the head and body, his ears severed, one eye | v. Commonwealth, 83 Pa. 131; Commongouged out, his head and face frightfully wealth v. Smith, 221 Pa. 552, 70 Atl. 850. cut, bruised, and mangled, his body dragged The best evidence the jurors have of the law 40 yards down the bank, leaving a trail of is the instructions of the court. Of course blood, and there abandoned in the night, they can render a general verdict of not guilthere was no impropriety in the court's call- ty, and to that extent are the ultimate judging the attention of the jury to the impor-es of both the law and the facts; but that tance of the case both to the commonwealth does not absolve the court from its duty of and to the defendant, and saying, declaring the law to them, nor absolve them It would certainly appear that some one was from the duty of accepting it when so declarguilty of a most heinous crime." ed. "We are of opinion that the presence of a prisoner charged with a capital offense, at any time between the verdict and sentence, though very proper, is not necessary to the validity of the judgment." That is undoubtedly sound, and, as there shown, a false step taken after verdict would vitiate only what followed it. Commonwealth v. McManus, 143 Pa. 64, [7-10] The defense of an alibi was not sug- 21 Atl. 1018, 22 Atl. 761, 14 L. R. A. 89. gested by the evidence nor raised by counsel [13] The sheriff did not bring the defendduring the trial and the court was not bound ant into court promptly at the time fixed for to explain to the jury the law relating there- the argument of the motion for a new trial, to. Even in a murder case the court is not and by consent of counsel the argument was required to charge upon abstract questions begun in his absence. In Jewell v. Comnot involved in the case, and this is emphat-monwealth, 22 Pa. 94, 101, this court, in an ically true where no request is made therefor. opinion by Chief Justice Black, say: See Brown v. Commonwealth, 76 Pa. 319; Commonwealth v. Winkelman, 12 Pa. Super. Ct. 497. The defendant denied his guilt and testified that they came home together, and he went to bed and remained there until morning. In the main this was corroborated by the wife of the deceased, who also said her husband left the house that night shortly after they came home. The court called the jury's attention to this evidence, but it did not constitute an alibi, properly so called, for the crime might have been committed before the defendant reached home, as the commonwealth contended, or even after he left home in the morning. It was self-evident that defendant did not commit it while home and in bed. But the story that the deceased came home after midnight and immediately started alone to walk back to Beaver Falls, while highly improbable and inconsistent with the other evidence in the case, was properly submitted to the jury. If more specific instructions as to that branch of the case were desired they should have been requested. Commonwealth v. Zappe et al., 153 Pa. 498, 26 Atl. 16. [11] On the question of character evidence the court charged, inter alia: [14] The motion and reasons for a new trial are not set out in the assignment of error, and therefore are not properly before us (Sikorski v. Phila. & R. Ry. Co., 260 Pa. 243, 103 Atl. 618); but we have examined them and find nothing to justify disturbing the verdict, which was the logical result of the evidence. The assignments of error are overruled, the judgment is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution. (264 Pa. 149) FEDERAL SALES CO. OF PHILADEL PHIA v. FARRELL. "Nevertheless, if under all the testimony in (Supreme Court of Pennsylvania. March 10, the case, including the evidence of good character, you are satisfied beyond a reasonable doubt of the guilt of the prisoner at the bar, you should convict, notwithstanding the evidence of good character. It is simply substantive evidence to be considered by you as such." That was clearly right and in accord with numerous decisions of this court. [12] The trial judge stated in the charge: "You are the judges of the facts, as I have tried to explain to you, and it is my duty to declare to you the law." The latter clause is criticized, but unjustly so. It is the duty of a trial judge to declare the law to the jury in every criminal case, and particularly in a homicide case. Meyers 1919.) 1. PLEADING 350(2)-INSUFFICIENT AFFIDAVIT OF DEFENSE-TIME FOR MOTION. Plaintiff may enter a rule for judgment for want of a sufficient affidavit of defense, even though he has filed a reply to defendant's claim of set-off, where such reply was required by an act of assembly, such as Practice Act May 14, 1915 (P. L. 483) §§ 15-17, or a rule of court. 2. PLEADING 350(3)—WANT OF SUFFICIENT AFFIDAVIT OF DEFENSE-ADMISSIONS OF RE PLY. On a rule for judgment for want of a sufficient affidavit of defense, the admissions of plaintiff's reply will be considered, in view of Practice Act May 14, 1915 (P. L. 483) §§ 6; 16. (107 A.) Judgment can be entered for want of a sufficient affidavit of defense only in clear cases. 