tion.

It was the attempt to reconcile these two considerations that has proved a difficulty in congressional hearings. A certain distrust of admiralty courts, because of their diverse system of procedure and absence of juries, also adds to the task of bringing congressmen into agreement towards such a statute operating on inland waters so as to override the statutes of the states.

In view of these many obstacles, the Maritime Law Association, at its meeting on May 7th, resolved to instruct its committee to redraft the bill to limit its application to the admiralty court, instead of giving a remedy, like the Federal employers' liability act, which would be enforced in courts of the state; that this newly enacted remedy for death should apply wholly outside of state waters, being confined to the high seas beyond a marine league from the shores of any state, but also is to be in force on the waters of the Panama Canal Zone, and in the territories and dependencies of the United States.

By the enactment of such a measure, Congress will remedy a grave omission in our legislation. It will put our system on a level with that of the enlightened states of Europe.

A Preventive of the Misuse of Trade Names.

In recent years it has become quite common for some individuals to engage in business under the trade style of an old-established firm name, or to assume a name closely resembling that of some well-known house. In such instances the name or names of those adopting the cognomens of these long-established firms are entirely dissimilar from the names thus copied or adopted. That the practice is a reprehensible one goes without saying. It has, however, been condoned by the law, which in New York State at least has not prevented others than the rightful owners from using for commercial purposes a family or firm name of known reputation and value. The practice has not only worked injury to the moral sense of the commercial community, but it has helped the con

of such deceptions could be cited, and it is probable that numerous honored names identified with various enterprises have been misused. However, a recently enacted statute or amendment to subdivision I of section 440 of the penal law of New York State curbs the practice to which reference is made. This act becomes effective September 1 of this year. Its terms might well be employed by other states in providing similar remedial legislation, in the event, of course, that a statute covering the subject aime! at is lacking. The act itself contains the following words, the last sentence being the important feature of the new legislation:

No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact, or intend to conduct or transact, such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name of the person or persons conducting or transacting the same, with the postoffice address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting or intending to conduct said business. No person or persons shall hereafter use, or file a certificate for the use of, any family name or names or colorable simulation thereof to carry on or conduct or transact business in this state unless the name, or one of the names, so used or intended to be used is the true or real name of the person or of one of the persons conducting or intending to conduct said business, or said person or persons are successors in interest to the person or persons theretofore using such name or names to carry on or conduct or transact business, in which case the certificate filed shall so state.-Bradstreet's.

LANCASTER LAW REVIEW.

VOL. XXXII.] FRIDAY, AUG. 20, 1915. [No. 42

Superior Court.

J. B. Colt & Co. v. Abraham Dieffenbach, Appellant.

Written contracts-Modification of by parol-Sale-Affidavit of defense.

In an action for the price of machinery sold and delivered under a written contract, an affidavit of defense which avers that the defendant was induced to sign the contract by a promise of the plaintiff's agent to have the machinery set up and put in working order at the plaintiff's expense, which promise the agent represented to be incorporated in the written contract, a part of which was read to the defendant, and that he accepted the agent's statement of the contents, but it was not so incorporated and the plaintiff refused to install the machinery, is sufficient to prevent judgment, although the contract called for delivery f. o. b. cars at New York, and provided that it covered all agreements and no agents could modify its terms by verbal agreement.

Appeal No. 12 of October Term 1914, by defendant from judgment of C. P. of Lancaster County. Reversed.

The Court below, LANDIS, P. J., entered judgment for the plaintiff for $167.80 for want of a sufficient affidavit of defense (See 31 LAW REVIEW, 75). The defendant then appealed assigning for error this action of the Court below. B. F. Davis, for appellant.

It was a fraud on the defendant for the plaintiff's agent not to incorporate his promise in the written agreement as he said he had, and thus induce the defendant to sign it.

A contemporaneous verbal agreement which induced the execution of a written agreement is admissible to modify it. Greenawalt v. Kohne, 85 Pa., 369. Fidelity & Casualty Co. v. Harder, 121 Pa., 96.

Brown v. Morange, 108 Pa., 609. Keller v. Cohen, 217 Pa., 522. Alexander v. Righter, 240 Pa., 22. The affidavit was sufficient. Smith, Kline & French Co. v. Smith, 166 Pa., 563.

