901, by W. H. Larkin, street David Mahoney, as owners or reputed own-commissioner in and for said city.” ers, although the caption sets forth the defendants as John Mahoney and the heirs of David Morris, while the endorsement which is in the handwriting of the claim, sets forth the defendants as John Mahoney and David Morris heirs. It sets forth that the date upon which the work for which the lien is filed was completed is December 6, 1901. The objections to this lien are that the claim or statement fails to set forth or reveal the kind or character of the work done for which the lien is filed; and also fails to show This is some averment as to when and how such notice was served, but in our opinion. is insufficient under the requirements of this act. The date of the service is certainly very indefinite, as it applies to all time prior to a given date, the manner of service is in no way suggested, and the persons upon whom served are not named, and when the fact is known that John Mahoney has been dead for a number of years and there has never existed a man, so far as is known by the actual owners of this land by the name of David Mahoney, nor is it stated who the heirs of any of the parties suggested anywhere in or on this claim are, who were served, it will readily be recognized that any interested parties are given as little information as to the requisite proceedings, for a failure of which they might make a defence, as can well be imagined. It is urged that no bill of particulars is required in a municipal claim as is the case in mechanics' liens. Under former Acts of Assembly no such particulars or details were required as is necessary in mechanics' liens, but in our opinion the Act of 1901 has greatly modified the practice in this respect, and while the necessities are not made the same as those of mechanics' liens, yet it clearly requires much more detail than formerly, and the terms of the act must be strictly complied with. While it clearly appears to us that the requirement as to when and how the notice was given has not been properly set forth, yet we are persuaded that under the averment of the claim in that respect, an amendment can and may properly be allowed; Philadelphia v. Christman, 6 Sup. Ct. Rep. 29; Gebhard v. Levering, 14 Phila. 120; MufHy v. Karchnack et al., 8 Kulp, 278. The claim does not set forth the kind and snaracter of work done, for which the same filed. It does set forth that the lien is claimed for "work done and material furvished in the construction of a sidewalk in front of lot, the amount herein claimed for said work and material being the cost to the said city of the construction of sidewalk or footway along and abutting the premises and land of said owner, or reputed owner, on Race street, in said city." The wording of the Act of Assembly as to this requirement is that the claim shall set forth: "7. In other than tax claims the kind and character of the work done, for which the claim is filld," etc., which is very like a similar requiement in mechanics' liens, which is that the claim shall set forth: "11. The amount or sum claimed to be due and the nature or kind of the work done, or the kind and amount of materials furnished," etc., and we believe it as necessary to set forth such facts in the one lien as the other. In the lien filed, which claims for both work and materials, we are of opinion that it should set forth the kind of materials used, though this does not seem to be required by the act, and such failure is probably not fatal to the lien. But certainly it is proper to give the parties fair notice as to whether the claim for materials is for the furnishing of gravel, lumber, brick, stone or cement; and the act requires that the kind and character of the work be set forth in the claim. Parties affected have a right to know whether the work claimed for was that of a common laborer, as might be the case were the same performed in the grading for and construction of a gravel walk (in which case quite a different defence might be interposed from what would otherwise be available); that of a carpenter, a bricklayer, a mason, or several of these combined. In our opinion, without such statement, the requirements of the act have not been sufficiently complied with to render the lien valid; Philadelphia v. Sutter, 30 Pa. 53 McCay's Appeal, 37 Pa. 125; Heron v. Robinson, 2 Parson's Eq. Cases, 248; Noll v. Swineford, 6 Pa. 187. But can it be amended now, more than nine months after the work was performed and more than eight months after the lien was filed? For authority to amend we are referred to the case of Chapel v. Baer, 3 Penny. 530, in which an amendment as to most important requirements was allowed more than six months after the right to, or even the filing of, the lien had accrued, and such amendment was sustained by the Supreme Court. Though that case seems to have decided chiefly the nature of the defects that are amendable, and the question as to the allowance of such amendments subsequent to the expiration of the time for filing the lien was not apparently raised, we should feel bound thereby, were it not for the case of McFarland v. Shultz, 168 Pa. 934, where it was held that the lien was defective, because of the fact that the claimant, who was a subcontractor, did not adequately set forth the nature and kind of work done, and that such defect was such as could not be amended after the time for filing the lien had expired. We do not consider the authority to amend as given by the Act of 1901, is greater, with reference to the defect complained of, than is that of the Act of June 11, 1879, P. L. 122. It is urged that in mechanics' lien subcontractors are held to more strict compliance with the law, and the city is not, in this case, a sub-contractor. This is true, but the requirements set forth in the Act of 1901 are not made applicable to sub-contractors or to contractors, but to the municipality. If there is any comparison to be made, the rights of the city are more like those of a sub-contractor. Certainly no direct contractural relation existed between the city and the owners. Being of opinion that the claim is defective, under the requirements of the Act of 1901, and that, under the authority of McFarland v. Shultz, Supra, we have not the power to allow the amendment prayed for, the rule is made absolute and the lien is hereby stricken off. For plaintiff, J. P. Colter. For defendant, Haskins & McClintock. A Case of Constructive Assault. The court of Petty Sessions was open for business. The county magistrate, having taken his seat on the bench, cast a kindly glance at the motley crowd that had assembled in the court-room, and with an air of great importance asked the court officer what cases were on the calendar for the day. "Nothing of any importance, your Honor, only a case of constructive assault." "What kind of a case is that?" whispered his Worship to the clerk, not wishing to betray his ingorance. "It's an indirect assault, an assault inferred," replied the clerk. "Ah," whispered his Honor, "give me an illustration. Hould, I think I have it. I suppose it's something like shaking your fist at a lad wid the intention you'd like to be hammerin' the head iv him?" "Yes," rejoined the clerk, smiling, "that would be a constructive assault." "call the case iv Duffy v. McCarthy." "Take the book, officer, and tell us what you know about this constructive assault." The constable, being sworn, said: "Your Honor, the defendant in this case is a woman by the name of Peggy McCarthy, and my charge agin' her is that she wilfully left a metal pot in my path, so that I might fall over it and hurt myself." "Who is this Peggy McCarthy?" sternly inquired the court. "She's a widow, your Honor, an' she lives on a small farm a few miles over in the country." "Well," said the court, "you say she left a metal pot on your road for you to fall over it. It doesn't matter whether you fell over it or no from it bein'a constructive assault.” "But," insisted the constable, "I did fall over it, and scraped and bruised my shins and ankle." "Thin a regular assault is now added to the constructive assault," rejoined the court. "Your Honor knows the law better than I do, and that's my charge," responded officer Duffy. "He has produced no evidence in support of his case," whispered the clerk in an undertone. "He merely makes an assertion without proving it." "Hould your tongue, Mr. Clerk, and don't be raisin' objections of this kind. Iv ail things a magistrate should avoid is thryin' to upset a policeman." "Hev you anything to say in your defince?" said his Honor to the defendant. "Well, your Honor, says Peggy McCarthy, "I am as much guilty in that crime as yer Lordship sitting up on the binch." "Don't say that Peggy McCarthy, bekase you are charged with a crime, and magistrates are not charged with any crime, and it's insulting to the court." "I beg pardon, your Honor, I meant no offince." "Your ignorance is excoosable this time." "Well, your Honor, I live about a mile bilin' the pigs' dinner, I puts the pot outor so from this, and after I got through side my doore, to air it. It was right alongside my cabin, and fully twelve feet from the road. "I'm glad I've larnt this sort of crime," said his Honor, "bekase I may have a few men and women up under it. Mr. Clerk," "That's not so, your Honor," interjected he added, with an air of grave importance, Officer Duffy. |