Knapp v. Adams. the property at the time of the tender Agreement to purchase real estate-Affi- of the deed is sufficient to prevent judg davit of defense. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co. April Term, 1907, No. 60. H. M. Houser and S. V. Hosterman, for rule. John E. Snyder, contra. July 6, 1907. Opinion by HASSLER, J. This is an action for the purchase money of real estate. The plaintiff's statement recites the written agreement between the parties. By its terms the plaintiff was to convey certain real estate, in fee simple and clear of all en- | cumbrances, upon which the defendant was to pay the balance of the purchase money, amounting to $27,700. The affidavit of defense denies that the plaintiff tendered him a deed for the property in fee simple and clear of all encumbrances, but, on the contrary, the title which the plaintiff offered to convey and for which she tendered a deed is not a good title, for reasons set out in full, and also that it is not clear of encumbrances; that at the time the deed was tendered the real estate was encumbered by the following liens: (1) A mortgage for $15,000, given by plaintiff to Dulon F. Buchmiller on March 31, 1905; (2) a ground rent payable to the heirs of James Hamilton, which has never been released; (3) a mortgage given by John Meshler, a former owner, to John Hatz, in 1847, for $1.412; and (4) a mortgage given by the same to Christian Habecker, in 1846, for $500. It will be unnecessary for us to discuss the allegations contained in the affidavit of defense as to the title which the plaintiff has in the land, as we think that the averment as to encumbrances on ment. In Huber v. Burke, 11 S. & R., 238, Mr. Justice Gibson said: "The vendor should, therefore, complete the removal of encumbrances, so that he may be in a condition to tender a title, at least before suit is brought, notwithstanding he may have been discharged by the vendee. This I admit is not the rule in Chancery; but that court, having a discretionary tice, by taking care that the purchaser power over the costs, does complete jushave a title before a decree is pronounced against him; and therefore the contract will be enforced, where the vendor has a title, at any time before the decree. Indeed, where there has been favour of the title, it is frequently rea reference to a master, and a report in ferred back, with view to the costs, to inquire whether a title could have been made at the filing of the bill. In this respect, however, we are controlled by the common-law form of the action, costs being in all cases an incident of the judgment; and the vendor must, therefore, show that he was entitled to call for specific performance when the suit was brought. It is said the object of the sale may have been to raise money to pay off these very incumbrances, and it would be hard to permit the vendee to object, while he retains the means by which alone the ground of his objection can be removed. But if such were the object, it should be provided for in the contract; for I can see no equity arising to a vendor, who covenants positively to make a good title, and can not, because the vendee refuses, in the first instance, to receive a bad title. Where the contract has been in part executed by a delivery of the possession, this may be no bar to a demand for the purchase money, beyond what may be found necessary to be retained for the purpose of extinguishing incumbrances; but that presents a very different question from that which arises where a vendee, who has already entered on the execution of the contract, objects to being held to the bargain, without having received what he bargained for." In Withers v. Baird, 7 W., 227, the same Justice said: "The vendee is a purchaser of an inchoate title, and being bound to notice all defects, his payments are at his peril. On the other hand, the vendor may not call for the purchase money while there is an incumbrance outstanding. He cannot compel an appropriation of it in the vendee's hands at the expense of costs and the vexation of a lawsuit to one who has done everything incumbent on him to entitle himself to a precise execution of the contract. What is it to him that the vendor may be unable to raise a sum sufficient to clear the title? The vendor's misfortunes can give him no right against one who is not in default. If, by reason of the perils that would attend payment to him, he cannot ask it amicably, it is not easy to discover how he can compel it under the court's mediatorial discretion to apply the purchase money to the vendee's protection." That clearing the property of liens was a condition precedent to plaintiff's right to recover, see Eberz v. Heisler, 12 Sup., 388; Murray v. Ellis, 112 Pa., 485; Herman v. Somers, 158 Pa., 424. In the present case, the plaintiff agreed to convey clear of encumbrances. She must show that she offered to do thisthat is, that she tendered a deed for the property clear of all encumbrances, as a condition precedent to her right to recover. That she expected to pay them out of the purchase money will not entitle her to recover it, as that is not what she covenanted to do. She covenanted to convey clear of encumbrances; and, as the affidavit of defense avers that it is not clear of encumbrances, she has not performed her covenant, and is therefore not in a position to begin an action for the purchase money. We, therefore, discharge the rule for judgment for want of a sufficient affidavit of defense. Rule discharged. Pneumatic Scale Corporation v. Ideal Cocoa and Chocolate Company. of defense. In a suit for the rental of a machine under a written lease providing that the lessee is to keep the machine in repair, and replace wornout parts with new ones obtained from the owner, an affidavit of defense is insufficient which avers that the machine was worn out. antiquated and practically useless, and would not do the work it was intended to do. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co., April Term 1915, No. 43. The rule as stated in these cases has been uniformly followed by the courts, and as late as 215 Pa., 47 (Patterson v. Freihofer), where the action, as here, was one to recover the purchase money Rental of machine-Repairs-Affidavit of real estate under an agreement similar to the one involved here, Mr. Justice Stewart said: "Plaintiff's action cannot be maintained, for he can only require the defendant to keep his covenants as he observes his own. He stipulated to convey the premises clear of all easements, and defendant covenanted to pay the consideration only on condition that plaintiff fulfilled his contract. The buyer cannot be required to pay for what he did not agree to purchase. ... When When one protects himself against an incumbrance by a positive covenant that the property is to be conveyed to him clear of all such incumbrance, he is entitled to the benefit of his contract whether he had knowledge of the existence of the incumbrance or not: Evans v. Taylor, 177 Pa., 286. The present action is to enforce payment of purchase money on an executory contract. In the case just cited, it is said: 'But when a positive term of the contract must be disregarded, neither law nor equity will interfere when the contract is executory.'" S. V. Hosterman and Geo. Ross Eshleman, for rule. Coyle & Keller, contra. July 3, 1915. Opinion by HASSLER, J. The plaintiff's claim is for the rental of a weighing machine which it leased to the defendant in a written lease. The lease is dated October 13, 1905, but it is agreed that the term commenced on January 28, 1906, that being when the machine was accepted by the defendant, which, according to the lease, is when the term should commence. It is pro- | vided that the lessee may terminate the lease at the expiration of three years from the date of the acceptance of the machine, by giving sixty days' notice of an intention to so terminate it, and if it is not so terminated, it is to continue in force for a subsequent term of three years, which subsequent term may in like manner be terminated, and so on indefinitely. Such notice of termination is to take effect only at the expiration of three years from the acceptance of the machine, or three years from the date of the last prior extension. No such notice was given by defendant until September 6, 1914, so that the lease was extended twice, and the last extension expired on January 28, 1915. The amount claimed is for the four months' rental immediately preceding January 28, 1915, and is for $25 a month. The lease further provides that the lessee is to keep the machine in good order and condition; to procure of the lessor or its agents all parts for repairing same and to insert such parts at the lessee's own cost and charge," and that the lessor shall furnish free of charge any parts of said machine found defective or unfit for use on account of wear during the term of the lease. The affidavit of defense admits the lease and the extensions thereof, but alleges, as a defense, that the machine. from September 28, 1914, was worn out, antiquated and practically useless," and would not do the work that it was agreed it should do; that the plaintiff, prior to September 1, 1914, attempted to fix and repair it and sent on parts to renew it, but was unable to make it operate satisfactorily. The machine was returned to the plaintiff on January 1915, the day of return not being given. The plaintiff now asks us to enter judgment in its favor for want of a sufficient affidavit of defense. We do not think that the affidavit of defense is sufficient to prevent judgment, as it only alleges as a defense, that the machine was worn out, and antiquated. It was the duty of the defendant to repair the machine. It could get such parts as were worn out, provided they were necessary to make repairs. If all parts were worn out, it could get all, and thus have a new machine. If, therefore, the machine was worn out, it was the defendant's duty according to the lease, to repair it, replacing as we have said, any or all parts that were worn out or useless. That the plaintiff sent a mechanic to do this does not excuse the defendant from performing his duty of repairing the machine, as he had agreed to do in the contract. That it was antiquated is no defense, as there is nothing in the lease that excuses the defendant from performing his agreement to pay the rental because the machine should become antiquated. It is admitted that the defendant is liable, according to the terms of the lease, for the payment of the freight claimed in returning the machine. This amounts to $5.51. The rule for judgment for want of a sufficient affidavit of defense is made absolute, and judgment is entered for the plaintiff for the sum of $105.51, with interest from January 28, 1915, amounting in all to 108.15. Judgment for plaintiff. Tegal Miscellany. Pennsylvania State Bar Association. THE TWENTY-FIRST ANNUAL MEETING. The twenty-first annual meeting of the Pennsylvania Bar Association was held at the Hotel Cape May, Cape May, N. J., June 29, 30 and July 1, 1915. The attendance was rather small, though the sessions were well attended and the organization was shown to be in a flourishing condition. The address of the president, Hon. Henry J. Steele, of Easton, Pa., was an able and interesting historical review of "Law Reform in Pennsylvania." The Annual Address by Hon. James M. Beck, of New York, was in the best vein of that eloquent speaker, his subject being an historical study of the struggle between the Parliament of Paris and the Crown, and the interesting career of Beaumarchais. The meeting was most enjoyable, as are all meetings at this delightful resort. The following members of the Lancaster Bar were admitted to membership the association: B. F. Davis, H. Edgar Sherts, B. J. Myers, F. Lyman Windolph and Howard J. Lowell, Esqs. The papers by Franklin Spencer Edmonds, Esq., of Philadelphia, on "The Development of Constitutional Limita-in tions of the Power of the Legislature in Pennsylvania," and John C. Bane, Esq., of Pittsburg, on "Modern Attacks upon our Form of Government," were wellwritten and interesting treatments of their respective subjects. The Report of the Committee on Law Reform referred to the passage of several bills by the last Legislature recommended by the Committee, the most important. being the new procedure bill. The Committee on Uniform State Laws reported the passage of uniform laws relating to Sales and Partnerships, and a Workmen's Compensation Act largely conforming to the laws of other states. Considerable discussion was raised by the report of the Committee on Contingent Fees, which resulted in the proposed bill being referred back to the committee for redrafting. The Committee on Amendment of Penal Law reported the passage of legislation recommended by them, which permits of prison labor and will greatly advance the prison system in this state. The Committee on Liquor Licenses recommended the removal of the duty of granting licenses from the Courts and provoked considerable discussion. This report was also referred back to the committee to report to next meeting, and it was resolved to appoint six new members on the committee. Certain Acts drafted by Shippen Lewis, Esq., of Philadelphia, abolishing the inquest to condemn real estate on execution, and the joining of mortgagors in scire facias sur mortgage, and of the original covenanters in assumpsit sur ground rent deed, were referred to the committee on Law Reform. A resolution was adopted to appoint a committee to consider the advisability of a constitutional convention. George B. Gordon, Esq., of Allegheny, was elected president, and among the Vice-Presidents elected was John A. Nauman, Esq. The following members of the local bar attended: Judges Landis and Smith. John W. Appel, H. Edgar Sherts, B. J. Myers, H. Frank Eshleman, Howard J. Lowell and Geo. Ross Eshleman, Esqs. A Question of Veracity. At the recent meeting of The Pennsylvania State Bar Association the story was told of a case before Judge Fuller of Luzerne in which, although the plaintiff had clearly failed to make out a case, the defendant's counsel failed to move for a non-suit, and put his client on the stand, who before he finished had supplied what was lacking to make out the plaintiff's case. The Court charged the jury that if they believed the defendant they should find for the plaintiff and if they believed the plaintiff they should find for the defendant. The verdict was for the plaintiff and on refusing a new trial the Court remarked that the defendant should feel gratified at the jury's recognition of veracity. to commit it, is not alone sufficient to LANCASTER LAW REVIEW. charge one as accessory. The jury must be satisfied from the evidence that he VOL. XXXII.] FRIDAY, JULY 23, 1915. [No. 38 intended his words or acts to have the Supreme Court. Comonwealth v. Toney Vitale, Appellant. Murder-Accessory-Record of conviction of principal-Evidence. On a trial for murder as an accessory, it is error to admit in evidence the record of the conviction of the principal on which judgment had not yet been entered. Appeal No. 194 of January Term 1915 by Toney Vitale, defendant, from sentence of O. and T. of Lancaster County on a verdict of guilty of murder in the first degree. (For opinion of Court below on motion in arrest of judgment and rule for a new trial, see ante, page 161.) On the trial below, LANDIS, P. J., the Court permitted Jacob R. Groff, Deputy Clerk of the Court of Quarter Sessions of Lancaster County, when called as a witness by the Commonwealth to testify as follows: "Q. Do you have the record of the case of the Commonwealth against Rocco Tassone? A. Yes, sir. Q. Will you read that record to the jury. effect, or be taken in the sense that would tend to bring about the commission of the crime. [2] 66 4. An accomplice occupies a position of disrepute, and from the very character of such a witness, the law and the Courts look with great caution upon their testimony; whilst their credibility is for the jury, yet taking into account their disreputable character and position, it would be very dangerous and unsafe for the jury to convict the prisoner upon such testimony. [3] "5. The testimony of Rocco Tassone, Toney Mastercerene and Vincenzo, all being self-confessed accomplices, cannot be considered by the jury as corroborating each other; the testimony of each must stand alone, and it would be unsafe to convict the prisoner on such testimony, unless such a testimony is corroborated by other facts and circumstances independent of the testimony of both." [4] "6. The corroborative evidence must, of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplices' testimony to make it tend to connect it with the crime." [5] [6] The Witness: Rocco Tassone was in"6. No acts of the defendant comdicted No. 1 of April Sessions, 1914; amitted, nor declarations made, after the true bill was found April 20, 1914; de-injury which caused the decedent's death, fendant was arraigned on April 20, 1914, can render him liable to conviction. and pleaded not guilty; and, after a trial by a jury, there was a verdict rendered of guilty of murder in the first degree, on April 21, 1914. Mr. Malone: You have my objectionmendation of mercy to the Court meant and exception. The Court: We admit the record. [1] The Court refused the following of defendant's points. "2. Deliberately using words or signs or doing anything which actually has the effect to encourage another in the commission of a felony, or to procure him The Court refused to instruct the jury when requested by defendant's counsel, that having found a verdict of murder in the first degree, their recom nothing and was inconsistent with the verdict of guilty of murder in the first degree. [7] Verdict of guilty of murder in the first degree with recommendation of mercy, which was received without further instruction and on which sentence of death was passed. Defendant appealed. |