4. APPEAL AND ERROR 863-DISCHARGE OF RULE FOR JUDGMENT-REVERSAL. On an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, the Supreme Court will not reverse unless the right to the judgment is clear. 5. EVIDENCE 429, 441(1), 442(1)-PAROL EVIDENCE TO VARY CONTRACT-BURDEN OF PROOF. 3. JUDGMENT 34(3)—WANT OF SUFFICIENT | plaintiff's reply operated as a waiver of its AFFIDAVIT OF DEFENSE. right to judgment for want of a sufficient affidavit of defense. It is true we have always implied a waiver from any voluntary action of plaintiff looking to putting a case at issue; but in order to have that effect the action must be voluntary. Perhaps the first case dealing with the general subject is Gregg v. Meeker, 4 Bin. 428, and the latest Bordentown Banking Co. v. Restein, 214 Pa. 30, 63 Atl. 451. The former arose under the affidavit of defense agreement of the lawyers of Philadelphia County (Detmold & Cox v. Gate Vein Coal Co., 3 Wkly. Notes Cas. 567, Fed. Cas. No. 3830), and the latter, and all the intermediate cases, under the acts of assembly relating to affidavits of defense. In Superior National Bank v. Stadelman, 153 Pa. 634, 638, 26 Atl. 201, 202, we said: "This long-established practice it is not desirable nor is it intended, to disturb." In Horner v. Horner, 145 Pa. 258, 23 Atl. 441, however, we held no waiver could be implied if plaintiff's action was compulsory, made so in that case by a rule of court. By section 15 of the Practice Act of May 14, 1915 (P. L. 483), it is provided: A party setting up a contemporaneous written agreement varying the terms of written instrument sued or defended upon, has burden of averring that any alleged omission resulted from fraud, accident, or mistake, though he need not do so where attempt is to use writing in violation of a collateral promise, whereby the party's signature was obtained to instrument, or where instrument admittedly does not contain the whole of the contract. 6. PLEADING FACTS. 348—RULE for Judgment— Where note sued on was admittedly on lease of four automobile trucks by four written agreements for a rent exactly their value without providing for their disposition after rent was paid, and where defendant claimed that a provision that they were then to become his property, and that warranties of plaintiff's agents inducing contracts were omitted by mistake, and plaintiff admitted partial fulfillment of its warranties by repairing defects in trucks, a rule for judgment for want of a sufficient affidavit of defense was properly discharged. "When the defendant in his affidavit of defense sets up a set-off or counterclaim against the plaintiff, the plaintiff, within fifteen days from the day of service of the affidavit of defense upon him, shall file an answer under oath, which shall be called 'plaintiff's reply.'" If none be filed, then under section 16 plaintiff is debarred from thereafter disputing the averments of the affidavit of defense Appeal from Court of Common Pleas, and set-off. This brings the case within the Philadelphia County. Assumpsit on a note by the Federal Sales Company of Philadelphia against George H. Farrell. From an order discharging a rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals. Affirmed. Argued before STEWART, MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ. Harold Evans, of Philadelphia, for appellant. James R. Wilson, of Philadelphia, for appellee. SIMPSON, J. Plaintiff brought suit upon a promissory note for $1,597; defendant filed an affidavit of defense and claim of set-off growing out of the transaction in which the note was given; plaintiff filed a reply to the claim of set-off, and nearly a month later entered a rule for judgment for want of a sufficient affidavit of defense. The court below discharged the rule, whereupon plaintiff excepted and took this appeal. [1] It was suggested on the argument that principle of Horner v. Horner, supra, and no waiver arises, especially as by section 17 no time is prescribed within which a rule for judgment must be taken. [2-4] It was suggested on the other side that admissions in plaintiff's reply could not be considered on the rule for judgment. This also is a mistake. It would be strange if a party could obtain summary judgment notwithstanding his admissions of record, if upon a trial those admissions would prevent or limit the recovery. The well-settled rule that judgment can be entered for want of a sufficient affidavit of defense only in clear cases, also defeats the contention; for antagonistic admissions of record may make the case anything but clear. It is no answer to say a rule for judgment is in effect a special demurrer, for final judgment thereon would not be given in favor of demurrant, if he had solemnly admitted of record facts which showed he was not entitled thereto. Under sections 6 and 16 of the act of 1915, the undisputed facts appearing by the pleadings are admitted for all the purposes of the case, and hence the admissions of the reply must be considered with the same ef For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes On an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, we never reverse unless the right to judgment is clear. Griffith v. Sitgreaves, 81 Pa. 378; Hassam Paving Co. v. Stipp, 249 Pa. 94, 97, 94 Atl. 557. In the first case thereof we said: fect as if they were embodied in the state- four automobile trucks by four written ment of claim itself. agreements. The total amount of rent to be paid is exactly the value of the trucks, as stated in the agreements, yet nothing is said therein as to what is to become of the trucks after all the rent is paid. Defendant says the trucks were then to become his property, and the clause in regard thereto was omitted from the agreements by mistake. Plaintiff does not deny this. Defendant says he was induced to enter into the agreements by certain oral warranties made by "plaintiff's agents Biddle and Michel," which also were omitted by mistake. Plaintiff does not deny the agency, but avers only that neither "its agents, Biddle and Michel, or any other "Such writs should be confined to plain errors of law. In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the court." And in Ætna Insurance Co. v. Confer, 158 of its agents," made any other warranties Pa. 598, 604, 28 Atl. 153, 154: "It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule." "than those contained in the said leases." The leases, however, contained no warranties, yet "plaintiff admits that partly in fulfillment of its guaranty and warranty" it repaired defects in said trucks many times (defendant says 51 and plaintiff does not [5] It is true a party who sets up a con- specifically deny the number). The difference temporaneous parol agreement, varying the between the parties on the question of warterms of a written instrument sued or de- ranties therefore is that defendant avers fended upon, has a heavy burden to carry, those set forth in the affidavit of defense, and must aver any alleged omission was the and plaintiff claims, and its counsel frankresult of fraud, accident, or mistake; but it ly admits, its liability under what is known is equally true no such requirement exists as a "manufacturer's warranty," although where the attempt is to use the writing in it is not set forth in the written agreements. violation of a collateral promise whereby the Plaintiff also denies that its agents, Biddle party's signature was obtained to the instru- and Michel, had any authority to make any ment. Gandy v. Weckerly, 220 Pa. 285, 69 other warranty, and calls attention to the fact Atl. 858, 18 L. R. A. (N. S.) 434, 123 Am. St. that the affidavit of defense does not aver such Rep. 691; Noel v. Kessler, 252 Pa. 244, 97 authority; but if the contract was induced Atl. 446. So, too, if admittedly the written by those warranties, as we must assume to instrument does not contain the whole of be true on a rule for judgment for want of the contract between the parties, in regard a sufficient affidavit of defense, it is a matto the matter under consideration, the same ter of indifference whether or not the agents strict requirements are not applied. Thus had such authority, for plaintiff cannot we held in Real Estate Title Insurance & enforce the contract induced by the warranTrust Co.'s Appeal, 125 Pa. 549, 17 Atl. 450, ties, and deny the right to make them. Singer 11 Am. St. Rep. 920, a written instrument Manufacturing Co. v. Christian, 211 Pa. 534, may be reformed on the unsupported testi- 60 Atl. 1087. Defendant avers breaches of mony of one witness, if there is no counter-even the "manufacturer's warranty," which vailing evidence; and in Morrish v. Morrish, plaintiff denies, and the former says "the 262 Pa. 192, 198, 105 Atl. 83, a plaintiff may prove a trust arising out of a conveyance by a deed absolute on its face, if defendant admits there was a trust of some character. The reason for the rule is that a written instrument is presumed to contain the full and exact agreement of the parties there to, but when admittedly it does not "cessante ratione cessat et ipsa lex." [6] In the light of the foregoing principles, we cannot say plaintiff's right to recover is clear, and hence the rule for judgment was properly discharged. The promissory note sued on was given admittedly in the course of a transaction resulting in the leasing of difference between the price paid for the machines and the value of the machines at the time of delivery" was $2,500; and further that he lost $2,000, in not having the use of the trucks while they were being repaired, because of defects of construction. We need only add, as was said in Comegys v. Davidson, 154 Pa. 534, 26 Atl. 618, quoted and approved in Lengert v. Chaninel, 205 Pa. 280, 54 Atl. 889: "We will not discuss or assume to decide the merits of the present case. That can only be determined when all the facts are known." The order of the court below is affirmed. (264 Pa. 131) (107 A.) In re BEAN'S ESTATE. 1919.) dorsed by decedent, "This note is void after my death"; the other for $3,000, signed by decedent to the order of Laura Frankenfield, (Supreme Court of Pennsylvania. March 10, wife of Henry J. Frankenfield; and handed them to said parties. The pocketbook, the the rest of its contents, and the keys, she gave to the administrator. 1. EXECUTORS AND ADMINISTRATORS 221(2) -PERSONAL SERVICE-IMPLIED OBLIGATION TO PAY-FAMILY RELATION. Where the family relation existed between a niece of decedent's wife and decedent, in whose family she had lived since she was 6 years of age, there was no presumption of decedent's liability to pay for her services, whether rendered in household or business affairs, and no recovery could be had, except on clear and satisfactory evidence of an express promise to pay. 2. BILLS AND NOTES 63-POSSESSION OF went to live with decedent when she was 6 MAKER-LIABILITY. No obligation arises by reason of an executed note not delivered, but found among the maker's effects after his death. years old, was treated as one of the family, and continued to reside with him until she was 23 years of age, during which time she helped in the house and store, and on the farm. The auditor finds that "while she resided with the decedent, the claimant attended school, was treated as one of the members an undelivered note, found among a decedent's of the family, being clothed by decedent," effects, and an alleged liability of decedent to and "helped to wait on the store, did the payee, named in the note for personal serv-housework, waited on her aunt while she was ices, the note is not evidence of such liability. 3. EXECUTORS AND ADMINISTRATORS 221(9) -CLAIMS-EVIDENCE-UNDELIVERED NOTE. Unless some connection is shown between 4. EXECUTORS AND ADMINISTRATORS 221(5) -CLAIMS-PERSONAL SERVICE EVIDENCE. Decedent's loose expressions that claimant, a niece of his wife's who lived in his family, had worked faithfully for him, together with the fact that decedent's undelivered note in claimant's favor was found in his effects, would not alone justify an award for such services. ill, and even assisted in the farm work," as any member of his family would have done. The above is all the admissible evidence in the case; but, even if we include that of Henry J. Frankenfield, husband of the claimant, despite his incompetency as a witness (Sutherland v. Ross, 140 Pa. 379, 21 Atl. 354; Reap v. Dougher, 261 Pa. 23, 103 Atl. 1014), and the objection made on that ground; and the evidence of conversations with decedent's wife, not shown to have been made in his presence, and of course not admissible to charge his estate, the only addition to the foregoing will be that decedent said claimant had worked faithfully, was a good girl, and Appeal from Orphans' Court, Bucks County. Argued before BROWN, C. J., and STEW- KEP The auditor further said: "If there was nothing more to sustain this claim than the declarations of the decedent that Laura would be well provided for, or other loose expressions of like character, the evidence would clearly not justify the allowance of the claim, Webster Grim, of Doylestown, and Harry but those expressions, taken in conjunction with E. Grim, of Perkasie, for appellants. Thomas Ross and George Ross, both of Philadelphia, for appellee. decedent's own act in making the note, present a different question." (2) The auditor then asks a series of questions: SIMPSON, J. During the last illness of (1) Why should decedent have canceled the Frank Bean, the above named decedent, his husband's note and retained this one, "unless housekeeper saw upon his bureau a pocket- he intended that this note to the claimant book and some keys belonging to him. With should represent his acknowledgment of his his consent she locked them in her trunk for indebtedness to her for her services?" safekeeping, stating that she would return Why should he write it "if he did not intend them to him when he was all right. He did to give the payee of the note an obligation not recover; on the day after the funeral she which she could collect?" (3) If he did not opened the pocketbook, found in it two prom- intend this note as an acknowledgment "why issory notes, one for $565, signed by Henry J. would he have permitted the pocketbook conFrankenfield to the order of decedent, and in-taining this note to pass into the possession For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] As the family relation existed between claimant and decedent, there is no presumption of a liability to pay for her services. Amey's Appeal, 49 Pa. 126, whether they were rendered in household or business affairs (Barhite's Appeal, 126 Pa. 404, 17 Atl. 617), and