(263 Fa. 417) (106 A.) "Mr. Krauss: Now take L. B. Langkott L 1 OTTO R. BRENNER, Limited, v. LOEB- Sumatra. That is a well-known tobacco, is it NUNEZ TOBACCO CO. not? A. It is a well-known brand. "Q. What was the fair market value of that (Supreme Court of Pennsylvania. Feb. 3, 1919.) | tobacco on or about April 11, 1917? (Objected to by counsel for defendant. Objection overruled. Exception to defendant.)" ASSIGN 1. APPEAL AND ERROR 724(4) 2. APPEAL AND ERROR 728(2) ASSIGN MENT OF ERROR-SETTING OUT EVIDENCE. An assignment of error to admission of evidence not setting out the evidence admitted as required by Supreme Court rule 27 need not be considered. ASSIGN 3. APPEAL AND ERROR 730(1) 4. SALES 418(2)-BREACH-DAMAGES. Where a sample of tobacco shown at the time of making of the contract was in perfect condition, the difference between contract price and market value of an article of the quality shown by the sample is the measure of damages (3) That the learned trial judge erred in refusing to charge the jury as requested by the defendant under point 2, as follows (Appendix, page 121a): "2. That the fact that the defendant, in its letter of April 11, 1917, offered to deliver the 10 bales of Java tobacco to the plaintiff upon receiving satisfactory settlement from the plaintiff for the same is conclusive proof that the plaintiff could not have suffered any damage by reason of the defendant's failure to deliver said tobacco, as the plaintiff could have obtained same from the defendant at the prices contracted for." (4) That the learned trial judge erred in refusing to charge the jury as requested by the defendant under point 3 as follows (Appendix, page 121a): "3. That the action of the plaintiff in acceptbacco from the defendant with knowledge that ing and retaining the one bale of Sumatra tothe defendant could not deliver an option on seven more bales prevents the plaintiff from making any claim on the seven bales, and the plaintiff's letter of March 17, 1917, acknowledging the receipt of the one bale and exer150(1)-OPTION-REFUSAL TO DE- cising its option on the seven bales is not binding on the defendant." for seller's failure to deliver. 5. SALES LIVER. Where a seller by contract sold buyer one bale of Sumatra tobacco, with an "option of seven more ten days after arrival" to be exercised within ten days after arrival of first bale, the seller could not refuse to deliver the additional bales because at the time he delivered the first one he notified buyer that he would not deliver any more. Appeal from Court of Common Pleas, Philadelphia County. Assumpsit by Otto R. Brenner, Limited, against Loeb-Nunez Tobacco Company to recover damages for breach of contracts for failure to deliver tobacco. Verdict and judgment for plaintiff for $2,866.79, and defendant appeals. Affirmed. Errors assigned were as follows: (1) That the learned trial judge erred in allowing evidence to be given as to the value of tobacco on April 11, 1917, as follows (Appendix, page 52a): "Mr. Krauss: Can you tell me, or the court and jury, what was the fair market value of triple A Java, first lengths, on or about April 11, 1917? firm the judgment in this case on the ground SIMPSON, J. [1-3] We might well afthat all the assignments of error violate the rules of this court. The first has no exception to support it, and both it and the second violate rule 28, in that defendants do not "Mr. Sessler: I object to that unless the ques-print in the assignment the evidence admittion is modified to include the character, kind, and quality of the tobacco that the defendant was to sell to the plaintiff." (2) The learned trial judge erred in allowing evidence to be given as to the value of tobacco on April 11, 1917, as follows (Appendix, page 53a): ted; the next three violate rule 27, in that they do not quote the answers to the points referred to; and the last three are not assignments of error at all, but only the general reasons usually specified on a motion for a new trial-that the verdict is against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the evidence, the weight of the evidence, and the law. The judgment, however, must be affirmed on the merits. [4] Two different contracts are involved in the litigation. By the first defendant agreed in writing to sell and deliver to plaintiff ten bales of "Java AAA 1" tobacco, according to a sample exhibited to plaintiff at the time the contract was made. As