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time can you find in favor of the plain- | the trial, and we now think the action tiff. You must believe that that was the there taken was correct. arrangement made then, or else your verdict must be for the defendant." No request was submitted as to any special direction concerning this difference, nor can we see how there could have been a recovery, where no contract for any such sum was either declared upon or proven on the trial. We, therefore, are of the opinion that this point ought not to be sustained.

Several other questions also arose upon the trial, which, perhaps, require discussion. The deposition of the plaintiff, who was not present at the trial, was refused. A rule to take the deposition was entered, and November 20, 1914, between the hours of nine in the forenoon and five o'clock in the afternoon was fixed. It was to be taken at the office of B. F. Davis, Esq., No. 5 S. Duke Street, in the City of Lancaster, before Wm. J. Coulter, a Notary Public. The deposition was taken at the residence of the plaintiff, No. 351⁄2 N. Mulberry Street. Notice was sent over the telephone to counsel for defendant to that effect, and he objected, as that was not the place named in the rule. Notwithstanding the objection, the deposition was taken in the absence of the defendant and his counsel. The deposition was taken on the ground that the plaintiff was an infirm witness and unable to attend Court. No one testified as to her inability to appear in Court except her son. She had a physician, Dr. E. T. Prizer, who lives in this city, within three blocks of the Court House, and yet he was not called, nor, as far as was shown to the Court, was any attempt made to secure his presence. His ex parte affidavit could not, of course, be introduced.

The next question arises concerning the claim for the value of the personal property. According to the testimony of the plaintiff, certain personal property belonging to her was upon the premises, when Haefner took possession, and, so far as has been shown in this case, is there yet. The plaintiff claimed that she could waive any tort arising out of its detention, and sue in assumpsit for its value. The Court disallowed evidence under these circumstances to be admitted, and the correctness of this ruling is now raised. In Bethlehem Borough v. Perseverance Fire Co., 81 Pa., 445, Mr. Justice Mercur said: "The declaration was in assumpsit. This action cannot be sustained unless there was an express contract, or the law will imply a contract: 1 Chit. Pl., 99. It does not lie for a chattel illegally detained: Willet v. Willet, 3 Watts, 277. The plaintiff cannot waive the tort and recover the value of the goods, unless the tort feasor has sold the article and received the money: * Gilman v. Wilbur, 12 Pick., 120; or where he has taken it as merchandise to market for the pur-that the witness, if a resident of the pose of sale, and in the absence of any evidence to rebut the presumption of a sale and receipt of the money." In Weiler v. Kershner, 109 Pa., 219, it was in like manner stated: "It is undoubtedly true that, in case of the mere detention of a chattel, a plaintiff cannot waive the tort and sue in assumpsit or in debt. Without something more than mere detention, there is no contract, either expressed or implied." See, also, Boyer v. Bullard, 102 Pa., 555; Kellam v. Kellam, 94 Pa., 225; York Trust Co. v. Moul, No. 2, 15 York, 137. We followed the rule, as laid down in these cases, upon

Section 2, of Rule XV, page 19, of the Rules of the Common Pleas, provides that "no depositions shall be allowed to be read in evidence unless the party offering the same shall satisfy the Court

state, is either aged, infirm or a waygoing witness, and could not, after reasonable pains taken for that purpose, be secured to testify at the time of the trial." Joseph F. Hoover, Jr., the son, was the sole witness called by the plaintiff, and seems to have been the only person really interested in the result of the suit. His testimony seemed not to be dependable,

-so much so that it was not believed by the jury. The physician of Mrs. Hoover could easily have been secured, to clear up any doubt. In his absence, we were not satisfied that she could not be personally present. But, in addition to this,

A Good Listener. Magistrate-" I understand that you overheard the quarrel between this defendant and his wife."

Witness" Yes, sor."

Magistrate-" Tell the court, if you can, what he seemed to be doing." Witness" He seemed to be doing the listenin'."

the authorities seem to hold that a deposition taken as this was should not be read. In M'Cleary v. Sankey, 4 W. & S., 113, it was held that "a deposition taken in pursuance of a Rule of Court cannot be read in evidence, unless it appear by the certificate of the Justice that it was taken at the time and place mentioned in the notice;" and in Vickroy v. Skelley, 14 S. & R., 372, it was also held that, "if notice be given that a deposition will be taken at a certain house in O. C. OPINION AND ADJUDICAthe Township of N., in the County of B., and nothing more appears than that it was taken in the County of B., it cannot be read in evidence, unless the adverse party attended, which cures the defect." Under all the facts, we think the deposition was properly excluded.

The last objection is, that the Court refused to permit the affidavit of defense, a portion of which had been admitted in evidence, to be sent out to the jury. The Court charged the jury, and no such request was immediately made by the plaintiff's counsel. But, after the jury had retired to their room, and when counsel for the defendant had left the Court Room, he appeared before the Bar and made the application that this paper should be sent out to the jury. We decided that, because all of the affidavit of defense had not been admitted in evidence, and because counsel was too late in making his request, it should be refused. We have no doubt that the action thus taken was correct. It would, we think, have been unfair and improper to do otherwise. We do not see any merit in this reason.

