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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 ver- Several other questions also arose upon dict must be for the defendant.” No the trial, which, perhaps, require discusrequest was submitted as to any special sion. The deposition of the plaintiff, direction concerning this difference, nor who was not present at the trial, was recan we see how there could have been fused. A rule to take the deposition was a recovery, where no contract for any entered, and November 20, 1914, between such sum was either declared upon or the hours of nine in the forenoon and proven on the trial. We, therefore, are five o'clock in the afternoon was fixed. of the opinion that this point ought not It was to be taken at the office of B. F. to be sustained.

Davis, Esq., No. 5 S. Duke Street, in the The next question arises concerning City of Lancaster, before Wm. J. the claim for the value of the personal Coulter, a Notary Public. The deposiproperty. According to the testimony tion was taken at the residence of the of the plaintiff, certain personal prop- plaintiff, No. 3542 N. Mulberry Street. erty belonging to her was upon the pre- Notice was sent over the telephone to mises, when Haefner took possession, counsel for defendant to that effect, and and, so far as has been shown in this he objected, as that was not the place case, is there yet. The plaintiff claimed named in the rule. Notwithstanding the that she could waive any tort arising objection, the deposition was taken in out of its detention, and sue in assumpsit the absence of the defendant and his for its value. The Court disallowed evi- counsel. The deposition was taken on dence under these circumstances to be the ground that the plaintiff was an inadmitted, and the correctness of this firm witness and unable to attend Court. ruling is now raised. In Bethlehem No one testified as to her inability to Borough v. Perseverance Fire Co., 81 appear in Court except her son. She Pa., 445, Mr. Justice Mercur said: “The had a physician, Dr. E. T. Prizer, who declaration was in assumpsit. This ac- lives in this city, within three blocks of tion cannot be sustained unless there was the Court House, and yet he was not an express contract, or the law will im- called, nor, as far as was shown to the ply a contract: 1 Chit. Pl., 99. It does Court, was any attempt made to secure not lie for a chattel illegally detained: his presence. His ex parte affidavit could Willet v. Willet, 3 Watts, 277. The not, of course, be introduced. plaintiff cannot waive the tort and re- Section 2, of Rule XV, page 19, of the cover the value of the goods, unless the Rules of the Common Pleas, provides tort feasor has sold the article and re- that “no depositions shall be allowed cived the money :

* Gilman v. Wilbur, 1 to be read in evidence unless the party 12 Pick., 120; or where he has taken it offering the same shall satisfy the Court as merchandise to market for the pur- that the witness, if a resident of the pose of sale, and in the absence of any state, is either aged, infirm or a wayevidence to rebut the presumption of a going witness, and could not, after reasale and receipt of the money." In sonable pains taken for that purpose, be Weiler v. Kershner, 109 Pa., 219, it was secured to testify at the time of the trial.” in like manner stated: “It is undoubtedly Joseph F. Hoover, Jr., the son, was the true that, in case of the mere detention sole witness called by the plaintiff, and of a chattel, a plaintiff cannot waive the seems to have been the only person really tort and sue in assumpsit or in debt. interested in the result of the suit. His Without something more than mere de- testimony seemed not to be dependable, tention, there is no contract, either ex- —so much so that it was not believed by pressed or implied.” See, also, Boyer the jury. The physician of Mrs. Hoover 2. Bullard, 102 Pa., 555; Kellam v. Kel- could easily have been secured, to clear lam, 94 Pa., 225; York Trust Co. v. up any doubt. In his absence, we were Moul, No. 2, 15 York, 137. We followed not satisfied that she could not be perthe rule, as laid down in these cases, upon sonally present. But, in addition to this,

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the authorities seem to hold that a de

A Good Listener. position taken as this was should not be Magistrate—“I understand that you read. In M'Cleary v. Sankey, 4 W. & overheard the quarrel between this deS., 113, it was held that " a deposition fendant and his wife.” taken in pursuance of a Rule of Court

Witness-“ Yes, sor." cannot be read in evidence, unless it ap- Magistrate--" Tell the court, if you pear by the certificate of the Justice that can, what he seemed to be doing.” it was taken at the time and place men- Witness-" He seemed to be doing the tioned in the notice;" and in Vickroy v. listenin'." 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

TIONS. B., and nothing more appears than that. it was taken in the County of B., it can- By JUDGE Smith. not be read in evidence, unless the ad- Thursday, March 4, 1915. verse party attended, which cures the defect.” Under all the facts, we think the

Adjudication. deposition was properly excluded.

