Hay v. Connellsville Water Company. City, etc., for use of Hay, v. Same. something to be turned over to Hay, not for damages resulting to the city. Under the authorities already cited, in so far as Hay is concerned, what difference can it make what the city assumed to do, or what duties it delegated for performance to the water company, or what the water company assumed to do under its agreement with the city? What difference can it make, under the authorities cited, if Hay did live in the city and pay taxes into the city treasury, part of which went to pay for furnishing a water supply? This action is not based on any contract between Hay and the defendant. Hay could not sue in his own right and recover from either the city or the defendant. He never attempted to recover from the city. The city does not owe him anything. All that is alleged in this case, in addition to the first one, is that the city assumed the duty of furnishing Harmon Hay sufficient water for fire protection, that this duty was delegated by the city to, and was assumed by, the water company, which covenanted and agreed with the city to perform the assumed duties, which it did not do. It is not even alleged that there is any statutory requirement on the subject. All that the law grants the municipality is a permission. It does not stipulate a requirement. On the facts and the law of the case here, the controversy must be decided in favor of the defendant.

And now, Nov. 27, 1923, for the reasons set forth in the opinion herewith filed, it is ordered that judgment be entered for the defendant. We shall file a similar order in City of Connellsville, for use of Harmon Hay, a Taxpayer, v. Connellsville Water Co., No. 568, June Term, 1921, to that made here. From Luke H. Frasher, Uniontown, Pa

NOTE-Syllabus by the court.

Peck's Estate.

Wills-Construction-Legacy conditioned on legatee surviving testator—

Lapsed legacy-Intestacy-Heirs.

1. Where a testatrix in her will directed that the residue of her estate be divided between six persons named, "if they survive me, and not to their heirs," and only three of those named survived her, the entire residue is properly awarded to the three survivors, excluding the heirs of those dead.

2. Under section 15 (c) of the Wills Act of June 7, 1917, P. L. 403, there was no intestacy as to those who did not survive.

Exceptions to adjudication. O. C. Lancaster Co., Nov. T., 1922, No. 41. John A. Coyle, for exceptions; B. Frank Kready, contra.

SMITH, P. J., Oct. 18, 1923.-The words used by the testatrix in disposing of the residue of her estate are: "I will and direct that the same shall be divided into six (6) equal shares to and among the following persons if they survive me and not to their heirs." Six persons were named; among them Lizzie Sheperd, Fannie Epler and Aaron Keener, none of whom survived her. To the other three awards were made. Exception is taken to the refusal of a share to the "heirs" of Aaron Keener. Another exception is, "The court erred in not awarding the distributive share of the residuary legatees to their heirs," which, to put it mildly, seems to be out of place. The awards were to the legatees. They had no heirs, as they were living. Had they not survived the testatrix, they would not have been legatees. The heirs of the persons named who died before the testatrix are expressly excluded by her, though the result would have been the same had she not thus emphasized her intention. Both the testatrix and the exceptants seem to have had a vague, undefined

Peck's Estate.

impression that there was some sort of a way by which potential legatees might be made actual legatees. Intending to prevent such an happening, the testatrix added the words, "and not to their heirs." While the exceptants pin their faith to "heirs" as if a sovereign remedy, notwithstanding a score of heirs might be impotent to prevent a legacy from lapsing. “Heirs" is not the touchstone created by section 15 (b) of the Wills Act of June 7, 1917, P. L. 403. It is "issue."

This will calls for no interpretation. The testatrix has clearly declared her intention and distinctly indicated her legatees. She gives her residuary estate to those of six persons who survived her. The residuary legatees are three of these six persons who were living at the time of her death. It requires no special training or knowledge of rules of construction and decisions of courts and acts of assembly to enable one to understand what this testatrix has said, and it would be difficult to paraphrase it to make her intention clearer. If, with a like meaning as the word "if" was used, she had said "provided" or "on condition," her intention would not have been put any more distinctly. If the six persons named had died before the testatrix, she would have died intestate as to the residue of her estate, as she would have done as to the three who died, except for section 15 (c) of the act just referred to. The question as to a lapsed legacy does not arise, because no one was named as an actual legatee; all were only potential legatees. They could become actual only by surviving the testatrix.