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Where one seeks to enforce a contract made by his agent, even if the agent exceeded his authority, if the principal seeks to take the benefit of the bargain. so made, he must adopt the contract as his agent made it."

Singer Mfg. Co. v. Christian, 211 Pa., 534.

Keough v. Leslie, 92 Pa., 424. Opinion 427-8.

Cohn v. Railroad Co., 80 Pa., 363.

"If a man is induced to execute and deliver a written instrument by a parol agreement made at the time, without which he would not have made the written agreement, it is a fraud to attempt to use the written agreement for a different purpose than that understood at the time of its execution and delivery." Wheatley v. Niedich, 24 Superior, 198. American Harrow Co. v. Swoope, 16 Superior, 451.

The affidavit of defense further states that the machine was to be satisfactory to the appellant. This is not contradictory of the written or printed agree

ment, but is consistent therewith:

Singerly v. Thayer, 108 Pa., 291. Geisenberger & Rosenthal, for appellee.

The authorities cited by the Court below amply sustain his position.

These goods were received in April A. D. 1912, and at the time this case was argued in the Court below, one year and eight months later, they were in the possession and control of the defendant and are at this time.

He cannot both hold the goods and refuse to pay for them."

Dailey v. Green, 15 Pa. State, 126.

"After the actual reception of goods. and the lapse of a reasonable time to examine them and ascertain their quality, the buyer will be deemed to have accepted them unless he then promptly exercises his right to reject them."

"Mere complaint as to the quality of goods while exercising dominion over them inconsistent with ownership in the seller, are not sufficient."

Tete Brothers v. Eshler, 11 Pa. Superior Court, 227.

American Watch Tool Co. v. Reed, 18 Pa. Superior Court, 24.

Baltimore Brick Co. v. Coyle, 18 Pa. Superior Court, 186.

Notwithstanding this affidavit, the learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense. In so doing we think he fell into error. The inducing parol agreement averred by the defend

339.

July 21, 1915. Opinion by HEAD, J. The plaintiff declares upon a written contract, a copy of which he attaches to his statement. The substance of the contract was that the plaintiff had agreed to sell and deliver, f. o. b. cars at New York, certain machinery for which the defendant agreed to pay the price sued for. There being an averment of complete performance by the plaintiff and refusal to pay by the defendant, a prima facie case was made out. The defendant filed an affidavit in which he averred, in substance, that the written order was prepared by an agent or salesman of the plaintiff; that the agreement was made in the evening after dark and the printed matter therein was in fine type;

that in order to induce the defendant to

sign the order, the plaintiff's agent agreed to have the machinery duly set up on the defendant's premises and put in satisfactory working order before the price should be demanded. He further

avers

that the machinery, properly crated or boxed, arrived at his railroad station; that he paid the freight thereon and hauled the box or boxes to his home. He thereupon notified the plaintiff to come and set up the machinery, as the agent had agreed would be done, but the plaintiff wholly refused to perform such parol agreement or to accept the defendant's offer to return the goods. Still further the affidavit avers that the agreement the plaintiff was to install and set up the machinery in suit was to be incorporated in the written instrument or agreement and the agent represented to him this had been done. He finally avers the agent read a portion of the agreement to him and he accepted the statement of its contents as correct.

anything affirmed in the written contract. It is true the latter states the machinery was to be delivered f. o. b. cars New York. Let us concede that as a result of this the title passed to the defendant upon such delivery at New York. It became his duty then to pay the cost of transportation, which he did. Had the goods been lost or destroyed in transit, the loss would have been that of the defendant. But it is not necessarily destructive of such averment in the agreement that the plaintiff's agent stipulated that, upon the arrival of the machinery, it would be set up and put in operation by the plaintiff. Clearly enough, if such parol agreement were actually made by the plaintiff's agent, and if by reason of such covenant, the plaintiff secured a valuable contract which it otherwise could not have obtained, it would be a fraud upon the defendant if the plaintiff were permitted to retain the fruit of the contract thus secured and were permitted to violate the stipulation which secured it. But the averments of the affidavit, the much farther. They would fairly sup substance of which we have stated, go port the admission of evidence which, if believed by the jury, would warrant the inference that the plaintiff's agent, intending to deceive and defraud, had designedly omitted from the written contract a material portion of the agreement and then induced the defendant, who relied on his reading, to believe the written contract exhibited the true agreement.