Elizabeth Ricksecker, Mt. Joy BorThe last objection is, that the Court ough. refused to permit the affidavit of defense,

Thursday, March 11, 1915. a portion of which had been admitted in Opinion. evidence, to be sent out to the jury. The

Estate of Annie C. Betz, deceased. Court charged the jury, and no such Appeal from decision of register disrequest was immediately made by the missed, plaintiff's counsel. But, after the jury Adjudications. had retired to their room, and when Lemon B. Stubenroth, Warwick. counsel for the defendant had left the Edward Kreckel, City. Court Room, he appeared before the Bar and made the application that this paper

Monday, March 15th, 1915. should be sent out to the jury. We de

May A. Duing, city. cided that, because all of the affidavit of John L. Nissley, Mt. Joy borough. defense had not been admitted in evi

Enoch Page, city. dence, and because counsel was too late

Salinda E. Shannon, Manor. in making his request, it should be re

H. Irwin Ammon, Ephrata township. fused. We have no doubt that the ac- Thursday, March 18, 1915. tion thus taken was correct. It would,

William Murphy, Caernarvon. we think, have been unfair and improper

William Murphy, (trustee), Caernarto do otherwise. We do not see any

von. merit in this reason.

Lucius R. Fanceramite, West Hemp Having now carefully considered all field township. the points raised in the reasons for a Ebenezer Killian, Ephratá borough. new trial, we find them to be unsustained, John Myers, Conoy. and we, therefore, discharge this rule. Catharine Smith, Leacock. Rule discharged.

Sarah Nast, Salisbury.
Catharine E. Hartman, city.
Emil F. Kunze, Manor.

Elizabeth Gochenauer, East Hemp
One More Chance.

field.

Abraham H. Herr, West Lampeter. Well, we have exhausted reason, logic, common sense, and justice. What Opinion: more can we do?"

Estate of Sue Evans, deceased. Ex"I guess we'll simply have to go to ceptions dismissed and adjudication conlaw.”

-Life. firmed absolutely.

Salomon, New York, in the revenue

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

Superior Court.

allowed. Plaintiffs except. Exception Vol. XXXII.) FRIDAY, APRIL 16, 1915. [No. 24 noted for the plaintiffs.” [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. Dis

allowed. Plaintiffs except. Exception I. U. Wolf & Son, Appellants, v. 0. Solomon. noted for the plaintiffs.' [4]

The Court below charged inter alia Sales Agency Evidence Rule

as follows: XVI of Superior Court.

“ It makes no difference that Wolf In an action for a balance due for cigars & Son were not paid for the cigars. If sold a verdict and judgment for the defend they sold to the Cuban American Comant should not be disturbed on appeal, where pany, they must look to that company there was evidence that the goods were bought for their pay and not to Chas. W. by the defendant not for himself, but as agent, Salomon individually. Nor does it make for an alleged corporation.

Where, in such case, the defendant mailed any difference whether the Cuban Amerito the plaintiff an invoice for tobacco con- can Company was a corporation or a taining a charge by the corporation against company. Mr. Salomon, as I have said, the plaintiff, with a direction to charge the is sued here individually, and he must goods to the defendant in the revenue books which invoice was admitted in evidence, the have made this contract on his own perexclusion of the revenue book containing such sonal behalf or he can not be, and he charge was not error.

ought not to be held liable in this suit.” Whether or not the defendant's alleged

(5] principal was a corporation or partnership was immaterial and after permitting the de

"In conclusion, I say to you there is fendant to testify without objection, that it but one question for you to determine. was a corporation the plaintiff could not com- If you find that this sale was made by plain of want of evidence of that fact.

