Chesebrough v. Chesebrough.

replies she made to him, and that the accusations against him in the letters, which he has introduced in evidence, were unfounded and based upon false statements made to his wife by malicious persons. He also said he made frequent requests, by his letters, for his wife's return to him at Pottsville, to which she made answer by abusive statements and allusions to another party in New Haven, who would support her better than he could. All the letters which he had received from his wife, save three offered in evidence, were destroyed by the libellant before he began his proceedings for divorce. The letter said to have been received in an envelope marked "Exhibit A," postmarked New Haven, Conn., Dec. 29, 1922, is undated and bears neither salutation nor subscription, and is manifestly not all of the letter which was enclosed in that envelope. It is a demand for support to the extent of $5 per week or, as an alternative, the institution by him of proceedings of divorce against his wife. The letter enclosed in envelope marked “Exhibit B," postmarked New Haven, Conn., Jan. 25, 1923, accused the libellant of having expressed a desire to marry a person called "Kit," of Pottsville, if she, his wife, divorced him, and charged him with having "skooted her (his wife) from Pottsville" in November, 1922. The last letter received by the libellant, "Exhibit C," postmarked New Haven, Conn., Feb. 23, 1923, discloses that after November, 1922, the respondent and the libellant, having failed to reconcile their differences, each at some time contemplated bringing proceedings for divorce, and that neither thereafter wished to live with the other. The libellant also testified his wife did not have his approval at any time to leave Pottsville for the completion of her course in nursing, and that she used money saved out of his allowance made to her to go there, and that he went to New Haven to see her because he was lonesome and knew he would enjoy seeing her, and to try to come to an agreement satisfactory to both of them.

To justify a decree in this case, the burden is upon the libellant to establish by the evidence that the respondent wilfully and maliciously deserted him April 18, 1922, and that she persisted in that desertion for two full years immediately thereafter. Speaking of desertion and of separation by mutual consent, in Neagley v. Neagley, 59 Pa. Superior Ct. 565, 570-571, Rice, P. J., said: "The law on the subject is clear. 'Desertion is an actual abandonment of marital cohabitation with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other:' Ingersoll v. Ingersoll, 49 Pa. 249. This clear and concise definition has been approved in many later cases and has not been questioned. The guilty intent to desert is rebutted where the separation is encouraged by the other party or by mutual consent. What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce: King v. King, 36 Pa. Superior Ct. 33; Pearce v. Pearce, 53 Pa. Superior Ct. 129. The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties and need not be put in the form of a solemn written agreement: Olson v. Olson, 27 Pa. Superior Ct. 128." Sternberg v. Sternberg, 73 Pa. Superior Ct. 328, 330, 331, and Lane v. Lane, 81 Pa. Superior Ct. 494, 496, 497, are to the same effect.

The respondent, wishing to complete her course in nursing, to which the libellant did not object, was obliged to leave Pottsville, to which he did object, and returned to New Haven, Conn., for the completion of her course, which was interrupted by her marriage. The libellant's objection to this separation is entirely minimized by the voluntary support of his wife during her absence

Chesebrough v. Chesebrough.

from April 19, 1922, to November of that year, and by a daily correspondence between them during that entire period. This conduct of the parties would not justify a belief in a guilty intent on the part of the wife to desert her husband, or that he had any thought that such was her intent.

Moreover,

the continuity of the desertion alleged to have occurred April 19, 1922, was twice broken before the filing of the libel; once on the initiative of the libellant in June, 1922, in New Haven, Conn., where he cohabited with his wife for several days, and again in November, 1922, on the initiative of the respondent, when she returned to the libellant's home in Pottsville and was received by him as his wife. If the respondent at either reunion acted in good faith and with an honest purpose to resume marital relations, then the continuity of the alleged desertion was broken. Whether she so acted is a question of fact to be determined by all the evidence, and from the evidence we reach the conclusion that she in good faith, on both occasions, intended to resume the marital relation, if it had ever been broken: Gordon v. Gordon, 208 Pa. 186; La Flamme v. La Flamme, 210 Mass. 156; 96 N. E. Repr. 62; 39 L. R. A. (N. S.) 1133.

The other exception raises the question of the jurisdiction of our court. A resumé of the libellant's testimony given at the first hearing before the master, bearing on his residence within our jurisdiction for one year immediately preceding the filing of his libel, as made in the opinion filed with the order remanding the case for further hearing, is as follows: "He (the libellant) is thirty-one years old. His father is dead and his mother has been traveling, and he testified that at the filing of the libel, June 2, 1923, and at the hearing before the master, Aug. 23, 1924, he was a citizen and resident of Pottsville, Pa., although on the latter date he was employed by the J. G. White interests in Oneonta, N. Y. Pottsville, he said, was the only settled place of abode he had ever established, although during his stay in Galveston, Tex., for a period of two and one-half years immediately prior to coming to Pottsville, he voted there and never voted elsewhere, and during his stay in Pottsville he did not register as a voter. His work with the J. G. White interests has always required him to travel about and over their various properties, and these, we know from the testimony, lie at least as far apart as Galveston, Tex., is from Oneonta, N. Y. The libel was sworn to in Pottsville, April 2, 1923, but was not filed until June 2, 1923, at which time the libellant was in Kentucky on a business trip of six weeks; but whether the business was of a private nature or in the interest of his employer, the J. G. White interests, has not been disclosed, and the period covered by the trip has not been shown. In December, 1922, the libellant gave up his apartment and took a room at No. 519 West Norwegian Street, and in May, 1923, he went on several trips and transferred 'his belongings' to the Rennas Hotel, Pottsville, Pa. He never owned any furniture, and when he traveled he always took all his clothing with him. Since the libel has been filed, his work has been traveling, largely, and he has not stayed in excess of three weeks in any one town. His permanent mailing address is Pottsville, Pa., which he calls ‘home,' because most of his friends live there, and he maintains his mailing address through a post-office box in the post-office at that place, and does his banking there. He has returned to Pottsville frequently, at irregular intervals, since June 2, 1923, on an average of at least once a month, but for what purpose or where or how long he stays when he is in Pottsville has not been told." At the supplemental hearing before the master, the libellant said that he lived at Galveston, Tex., July 20, 1921, and then filled a sales position which took him into three states, with Iowa as a base, with no permanent residence until he came to Pottsville

Chesebrough v. Chesebrough.

Dec. 19, 1921. He came to Pottsville to work for the Eastern Pennsylvania Light, Heat and Power Company, under the J. G. White Management of New York, and did not work for the J. G. White Company "as such" until about Dec. 19, 1922. Thereafter, or in January, June and October of 1923, he made three trips from Pottsville to Kentucky for the J. G. White organization, in connection with their interests there. The trip in January took about three and a half weeks; and in June, about the same time; and the time covered by the October trip is not stated. The libellant corrected his previous testimony by stating that he was in Pottsville on June 2, 1923, when his libel was filed and not in Kentucky. In May, 1923, he surrendered his room at the Portz house, No. 519 West Norwegian Street, Pottsville, Pa., and went from there to New York on a business trip, evidently to Ithaca, and returned from Ithaca to Pottsville June 1st, where he remained until June 4th; he then went to Washington, D. C., on a vacation; and, thence, on a business trip for the J. G. White interests to Kentucky, covering the period from about June 15th to July 10, 1923. The libellant stored his trunk and text-books in Portz's cellar when he left there, and had them sent to himself at Ithaca, N. Y., in July, 1923, where he has a room at the Y. M. C. A. Since June 15, 1923, he was employed by the Associated Gas and Electric Company, a J. G. White managed corporation, at Ithaca, N. Y., and was paid by that company for his services.

The only fixed places of residence the libellant has had in Pottsville were at No. 356 South Centre Street, from which he moved to No. 519 West Norwegian Street, where he stored all his personal effects except his clothing, and then left in May, 1923, for Ithaca, N. Y. The Rennas Hotel, at which he has roomed whenever in Pottsville since June 1, 1923, he does not regard as his fixed place of residence, as appears by his testimony given at the supplemental hearing, as follows:

“Q. Do you maintain any fixed or established residence in Pottsville, Pennsylvania, either now or since you left Pottsville June 4, 1923? A. No. When I return to Pottsville I take a room at the Rennas Hotel. Q. When you left Mr. Portz's house in May, 1923, where did you go from there? A. I went to New York State on a business trip, returning later that same month, and went to the Rennas Hotel. Q. Did you take all of your belongings from Mr. Portz's? A. Yes. Q. When you left the Rennas Hotel, did you take all your belongings with you? A. Yes."

The burden is upon the libellant to prove the jurisdictional fact of residence within the State when his libel was filed June 2, 1923, and for at least one whole year immediately prior thereto: Heath v. Heath, 44 Pa. Superior Ct. 118, 122, 123; Harrison v. Harrison, 69 Pa. Superior Ct. 580, 582. The libellant clearly had a fixed place of abode in Pottsville from Dec. 19, 1921, until May, 1923, but that is insufficient to confer jurisdiction upon our court unless residence and domiciliary intent conjoined: Starr v. Starr, 78 Pa. Superior Ct. 579, 583; Gearing v. Gearing, 83 Pa. Superior Ct. 423, 424. The question of domiciliary intent is always one of fact to be determined by the court or jury, as the case may be, but it turns almost wholly upon the personal intent of the party: Reed v. Reed, 30 Pa. Superior Ct. 229, 235; Reed v. Reed, 59 Pa. Superior Ct. 178, 181. The cited cases show that voting in a particular place of residence is often decisive of domiciliary intent. The holding of office, engaging in business of a permanent character and the purchase of real estate with declarations of intention respecting residence are the highest evidence that can be submitted to establish domiciliary intent. Proof of domiciliary intent is not limited to the facts enumerated, but all the facts bearing

Chesebrough v. Chesebrough.

on the intent of him who seeks to establish residence, including his declarations of intent, if any, must be considered. The libellant testified at the first hearing that he was a citizen and resident of Pottsville from Dec. 19, 1921, to June 2, 1923, but this is merely an expression of his opinion. He never, so far as the evidence shows, expressed any intention to make Pennsylvania his place of residence; never acquired any property therein, not even furniture, and never paid any taxes or qualified to vote. His work required him to travel widely, and wherever he went after June 1st, save his trunk and books, he took his clothing and other personal effects with him. His purpose in going to Ithaca in May, 1923, has not been stated; but, thereafter, his permanent or principal place of employment was not in Pottsville, and it is fair to infer that if he was in Pottsville, as he testified on the supplemental hearing, he then already had accepted or contemplated the acceptance of employment at Ithaca. Since June 1, 1923, the libellant has stopped at the Rennas Hotel whenever in Pottsville for social or business reasons, and since June 15, 1923, he has also kept a room in Ithaca, and probably one in Oneonta, N. Y. The libellant was apprised Feb. 23, 1923, by his wife's letter to him, marked "Exhibit C," that in New York the only cause of divorce is adultery. All the facts upon which the libellant relies for the establishment of a bona fide residence in Pottsville, Pennsylvania, from Dec. 19, 1921, to June 2, 1923, and since, are equally, if not more, consistent, in our opinion, with an intent to establish and hold a mere constructive residence in Pennsylvania for the purpose of obtaining a divorce than with an intent to establish a bona fide domicile in this State. The importance of the marriage relation, not only to the parties, but also to the public, demands that actions of divorce be supported by clear and strict evidence, and cases are not to be disposed of on a doubtful cast of the balance, but only by such proofs as satisfy the mind of the truth of the complainant's averments: Gold v. Gold, 74 Pa. Superior Ct. 70, 72; Altwater v. Altwater, 81 Pa. Superior Ct. 359, 361. A careful consideration of all the evidence leads us to the conclusion that neither the cause of divorce alleged nor the jurisdiction of the court has been established by the weight of the evidence.

The exceptions to the master's report are overruled and the libel is dismissed, at the cost of the libellant.

From M. M. Burke, Shenandoah. Pa.

Scattergood, Birdsell & Satterthwaite v. Musselman Concrete Pipe Company, Inc.

Partnerships-Fictitious names-Acts of June 28, 1917, P. L. 645, May 10, 1921, P. L. 465, and June 29, 1923, P. L. 979.

Partnerships using the true names or surnames of their members as their firm style are not using fictitious names within the Fictitious Names Act of June 28, 1917, P. L. 645, although it does not appear that all the partners are named.

Affidavit of defence raising question of law. C. P. Lancaster Co., Aug. T., 1924, No. 79.

L. R. Geisenberger, for plaintiff; Charles G. Baker, for defendant.

LANDIS, P. J., March 21, 1925.-The plaintiffs are public accountants, located in the City of Philadelphia, and the defendant is a company located at New Holland, in this county. The statement alleges that the plaintiffs were engaged

Scattergood, Birdsell & Satterthwaite v. Musselman Concrete Pipe Company, Inc. by the defendant, by verbal contract, to prepare the Federal tax returns of the said company at the price of $25 per day for the senior accountant and $15 per day for the junior accountant, and necessary expenses; that the senior accountant was engaged for two and three-quarter days, which made $68.75, and the junior accountant for one day, which made $15, and that the expenses for typewriting, checking and revision were $33, thus making a total sum due of $116.75.

The affidavit of defence does not deny the contract or that the work was done in pursuance of it, but asserts that the name of the plaintiff on its face indicates that it is a partnership, but it does not disclose the names of the partners, and that they, therefore, carried on business under an assumed and fictitious name, style and designation as Scattergood, Birdsell & Satterthwaite; and that, as they have not set forth that it has been registered, it cannot

recover.

This question has already been decided in McLaughlin v. J. E. Baker & Co., 39 Lanc. Law Rev. 207, and in Kreider v. Paige Motor Car Co., 39 Lanc. Law Rev. 317.

In the former case we said: "But another reason also presents itself. In Walker v. Mason, 272 Pa. 315, it was held that 'partnerships openly using the true names or surnames of their members in their firm name in such manner as to fairly advise of the parties owning or conducting the business, and not to mislead, are not to be regarded as under false, assumed or fictitious names.' See, also, Zemon v. Trim, 147 N. W. Repr. 540. In Befarah v. Spell, 96 S. E. Repr. 949, it was held that, under a statute of North Carolina forbidding the transaction of business under an assumed name, unless a certificate giving names of owners should be duly filed, a certificate was not required by a firm doing business as Aboud Brothers, or by another doing business as the Raleigh Bargain House, Nassif & Befarah, Proprietors. In Mangan v. Schuylkill County, 273 Pa. 310, it was said that the Act of 1917 was never intended to cover old-fashioned genuine firm names, and that Mangan & Pugh was not an assumed or fictitious name."

In Lamb v. Condon, 276 Pa. 544, Mr. Justice Sadler said: "The Act of June 28, 1917, P. L. 645, provided that no individual should carry on or conduct any business in the Commonwealth under an assumed or fictitious name unless complying with the directions of that legislation. The purpose of this statute was to protect those who might deal with such parties. This thought is well expressed by Judge Henderson in Engle v. Insurance Co., 75 Pa. Superior Ct. 390, when he says: "The purpose of the statute is obvious. It was intended to protect persons giving credit in reliance on the assumed or fictitious name, and to definitely establish the identity of the individuals owning the business, for the information of those who might have dealings with the concern. It was not intended to produce a confiscation of property, nor to relieve debtors from their honest obligations.'" The learned judge discussing the effect of the Act of May 10, 1921, P. L. 465 (and the same may be said of the Act of June 29, 1923, P. L. 979), added: "It is also to be observed, as indicative of legislative intent, that no prohibition against the bringing of suits by residents of the State who were in default was made, but that the inhibition was directed solely to those living beyond the confines of the Commonwealth." In this case it is not asserted that the names used by the plaintiffs were not the genuine names of the partners. Nor is it claimed that they did not perform faithfully the work which they were employed to do. There is, therefore, no merit on the facts in the defence set up by the defendant, and, in our judgment, it is equally destitute of a defence under the law.