maintaining any coal yard, dump or conveyor and from erecting the same. The court, for want of proper and indispensable parties to this procedings does not decide that question. The decision would be futile and the decision of a moot question. It would have no binding effect upon the parties who are seized of the title to the premises. For this reason the court has not considered nor answered the request for findings of fact and of law submitted to it by the plaintiffs and the defendant.

The court has found the facts and law upon the matter on which this proceeding is disposed of.

DECREE OF THE COURT.

And now, February 21, 1921, the bill is dismissed at plaintiff's costs; but without prejudice to the rights of the parties in any action or proceedings together with the joinder of other parties.

COLT CO. v. DUNN.

Sales-Rescission-Agency-Order Given to Solicitor-Revo

cation of Unaccepted Offer.

An order for the purchase of goods delivered to a solicitor may be revoked by timely notice to the solicitor so long as the offer remains with him uncommunicated to his principal.

Where a written order for a lighting plant was delivered to plaintiff's local agent by the defendant, who, immediately thereafter, on discovering that he had misapprehended the terms of the order, declared it withdrawn and demanded its return, the cancellation was complete.

That the agent refused to return the order and thereafter forwarded it to his principal, are matters for which he who has properly exercised his right of revocation cannot be held responsible.

Motion for judgment sec. reg. In the Court of Common Pleas of Wayne County. No. 193, June Term, 1920.

M. J. Hanlan, for Plaintiff.

C. A. McCarty, for Defendant.

Newcomb, J., 45th Jud. Dist., Specially Presiding, March 21, 1921. Suit is brought for the price of a lighting plant upon the terms of an order in writing dated at Waymart, this county, October 30th, and formally accepted, in manner stated below by plaintiff at its office in

New York City, November 2, 1918.

Defense is taken on the merits and the issue now is on the sufficiency of the answer.

The due execution of the order is not denied by defendant; neither is it denied that it was delivered at the same time to plaintiff's local agent with whom the transaction was had. By its express terms it could operate only as an offer to purchase pending acceptance by plaintiff, to be evidenced by the signature of one of its officers. Hence, in the meantime, like any other offer, it was open to withdrawal at defendant's pleasure; and that is what happened according to his pleading now in question.

On the face of his averments, while he and the agent were still together and immediately after the order had been pocketed by the agent, it developed that he had misapprehended the terms of the order in a certain material particular, and thereupon he declared the offer withdrawn and requested that the writing be returned. This the agent declined to do. Evidently he sent it forward, es in due course the goods were shipped and the shipment arrived at Waymart consigned to defendant, whose refusal to accept delivery brought on the suit.

It may be assumed that the agent did not advise his principal of the alleged cancellation, and therefore plaintiff is free from any imputation of bad faith in the premises. The pinch of the case lies back of its receipt of the order.

For present purposes the averment of cancellation in manner and form as pleaded must be taken as true. Hence the pivotal question upon which the motion turns is whether notice to the agent at that moment was notice to the plaintiff company that the offer was withdrawn; and one can think of no good reason why it should not be

So.

The order provides, in effect, that "upon such acceptance" all and singular the terms of the agreement shall be merged therein and it shall form the sole and exclusive evidence of the contract between the parties, incapable of any modification by any agent save as he may have been authorized by the principal in writing.

The contest at bar was waged around this clause of the writing, and stress was laid by the learned counsel

for plaintiff upon several cases entirely pertinent to his conception of the issue, of which the following may be referred to as examples: Mfg. Co. v. Blaney, 61 Pa. Super. Ct., 379; Acetylene Co. v. Hastings, 71 1b., 178; Ridgeway, etc., Co. v. Cement Co., 221 Pa., 160.

The doctrine of these cases would be decisive in his favor if in point; but it is believed they are not.

One must avoid confusing the present situation with that which was intended to be created by operation of the proposed contract. The cases relied upon by counsel speak of the relations of the parties as determined by acceptance of the purchaser's offer. The vulnerable point in his argument, therefore, is that it begs the true question that is to say, it assumes that the acceptance of the offer here had been effective, whereas that is the very thing put in issue by the pleadings.

What was the effect of notice to the agent of the purchaser's revocation?