no recovery can be had therefor except upon clear and satisfactory evidence of an express promise to pay (Neel's Adm. v. Neel, 59 Pa. 347). In the present case there is no evidence of an express promise; and hence we start with the fact that her claim of an "indebtedness to her for her years of faithful service" has no legal basis upon which to rest. True, decedent could recognize a moral claim, but his recognition thereof is of no moment unless accompanied by evidence of an express promise to pay. Neel's Adm. v. Neel, supra. of Mrs. Krial and be taken charge of by her, the auditor, and the court below do not supduring his illness?" Deeming those ques- port the right to recover. In Toner v. Tagtions unanswerable, and apparently not rec-gart, 5 Bin. 490, the note was found among ognizing the vital distinction between an un- Toner's papers after his death, but the monexecuted intention and one that is executed, ey out of which it was paid was in Taggart's he allowed the claim because of the cases possession, delivered to him by Toner, who hereinafter considered. The court below refused to take any obligation therefor, stating the same facts, and reviewing the though he was studiously careful so to do in same cases, approved the auditor's conclu- all other transactions between them. The sion, decreed accordingly, and this appeal by court found as a fact that Toner in his lifedecedent's heirs and next of kin followed. time "alluded to that paper as an act done in favor of Taggart," and counsel for the heirs and next of kin admitted if that was so the claim would be valid. In Fanny Miller's Estate, 16 Lanc. Law Rev. 3, claim was made upon three sealed notes, which the auditor found were executed and delivered in escrow by decedent in her lifetime, to be delivered to the parties interested after her death, in payment of services rendered; that course being taken because she was advised she could not make a will in favor of claimants, who were not related to her, but could pay them after her death by giving the notes, and hence she pursued that course. Moreover, the only objections there made to the allowance of the claim on the notes was because of an alleged want of consideration therefor, and because the consideration, if there was any, was so inadequate as to taint the transaction with fraud. In Henry Miller's Estate, 53 Pitts Leg. J. (O. S.) 321, by agreement between claimant and decedent he had taken title to a property in which she was interested, and on which she had paid considerable money, he agreeing to compensate her for her interest, and when asked if he had made out the note for the amount due her, he said not yet, but would do so that day. She lived with him, and the note was found in his possession. The auditor found he was indebted to her on the purchase of the property in the amount of the note, and allowed the claim. In Gilmor's Estate, 158 Pa. 186, 27 Atl. 845, claim was made upon a series of notes in claimant's favor, and found in decedent's possession, with indorsements in decedent's handwriting, on the envelopes containing them, that they belonged to claimant and were given for money he owed her. So far as she proved, aside from the notes themselves, that decedent was indebted to her, the claim was allowed, but there was no recovery beyond that. It is clear, therefore, none of the above cases lends any aid to the claim in the present case. [2-4] In the present case there is no evidence of such promise, except as attempted to be derived from the undelivered note, which would not become a promise until delivered. The auditor and court below correctly decide that the "loose expressions" in the evidence "would clearly not justify the claim," yet they conclude that "loose expressions," which do not justify the claim, conjoined with an undelivered note, which also does not justify it, together make the claim good, though no connection is shown between the services, the "loose expressions," and the note. Necessarily this is error. Had decedent referred to the note in connection with the services, or even had he said he intended to recompense claimant for her services, something might be said in support of the claim; but the evidence is barren of anything in regard thereto. For all that appears the note may have been delivered, paid, and returned, or may have been an intended but unexecuted gift; and certain it is the "loose expressions" testified to were more compatible with an intention to recompense by will than by a promissory note, and were wholly valueless for any purpose. Wall's Appeal, 111 Pa. 460, 5 Atl. 220, 56 Am. Rep. 288; Ulrich v. Arnold, 120 Pa. 170, 13 Atl. 831; Miller's Estate, 136 Pa. 239, 249, 20 Atl. 796. The cases relied upon by the claimant, The decree of the court below is reversed, appellee's claim is disallowed, and the record remitted that distribution may be made to those entitled thereto. Costs to be paid by the estate. |