the plaintiffs to Chas. W. Salomon inAppeal No. 253 of October Term 1913 dividually, then your verdict shall be for by plaintiff from judgment of C. P. of the plaintiffs for the amount of the bill Lancaster County October Term 1910, with interest from October 5, 1905. No. 186 on a verdict for the defendant. made to him personally, that he was act

. if sale not Affirmed.

ing as agent for the Cuban American The suit was a foreign attachment to Company and as such he made this deal, recover a balance alleged to be due for then your verdict must be in favor of cigars bought by the defendant who al- the defendant." [6] leged that he acted as agent for another. On the trial, the court below, LANDIS, refused by the Court and not read to

The following plaintiffs' points were P. J., refused the following offers of the Jury. evidence.

I. There is no legal proof before the “Mr. Davis: I offer in evidence ' C. I. Court that the Cuban American ComL. No. 1, and the envelope enclosing pany was incorporated. . it 'C. I. L. No. 2.'

Answer: Refused, as immaterial. [1] Mr. Keller: Objected to. Disallowed. 2. Under the evidence submitted, the Plaintiffs except.' Exception noted for verdict should be in favor of the plainthe plaintiffs." [7]

tiffs. “Mr. Davis: It having been shown by Answer: Refused. [2] the plaintiffs' evidence that the tobacco Verdict for defendant and judgment was directed to be charged in revenue thereon. books to C. Salomon, New York, we now

Plaintiff then appealed, assigning error offer to prove that it was charged to C. (1-7] as above.

B. F. Davis, for appellant.

theless, the defendant testified without

objection on the part of the plaintiffs that It was improper to allow the defend it was a corporation and that in the transant to prove verbally that the Cuban action with the plaintiffs he had acted American Cigar Co. which he claimed to for it in the capacity of salesman, and represent was a corporation.

the plaintiffs admitted that he had so Phila. & R. R. Co. v. Avord, 328 Pa. represented himself and had made the 262.

purchase on behalf of that Company. There was no legal evidence that it

Nor did it make any difference in this was a corporation.

issue to whom the tobacco received by 10 C. Y. C. 243.

the plaintiffs in part payment belonged Cook on Corp. 753.

or how it was entered on the plaintiffs' Williams v. Sherman, 7 Wend. 109.

revenue book. Jackson v. Leggett, 7 Wend. 377.

Grant v. Henry Clay Coal Co., 80 Pa. February 24, 1915. Opinion by 208.

KEPHART, J.
Abbotts' Trial Evidence and Ed. p. 24.
The plaintiff had no knowledge of any

This was a foreign attachment in ascorporation; no notice was given in the sumpsit to recover a balance due on pleadings; he had no knowledge of the cigars sold by plaintiffs nearly six years existence of a charter; there was nothing before suit. The third and fourth asto put him upon inquiry; therefore, it signments of error object to the action was no defence to his claim:

of the court in refusing to admit the 159 Pa., 303, Guckert v. Hacke. revenue books in which the defendant

The Court below erred in leaving it had directed the goods to be charged to to the jury to ascertain whether the de- him. The direction to so charge was fendant was in the employ of a com-contained in a writing at the bottom of pany, when there was no evidence of an invoice for one bale of tobacco, mailed such a fact, but the evidence was directly by the defendant to the plaintiffs. Whatto the contrary, submitted by the defend- ever probative value that direction might ant himself.

be to the plaintiffs in establishing the 12 Superior, 340, Reel v. Martin. sale of the cigars to this defendant was 7 Superior, 461, Taylor v. Burrell. contained in this invoice before the court. 179 Pa., 47, Braunschweiger v. Waits. The revenue book would not furnish ad99 Pa., 51, Morton v. Weaver. ditional evidence nor serve to strengthen 101 Pa., 7, Railway Co. v. Husson.

this fact, as evidenced by the invoice. The statement furnished by the de- | The direction on the invoice, in the light fendant clearly shows that this tobacco of the facts in this case, did not conclumust have belonged to Salomon individ- sively establish contractual relations beually, and after he got it back in cigars, tween the plaintiff and defendant in the it was a clear subterfuge on his part to

sale of these cigars. The invoice conset up the defence of a corporation, or tained a charge of the Cuban American even as agent of the company, to evade Company against the plaintiffs for this the payment of his just debt.

bale of tobacco, and the direction at the

bottom to enter in the government reCoyle & Keller, for appellee.

cords “as purchased from S. Salomon

was not such language as imported an There was clear evidence to sustain obligation on the part of the defendant the finding of the jury that the cigars to pay for cigars hereafter shipped; at sued for were sold to the Cuban Ameri- | best it was an effort to comply with the can Co. and the delivery was likewise to revenue laws relating to the sale of tothe same Company. There was no alle- bacco. While the plaintiffs may have gation in the pleadings that C. Salomon appropriated the amount due on the inwas trading under the name Cuban voice toward a partial liquidation of their American Co., so the fact of its incor-account against the Cuban American poration was not a material fact. Never-1 Company, this appropriation, or payment

made by the defendant on account of another, would not make him their debtor

Common Pleas-- Law for the cigars as here contracted for. These assignments of error are overruled.

Weaver v. Wohlsen. The evidence on both sides amply warranted the conclusion reached by the Employer and EmployeeRisks of Emjury that the sale was made to the Cuban ployment Liability of employer — American Company and not to the de- Fall by Carpenter from Ladder. fendant. The cigars had been shipped

An employee in accepting employment asto the Cuban American Company and t!!( sumes all risks ordinarily incidental thereto, account made out against it and all cor- and all other risks open and obvious the danrespondence in relation thereto was be- gerous character of which he has had an optween the plaintiffs and that company,

portunity to observe.

Where risks incidental to employment, which No bill was ever rendered to or demand are quite as well understood by the employee made on this defendant. The plaintiffs as by the employer, are incurred by the emtestified, one at a previous trial, and the ployee no liability is incurred by the employer. other at this trial, that in their dealings in does not extend to the guarding of each with the defendant they dealt with him place to which the workman may be sent to as the representative of the Cuban Amerdo a particular piece of work, nor is the emican Company, a corporation. The suit ployer responsible for an error of judgment was against C. Salomon, individually. by a competent foreman.

A non-suit is properly entered in a suit by It was immaterial whether this Cuban

a carpenter for injuries sustained by a fall American Company was a corporation from a ladder, such as is ordinarily used in or a partnership. Its legal existence

the construction of buildings, which was made as a corporation was not in issue, and

and put up by the carpenters and had for

some time been used by varlous employees had it been, the plaintiff could not have including the plaintiff and which the plaintiff complained as to the want of proof when was ascending, carrying tools in his right they permitted the defendant, without hand to carry out an order of the defendant's objection, by his oral testimony, to prove

foreman, when a rung came out causing his

fall. its existence. If the plaintiffs felt that

The plaintiff was negligent in not fastening the Cuban American Company was not his tools and leaving his right hand free. a corporation and was merely a nanie used by the defendant to conduct his

Rule to strike off judgment of nonbusiness, they should have offered some

suit. C. P. of Lancaster Co. Sept. Term evidence at the trial to prove this fact. 1912, No. 34. The burden was on them to establish, in B. F. Davis for rule. some manner, the sale of these cigars to the defendant. The case was submitted Coyle & Keller contra. to the jury on the main points involved, which were decided adversely to the ap- P. J.

March 27, 1915. Opinion by LANDIS, pellants, and the questions were clearly matters for the consideration of the jury. The defendant, who is a contractor The first, second, fifth and sixth assign- and builder, in the City of Lancaster, ments of error must be overruled. on December 19, 1911, and prior thereto,

The seventh assignment of 'error is in was engaged in erecting an addition to violation of Rule XVI of this court, and the building of the Lancaster Trust cannot be considered.

Company. The construction was one Judgment affirmed at the cost of the story in height, with a ceiling such as is appellant.

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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