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(108 A.)

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tion of the State of Delaware, was engaged in the business of operating a factory, shop or plant for the manufacture, production and loading of munitions of war, in, etc.; that in connection with said business, and in furtherance thereof, said defendant operated a certain large, gasoline motor car or automobile for the conveyance of said passengers; that said defendant, while engaged in the operation of its business as aforesaid, to wit, at, etc., on, etc., by its servant and agent, so negligently and carelessly operated said motor car or automobile, in manner and form as the said above-mentioned counts allege, etc.

It is averred, in substance, in the inducement in the special traverse, as to the first, second, third and sixth counts of the plaintiff's declaration, that the defendant was engaged in the business of operating a factory, shop or plant for the manufacture, production and loading of munitions of war, in, etc., as agent for the United States Government, and that in connection with said busi

Action by William H. Beck against Bethle-ness, and in furtherance thereof, the defendhem Loading Company to recover damages for the death of plaintiff's intestate. On demurrer to the fourth and fifth counts of the declaration, on the ground of duplicity; and on demurrer to the special traverse to the first, second, third and sixth counts. Demurrer to the declaration overruled; demurrer to the special traverse sustained.

BOYCE and RICE, JJ., sitting. Francis De H. Janvier, of Wilmington, for plaintiff.

Herbert H. Ward, Jr., of Wilmington, for

defendant.

is:

ant, as agent for the United States Government, operated a certain large, gasoline motor car or automobile, and that said automobile referred to in the said above-mentioned counts as being operated by said defendant, was, at the time of the occurrence set forth in said counts, the property of the United States Government, and that the driver of said automobile, which automobile

was referred to in the above-mentioned counts as being operated by said defendant, was the agent of the United States Govern

ment.

The denial in the special traverse pursued The negligence averred in the fourth count the words, in substance, of the allegations in said counts traversed.

"That the said driver of said motor car approached said intersection of said roads with said motor car at a high rate of speed, with the side curtains on the left or west side of said car buttoned down and in place so as to obstruct the view to the west and without inobstruct the view to the west and without informing himself whether any other vehicle was then approaching or about to cross said inter

section of said roads."

PER CURIAM. [1] The facts grouped together in the two counts above recited seem to come within the principles of pleading recognized in Mullin v. Blumenthal & Co., 1 Pennewill, 476, 42 Atl. 175, wherein it was held that mere diversity of facts set up in a count will not render it double, when all the facts taken together tend to the state

The allegation of negligence in the fifth ment of one point or ground of recovery. count is:

It is the opinion of the Court that the demurrer to the said two counts in the declaration should be overruled.

"That the said driver of said motor car approached said intersection of said roads with said motor car at a high rate of speed without [2] The demurrer to the special traverse ascertaining whether any other vehicle was is sustained, for the reason that it does not then approaching or about to cross said inter- clearly appear why the matter set up in the section of said roads and without giving prop-inducement cannot be shown or proved uner warning signal, by horn or otherwise, of der a common traverse. The modern prac

his approach."

tice is to discourage the use of special travIt is averred in the declaration, in sub-erse where the new matter alleged may be stance, that the defendant, being a corpora- shown under the general issue.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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pense thereby incurred. The pleas were non est factum and three other pleas which set up that the defendant was the tenant on a farm under a lease and that by the terms of the lease with his landlord he was not to make contracts without his landlord's consent and approval; that the agent of the plaintiff company told the defendant that the landlord was willing that he should contract with the plaintiff company, which statement was false, and that, therefore, the contract being signed under misapprehension and by reason of the false allegation of the plaintiff's agent that the landlord did consent to the contract, the alleged contract was void and of no effect, and, therefore, the defendant sold his tomatoes elsewhere at a higher price.

[1] When the plaintiff rested, counsel for defendant moved for a non-suit on the ground that the contract admitted in evidence was

In action of covenant by packer against lessee, for damages for breach of contract to de-a contract under seal and certain conditions liver tomatoes raised on leased premises, evidence that lessee was induced to sign contract by fraudulent representations of plaintiff's representative that landlord had stated that it was all right for lessee to make the contract was inadmissible.

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In action of covenant for damages for breach of contract to deliver to plaintiff all tomatoes grown during the season on a plot of land, the measure of damages is the difference between the price at which defendant contracted to furnish the tomatoes and the market price of tomatoes during the season, including any ex

contained therein which were conditions which was that the packer should have his precedent had not been proven; one of factory open to receive the tomatoes between the hours of seven a. m. and five-thirty p. m. on all business days except Saturdays and Sundays, and that this condition, which was a condition precedent, had not been proved. Counsel for plaintiff contended that it was not necessary to prove that fact as defendant's counsel had admitted that he did not deliver the tomatoes to the plaintiff at all.

RICE, J. In view of the state of the

penses incurred in purchasing tomatoes in place evidence, we deny the motion for a non-suit.

of those not delivered by defendant.