Under such circumstances we cannot

agree that the plaintiff was entitled to a needed to support this conclusion, it may summary judgment. If authority be be found in the very last utterance of the Supreme Court on the subject, namely, Potter v. Grimm, 248 Pa., 440, wherein many recent decisions are reviewed.

The judgment is reversed and a procedendo awarded.

Quarter Sessions.

Com. v. Austin.

Trespass on right of way-Lessee Traction Company-Posting notice-Appeal-Act of April 14, 1905.

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Rights of way are land" and lessees in exclusive possession are owners " within the trespass act of April 14, 1905, P. L., 169.

Where a traction company, lessee of a right of way, has posted notices thereon warning trespassers on the right of way that they will be prosecuted, an intentional trespass is wilful and within the Act of 1905.

While failure to allege that the land was posted would be fatal in certiorari, it is not so on appeal. Appeal waives all defects in the record and the trial is de novo.

A conviction of trespass will not be reversed on appeal, because the suit is brought in the

name of the Commonwealth alone.

Appeal from summary conviction. Q. S. of Lancaster County. April Term 1915, No. 160.

B. F. Davis, for appeal.

S. R. Zimmerman and John M. Groff, Dist. Att'y, contra.

July 3, 1915. Opinion by HASSLER, J.

This is an appeal from the judgment of an alderman of this city, convicting the defendant of trespass. The complaint charges that the defendant did, on Saturday, April 10, 1915, in the County of Lancaster, unlawfully and wilfully trespass on private property of the Conestoga Traction Company, contrary to the Act of April 14, 1905, P. L. 169.

The testimony shows that the Conestoga Traction Company is the lessee of the rights and property, including the railroad tracks, of the Lancaster and Rocky Springs Street Railway Company, for the period of 999 years from July 11, 1903; and that included in this lease is a strip of land running from the corner of Marshall and Juniata Street, in this city, southeastwardly about 350 yards to the Conestoga Creek, where a bridge crosses it. Upon this strip are located the tracks of the street railway. The western half of this strip of land, which

is 50 feet wide, is owned absolutely by the Lancaster & Rocky Springs Street Railway Company, and the eastern half, which is 30 feet wide, is a right of way purchased by it from the People's Trust, Savings & Deposit Company. The Conestoga Traction Company is now in actual possession and occupancy of the land and the right of way. Prior to April 10, 1915, it had posted in conspicuous places thirteen large printed or painted notices, at different places along this land and right of way, of which the following is a copy: This is not a thoroughfare. Persons trespassing on this right of way will be dealt with according to law. Conestoga Traction Company.'" These notices were all in

place on that day.

The defendant went on this right of way on April 10, 1915, at the corner of Marshall and Juniata Streets, and walked on and along it down to where the bridge crosses the Conestoga Creek, where he was arrested, and subsequently convicted before an alderman, from which conviction he has taken this appeal.

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or

Sec. 1. is as follows: From and after The Act of April 14, 1905, P. L. 169, the passage of this Act, it shall be unlawful for any person wilfully to enter upon any land, within the limits of this Commonwealth, where the owner owners of said land has caused to be prominently posted upon said land printed notices that the said land is private property, and warning all persons from trespassing thereon, under the penalties provided in this Act." Rights of way are land within the contemplation of the Act: Com. v. Burford, 225 Pa., 93; Com. v. Shapiro, 41 Sup., 96. See, also, Com. v. Foster, 36 Sup., 433. The trespass must be wilful. When an owner has posted notice on land warning all persons against trespassing thereon, an intentional trespass is wilful and shall render the trespasser subject to the penalty imposed by the Act: Com. v. Burford, 225 Pa., 93. The notices must be posted prominently on the land: Com. v. Holmes, 26 L. L. R., 246; Com. v. Fluck, 7 Jus. Law Rep., 118. The notice can be signed by the owner or lessee. A mere volunteer is not sufficient. But,