Exceptants cite Stock's Estate, 29 Dist. R. 376, as "the only case found that is in any way parallel" with the one considering. We fail to find it in any way paralleling. There the court said, "On the face of the will there is a patent absurdity," and it is not surprising that the estate was awarded under the intestate laws.

Exceptions are dismissed and the adjudication is confirmed absolutely. From George Ross Eshleman, Lancaster, Pa.

Frey v. Lehigh Valley Shoe Company.

Practice, C. P.-Counter-claim-Waiver of tort.

1. A claim sounding in tort, arising out of a different transaction, connot be set up as a counter-claim to plaintiff's claim founded in assumpsit.

2. In an action for commissions as agent for sale of hides and skins, the defendant cannot set up as a counter-claim the value of certain leather which plaintiff, while in the employ of defendant, shipped without authority to another, the price of which proved uncollectible.

3. Plaintiff may waive a tort, but only when the goods have been actually converted into money by the wrongdoer or the circumstances are such as to raise a presumption that he has done so.

4. Section 14 of the Practice Act of May 14, 1915, P. L. 483, provides for a setoff or counter-claim of any right or claim for which an action of assumpsit would lie. Statutory demurrer. C. P. Lehigh Co., Jan. T., 1924, No. 41.

Gernerd & Boyle, for plaintiff; Butz & Rupp, for defendant.

IOBST, J., March 3, 1924.-In this case the plaintiff claims in assumpsit the recovery of $1510.44 upon an oral contract of agency for the sale of certain hides and skins, the property of the defendant. The defendant in its affidavit of defence denies the claim of the plaintiff, and, in addition to said denial, sets up a counter-claim as follows: "For further answer to the claim of the plaintiff herein, and as a counter-claim thereto, the defendant avers that the plaintiff is indebted to it in the sum of one hundred and twenty dollars and ninety

Frey v. Lehigh Valley Shoe Company.

eight cents ($120.98), and which is the value of certain leather which the plaintiff, while in the employ of the defendant, shipped without authority to the Force Company at Philadelphia, Pa., from whom it could not be collected by reason of want of assets. The leather so shipped consisted of two invoices, viz., on June 12, 1919, leather invoiced at eight dollars and forty-eight cents ($8.48), and on June 18, 1919, leather invoiced at one hundred and twelve dollars and fifty cents ($112.50). The defendant claims the said sum of one hundred and twenty dollars and ninety-eight cents ($120.98) as a counterclaim, in the event that the plaintiff should recover any sum whatsoever against the defendant upon the cause of action alleged in the statement of claim."

To defendant's counter-claim, plaintiff files an affidavit of defence for the purpose of raising questions of law for the decision of the court. Section 14 of the Practice Act of May 14, 1915, P. L. 483, 485, provides, inter alia, that "In actions of assumpsit a defendant may set off or set up by way of counterclaim against the claim of the plaintiff any right or claim for which an action of assumpsit would lie."

In the case of Satterlee v. Melick & Eves, 76 Pa. 62, Mr. Justice Sharswood, on page 65, says: "It is evidently true, that in many cases the owner of goods wrongfully taken or detained by another may waive the tort and recover on a count for money had and received in assumpsit. But then there must either be some evidence that goods have been actually converted into money by the wrongdoer, or the circumstances must be such as to raise a presumption that he has done so. . . . It is evident that conversion or consumption was essential; a mere detention, or a loss even by negligence, would not have been enough to charge him in this form of action. There must be something from which to presume that he assumed the ownership as vendee." The counter-claim in this case does not allege that the plaintiff converted the leather to his own use, or that it was converted into money. It simply alleges that he shipped without authority to some one else the goods of the defendant while he was in its employ. But a more serious objection appears in the fact that the matters set forth in the counter-claim do not arise out of the same transaction as set forth in the plaintiff's cause of action. There is no doubt that an action sounding in tort, arising out of a different transaction, cannot be set up as a counterclaim to a plaintiff's cause of action founded in assumpsit.

"It is well settled that matters sounding in tort and arising out of a different transaction cannot be given in evidence as a set-off by a defendant sued in an action ex contractu. Broad and liberal as the decisions have been, they have never authorized the admission of proof of damages arising from a technical tort:" Groetzinger v. Latimer, 146 Pa. 628. In the case of Roth v. Reiter, 213 Pa. 400, Mr. Justice Elkin, on page 401, says: "It is conceded in this case, and it is the law, that in an action on a contract, unliquidated damages arising out of a tort independent of, and disconnected with, the transaction sued on cannot be recouped by way of equitable defence." In addition, we think that the set-off or counter-claim is not pleaded with sufficient clearness and exactness as required under the act. "A counter-claim should be set forth with as much precision and exactness as is required in the statement of a cause of action upon which proceedings are instituted:" Motors Co. v. Hudford P. S. Co., 264 Pa. 557. For these reasons, we think that the defendant's set-off or counter-claim should be stricken from the pleadings.

And now, March 3, 1924, it is ordered that the defendant's set-off or counterclaim be stricken from the pleadings.

From James L. Schaadt, Allentown, Pa.

J. K. Petty & Co., Inc., v. Dock Contracting Co., a corporation.

Sales-Place of delivery-Act of May 19, 1915.

1. Where goods of a certain style and type are ordered by number, as distinguished from specific articles, to be delivered at a certain place, the place of delivery is the place of performance of the contract.

2. Such a contract is governed by section 19, rule 5, of the Uniform Sales Act of May 19, 1915, P. L. 543, and not by rule 1 of the same section, and the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.

Corporations-Revocation of registration-Act of June 8, 1911.

3. A corporation which registered as a foreign corporation doing business in Pennsylvania, under the Act of June 8, 1911, P. L. 710, and, while so registered, contracted for the sale and delivery in Pennsylvania of certain goods of a style and type described, as distinguished from specific articles, and subsequently broke the contract, thus creating an outstanding indebtedness in Pennsylvania, cannot revoke the authority of the Secretary of the Commonwealth as its agent for service of process.

Corporations-Registration of-Doing business-Revocation-EstoppelAct of June 8, 1911.

4. Where a corporation has, as a prerequisite to registration, under the Act of June 8, 1911, P. L. 710, set forth that its principal place of business is in Philadelphia County, it cannot thereafter be permitted to aver, in an affidavit of defence in an action brought against it, that the statement of its place of business was false.

Service of process-Sheriff's return-Service on Secretary of Commonwealth Act of June 8, 1911.

5. The sheriff's return in an action against a foreign corporation duly registered under the Act of June 8, 1911, P. L. 710, need not show the reason that the service was made upon the Secretary of the Commonwealth.

Practice Act, 1915-Attacking jurisdiction of court.

6. Since the Practice Act of May 14, 1915, P. L. 483, which abolishes pleas in abatement, an attack upon the service for want of jurisdiction of the court to issue its process must be made by affidavit of defence and not by petition and rule. Rule to set aside service. C. P. No. 5, Phila. Co., Sept. T., 1922, No. 660. Trevor T. Matthews and Wendell P. Bowman, for plaintiff.

E. Spencer Miller, for defendant.

MARTIN, P. J., March 10, 1924.-This suit is against a foreign corporation, and the rule to show cause raises the question of the sufficiency of the service and the jurisdiction of the court to issue its process.

The material allegations of the petition for the rule are that the summons was served upon the Secretary of the Commonwealth under the provisions of the Act of June 8, 1911, P. L. 710, which provides for the registration of foreign corporations desiring to do business in the State of Pennsylvania, and authorizes process to be served upon the Secretary of the Commonwealth; that the act provides for such service where the action is brought "in any county of the Commonwealth in which said corporation shall have its principal place of business, or in such county in which the right of action arose;" that the defendant does not have, and never did have, its principal place of business, or any place of business, in the County of Philadelphia, and that it never did business in the County of Philadelphia or State of Pennsylvania; that on April 1, 1919, defendant revoked the power of attorney previously given to the Secretary of the Commonwealth under the said Act of 1911, and that at the time of said revocation there was no liability of the defendant in VOL. 4-47

J. K. Petty & Co., Inc., v. Dock Contracting Co., a corporation.

the Commonwealth of Pennsylvania remaining outstanding; that the defendant never had any business relations with the plaintiff company in the State of Pennsylvania; that the transaction as set forth in the plaintiff's statement of claim was not a Pennsylvania contract or in any way connected with any business of defendant in Pennsylvania.

To the rule granted upon this petition the plaintiff filed an answer, averring, inter alia, that the defendant had, on or about April 1, 1917, duly registered as a foreign corporation under the said Act of June 8, 1911, with authority to serve process upon the Secretary of the Commonwealth; that it is untrue that the defendant does not have, and never did have, its principal place of business in the County of Philadelphia, and that it never did business in Philadelphia or Pennsylvania, but, on the contrary, the place of business in the Commonwealth of Pennsylvania, as appears by said registration in the office of the Secretary of the Commonwealth, is at No. 1011 Commonwealth Trust Building, Philadelphia; that the said revocation of authority to serve process upon the Secretary of the Commonwealth was of June 20, 1920, and not of April 1, 1919; that at the time of the said revocation the defendant's liability to the plaintiff under the contract in question, as indicated by the plaintiff's statement of claim, was and still is outstanding; that the contracts in question were made in Pennsylvania.

The statement of claim indicates the contract in question, for the breach of which the suit is brought, to be based upon letters addressed to the defendant at Hoboken, New Jersey, ordering an air compressor, motor and certain accessories, with direction that the ordered goods should be delivered to "Lebanon Boiler Works, Lebanon, Pennsylvania, via Fgt. P. & H. or P. R. R. Delvy.," at a price f. o. b. Rochester, New York; "sight draft attached to bill of lading, payable on delivery of material at Lebanon, Pennsylvania." These written orders were accepted by letters mailed to the plaintiff at Lebanon, Pennsylvania. On March 19, 1918, the defendant refused performance of its said contracts.

The said Act of June 8, 1911, P. L. 710, requires a foreign corporation, before doing any business in this Commonwealth, to appoint the Secretary of the Commonwealth as its attorney and agent, upon whom all lawful process may be served; that the authority for such service of process shall continue in force so long as any liability remains outstanding against it in the Commonwealth; that such corporation, in so registering, shall state the location of its principal place of business in the Commonwealth; providing for service of such process by the Sheriff of Dauphin County, and that such process may be issued by any court having jurisdiction of the subject-matter in controversy, in any county of the Commonwealth in which said corporation shall have its principal place of business, or in such county in which the right of action arose.

The contention of the defendant is that the authority to the Secretary of the Commonwealth was revoked prior to suit, and when there was no “liability remaining outstanding against it in the Commonwealth." This leads to a consideration of the nature of the contracts upon which the suit is based. Are they contracts with a foreign corporation, made in another state, or are they Pennsylvania contracts, making their breach a liability outstanding at the time of the revocation of the authority given to the Secretary of the Commonwealth? The contracts provide for delivery at Lebanon, Pennsylvania; and, while the prices and terms are fixed f. o. b. Rochester, New York, the goods evidently were to be shipped with sight draft attached to bill of lading, payable on delivery of material at Lebanon, Pennsylvania; and this clearly