Having now carefully considered all the points raised in the reasons for a new trial, we find them to be unsustained, and we, therefore, discharge this rule. Rule discharged.

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TIONS.

By JUDGE SMITH.

Thursday, March 4, 1915.
Adjudication.

Elizabeth Ricksecker, Mt. Joy Bor

ough.

Thursday, March 11, 1915.
Opinion.

Estate of Annie C. Betz, deceased. Appeal from decision of register dismissed.

Adjudications.

Lemon B. Stubenroth, Warwick.
Edward Kreckel, City.

Monday, March 15th, 1915.

May A. Duing, city.

John L. Nissley, Mt. Joy borough.
Enoch Page, city.

Salinda E. Shannon, Manor.

H. Irwin Ammon, Ephrata township.
Thursday, March 18, 1915.

William Murphy, Caernarvon.
William Murphy, (trustee), Caernar-

von.

Lucius R. Fanceramite, West Hempfield township.

Ebenezer Killian, Ephrata borough.
John Myers, Conov.

Catharine Smith, Leacock.

Sarah Nast, Salisbury.

Catharine E. Hartman, city.

Emil F. Kunze, Manor.

Elizabeth Gochenauer, East Hemp

field.

Abraham H. Herr, West Lampeter.
Opinion:

Estate of Sue Evans, deceased. Exceptions dismissed and adjudication confirmed absolutely.

Salomon, New York, in the revenue

LANCASTER LAW REVIEW. book. Mr. Keller: Objected to. Dis

allowed. Plaintiffs except. Exception

VOL. XXXII.] FRIDAY, APRIL 16, 1915. [No. 24 noted for the plaintiffs."

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XVI of Superior Court.

Rule

In an action for a balance due for cigars sold a verdict and judgment for the defendant should not be disturbed on appeal, where there was evidence that the goods were bought by the defendant not for himself, but as agent, for an alleged corporation. Where, in such case, the defendant mailed to the plaintiff an invoice for tobacco containing a charge by the corporation against the plaintiff, with a direction to charge the goods to the defendant in the revenue books which invoice was admitted in evidence, the exclusion of the revenue book containing such charge was not error.

Whether or not the defendant's alleged

[3]

“Q—(to I. U. Wolf, plaintiff)—And in pursuance of what was contained thereon, did you charge the tobacco to him in the revenue book?

Objected to by the defendant. Disallowed. Plaintiffs except. Exception noted for the plaintiffs." [4]

The Court below charged inter alia as follows:

"It makes no difference that Wolf & Son were not paid for the cigars. If they sold to the Cuban American Company, they must look to that company for their pay and not to Chas. W. Salomon individually. Nor does it make any difference whether the Cuban American Company was a corporation or a company. Mr. Salomon, as I have said, is sued here individually, and he must have made this contract on his own personal behalf or he can not be, and he ought not to be held liable in this suit."

principal was a corporation or partnership [5] In conclusion, I say to you there is

was immaterial and after permitting the defendant to testify without objection, that it was a corporation the plaintiff could not complain of want of evidence of that fact.

Appeal No. 253 of October Term 1913 by plaintiff from judgment of C. P. of Lancaster County October Term 1910, No. 186 on a verdict for the defendant.

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but one question for you to determine. If you find that this sale was made by the plaintiffs to Chas. W. Salomon individually, then your verdict shall be for the plaintiffs for the amount of the bill with interest from October 5, 1905. But if you find that the sale was not made to him personally, that he was acting as agent for the Cuban American Company and as such he made this deal, then your verdict must be in favor of the defendant." [6]

The following plaintiffs' points were refused by the Court and not read to the Jury.

I. There is no legal proof before the Court that the Cuban American Company was incorporated.

Answer: Refused, as immaterial. [1] 2. Under the evidence submitted, the verdict should be in favor of the plaintiffs.

Answer: Refused. [2]

Verdict for defendant and judgment thereon.

Plaintiff then appealed, assigning error [1-7] as above.

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10 C. Y. C. 243. Cook on Corp. 753.

Williams v. Sherman, 7 Wend. 109. Jackson v. Leggett, 7 Wend. 377. Grant v. Henry Clay Coal Co., 80 Pa. 208.

Abbotts' Trial Evidence 2nd Ed. p. 24. The plaintiff had no knowledge of any corporation; no notice was given in the pleadings; he had no knowledge of the existence of a charter; there was nothing to put him upon inquiry; therefore, it was no defence to his claim:

159 Pa., 303, Guckert v. Hacke. The Court below erred in leaving it to the jury to ascertain whether the defendant was in the employ of a company, when there was no evidence of such a fact, but the evidence was directly to the contrary, submitted by the defendant himself.

12 Superior, 340, Reel v. Martin.
7 Superior, 461, Taylor v. Burrell.
179 Pa., 47, Braunschweiger v. Waits.
99 Pa., 51, Morton v. Weaver.

IOI Pa., 7, Railway Co. v. Husson. The statement furnished by the defendant clearly shows that this tobacco must have belonged to Salomon individually, and after he got it back in cigars, it was a clear subterfuge on his part to set up the defence of a corporation, or even as agent of the company, to evade the payment of his just debt.

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theless, the defendant testified without objection on the part of the plaintiffs that it was a corporation and that in the transaction with the plaintiffs he had acted for it in the capacity of salesman, and the plaintiffs admitted that he had so represented himself and had made the purchase on behalf of that Company.

Nor did it make any difference in this issue to whom the tobacco received by the plaintiffs in part payment belonged or how it was entered on the plaintiffs' revenue book.

February 24, 1915. Opinion by KEPHART, J.

This was a foreign attachment in assumpsit to recover a balance due on cigars sold by plaintiffs nearly six years before suit. The third and fourth assignments of error object to the action of the court in refusing to admit the revenue books in which the defendant had directed the goods to be charged to him. The direction to so charge was contained in a writing at the bottom of an invoice for one bale of tobacco, mailed by the defendant to the plaintiffs. Whatever probative value that direction might be to the plaintiffs in establishing the sale of the cigars to this defendant was contained in this invoice before the court. The revenue book would not furnish additional evidence nor serve to strengthen this fact, as evidenced by the invoice. The direction on the invoice, in the light of the facts in this case, did not conclusively establish contractual relations between the plaintiff and defendant in the sale of these cigars.

The invoice contained a charge of the Cuban American Company against the plaintiffs for this bale of tobacco, and the direction at the bottom to enter in the government records "as purchased from S. Salomon was not such language as imported an obligation on the part of the defendant to pay for cigars hereafter shipped; at best it was an effort to comply with the revenue laws relating to the sale of tobacco. While the plaintiffs may have appropriated the amount due on the invoice toward a partial liquidation of their account against the Cuban American Company, this appropriation, or payment

made by the defendant on account of another, would not make him their debtor for the cigars as here contracted for. These assignments of error are overruled.

The evidence on both sides amply warranted the conclusion reached by the jury that the sale was made to the Cuban American Company and not to the defendant. The cigars had been shipped to the Cuban American Company and the account made out against it and all correspondence in relation thereto was between the plaintiffs and that company. No bill was ever rendered to or demand made on this defendant. The plaintiffs testified, one at a previous trial, and the other at this trial, that in their dealings with the defendant they dealt with him as the representative of the Cuban American Company, a corporation. The suit was against C. Salomon, individually.

It was immaterial whether this Cuban American Company was a corporation or a partnership. Its legal existence as a corporation was not in issue, and had it been, the plaintiff could not have complained as to the want of proof when they permitted the defendant, without objection, by his oral testimony, to prove its existence. If the plaintiffs felt that the Cuban American Company was not a corporation and was merely a name used by the defendant to conduct his business, they should have offered some evidence at the trial to prove this fact. The burden was on them to establish, in some manner, the sale of these cigars to the defendant. The case was submitted to the jury on the main points involved, which were decided adversely to the appellants, and the questions were clearly matters for the consideration of the jury. The first, second, fifth and sixth assignments of error must be overruled.

The seventh assignment of 'error is in violation of Rule XVI of this court, and cannot be considered.

Judgment affirmed at the cost of the appellant.

Common Pleas--Law

Weaver v. Wohlsen.

Employer and Employee-Risks of Employment Liability of employerFall by Carpenter from Ladder.

An employee in accepting employment assumes all risks ordinarily incidental thereto, and all other risks open and obvious the dangerous character of which he has had an opportunity to observe.

Where risks incidental to employment, which are quite as well understood by the employee as by the employer, are incurred by the employee no liability is incurred by the employer. in does not extend to the guarding of each The duty to provide a safe place to work place to which the workman may be sent to do a particular piece of work, nor is the employer responsible for an error of judgment by a competent foreman.

A non-suit is properly entered in a suit by a carpenter for injuries sustained by a fall from a ladder, such as is ordinarily used in the construction of buildings, which was made and put up by the carpenters and had for some time been used by various employees including the plaintiff and which the plaintiff was ascending, carrying tools in his right hand to carry out an order of the defendant's fall. foreman, when a rung came out causing his

The plaintiff was negligent in not fastening his tools and leaving his right hand free.

suit. C. P. of Lancaster Co. Sept. Term Rule to strike off judgment of non1912, No. 34.

B. F. Davis for rule.
Coyle & Keller contra.

March 27, 1915. Opinion by LANDIS,

P. J.

The defendant, who is a contractor and builder, in the City of Lancaster, on December 19, 1911, and prior thereto, was engaged in erecting an addition to the building of the Lancaster Trust Company. The construction was one story in height, with a ceiling such as is commonly seen in bank buildings. The plaintiff was a carpenter for nine years, and he had worked for the defendant for three preceding years. He was employed by Mr. Wohlsen on this building from July, 1911, to December 19, 1911. On

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