(108 A.) cable to him, and the newspaper would have a perfect right to publish as part of the proceedings all of those statements that were actually made. There is no doubt about that, and these statements published in the paper would have hurt the plaintiff just as the direct imputation to him that he made the statements. At least so it appears to the court. It is for you to say, leaving that consideration and its bearings upon the malice of the controversy entirely to you. Others making the statement about him, and the statement actually made by others about him, this newspaper would have had the right to print. Now, would not that have been just as damaging as the statement? We leave it to you. vestigation, that it is false, then your verdict should be for the plaintiff." * * [7] Twelfth: "If you find that the defendant did not make any retraction in his paper, when the falsity of the article was called to his attention, but waited until threatened with legal proceedings, and also find for the plaintiff, then such action may be considered, in connection with all other evidence in the case, in determining whether there was actual malice or ill will toward the plaintiff." [8] Thirteenth: "If the jury find for the plaintiff, and find that George McGee was the duly authorized agent of the defendant in procuring news and in sending the article complained of, and that George McGee had no ground to believe the truth of the article, but was actuated by malice and ill will toward the plaintiff, then the defendant is responsible for such malice of his agent, and you may award exemplary or punitive damages." Now no suit, as I have already mentioned, was brought for this libel for 11 months. Of course, the first instinct of a man who is really damaged by a libelous publication is to go to law at once. He does not waste time about it. This suit was not brought for 11 months. Then Fourteenth: "In determining whether the reit was not brought on to trial, as I already sug-porter, George McGee, was actuated by actual gested, for 7 years, 1917, publication in 1910, malice or ill will, you may consider all the almost 6 years after suit was brought, almost testimony bearing on the matter, the size of the 7 years after the article was published. room, the number of people present, the similar[4] Then we say to you that, as we have al-ity of the plaintiff and Mr. Schultz, and the ready said, we state again in this connection on ing and that Mr. McGee correctly identified fact that the plaintiff later addressed the meetthe matter of damages, that the letter of Sep-him at that time." tember 9th and the newspaper retraction of September 29th was a sufficient and reasonable retraction and vindication so far as it went. Of course, it does not necessarily preclude recovery here, if the requirements are met, as we have outlined them to you, in all instances. [9] Fifteenth: "You may also consider as to whether George McGee was actuated by malice or ill will, the character of the corroboration of the statement of Mr. Fairchilds, as to whether it showed by its terms that it was made by the mail carrier or by some one else." [5] Nevertheless it is proper for you to consider that there was a retraction, and that the behavior of both the reporter and of the editor-dence should be for the plaintiff." Sixteenth: "Your verdict on the whole evi subsequent behavior independent of the article The twelfth, thirteenth, fourteenth, fifitself is entirely free from any exhibition of teenth and sixteenth points submitted by actual malice; on the contrary, marked by an plaintiff were refused in that reading. evident desire to make amends, accompanied by an explanation, the reasonableness of which is for you. The plaintiff still holds the position as mail carrier, with increased compensation. There has been no loss of public or private esteem under the evidence here; he is just as well regarded by the public as he ever was. In other words, to sum up, there is no proof in this case of actual damage, actual damages in dollars and cents. * The defendant's requests are as follows: (1) "In order to justify a recovery by the plaintiff in this case, the jury must be satisfied by a preponderance of the credible evidence that defendant published the alleged libelous article either maliciously or negligently." That is true. We have so instructed you. (2) "If the jury believe that George McGee, reporter of the Plain Speaker, in good faith person as to the identity of the person who informed the school board of the facts contained in the alleged libel, and understood his informer [6] The third request we refuse without read-made inquiry from a responsible and reputable ing. It was as follows: "If you find that the defendant was the owner and publisher of the Plain Speaker, that the article complained of was published in the Plain Speaker, that it referred to the plaintiff, that it is false, your verdict should be for the plaintiff." whether what was said, actually said, justified McGee in concluding that the plaintiff made the statement, and acting under that impression that he published the article. to say such person was in fact Mr. Wharen, the plaintiff, then the jury may accept such circumstance to rebut any inference of malice or negThe fourth request: "If you find that the deligence." Well we affirm that. Of course, the fendant was the owner of the Plain Speaker, facts are for you to find. All depends on what that George McGee was the duly authorized re-occurred at the meeting, what was said, and porter of the Plain Speaker, that he reported the article complained of in the due course of his employment, then the defendant is responsible to the plaintiff for the actions of George McGee in so doing." We affirm that request. It is only a statement of the law of principal and agent. Mr. Dershuck, as editor and publisher of the Plain Speaker, would be responsible for what his reporter did in connection therewith. * The sixth we refuse without reading. It was as follows: "If you find the defendant published the article complained of, without any prior in (3) "The jury is instructed as a matter of law that there is no proof of express malice in this case." That request is affirmed. Verdict and judgment for defendant. Plaintiff appealed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON and KEPHART, JJ. Chas. F. Wharen, of White Haven, for ap-, the names of persons already taken out of the pellant. John H. Bigelow, of Hazleton, and R. J. O'Donnell, of Freeland, for appellee. PER CURIAM. In this action for libel the verdict was for the defendant, followed by judgment thereon. After due consideration of all the assignments of error, the majority of the court are of opinion that they disclose no reversible error, in view of all the list be restored, defendants appeal. Affirmed. Grover C. Ladner, of Philadelphia, for appellants. Thomas Raeburn White, of Philadelphia, for appellees. FRAZER, J. testimony in the case, and the judgment is commissioners of the city of Philadelphia, The board of registration therefore affirmed. (264 Pa. 548) after investigation of a number of names on the voters' list of the city, sent to such persons on May 14, 1918, a notice to appear at the office of the board on the morning of May 16th at 10 o'clock to show cause why their WINSTON et al. v. LADNER et al., Board names should not be removed from the voting of Registration Com'rs. (Supreme Court of Pennsylvania. May 5, 1919.) list. At the hearing following such action many names were stricken off for the reason the voter was not a resident at the address given in the list. In the meantime the bill 1. ACTION 6-COURTS WILL NOT DECIDE in this case was filed in the court below to MOOT QUESTIONS. restrain the action of the commissioners, The courts will not decide moot questions, and, after hearing May 18th, a preliminary or abstract propositions of law, not necessary injunction was granted restraining defendto the disposition of actually pending contro-ants from striking additional names from the list until May 22d, the day following the primary election, and further ordering that the names of persons already taken off be restored. versies. 2. APPEAL AND ERROR 863-MERITS OF CASE NOT EXAMINED ON APPEAL FROM GRANT OF PRELIMINARY INJUNCTION. On an appeal from an order granting a preliminary injunction, the merits of the case will not be examined into, except to the extent necessary to determine the propriety of the injunction at the stage of the proceeding. An appeal to the Superior Court, filed May 20, 1918, was dismissed because the injunction expired by limitation May 21, 1918, and, under the provisions of Act May 28, 1915 (P. L. 576), the lists ceased to be valid at the beLIABILITY ON IN- ginning of the following registration period, 3. INJUNCTION 235 September 5, 1918; consequently the questions involved had become merely academic Liability on the injunction bond must await the final disposition of the proceeding on the and required no decision on the merits. On merits, as reasons may appear on final hear- March 5, 1919, on petition of the commission. ing for granting an injunction, though a pre-ers, an appeal was allowed to this court. liminary restraining order may have been dissolved in the meantime. 4. APPEAL AND ERROR 781(4)-APPEAL INVOLVING MOOT CASE NOT RETAINED TO DE CIDE MATTER OF PUBLIC INTEREST. Where registration commissioners were enjoined from striking off names on voter's list, and they appealed, the appeal cannot be heard, after expiration of injunction and after list had ceased to be valid, on ground that appeal concerns power of commissioners to strike names from list and is of public interest. [1] Appellants concede the general rule established by numerous cases that our courts will not decide moot questions, or abstract propositions of law, not necessary to the disposition of actually pending controversies. Faust v. Cairns, 242 Pa. 15, 88 Atl. 786; Com. v. Cairns, 48 Pa. Super. Ct. 265; Com. V. Mamatey, 257 Pa. 327, 101 Atl. 731. They contend, however, this case is not within the rule, first, because a bond was required previous to the court below issuing the injunction and the determination of the question involved is necessary to fix liability on the obligation; and, second, the question Bill in equity by John C. Winston and oth- raised is not merely whether the names of ers for an injunction restraining Albert H. certain persons were illegally stricken from Ladner, Jr., and others, as the Board of Reg- the voting list, but also concerns the power istration Commissioners of the City