The defendant being called to the stand. Mr. Reinhardt asked the following question: "In 1917 what sort of an arrangement did

BOYCE and RICE, JJ., sitting. Henry Ridgely and George M. Fisher, Jr., you have with Mr. Howell, your landlord, in both of Dover, and James Saulsbury, of Wil-regard to the growing and sale of tomatoes?" mington, for plaintiff.

James M. Satterfield, of Dover, and David J. Reinhardt, of Wilmington, for defendant.

Action by the Liberty Brand Canning Company against Joseph Denby to recover damages for breach of contract under seal. Verdict for plaintiff.

The narr. alleged, in substance, that the plaintiff company was a packer of tomatoes, that it made a contract with the defendant, a farmer, to put in a certain number of acres in tomatoes and when ripe to deliver them to the factory of the company for packing; that, notwithstanding, the defendant sold the tomatoes to others contrary to his contract with the plaintiff, by reason of which the plaintiff was compelled first to buy raw tomatoes for canning and when this could not be done to advantage on account of the high price of raw stock, to purchase canned tomatoes from other packers in order to fill his contracts, and, therefore, he claimed damages for the extra ex

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Objected to as immaterial. The court inquired as to the purpose of the question. Mr. Reinhardt stated that he proposed to prove by the defendant that Mr. Howell was his landlord and that the defendant worked the farm which was situated in Kent County, Delaware, on shares; that he was to grow four acres of tomatoes in 1917, and that he was not to make any contract for the sale of the tomatoes without the consent and approval of his landlord; that he knew nothing about contracting for tomatoes and relied on his landlord absolutely to make such contracts; that later on a representative of the plaintiff saw him and he told this representative to go and see Mr. Howell in order to find out whether there could be a contract entered into for the tomatoes to. be grown on the four acres; that the second time the defendant was approached in Dover by a representative of the plaintiff company, he was told that the landlord of the defend

(108 A.)

ant had said it was all right for him to go the jury to find a verdict for the defendant ahead and make the contract, which state- on the ground that both the contract and the ment was absolutely false; and it was the narr. set out certain things that the plaintiff defendant's contention that the fraudulent was to do, namely, to have the cannery which representation goes to the essence of the was at Dover open at certain hours to do contract which was thereby rendered void. business, and there was no proof of that fact, it being a condition precedent; and that the measure of the damages is the difference between the market price at the time the tomatoes were ripe and the price named in the contract of twenty-five cents a basket.

[2] Counsel for plaintiff objected on the ground that this being an action of covenant and a contract under seal, it is a specialty, and that it is a rule of law that in such cases any misrepresentations inducing the defendant to execute the contract are not admissible in this action; that fraud is admissible as a defence in actions of covenant in only a very particular line of cases, and that is where the contract sued on never had been the contract of the defendant; that is, if the plaintiff had substituted another contract, the defendant being an illiterate or ignorant person and he thought he was signing one contract, while another contract that he knew nothing about had been substituted and which he signed. In this case, even though the defendant would not, without those representations, have signed the contract, yet if he did sign it believing it to be the contract it was when he signed it and not some other contract, the evidence proffered is not admissible, citing 14 Corpus Juris, 396, pars. 306 and 309; Taylor v. King, 6 Munf. (Va.) 358, 366, 8 Am. Dec. 746; Whitcomb v. Shultz, 223 Fed. 268, 138 C. C. A. 510; Cooke v. Kaiser, 163 Ill. App. 210 (213); Franchot v. Leach, 5 Cow. (N. Y.) 506; Jackson v. Hill, 8 Cow. (N. Y.) 290; Vrooman v. Phelps, 2 Johns. (N. Y.) 177.

RICE, J. We are of the opinion that the evidence proffered does not come within any of the exceptions to the general rule with respect to proof of fraud in contracts under seal. The objection is sustained.

The plaintiff requested the Court to instruct the jury that the sole question before them under the evidence is one of damages, and that the measure of damages which should be allowed the plaintiff is the difference between the contract price, as shown by the contract, and the market price of tomatoes during the season of 1917, plus any expense which the plaintiff was put to in order to get other tomatoes.

The defendant prayed the Court to instruct

RICE, J. (charging the jury). This is an action of covenant brought by the plaintiff, the Liberty Brand Canning Company, against the defendant, Joseph Denby, to recover damages for the alleged breach of a contract under seal.

Under the terms of the contract it was the

duty of the defendant to deliver to the plaintiff all the tomatoes grown during the season of 1917 on a four acre plot of land as provided for in the contract. He agreed to deliver the tomatoes called for in the contract at the price of twenty-five cents per basket.

The plaintiff claims that the defendant grew tomatoes during the season of 1917, and that he did not deliver them to the plaintiff, and by reason thereof the plaintiff was required to go into the open market and buy tomatoes at a price greatly in excess of the contract price.

The defendant admits that during the season of 1917 he grew 1,178 baskets of tomatoes and did not deliver any of them to the plaintiff company.

There is, therefore, no question that the defendant grew tomatoes during the season of 1917 and that he did not deliver them to the plaintiff as he was required to do under the terms of his contract.

[3] If you should find by reason of the defendant's failure in this respect that the plaintiff suffered damages then your verdict should be in favor of the plaintiff for such sum as you may believe from the testimony was the difference between the price at which the defendant contracted to furnish the tomatoes and the market price of tomatoes during the season of 1917, including any expense incurred in their purchase in place of those not delivered by the defendant.

Verdict for plaintiff.

(265 Pa. 60)

COMMONWEALTH TRUST CO. OF HAR-
RISBURG v. FIRST NAT. BANK OF
HUNTINGDON.

(Supreme Court of Pennsylvania. May 12,

1919.)

BANKS AND BANKING 148(4)
mm
DEPOSI-
TOR'S DELAY IN GIVING NOTICE OF FORGERY
OF CHECKS.

In an action against a bank on checks bearing alleged forged counter signatures of a referee in bankruptcy, binding directions for defendant were proper, where it appeared that forgeries were discovered by plaintiff in the fall of 1916, and that no notice of them was given to bank until May, 1918.

dict and judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ.

James S. Woods and Samuel I. Spyker, both of Huntingdon, for appellant.

John D. Dorris and W. M. Henderson, both of Huntingdon, for appellee.

PER CURIAM. This action was brought to recover from the First National Bank of Huntingdon, Pa., the amounts which it paid on four checks bearing alleged forged counter signatures of a referee in bankruptcy. These Appeal from Court of Common Pleas, the fall of 1916, but no notice of them was forgeries were discovered by the appellant in

Huntingdon County.

given to the bank until May, 1918, and the

Assumpsit on four checks by the Common-learned trial judge properly directed a verwealth Trust Company of Harrisburg, trustee dict for the defendant. McNeely v. Bank of R. W. Jacobs, bankrupt, for use of the of North America, 221 Pa. 588, 70 Atl. 891, Etna Casualty & Surety Company against 20 L. R. A. (N. S.) 79. the First National Bank of Huntingdon. Ver- Judgment affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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The Local Option Law, despite the exceptions of section 19 of municipalities where 11. INTOXICATING LIQUORS 33(3)-NOTICES prohibition is already enforced, held not a special act regulating the internal affairs of towns and counties.

OF LOCAL OPTION ELECTION NOT INVALIDATED BY MISDATING.

Notices of a local option election under 4. STATUTES 64(9)-DISREGARD OF UNCON- Local Option Law cannot be invalidated, when posted in time, because in fact they were misdated.

STITUTIONAL PART OF ACT.

Saving clause, section 19, not a necessary part of the local option law, may be disre- 12. INTOXICATING LIQUORS 33(3) — LOCAL garded if necessary to save its constitutional validity, especially as section 31 of the act provides that the invalidity of any provision or provisions shall not affect others.

5. CONSTITUTIONAL LAW 240(3)-LOCAL OP

TION LAW NOT DISCRIMINATORY.

The Local Option Law held not violative of Const. U. S. Amend. 14, on any ground there is a discrimination in section 24 between licenses issued before and licenses issued after

the passage of the act with respect to the time for which they shall respectively continue after adoption of the law.

6. CONSTITUTIONAL LAW 46(1)-No DETERMINATION OF CONSTITUTIONAL QUESTION UNLESS BEFORE COURT.

A question as to the constitutionality of a statute in a case not before the court will not be determined.

7. CONSTITUTIONAL LAW 240(3) — LOCAL OPTION LAW NOT VIOLATIVE OF THE FOURTEENTH AMENDMENT.

The Local Option Law held not violative of Const. U. S. Amend. 14, in that the right to petition for a local option election is limited to the persons that voted at the last election in the municipality; the point concerning merely the putting in motion of the statutory machinery.

OPTION; REQUIREMENT OF NOTICE OF PETITION FOR ELECTION.

Local Option Law, § 2, requires five days' notice of petition for local option election by advertisement as well as by posting.

13. INTOXICATING LIQUORS 32(2)-COUN

CILMAN WHO SIGNS LOCAL OPTION PETITION NOT DISQUALIFIED TO PASS ON IT.

A member of the municipal council who signed petition for election under Local Option Law was not so interested in the result of the hearing on the petition as to disqualify him from sitting in judgment on its sufficiency.

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Petition for local option election under P. 8. CONSTITUTIONAL LAW 65-LOCAL OP-L. 1918, p. 14, in the township of Blairstown TION LAW NOT A DELEGATION OF LEGISLA- in the county of Warren, the correct name of the township, was not invalid because naming

TIVE FUNCTIONS.

The Local Option Law held not violative of the township as "the township of Blairstown, Const. U. S. Amend. 14, as constituting an un-county of Warren, state of New Jersey."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-10

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