Commonwealth v. Zurn.

appellant of his right under the Constitution and the Act of 1869 to be tried by a jury.

The 1st section of the Act of 1869 distinctly authorizes the justice to impose a fine of "not less than ten dollars nor more than twenty dollars," while the proviso just as clearly allows an appeal only "when the fine imposed exceeds the sum of ten dollars." To allow an appeal when the fine is $10 or less would violate the plain words of the act, and in Allen v. Com., 77 Pa. Superior Ct. 244, the court has said the legislature, in creating this new offence, may grant or withhold the right of appeal. The Act of June 1, 1883, P. L. 56, amending the 5th section of the Act of 1869, in no way affects the proceedings or right of appeal provided in the previous sections. If it did without citing them, it would be unconstitutional. The proviso added to the 5th section merely gives the persons arrested by the several officers named the right of appeal allowed by former sections. The right is not extended nor are the proceedings changed.

And now, June 1, 1925, the rule granted Jan. 26, 1925, in the above stated case is made absolute, the appeal stricken from the records, the judgment of the justice affirmed and defendant directed to pay the fine or serve the sentence imposed. From Rodney A. Mercur, Towanda, Pa.

Allis-Chalmers Manufacturing Co. v. Columbia Brewing Co.

Sale-Unexpected contingencies-Liability of vendee for price-Affidavit of defence.

1. In an action for the price of an electrical machine sold and delivered, an affidavit of defence is insufficient which does not deny that the machine was delivered in proper condition, but avers that it could not be used, installed or operated because the United States Government had charge of the defendant's premises and would not allow anything to be done there, and, further, that, by reason of a change in its current by the local electric power company from twenty-five cycles to sixty cycles, the machine was of no use to the defendant.

2. Contingencies not provided against in a written contract usually will not excuse performance thereof.

Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Oct. T., 1924, No. 34.

Henry M. Bruner, for plaintiff and rule.

B. F. Davis, Bernard J. Myers and S. V. Hosterman, contra.

LANDIS, P. J., April 18, 1925.—The plaintiff's statement alleges that, on May 2, 1922, the Columbia Brewing Company, per C. W. Kloidt, under a written contract, ordered one 75 H. P. Wound Motor with Slide Rails, Pulleys and C. H. Speed Regulator, at the price of $1750; that the same, which was of a special design and construction, was duly manufactured and delivered in accordance with the contract, but payment has as yet not been made.

The affidavit of defence does not deny that the plaintiff made and delivered the machine and no complaint is made concerning its qualities, but it is alleged that when it was delivered to C. W. Kloidt, the defendant's business, which was the making of cereal beverages, was not being carried on because of an order by the United States Government restraining him from doing so; that for this reason the machine could not be used, installed or operated and was totally without value to the defendant; that the United States Government had possession of the premises and would not allow anything to be installed or operated thereon. It was, furthermore, averred that the Edison Electric

Allis-Chalmers Manufacturing Co. v. Columbia Brewing Co.

Company of Columbia, on or about September, 1923, changed the current from twenty-five cycles to sixty cycles and thereby made it impossible for the machine to be of any use or benefit to the defendant.

The contract calls for "One (1) 75 H. P. 300 R. P. M. synchronous speed, 220 volt, 3 phase, 25 cycle, slip ring induction motor, complete with slide rails, 22" x 18" paper pulley, and Cutler-Hammer bulletin 9470 speed regulator.” This was what was furnished. How a change by the Edison Electric Company of Columbia from twenty-five cycles to sixty cycles can discharge the defendant from his contract and render it entirely nugatory is a little hard to see. The defendant ran that risk and he cannot avoid payment for the machine upon such a specious plea. Authorities are not necessary for so plain a proposition.

The same may be said concerning the order of the United States Government closing the plant. The plaintiff had nothing to do with this and cannot be affected by it. The business of the defendant, according to his affidavit of defence, was the making of cereal beverages. This was a legitimate business and not one prohibited by any law if properly conducted. He must have carried it on in an improper way or the United States Government would not have closed the plant. The plaintiff had no reason to anticipate that the defendant would violate the law and thus prevent the machinery from being installed and operated. In addition, there is nothing before us to show that the machinery was rendered useless for some other purpose, in some other place, or in the hands of some other person.

This case does not go to the length of cases decided by the courts in which similar questions were raised without effect. Thus, in P. & H. Morton Advertising Co. v. Fink Brew. Co., 25 Dauphin Co. Reps. 466, 2 D. & C. 757, it appeared that the plaintiff, an advertising company, entered into a written agreement with the defendant to erect twelve railroad field bulletin-boards and to paint thereon from a sketch to be submitted to and approved by the defendant, to maintain such boards in good condition and to rent the use of them to the defendant for the term of thirty-six months at an annual rental of $38.40 for each board, payable in monthly instalments. The word "beer" was painted on them with the approval of the defendant. In an action for the rent it was contended by the defendant that, because of the Volstead Act, it became unlawful to maintain its boards advertising "beer" and that it was unlawful for it to pay to the plaintiff the monthly rental for advertising "beer," and that, since the passage of the Volstead Act, it had derived no benefit from said contract. On a rule for judgment for want of a sufficient affidavit of defence, it was held that the affidavit of defence was insufficient and judgment was entered in favor of the plaintiff. Judge Wickersham, who delivered the opinion, has most industriously collated all of the decisions upon this subject and satisfactorily discussed the question. It would seem to be but needless repetition to refer to or quote from more than a few of the cases set forth therein. In his discussion he says: "We cannot agree, in the absence of any stipulation to that effect in the written contract between these parties, that the passage of the Volstead Act, making it illegal to advertise beer, relieved the defendant from performing its part of the agreement. The law regards the sanctity of contracts. It requires parties to do what they have agreed to do. If unexpected impediments lie in the way and a loss must ensue, it leaves the loss where the contract places it. If the parties have made no provision for a dispensation, the rule of law gives none. It does not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated." With this principle we fully agree.

Allis-Chalmers Manufacturing Co. v. Columbia Brewing Co.

In Cochran v. Zimmerman, 253 Pa. 155, it appeared that the occupation of the premises for which rent was claimed was not made impossible by the act of law, but the tenant was required to make certain alterations for the safety of the public. If these alterations had been made, a license to use the house as a theatre would have been granted. The alterations required were of such a character as to require the front of the building to be set back five feet to comply with a city ordinance. The affidavit averred that if the alterations were made the house could not be used as a theatre, because the seating capacity would be so reduced as to make it unprofitable and the stage would be too small. The court below held that the defendants were not released from the payment of rent and made absolute a rule for judgment, and on appeal the judgment was affirmed. In Com. v. Bader, 271 Pa. 308, it was held that "contingencies not provided against in a written contract usually will not excuse performance thereof." See, also, Barns v. Wilson, 116 Pa. 303. In Goodrum Tobacco Co. v. Potts-Thompson Liquor Co., 133 Ga. 776, it was held that the enactment during the term of a lease, the declared purpose of which was the operation of the leased premises as a "general retail liquor business," of a law prohibiting the sale of intoxicating liquors, did not absolve the lessee from paying the agreed rent in the absence of a provision therefor in the contract. To the same effect are Koen v. Fairmount Brewing Co., 70 S. E. Repr. (W. Va.) 1098; Shreveport Ice and Brewing Co. v. Mandel Bros., 54 So. Repr. (La) 831; Hecht v. Acme Coal Co., 113 Pac. Repr. (Wyo.) 788; Lawrence v. White, 131 Ga. 840.

We are, therefore, of the opinion that the points raised in the affidavit of defence are not sustainable and that the rule for judgment for want of a sufficient affidavit of defence should be made absolute.

Rule made absolute and judgment ordered to be entered in favor of the plaintiff and against the defendant for the sum of $1750, with interest from Sept. 8, 1922, making $2024.16.

Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.

Wintermute's Estate.

Decedents' estates—Appraisement-Deduction for debts—Act of June 20, 1919-Inheritance tax-Taxation.

1. Under the Act of June 20, 1919, § 10, P. L. 521, it is the duty of the appraiser of a decedent's estate to appraise the value of all of the property or estate of the decedent, and nothing more. It is no part of his duty to make allowance or deductions for debts for the purpose of ascertaining the "clear value."

2. If an appraiser makes such deductions, his act is not binding on the Commonwealth. The courts alone can make the deductions.

3. If the register of wills disallows the deductions, his action amounts to nothing more than an expressed intention to disregard that part of the appraisement which, under the law, is not properly a part thereof, and this he has power to do as a representative of the Commonwealth.

Appeal from the appraisement and assessment of transfer inheritance tax. O. C. Monroe Co.

W. A. Shafer and W. A. Erdman, for appellants.

S. S. Shafer and Ira A. La Bar, for appellees.

SHULL, P. J., Sept. 30, 1925.—This matter comes before the court on an appeal based on exceptions to the action of the Register of Wills of Monroe County in striking from the report of the appraiser certain allowances of

Wintermute's Estate.

debts of decedent, made by the appraiser and by him deducted from the value of the property of decedent's estate.

The merits of the claims which were allowed and deducted by the appraiser and disallowed by the Register of Wills were not presented to the court. The proceeding as presented raises two questions:

1. Is it the duty of an appraiser to appraise the value or the clear value of an estate?

2. If it is the duty of an appraiser to appraise the clear value of an estate, has the Register of Wills power to disallow deductions of debts of decedent which were allowed and deducted by the appraiser?

Section 10 of the Act of Assembly of June 20, 1919, P. L. 521, provides: "The register of wills of the county in which letters testamentary or of administration are granted upon the estate of any person dying seized or possessed of property while a resident of the Commonwealth shall appoint an appraiser, whenever occasion may require, to appraise the value of the property or estate of which such decedent died seized or possessed and hereinbefore subjected to tax. Such appraiser shall make a fair, conscionable appraisement of such estate, and assess and fix the cash value of all annuities and life estates growing out of said estates, upon which annuities and life estates the tax imposed by this act shall be immediately payable out of the estate at the rate of such valuation."

As we view it, the appraiser represents the Commonwealth, and when his report is made and filed, the Commonwealth is bound by it, in the absence of fraud or mistake, so far as it conforms to the law. The statute does not give to the Register of Wills the right to amend by striking from it any items properly there, or by adding to it anything that may have been omitted. If the appraiser includes in his report matters which he has no statutory right to pass on, then the Commonwealth is not bound in such matters, as they are mere surplusage and may be ignored in finding the amount of tax due. The Register of Wills has the right and power to require the appraiser to file a report in conformity with the law, and in the event of refusal or neglect of the appraiser to do so, then he can vacate the appointment of the appraiser and appoint an appraiser who will comply with the statutory requirements.

Under section 10 of the Act of June 20, 1919, P. L. 521, it is made the duty of the appraiser "to appraise the value of the property or estate of which such decedent died seized or possessed herein before subjected to tax."

Under section 1 of the said act, it is provided "that the tax shall be and is hereby imposed upon the transfer of any property, real or personal, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations in the following cases." The following sections of the act provide that all property of a resident decedent which passes by succession, and certain property of a non-resident decedent, is subject to tax; consequently, in general terms, all property within the Commonwealth, real or personal, held by a decedent, or any interest therein, as well as certain intangible property of a resident decedent not within the Commonwealth of Pennsylvania, is subject to tax under this act, and it is to this that section 10 refers in the words "hereinbefore subject to tax."

Under section 10, the appraiser is empowered and directed "to appraise the value of the property or estate of which the decedent died seized or possessed and herein before subjected to tax."

The word "value," as used in this sentence, means what might perhaps be denominated "gross value," the value of the entire property and not the clear value of a portion of the estate on which ultimately tax would have to be paid.

Wintermute's Estate.

While it is true that from the value the statute directs that debts and certain expenses and expenditures shall be deducted and that only the part of the estate which actually passes by succession shall be required to pay inheritance tax, such value is throughout the statute denominated "clear value," and had it been intended that the appraiser should ascertain the clear value, that term would have been used in section 10 in defining the duties of the appraiser and not the word "value."

After careful consideration of section 10 of this act, together with sections 1 and 2, we are convinced that the duty of the appraiser is to appraise the value of all of the property or estate of the decedent, and nothing more. That it is not a part of his duty to make allowances or deductions for the purpose of ascertaining the "clear value."

We cannot convince ourselves that there was in the mind of the legislature at the time of passing this act any intent or thought to delegate to an appraiser, Register of Wills or an Auditor General of the Commonwealth the right or power to determine the validity or invalidity of any claim against the estate of the decedent for the purpose of taxation or any other purpose. That power belongs to the court.

The appraiser, at best, could but estimate the expense of settlement of an estate, but at the adjudication of the estate before the court, or an auditor appointed by the court, these matters can definitely and accurately be ascertained, and there alone can the true basis of inheritance tax be determined.

The appraiser, in making deductions for debts of the decedent from the value of the property as found by him, exceeded the authority given to him by the statute, and his action in that particular has no binding effect on the Commonwealth nor on any of the parties in interest. The action of the Register of Wills amounts to nothing more than an expressed intention to disregard that part of the report of the appraiser which, under the law, is not properly a part of the appraiser's report, and this he has power to do as a representative of the Commonwealth, and need only give recognition to any claim for deductions or debts from the appraised value of the estate after the liability of the estate to pay has been legally established.

And now, Sept. 30, 1925, the appeal is dismissed, at the cost of appellants. From C. C. Shull, Stroudsburg, Pa.

Bennett, Administratrix, v. Bechtel.

Judgment-Opening judgment-Dedecents' estates-Evidence-Party dead

-Witness.

A judgment entered on a judgment note after the death of a decedent to whom the note was given will not be opened because the defendant did certain work for the decedent which was to be credited on the note, where the only evidence to that effect is the testimony of the defendant himself.

Rule to open judgment. C. P. Union Co., March T., 1925, No. 27.

Clair Groover, for rule; William N. C. Marsh and C. C. Lesher, contra.

POTTER, P. J., Aug. 17, 1925.—Mary W. Bennett is the administratrix c. t. a. of the estate of William R. Follmer, who died a year ago or more. On Feb. 4, 1909, the defendant, William R. Bechtel, executed and delivered to the said William R. Follmer his judgment exemption note, under seal, payable one day after date, in the sum of $30.74. The sum of $5.74 was paid on this note on Jan. 20, 1910.