of Phil- of the registration commissioners, under the adelphia, from removing names of persons law, to strike off names in the manner purfrom the voting list. From a judgment of sued by the board, and is therefore a questhe Superior Court (71 Pa. Super. Ct. 238), tion of public interest proper for decision, dismissing an appeal from a decree granting even though merely academic in character. a preliminary injunction, and ordering that [2, 3] The first contention overlooks the fact Appeal from Supreme Court. (108 A.) tered into as part of his agreement for the pur- 10(1)-WANT OF MUTUALITY NO DEFENSE EXCEPT IN EXECUTORY CON- Want of mutuality in a contract is no defense to either party, except in cases of executory contracts, and it has no application to an executed bargain; and a party cannot set up lack of mutuality as a defense to the enforcement of a contract, where he has received the consideration moving to him thereunder. 3. CONTRACTS 108(2)-TO PURCHASE CER that a reversal of the court below by the Superior Court would not result in establishing liability on the bond, because the decision, being on a preliminary question, must necessarily carry the case to final hearing and decision of the court below, following the remitting of the record from the Superior Court. After hearing on the merits and determination of the legal questions involved, the court below might come to the conclusion the board's action justified issuing an injunction, regardless of the disposition of the appeal from the preliminary order. In such appeals the rule is that the merits of the case will not be examined into, except to the extent necessary to determine the propriety of the injunction at that stage of the proceeding. Delaware & Hudson Co. v. Olyphant Borough, 224 Pa. 387, 73 Atl. 458; Ross Common Water Co. v. Blue Mountain, etc., Water Co., 228 Pa. 235, 241, 77 Atl. 446; North Shore R. R. v. Penna. Co., 231 Pa. 307, 80 Atl. 253. In applications of this character liability on the injunction bond must await the final disposition of the proceeding on the merits, inasmuch as reasons may appear upon final hearing for granting an injunction, though a preliminary restraining order may have been dissolved in the meantime. Large 4. CONTRACTS 215(1)-DURATION OF CONv. Steer, 121 Pa. 30, 33, 34, 15 Atl. 490. [4] With respect to the second point raised by appellants, the court below, in granting the injunction, held the commissioners were without right to strike names of voters from the list at such late date as to deny them the right to appeal. The public interests were protected by the decree. The only persons now complaining are the commissioners. Questions relating to their powers and duties must come before us in the regular way; it not being part of our duty to act in an advisory capacity toward them with respect to the extent of their authority, except in so far as cases are actually brought before us in a proper manner. It may be pertinent at this time to suggest the registration board may avoid future difficulties of this character by acting promptly on receipt of voting lists, so that ample time may be afforded to revise and correct the lists, if necessary, and give opportunity to parties aggrieved to appeal from its action. The judgment of the Superior Court is af TAIN QUANTITY OF BEER WEEKLY NOT dealer, was to purchase a certain quantity of ness. TRACT TO PURCHASE CERTAIN QUANTITY OF Contract of a retail dealer to purchase a cer tain quantity of beer each week from a brewing company and to purchase its stock, without any limitation as to time dealer should purchase beer, could not be terminated at any time upon reasonable notice, if dealer entered the contract knowing that company sought to sell its stock principally to liquor dealers, as it was evident that it should continue so long as he was engaged in selling beer at retail, and for failure to purchase beer he would be liable. Simpson, Moschzisker, and Kephart, JJ., dissenting. Appeal from Court of Common Pleas, Allegheny County. Assumpsit by Charles Nolle against the Mutual Union Brewing Company to recover dividends upon shares of capital stock, wherein defendant admitted refusal to pay dividends on plaintiff's stock, and pleaded by way of set-off the amount of profits it would have made if plaintiff had continued to purchase defendant's product as agreed. The court gave binding instructions for defendants, and refused plaintiff's request for binding instructions, and there was verdict and judgment for defendant for $1,669.86, and plaintiff appeals. Affirmed. The defendant admitted refusal to pay dividends upon plaintiff's stock, and pleaded by way of set-off the amount of profits it would have made, had plaintiff continued to purchase defendant's product as he had agreed to do. to do. The court gave binding instructions For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for defendant, and refused plaintiff's request [able. At the conclusion of the evidence the for binding instructions. learned trial judge affirmed the point subArgued before BROWN, C. J., and STEW-mitted on part of the defendant, that under ART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. L. Pearson Scott and A. Leo Weil, both of Pittsburgh, for appellant. Donald Thompson, George H. Calvert, and William A. Wilson, all of Pittsburgh, for appellee. STEWART, J. The facts of this case are not in dispute. The appellant was a licensed retail liquor dealer in the city of Pittsburgh; the appellee is a corporation having its principal office in Beaver county, engaged in the business indicated in its name. In organizing the brewing company in the year 1907, the scheme was to secure as subscribers to the capital stock, so far as practicable, persons engaged in the business of selling malt liquor, either by retail or wholesale, for very obvious reasons which will occur to any one. When the appellant was approached by the representatives of the company soliciting stock subscriptions, he was told that they were soliciting subscriptions from such dealers only; that they did not solicit subscriptions from any except such dealers as had licensed places and would engage to purchase from the brewing company a certain amount of beer each week. With a full understanding of the terms and conditions thus expressed, appellant subscribed for 20 shares in the capital stock of the company, and as a part of the transaction signed the following agreement in writing: "I do further agree to purchase 10 barrels of beer per week, aggregating 520 barrels per year. This agreement is conditioned upon the fact that the product delivered is of a quality equal to standard beers on the market, and is sold at a rate not higher than that ruling in the open market at the times and dates of delivery." Appellant purchased the 10 barrels of beer per week from the company for about three years, up to August 13, 1910, when he ceased his purchases, though he continued to be a licensed dealer. In November, 1915, he brought the present action to recover from the company the amount of dividends previously declared upon his stock, with interest thereon from time the dividends had been declared, amounting in all to $1,055.88. The brewing company admitting the nonpayment of the dividends on the stock claimed to set off against the plaintiff's demand damages which it sustained in consequence of plaintiff's failure to purchase beer in the quantities agreed upon during the entire period from August 13, 1910, to November 1, 1914, amounting to $1,669.86 in excess of the plaintiff's demand. Neither side made any question as to the accuracy in amount of the the pleadings and evidence in the case the verdict should be for the defendant, and instructed accordingly. A verdict was rendered for the defendant in the sum of $1,669.86, and, judgment thereon having been entered, this appeal follows. The first assails The assignments of error are six in number. Appellant's counsel in their brief have had no difficulty in resolving them into three, and our consideration of the case will be correspondingly limited. the validity and enforceability of the contract evidenced by the written papers, on the ground (1) that it lacks mutuality in obligation, and (2) because it offends against public policy, since it gives to the plaintiff, so long as he remained a liquor dealer, an illegal pecuniary interest in the business of the brewery, and the agreement to buy beer gave the brewing company an illegal pecuniary interest in the business of the retailer, and (3) that the parties having chosen to leave the period of duration of the contract-that is, the promise on part of plaintiff to purchase beer from the brewing company-without limitation as to time, the contract was terminable by either party upon reasonable notice, and that the plaintiff, having chosen to terminate it after three years, was no longer bound thereby. [1] If the contract embraced nothing more than the promise of the plaintiff to purchase a given quantity of beer from the brewing company, want of mutuality might well be urged. It would then be resolved into a nudum pactum, without consideration, and unenforceable; but the promise to buy the beer was only part of the contract, which included as well the agreement to purchase a given number of shares of the capital stock of the brewing company, the opportunity that was afforded him for so doing being the consideration moving. No other conclusion can be derived from the undisputed testimony of the parties present at the making of the contract, and the language employed in the written promise of the plaintiff is confirmatory that the sale of the stock and the promise to buy the beer were so connected as to constitute a single transaction. "And I do further agree" reads the agreement to buy the beer, indicating very clearly that another obligation had proceeded, and that the obligation to purchase beer was but part of the entire contract, which certainly embraced the stock subscription. The purchase of stock by the plaintiff was fully ratified by the brewing company, and it constituted the major part of the stock on which the dividends plaintiff sues for was declared. [2] Aside from this, the defense of want of mutuality rests on a clear misunderstanding of the law. In Grove v. Hodges, 55 Pa. 504, (108 A.) "Want of mutuality is no defense to either [ so far as concerns the obligations of the apparty, except in cases of executory contracts. It pellant to purchase beer from the brewing has no applicability to an executed bargain. company, was indefinitive, without limitation There are many where the obligation is all upas to time, it was terminable by either party on one party. As to one, the obligation was fulfilled, the contract was executed, when it was chosen to terminate it after three years, was on reasonable notice, and the plaintiff, having made. As to the other party it remains executory. A consideration may be either something no longer bound thereby. The court below done, or something to be done, or a promise held that the intention of the parties, if asitself. When it is something already done, it is certainable, was to govern; that the intenidle to talk of want of mutuality. That is to be tion here could safely be derived from the considered only when the obligations of both circumstances under which the parties conparties are future." tracted and the subject-matter of the agreement; and that having regard to these the evident intention of the parties was that the agreement should continue in force so long as the plaintiff was engaged in the business of selling beer by retail, situated as he then was. The situation continued the same with respect to both parties until November 1, 1914, when the plaintiff discontinued his business as a retailer of malt liquors. It was for the period of plaintiff's default between August, 1910, and the date of his last purchase, November 1, 1914, when the plaintiff retired from business, that the defendant sought to recover damages. The court very properly held that for such default plaintiff was liable under the contract. Here the plaintiff had received the stock he had bought. So much for the want of mutuality. [3] The objection that the contract offends against public policy as declared in our statutes, is without any greater merit. The public statutes regulating the granting of licenses to liquor dealers are inapplicable in this case; the facts show no transgression of any of them. Our attention is directed to Act May 13, 1887, § 5 (P. L. 108), which requires that an application for a retail liquor license shall set forth under oath among other things: "That the applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein, during the continuance of the license." This is cited as a statutory requirement transgressed, since by the contract the brewing company derived under it a pecuniary interest in the plaintiff's retail business. This is a palpable non sequitur. As well say that every person from whom the plaintiff purchased supplies to replenish his stock, of whatever character, thereby became pecuni arily interested in his business. The other requirements in the petition for license which were supposed to show a settled policy adverse to the acquisition of a pecuniary interest in the applicant's license are to be found in Act June 9, 1891, § 4 (P. L. 258). It is only necessary to observe that all that is there required of the applicant in this connection is that he state under oath-and that only as the application is for a wholesale license that he is not in any manner pecuniarily interested in the profits of the business conducted at any other place in said county where any of said liquors are sold or kept for sale. Manifestly these are without application here. The brewing company never made application for a wholesale license for the sale of liquor in Allegheny county, and its place of business is in Beaver county, which it operates under a state license. We find nothing in the facts presented that will invalidate in the slightest the contract on the ground alleged. [4] It is next argued that, even though the contract was of binding force when entered into, yet, because the period of its operation, In what we have said we have sufficiently discussed the several assignments of error. These are overruled, and the judgment is affirmed. SIMPSON, J. (dissenting). It is conceded that the contract upon which defendant relies for its claim of set-off is of a dual character; one part containing an ordinary agreement of stock subscription, by which Nolle agrees to subscribe for 20 shares of stock in the defendant company and the other part being as follows: "I do further agree to purchase 10 barrels of beer per week, aggregating 520 barrels per year. This agreement is conditioned upon the fact that the product delivered is of a quality equal to standard beers upon the market, and is sold at a rate not higher than that ruling in the open market at the time and dates of delivery." at a rate not higher than that ruling in the It seems to be conceded also that, if this was all there was in the case, Nolle's obligation to purchase would have been, as the ma jority opinion expresses it "terminable by either party on reasonable notice," and this is the rule repeatedly declared by us. Coffin v. Landis, 46 Pa. 426; McCullough, etc., Crucible Co. v. Philadelphia Co., 223 Pa. 336, 72 Atl. 633; Turtle Creek Borough v. Pennsylvania Water Co., 243 Pa. 415, 90 Atl. 199; Bellevue Borough v. Ohio Valley Water Co., 245 Pa. 114, 91 Atl. 236. But it is said "that the intention here could safely be derived from the circumstances under which the parties contracted and the subject-matter of the agreement." As those "circumstances" rest in parol, the fundamental question arises: What tribunal is to determine how far, if at all, they compel a conclusion at variance |