The agent had authority to solicit and obtain the order. That he represented the plaintiff for that purpose cannot be questioned. The presence of this suit is conclusive on that point. Hence, pro hac vice, the parties must be deemed to have stood face to face at Waynart, the one in his proper person; the other in that of his duly appointed representative.

The question is not then as to the authority of an agent to cancel. The issue is not one of cancellation by mutual agreement. It requires no consent of the one party to enable the other to revoke an unaccepted offer. That is a personal right inherent in the nature of the transaction. To hold that the withdrawal pleaded here was ineffective because not communicated to the principal would be to put the stream above its source; the creature above its creator. The principal could not give its agent a power to abridge a purchaser's rights which it did not itself have. Had the plaintiff company been present and solicited the order by its corporate officers, it would have been at the mercy of defendant, so to speak, had he seen fit to change his mind pending the offer. If plaintiff chooses to solicit orders by hand of an agent it must reckon with the liability of a purchaser to revoke by timely notice to the solicitor so long as the offer remains with him uncommunciated to the principal. This is so

for the simple reason that, pro tanto, as regards the purchaser, the solicitor stands as vice-principal.

If the agent conceals the fact of revocation and the principal is imposed upon to his cost by an order which he had no right to send in, that is a matter between the parties to the deception, for which he who has exercised his right of revocation cannot be held responsible.

It is believed the facts pleaded constitute a prima facie defense to the action. The exceptions are accordingly dismissed, the motion is denied and the rule for judgment discharged.

JORDAN v. M'HUGH.

Infants-Express Contract of Father.

Where the plaintiff submits his case against a father of a minor, on an express contract of the father, the plaintiff cannot complain because he might have submitted the case on an implied contract of a father to furnish medical aid to his son.

In the Court of Common Pleas of Lehigh County. Harry D. Jordan v. John McHugh. Appeal from Justice.

tiff.

John L. Cutshall and Dallas Dillinger, Jr., for Plain

Dewalt & Heydt, for Defendant.

Henninger, J., April 5, 1920: The jury in this case, under the charge of the court, rendered a verdict in favor of the defendant. The case was an appeal, by the defend. ant, from the judgment of a justice of the peace and was tried without any pleadings except such as is provided for by the Rules of Court in force in Lehigh County. That rule provides as follows:

"Section 2-In appeals from judgments of Justices of the Peace no declaration shall be required, but the Prothonotary shall enter a plea of nil debet to the transcript and put the cause at issue; and on the trial the merits on both sides shall be heard without regard to the form of the action."

There being no pleadings other than the transcript

on appeal of the Justice of the Peace filed in the case and the plea of nil debet entered by the Prothonotary, the court submitted the case to the jury on the theory of the plaintiff as testified to by him. In his testimony the plaintiff stated that after he had commenced treating Joseph McHugh, a minor son of the defendant, for a venereal disease, he was not satisfied in relation to the payment for his services; and that he told Joseph McHugh that he wanted to see his father John McHugh, the defendant, so that he would be sure that the father would pay him for the medical service, medicines and attendances rendered. And the plaintiff further testified that he had a conversation afterwards with the defendant during the time of the treatment of Joseph McHugh, his son, in which conversation, John McHugh, the defendant, said: "You keep my son and I will take care of the bill." Upon this theory of the case of the plaintiff, the same was submitted by the court to the jury. It was no longer a question, on this theory of the case of the plaintiff, as to whether the defendant, as father of Joseph McHugh, his minor son, was impliedly liable for medical services and medicines furnished to him by the plaintiff. The plaintiff in his testimony alleged that an express contract had been entered into between himself and the defendant for the services rendered and to be rendered to Joseph McHugh, minor son of the defendant. The plaintiff could not ask the court to present his case on alternate theories. The plaintiff could not ask the court to present the case to the jury on the theory of an express contract, and if that failed, then to present it on the theory that the plaintiff was entitled to recover from the defendant on a contract implied for services rendered to the minor son, not emancipated. The testimony as to the relation between John McHugh, the defendant, and Joseph McHugh, his minor son, was admitted in evidence and submitted to the jury for its consideration in the case. It was relevant as testimony in the case on the theory of the plaintiff and his testimony that the defendant had made himself liable by an express contract to pay him for the medical services rendered and to be rendered to his minor son.

The following extract from the charge of the court to the jury is pertinent to the reasons filed for a new trial, to wit: