(107 A.) the plaintiff without having given the notice re- |2. HUSBAND AND WIFE 491⁄2 (5) — GIFT — quired by the articles of agreement under which VALIDITY. he was employed. (4) That the defendant, Morris Roseman, is now, and has been since August 15, 1917, engaged in the business of buying veal, mutton, and lamb from butchers and selling the same to dealers in the city of Philadelphia and state of Pennsylvania. (5) The contract of June 8, 1916, between plaintiff and defendant was not terminated and ended by mutual agreement of the parties. Other facts have been found in answer to requests, but these are the essential ones, and are here repeated in paragraphic form. Pittsburgh Stove & Range Co. v. Penna. Stove Co., 208 Pa. 37, 57 Atl. 77. Conclusions of Law. (1) The fifth section of the contract set forth in the second finding of fact between the plaintiff and defendant is founded upon a valuable consideration, and is such a partial restraint of trade, being limited both as to time and territory, as will be enforced in a court of equity. (2) The penal sum or sums named in the contract are penalties, and not liquidated damages, and do not oust the jurisdiction of a court of equity. In the absence of a trust imposed or circumstances indicating fraud or deceit, the wife's title and ownership in real or personal property given to her by her husband are good and cannot be disturbed. Appeal from Court of Common Pleas, Philadelphia County. Bill in equity by Harry Besterman against Sarah Besterman, his wife, and others, to have her declared a trustee of money and real estate given to her before and after marriage. From a decree dismissing the bill, plaintiff appeals. Affirmed. fact and conclusions of law: Findings of Fact. finds the following facts: (1) Plaintiff was a boxer and gained his livelihood in fistic encounters. He began his career at an early age, and as a result of accidents finally quitted activities of the sort in the year 1914. He had known the defendant for some (3) The defendant is hereby enjoined and re- time, and in January, 1908, they were married strained from buying and selling either direct-privately in New York, and publicly, by Jewish ly or indirectly, and from assisting or becoming ceremony, in Philadelphia on June 3, 1909. interested in the furnishing or buying or selling either directly or indirectly, of veal, mutton, or lamb in the city of Philadelphia, state of Pennsylvania, from the date of this decree until the 15th day of August, 1918. Let a decree be prepared in accordance with the findings of fact and conclusions of law. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. Abraham Wernick, of Philadelphia, for appellant. Thomas D. McGlathery, of Philadelphia, for appellee. PER CURIAM. We have not been persuaded that the material facts found by the learned chancellor below ought to be disturbed. They were followed by correct legal conclusions, and the decree is affirmed at appellant's costs. (263 Pa. 555) BESTERMAN v. BESTERMAN et al. (Supreme Court of Pennsylvania. Feb. 17, 1919.) 1. HUSBAND AND WIFE 29(9), 492 (1) GIFT TO WIFE OR INTENDED WIFE-VALID ITY. A man may make a valid gift of real or personal property to his wife or to the woman he proposes to marry. (2) Having considerable success during the time of his active career as a fighter, the plaintiff was liberal with the money he received. From time to time he made gifts to his wife, who appears to have been of a frugal mind, and saved a part of what was given to her. At the time the bill was filed in this case, she had on deposit in several banks in Philadelphia the sum of $2,204.01. (3) The defendant had no money before the marriage, and what she has in bank represents the residue of what was given to her by the plaintiff. (4) The total amount given to defendant by plaintiff is uncertain. It did not amount to the sum of $70,000 alleged in the bill, but was very much less. The plaintiff, feeling some elation over the success of his fights, generously made gifts to his wife without conditions or limitations. (5) On the day of the marriage, the plaintiff executed and delivered a deed to the defendant, conveying to her premises No. 1624 South Twentieth street, Philadelphia. The title to this property has remained in the defendant since that date. She has received the rents, and the repairs and other charges have been paid for by her or by her agent out of the rents. The agent also, for a time, paid out of the rents certain building association dues which stood in the name of the plaintiff. (6) This conveyance was a gift made in contemplation of marriage, and no conditions or limitations were placed upon it, and no trust was imposed. (7) In August, 1916, the plaintiff and defendant became estranged, and since that time have been living apart from each other. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes. (8) The defendant, after the plaintiff's career as a boxer ended, used a part of the money she had saved from the living expenses of herself and the plaintiff. (9) Until the parties became estranged, no demand was made by the plaintiff on the defendant for a return of the money she had in bank or for a reconveyance of the house on Twentieth street. Conclusions of Law. [1, 2] 1. A husband may make a valid gift of real or personal estate to his wife or to the woman he proposes to marry. 2. In the absence of a trust imposed or circumstances indicating fraud or deceit, the title and ownership of the wife in such real or personal estate is good and cannot be disturbed. 3. The bill should be dismissed. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, SIMP. SON, and KEPHART, JJ. Abraham Wernick, of Philadelphia, for appellant. as he desires, which limitations, even in the case of a general agent, will be as binding upon third persons having knowledge or charged with notice as they are upon the agent. 4. PRINCIPAL AND AGENT 1601⁄2 — MAN AGEMENT OF BUSINESS-GOOD FAITH TO- An agent intrusted with the management of another's business may not exercise his authority for his own benefit. 5. INSURANCE ~695 — AGENCY-CONTRACT— VALIDITY. Where agent for a fraternal benefit association had general control of field work and disposition of territory, its overwriting contract with plaintiff to induce his purchase of its stock, imposing a charge of 10 per cent. on dues and payments to association in a certain territory, was so much out of its regular course of business as to put plaintiff on guard and to charge him with notice of any want of authority to make such contract which an inquiry of association would have disclosed. 6. PRINCIPAL AND AGENT 164(1) TRACT-RIGHT OF ACTION. CON A contract made by an insurance agent in Sundheim, Foltz & Fleisher, of Philadel- its own name undertaking to procure certain phia, for appellee. things from its principal was incapable of ratification, as a contract to be ratified must purport to be made on account of the alleged principal. 2. PRINCIPAL AND AGENT 150(2)—AGENT's firmed. VIOLATION OF AUTHORITY LIABILITY OF PRINCIPAL. Although an agent violates his instructions or exceeds his authority, he will yet bind his principal to third persons in good faith relying upon his apparent authority if his acts are within the scope of the authority which the principal has caused or permitted him to pos sess. 3. PRINCIPAL AND AGENT 148(4)-LIMITATIONS ON AUTHORITY-VALIDITY. A principal may confer on his agent as much or as little authority as he sees fit, and may impose upon it all such lawful limitations The court of common pleas dismissed a motion to take off the nonsuit in the following opinion by Audenried, P. J.: The plaintiff's action is based upon a contract whereby, it is alleged, the defendant, which is a fraternal beneficial corporation, be came bound to pay him 10 per cent. on all insurance written or procured by any person for the defendant in certain counties in the state of Oklahoma. It is averred that a written agreement to this effect was executed and delivered by the plaintiff and the International Loan & Trust Company; that that corporation was the agent of the defendant and duly empowered (107 A.) on behalf of the latter to make such a contract; | of the Heralds of Liberty or its executive comand that the agreement thus made was subse-mittee was ever consulted by the International quently recognized and ratified by the defend- Loan & Trust Company or its officers in relaant. It is alleged the defendant has paid but tion to the contract entered into by the Intera small part of the money to which the plain- national Loan & Trust Company with the plaintiff is entitled under its contract with him, tiff. and demand is made for an accounting by it of the business in which he is interested and for the payment of the sum which will thereon appear to be due him. The defense set up is that the International Loan & Trust Company was without authority from the defendant to make on its behalf such a contract as that entered into with the plaintiff, and that the contract made was never ratified by the defendant. It appeared at the trial that on December 14, 1914, a written agreement had been executed and delivered by the plaintiff and the International Loan & Trust Company. By this writing the plaintiff undertook to purchase from that corporation at $100 per share (their par value) 13 shares of its capital stock. In consideration of this purchase and "as an inducement thereto" the International Loan & Trust Company undertook "to have issue to the said Harold R. Edwards, through the Supreme Council of the Heralds of Liberty, an overwriting contract at 10 per cent. on all the business written for the said Heralds of Liberty in certain counties in the state of Oklahoma, from the date hereof, no matter by whom said business may be written," and that, should the Her alds of Liberty ever be debarred from doing business in the state of Oklahoma, it (the International Loan & Trust Company) would have the overwriting contract of 10 per cent. tranзferred to some other state or part of state to be mutually agreed upon, which will return an equal amount of business to the Heralds of Liberty. The International Loan & Trust Company further agreed to render a statement of business derived from the territory above named and furnish same to Mr. Edwards once a month, and to attach a check thereto to cover the 10 per cent. overwriting on said business. Whenever the plaintiff "desired to pay a visit to his territory, the purpose being to secure business and improve his contract," it was agreed that the International Loan & Trust Company should cause the Heralds of Liberty to advance toward his expenses at least $10 per week. It appeared, however, that the statements in relation to the business of the Heralds of Liberty in Oklahoma were from time to time sent to the plaintiff from its office. That office was also the office of the International Loan & Trust Company. It was under the charge of Emanuel Barrick. Mr. Barrick since long before the date of the plaintiff's contract has been Supreme Recorder of the Heralds of Liberty. He is one of its Supreme Council and a member of the latter's executive committee. He has also long been the treasurer of the International Loan & Trust Company, and it was by him, as soi disant "fiscal agent" for the International Loan & Trust Company, that the contract of December 14, 1914, above referred to, was executed on its behalf. Evidence was offered by the plaintiff indicating that on several occasions Mr. Barrick spoke and wrote as if the defendant recognized the plaintiff's right to demand an accounting from it in regard to the Oklahoma business, and it is certain that on December 14, 1916, writing as Supreme Recorder of the Heralds of Liberty, he notified the plaintiff that any agreement, written or oral, that he had with the corporation relating to an overwriting commission of 10 per cent. on business written for it in certain counties in the state of Oklahoma, would be terminated December 31, 1916. Upon this evidence a judgment of nonsuit was entered. That the court is now asked to take off. For the following reasons, we are of the opinion that the case was properly disposed of: [1-4] It is conceded, of course, that a principal may not hold his agent out in the character of one having general authority and bind third persons who have relied thereon in good faith by secret limitations and restrictions upon the agent's authority which are inconsistent with the character bestowed. Although the agent violates his instructions or exceeds the limits set to his authority, he will yet bind his principal to such third persons, if his acts are within the scope of the authority which the principal has caused or permitted him to possess. Mechem on Agency, 710. While this is true, it is equally well settled law that a principal may confer on his agent as much or as little of his authority as he sees fit, and may impose upon it all such lawful limitations as he thinks desirable. Such limitations, even in the case of what is known as a general agent, will be as binding and conclusive upon third persons who know of them or who are charged with notice of them as they are upon the agent. If one knows or has good reason to believe that an agent is exceeding his authority, he cannot claim protection under the rule above referred to, should he continue to deal with him. Another familiar principle of the law of agency which bears on the case before the court is that an agent intrusted with the management of the business of another may not exercise for his own benefit the power vested in him. [5] In the case at bar the exercise of the auIt was not shown that the Supreme Council thority of the "general grand deputy" of the It has appeared that the International Loan & Trust Company was the duly appointed "general grand deputy" of the Heralds of Liberty, and that it was authorized on behalf of that corporation to arrange its field work, dispose of territory, employ and discharge its deputies, make rules for their management and control, prescribe forms of reports, fix the amount of bonds required, and attend to all matters pertaining to the management of the field work and control of deputies, as well as all persons engaged in organizing and procuring members, subject to the approval of the defendant's Supreme Council. It appeared that its Supreme Council (nominally consisting of nine members) is the governing body of the Heralds of Liberty, and that in most matters the powers of the Supreme Council are exercised by an executive committee consisting of three of its members. Heralds of Liberty was expressly subjected by ed" the contract of December 14, 1914. While its by-laws to the approval of its Supreme Coun- ratification requires no new consideration for cil. Of this provision of the defendant's by-its support, the so-called "adoption" of a conlaws it may well be that the plaintiff had no tract by a person not a party thereto, being of actual knowledge. The power that the Interna- the nature of a novation, must be supported by tional Loan & Trust Company sought to exer- one. No evidence was produced to show an adcise in its dealings with him was, however, of a vantage received by the defendant or a detriment most unusual and suspicious character. The sustained at its request by the plaintiff in this offer by the corporation acting as agent of an connection which might serve to make the deassociation formed for fraternal and beneficial fendant's adoption of the contract, if any such purposes to impose a charge of 10 per cent. in thing was attempted, binding upon it in law. favor of the plaintiff upon the dues and other The plaintiff's motion to take off the nonsuit payments of the members of its principal resid- is dismissed. ing within a certain territory, merely as an inducement to him to invest in its own shares of stock, was a thing so much out of the regular course of business as to put any ordinarily pru-ING, dent man on his guard. Warned by the remarkable motive of the transaction proposed to him, Mr. Edwards had no right to proceed blindly. He was bound either to refuse to deal further with the International Loan & Trust Company or to ascertain by inquiry of the governing body of the Heralds of Liberty the true extent of the authority confided to its "general grand deputy." His failure to make such an inquiry rendered him chargeable with notice of all that he would have discovered had he made it. It Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLand KEPHART, JJ. George M. Henry and James Monaghan, both of Philadelphia, for appellant. George J. Edwards, Jr., of Philadelphia, for appellee. PER CURIAM. This judgment is affirmed on the opinion of the learned president judge of the court below dismissing the motion to take off the nonsuit. WILLS (264 Pa. 65) OYLER v. CLEMENTS. 1919.) Feb. 24, [6] If the agreement which the plaintiff and the International Loan & Trust Company executed on December 14, 1914, proposed to bind the defendant, it would not, under the facts and principles above stated, have served to impose upon the latter any liability unless subsequently ratified or adopted by it. That instrument, how (Supreme Court of Pennsylvania. ever, was not made in the defendant's name. does not profess to be the act and deed of the Heralds of Liberty. So far as its undertakings are not those of the plaintiff, they are the promises of the International Loan & Trust Company, which covenants in its own name and for its own acts. It nowhere stipulates that the Heralds of Liberty will do or refrain from doing anything whatever. It merely binds the International Loan & Trust Company to procure certain things from the defendant. That the results contemplated by the contract did not come to pass was not occasioned by any breach on the part of the defendant. The breach of which the plaintiff may complain is that of the International Loan & Trust Company alone. In this connection it may be observed that the wording of this instrument was as fully indicative of the latter's lack of authority to bind the defendant as was the singular character of its terms. 601(2)-DEVISE-ESTATE IN FEEMARKETABLE TITLE. In view of the way in which the contract above referred to is expressed, there could be no question of its ratification by the defendant. "Since the effect of ratification is to confirm an act as done, it is indispensable that the act ratified must have been done by the assumed agent as agent and in behalf of a principal. If it was done by him as principal and on his own account, it cannot thus be ratified. * The contract to be ratified must purport to have been made on account of the alleged principal, so that, when ratified, it shall be capable of being enforced by and against that principal as a contract to which he was a party. Mechem on Agency, §§ 386 and 387. * [7] Nor can it be said that plaintiff established a case on the theory that the defendant "adopt Where testator gave to daughter, her heirs and assigns, one-fourth of all his estate, and requested executors to convey his house and lot to her for $1,500, payable out of her interest and bequest, and on the death of herself and husband everything left to daughter and in their possession to revert for division among others, the daughter, after her election to take homestead and a deed to her, took a good marketable title in fee. Appeal from Court of Common Pleas, Westmoreland County. Assumpsit by Margaret O. Öyler against Thomas C. Clements to determine marketable title to real estate. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed. Assumpsit to determine marketable title to real estate. From the record it appeared that Wm. M. Williams by his will directed as follows: "First. I direct that all my just debts and funeral expenses be fully paid and satisfied as soon as conveniently may be after my decease. "Second. I give and bequeath to my son Willie Milo M. D. his heirs and assigns the onefourth (4) equal share of all my estate per. sonal property moneys notes and book accounts and real estate and effects. (107 A.) "Third. I give and bequeath to my daughter | tor of the will of appellee's father, executed Rebecca Jane Hunter her heirs and assigns and delivered to her in pursuance of its sevthe one-fourth (4) equal share of all my estate personal property money, notes, accounts, and real estate and effects plus five hundred dollars (500) to cove a note I gave her (R. J. Hunter) dated April 1st, 1905 which note shall draw no interest until after the date of this my will. I also appoint my son Willie Milo and J. K. Johnston trustee to take charge of all the bequests I make to my daughter R. J. Hunter and see that she and her children gets all necessary benefits of the same. enth clause, passed an absolute estate to her et al. (264 Pa. 29) "Fourth. I give and bequeath to my daughter Margaret Orah Oyler her heirs and assigns the one-fourth (4) equal share of all my estate personal property moneys notes accounts and real estate and effects mines less four GALLAGHER v. P. M. WALTON MFG. CO. hundred dollars ($400) "Fifth. I give and bequeath to my daughter (Supreme Court of Pennsylvania. Feb. 17, Elizabeth Johnston her heirs and assigns the one-fourth (4) equal shares of all my estate personal property money notes accounts and real estate and effects minus two hundred and ninety dollars ($290.00) to balance equal shares with my son Willie Milo. "Sixth. I give and bequeath to my grandson Wm. Clarence Hunter five hundred $500 dollars to be paid to him in cash. 1919.) MASTER AND SERVANT 417(7)—WORKMEN'S A finding of fact by the referee approved by the compensation board, to the effect that a deceased workman was engaged in the course of his employment at the time of the accident which resulted in his death, is one of fact, and will not be reviewed by the court. "Seventh. Mineral coals underlying lands may be sold separate from the lands and all claims due my estate shall be collected and distributed as aforesaid all unsettled claims against the heirs shall be paid or settled in their re-adelphia County. spective shairs independent of limitation. "Also I request the executors of this my will to grant and convey by deed my home and house and thirty acres of land where I now live to my daughter Margaret O. Oyler reserving all the mineral coal underlying the same that I have optioned for sale at present for fifteen hundred dollars payable out of her interest and bequest giving to her in this my will. "Eighth. I hereby order that when my daughter Margaret Orah and her husband C. Z. Oyler dies all the bequests I leave to my daughter that is in their possessions shall fall back to the original and be equally divided between my son Will Milo and my daughter Rebecca Jane and Elizabeth and their heirs." Mrs. Oyler elected to take the homestead at the valuation stated in the will, and deed for it was made to her by the executor. She subsequently signed articles to sell the land to Thomas C. Clements, the defendant. latter, alleging insufficiency of title, refused to perform his contract; hence this suit. The The court made absolute rule for judgment for want of a sufficient affidavit of defense. Argued before BROWN, C. J., and STEWᎪᎡᎢ, MOSCHZISKER, WALLING, SIMPSON, JJ. and Paul H. Gaither and Charles E. Whitten, both of Greensburg, for appellant. C. L. Hugus, of Greensburg, for appellee. PER CURIAM. The learned court below correctly held that the deed from the execu Appeal from Court of Common Pleas, Phil Proceeding by Anna Gallagher against the P. M. Walton Manufacturing Company, employer, and the Manufacturers' Casualty Insurance Company, insurer, for compensation for the death of plaintiff's husband Harry Gallagher. From a judgment dismissing an appeal from an award of the Workmen's Compensation Board, defendants appeal. Appeal dismissed, and award affirmed. Appeal from an award of Workmen's Compensation Board. The facts found by the referee were in part as follows: On June 23, 1917, and for some time previous thereto, Harry Gallagher was in the employ of the defendant whose business was that of machine manufacturer, and whose place of business was at 1019-29 Germantown avenue, Philadelphia, Pa., as a driver, and in said employment on that date his wages were $14 per week, and were payable weekly. On the, morning of June 23, 1917, Harry Gallagher had received instructions from his employer to go to Harrington's Seventeenth and Callowhill streets, and get some gear wheels; to go to the Hub Machine Welding & Contracting Company to get a brace to be welded; and to go to G. A. Hodson, 226 Arch street, to get a pulley; and was also instructed to go to the Ericcson Line Pier, Pier 3, South, between Market and Chestnut streets, in order to get some freight. He had left the stable with his team in the morning, and about 1 o'clock he stopped at the blacksmith shop of Mr. T. F. Gaffney, 911 North Second street, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |