Womer v. Schlottman, Controller of Schuylkill County. "any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts." In Tosh v. Schlottman, Controller, 2 D. & C. 256, we held that local or special legislation regulating the affairs of poor districts is not prohibited by the Constitution. Therefore, even though the Act of 1925 applied in express terms to the Poor District of Schuylkill County only, we could not declare it unconstitutional for that reason alone. Moreover, as we view the act, it is general in its terms and applies to all counties and poor districts. The fact that it does not extend to and embrace all municipal sub-divisions in the state is not fatal to its constitutionality, for these are proper subjects of classification: Rubinsky v. City of Pottsville, 81 Pa. Superior Ct. 105; Rymer v. Luzerne County, 142 Pa. 108.

The plaintiff concedes that the purpose of the Act of 1925 is to remove the legal impediment to the recovery of his back salary arising from his failure to appeal from the annual reports of the county controller. Prior to the adoption of the Constitution of 1874, it was held in Burns v. Clarion County, 62 Pa. 422, that a settlement by county auditors, unappealed from, does not have the finality of a judicial decision, and that a statute directing the opening and resettlement of a treasurer's account by the county auditors, on equitable grounds, was a proper exercise of legislative power. This exercise of legislative power has not been circumscribed by the Constitution of 1874. Section 15 of the Act of June 27, 1895, P. L. 403, declares that the annual reports of county controllers shall have the same effect as the reports of county auditors formerly had, and, therefore, places them on the same plane. If the salary of a poor director in our county is $2500 per year, under the Act of 1917, as we have held, then the plaintiff was legally entitled to salary at that rate, notwithstanding for a long period he collected salary at the rate of $1200 a year, and the bar to the recovery of the balance, arising from his failure to appeal from the controller's annual reports showing these payments, did not destroy the merit of his claim. The purpose of the Act of 1925 is merely to remove the legal impediment preventing the plaintiff from recovering that which was his just due, and the legislature, provided it does not violate constitutional prohibitions, may remove an impediment in the way of legal proceedings to authorize recovery upon a just claim, or upon one supported by a moral obligation to pay: Kiskaddon v. Dodds, 21 Pa. Superior Ct. 351, 363; Investors Realty Co. v. City of Harrisburg, 82 Pa. Superior Ct. 26, 31; Stebbins v. Crawford County, 92 Pa. 289, 293; John T. Bailey et al. v. Philadelphia et al., 167 Pa. 569, 573.

The salary of Directors of the Poor of Schuylkill County is payable from the county treasury, pursuant to section 17 of the Act of April 25, 1850, P. L. 569, and all payments from the county treasury on account of the poor district must be by warrant upon the treasury, drawn by the board of poor directors and signed by the controller: Lee Brothers v. Davis, 22 Pa. C. C. Reps. 492. This being so, the plain requirement of the Act of 1925, without resorting to rules of construction, is that the plaintiff is entitled to receive and be paid by the county an amount equal to the difference between the amount to which he was legally entitled as salary and the amounts collected or received by him on account of such salary. The petitioner is, therefore, entitled to a peremptory mandamus.

And now, Jan. 18, 1926, the prothonotary is directed to issue a writ of peremptory mandamus to the county controller, requiring him to approve the warrant drawn in favor of William A. Womer for back salary as director of the poor from April 3, 1919, to April 1, 1922, in the sum of $3892.77.

From M. M. Burke, Shenandoah, Pa.

Lieb et ux. v. Grobstein et ux.

Pleading and practice-Judgments-Mortgages-Payment of money into court-Satisfaction of record.

1. Under the various acts of assembly, payment of money into court is the proper procedure where there are two claimants to the same sum arising from a mortgage, and where attachments on judgments had been issued against two parties, but the mortgagee refused to accept any sum less than the amount of the mortgage.

2. Upon payment of the money into court, the mortgagee, under such circumstances, will be decreed to enter satisfaction on the record,.

Petition for leave to pay the amount of a mortgage into court. C. P. Allegheny Co., April T., 1925, No. 172.

Before Shafer, P. J., and Reid, J.

James E. Hindman, for petitioner.

SHAFER, P. J.-From the petition, to which no answer was filed, it appears that the plaintiffs are mortgagors in a mortgage made to the defendants, Louis Grobstein and wife, on property in Allegheny County for the sum of $4000, which mortgage is due and which the mortgagors are willing and anxious to pay; that two execution attachments were issued in the County Court of Allegheny County, one at the suit of Patrick H. Murphy and the other at the suit of Leona Murphy, on judgments against Louis Grobstein, one of the defendants, upon which attachments interrogatories were filed and upon answer to which judgments were entered in the County Court for Patrick H. Murphy in the sum of $301.30, with costs, and for Leona Murphy in the sum of $326.40, with costs, against the petitioners, the mortgagees. The petition further shows that petitions have been presented in the County Court to have these judgments opened and permit the petitioners to make true and correct answers to the interrogatories, which will show that the mortgage in question is held by husband and wife by entireties, and that afterwards in January, 1925, counsel for the mortgagees sent a letter to counsel for the petitioners demanding payment of the whole of the mortgage, notwithstanding the existence of these judgments in the County Court, and that the petitioners have proposed to pay into court enough to liquidate the judgments of the two Murphys and to pay the balance to the defendants, and that this proposition has been refused, and that the two Murphys insist upon the validity of their judgments; that petitioners pray to be permitted to pay into court the amount of the mortgage or to pay into court so much as is necessary to cover these judgments and the balance to the defendants and have satisfaction of the mortgage.

We are clearly of opinion that this is a case provided for by the acts allowing the amounts of mortgages to be paid into court, as there are two claimants to the same sum. An order for the payment of the whole of the money into court seems to us to be the only remedy where the mortgagee refuses to receive a part, and such an order will be made. It seems to us, however, that the practical solution of the matter for the parties is for the mortgagees to receive directly from the petitioners all of the money in question, except the amount of these judgments, and to have only that amount paid into court to await the determination of the validity of the execution attachments in question.

And now, March 11, 1925, the rule herein is made absolute and it is ordered that the petitioners, Frederick G. Lieb and Charlotte K. Lieb, mortgagees in the mortgage described in the petition, have leave to pay into court the sum

Lieb et ux. v. Grobstein et ux.

of $4000, with interest from May 8, 1924, and it is further ordered and decreed that satisfaction shall be entered upon the record of said mortgage in Mortgage Book, Vol. 1926, page 48.

From William J. Aiken, Pittsburgh, Pa.

Hoehn v. Miller.

Line-fences in cities - Repair of Liability of adjoining owner-Act of April 14, 1905.

1. There is no statute authorizing an adjoining land owner in a city to erect or repair a line-fence and charge the owner of the other adjoining property with half of a part of the cost, and in the absence of any express or implied promise to pay, the same cannot be recovered by suit.

2. The Act of April 14, 1905, P. L. 162, relating to line-fences does not apply in cities, but where it does apply, its provisions must be strictly followed.

Statutory demurrer. C. P. Lancaster Co., Aug. T., 1923, No. 97. B. F. Davis, Jr., for plaintiff; John E. Malone, for defendant. HASSLER, J., April 18, 1925.-The plaintiff seeks in this case to recover from the defendant one-half of the cost of erecting a line-fence between their premises. He alleges in his statement that they own adjoining houses and lots on Rockland Street, this city; that the line-fence between them was dilapidated and unfit for use; that at various times he gave notice to the defendant to repair or rebuild her part of it, and upon her neglect or refusal to do so, he rebuilt it at a cost for the defendant's part of $41.47.

An affidavit of defence raising a question of law has been filed which questions the liability of the defendant to pay the amount claimed.

It does not appear in the statement that the defendant ever promised the plaintiff to erect the fence in question or that she ever said or did anything which could possibly be construed into a promise to pay or contribute anything towards the erection of the same. She is not liable, therefore, upon any express or implied promise to pay the amount claimed.

Our attention has not been called to, nor are we able to find, any statute authorizing one adjoining land owner in the city to erect a line-fence and charge the owner of the other adjoining property with part of the cost.

Nor is it alleged in the statement that there is any such act of assembly that authorized the plaintiff to erect the fence and charge the defendant with a portion of its cost. The Act of April 14, 1905, P. L. 162, provides for the erection of line-fences between properties in townships and boroughs, but not in cities. In all such cases, the proceedings provided in that act of assembly must be strictly followed. Even though that act applied to such fences in cities, the plaintiff cannot recover, because the provisions of the act were not followed. Nor does the plaintiff, according to his statement, seek to recover under its provisions or those of any other act of assembly. His claim is based on an implied promise of the defendant to pay, and as no facts showing such promise are alleged in the statement, the plaintiff cannot recover on his statement. We, therefore, decide the question of law raised in favor of the defendant and enter judgment for the defendant.

From George Ross Eshleman, Lancaster, Pa.

Jessup & Moore Paper Co. v. Bryant Paper Co.

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Contract ·Breach of contract — Damages-Elements of damages-Overhead and depreciation charges-Evidence-Books of account.

1. Where it appears in an action of assumpsit that plaintiff had agreed to manufacture and deliver goods to defendant, and that defendant had refused to accept them, and suit was brought to recover the profits plaintiff would have realized if the goods had been manufactured and delivered, the defendant is entitled to an opportunity to examine the plaintiff's books of account for the purpose of apportioning the overhead and other expenses of plaintiff's manufacturing business to all of its production and to the goods in question as if they had been manufactured.

2. In such a case, the plaintiff cannot successfully contend that such an examination might disclose business secrets to a competitor.

Rule to show cause why plaintiff should not permit its books and records, showing general overhead and depreciation accounts, to be examined by the accountants named by the court. C. P. No. 5, Phila. Co., March T., 1922, No. 364.

Charles S. Wesley, for plaintiff; Thomas Raeburn White, for defendant.

MARTIN, P. J., May 25, 1926.-By agreement, this case is being tried by the court without a jury. It has already been decided that there was a breach by defendant of the contract with plaintiff. The question now before the court is the amount of damages to which the plaintiff is entitled.

The contract provided that plaintiff should manufacture and deliver, and the defendant would accept, a certain amount of soda pulp at prices to be fixed in the manner provided by the contract. After some of the pulp had been delivered, the defendant notified plaintiff that it would not accept any further deliveries of soda pulp, and plaintiff, regarding this notice as a breach of the contract, manufactured no more pulp for delivery to plaintiff, and instituted this suit to recover the profits it would have realized if the pulp had been manufactured and delivered.

During the period covered by the contract for delivery plaintiff manufactured other soda pulp and engaged in manufacturing paper.

Under the terms of the agreement of the parties providing for this trial without a jury, it was stipulated that the defendant should have the right to examine the books and accounts of plaintiff, with the aid of Whann & Company, public accountants, to determine the damages suffered by plaintiff. Pursuant to this agreement, an examination was made of certain books of account to fix the cost of production of the soda pulp, but plaintiff was denied access to accounts showing general overhead and depreciation charges.

There is testimony that the cost of production which involves the profits plaintiff would have made if the soda pulp had been manufactured cannot be ascertained without taking into consideration the overhead and depreciation accounts and apportioning these accounts with the entire production of plaintiff, including the unmanufactured pulp that was not manufactured because defendant had refused to accept it.

Plaintiff contends that only such items of expense or cost as would have been enlarged or reduced had the contract been performed and the soda pulp manufactured can be taken into account in determining its cost of manufacture; but defendant claims that all overhead, administration expense and depreciation should be taken into account to determine what the cost would have been to plaintiff of manufacturing the soda pulp.

Although the soda pulp was not manufactured, plaintiff is claiming as damages profits it would have made if the soda pulp had been manufactured. The overhead and depreciation accounts may not have been changed by the

Jessup & Moore Paper Co. v. Bryant Paper Co. increased manufacture, yet the effect of the increased manufacture would have been to lessen the cost of manufacture of the remaining production by plaintiff. If the soda pulp had been manufactured, the just method of determining the cost of production of the company would have been to apportion all overhead and depreciation to entire production, including that manufactured for the defendant. It is equitable, under the circumstances, to afford defendant an opportunity to examine the books of account for the purpose of apportioning the overhead and other expenses of the manufacturing business of plaintiff to all its production and the soda pulp in question as if it had been manufactured.

It is contended such examination may disclose business secrets to a competitor, but the plaintiff has placed itself in this position by the terms of the agreement and not manufacturing the pulp after the contract was broken by defendant, and in relying upon the loss of profits as the basis of the damages occasioned by the breach.

So far as they relate to the cost to plaintiff of manufacturing soda pulp and loss of profits caused by the breach of contract, the defendant, through the accountant, should be permitted to make the examination demanded.

No decisions directly ruling the question at issue have been cited, but there are cases which by analogy may be regarded as authority for the conclusion reached.

In the Tremolo Patent, 23 Wallace, 518, which involved the infringement of a patent, it was said by the Supreme Court of the United States: "We cannot see why the general expense incurred by the defendants in carrying on their business, such expense as store rent, clerk hire, fuel, extra porterage, etc., did not concern one part of their business as much as another. It might be said that the selling of a tremolo attachment did not add to their expense, and, further, no part of this expense should be deducted from the price obtained for such an attachment. This is, however, but a partial view. The store rent, clerk hire, etc., might, it is true, have been the same if that single attachment had never been bought or sold. So it is true that the general expense of their business would have been the same if, instead of buying and selling one hundred organs, they had bought and sold only ninety-nine. But will it be contended that because buying and selling of one additional organ involved no increase of the general expense, the price obtained for that organ above the price paid was all profit? Can one part of the whole number sold be singled out as justly chargeable with all the expenses of the business? Assuredly not. To begin with, a tremolo attachment is a single piece of mechanism, though composed of many parts. It was bought and sold as a whole by the defendants. It might be said the general expenses of the business would have been the same if any one of these parts had been absent from the number sold. If, therefore, in estimating profits, every part is not chargeable with a proportionate share of the expenses, no part can be. But such a result would be an injustice that no one would defend. We think it very plain, therefore, that there was no error in the rule adopted for the ascertainment of the profits made by the defendant out of their infringement of the plaintiff's patent."

In Manufacturing Co. v. Cowing, 105 U. S. 253, also a case involving the infringement of a patent, the court said: "It is true there is some evidence to show that the organs could be made for the sum named, but it is clear to our minds that many things were excluded from the sum which ought to have been included. All the material and labor of men might have been taken into account, but there is nothing for the use of the tools, machinery, power and