to this contract defendant says in its paper book: "There can be no dispute as to the fact that there was a breach of contract due to the defendant's failure to deliver this tobacco, and there is no dispute between the parties or counsel as to the law regarding the measure of damages." Appeal from Court of Common Pleas, Westmoreland County. It claims, however, that the sample was of tobacco that was six or eight years old, that such tobacco deteriorates with age, and that there was no evidence as to the market Assumpsit for the breach of contract by value of tobacco of that age. On the other George W. Seanor, executor of Noah Seanor, hand, plaintiff's witnesses, including defend- deceased, against John H. Fitt. Verdict and ant's salesman who sold the tobacco to plain-judgment for plaintiff for $1,907.07, and detiff, testified that the sample exhibited to fendant appeals. Affirmed. plaintiff was of tobacco in perfect condition, and stated its market value in that condition. It follows, of course, that if the jury believed the evidence of plaintiff, and the verdict establishes that they did, he was entitled to recover, as in fact he did, the difference between the market price of that kind of tobacco in perfect condition and the contract price at which defendant agreed to deliver it. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Benjamin H. Thompson, of Pittsburgh, and H. K. Shaffer, of Mount Union, for appel lant. Hugh W. Walkinshaw and Lewis C. Walkinshaw, both of Greensburg, for appellee. there is therefore nothing we are called upon to consider. [5] The second contract was in writing also, and by it defendant sold to plaintiff one SIMPSON, J. [1] There is a single assignIt avers that the bale of Sumatra tobacco, with an "option of ment of error in this case. court below erred in refusing five separate seven more ten days after arrival" The option was plaintiff's, and not defendant's with the answers thereto, are embodied in and distinct points for charge, all of which, and was unconditional, except that it had to the one assignment. By rule 26 of the rules be exercised within ten days after the arrival of this court such joinder constitutes "a of the first bale. When the latter was receiv-waiver of all the errors so alleged"; and ed defendant was at once notified that plaintiff exercised his option to receive the seven additional bales. Defendant refused to deliver them, alleging as an excuse that when it sent the one bale it notified plaintiff, "We have no more of this lot," and that plaintiff accepted the one bale with full knowledge of that fact. If we were to give to that notice the effect defendant claims for it, that no more bales would be delivered, he would not be helped thereby. A seller cannot escape liability by partial performance of his contract, with notice that he will not fully perform. To so hold would mean nothing less than that notice of an intended breach would excuse the breach, and that acceptance of part performance would be a waiver of full performance. Happily the law countenances no such inequitable contention. The judgment of the court below is affirmed. [2] We are less regretful of this, because, upon the merits, there is nothing in appellant's contention. The suit was upon an agreement by which the stock of goods of the Plumville Lumber Company, belonging to Noah Seanor alone, was sold to a partnership consisting of Noah Seanor, the defendant, Fitt, and George H. Hileman; defendant and Hileman each personally agreeing to pay Seanor one-third of the appraised value thereof. When the stock was appraised, Hileman paid his one-third, but Fitt paid only a portion of his, and his attempt, at the two trials of the case, was to tangle up the matter with the later affairs of the partnership. In this he was unsuccessful, as he should have been. So far as the duty to pay was concerned, it was an individual, and not a partnership, transaction. Appeal from Court of Common Pleas, 2. CONTRACTS Westmoreland County. Proceeding by George W. Seanor, as executor of Noah Seanor, deceased, against John H. Fitt. Motion to quash writ of foreign attachment, with notice to George W. Seanor, executor, Benjamin H. Thompson, garnishee, and others granted, and defendant appeals. Reversed, and a procedendo awarded. 142-RESTRAINT OF TRADEUNREASONABLENESS - QUESTION FOR JURY. The court cannot decide as a matter of law business of smoking and curing fish, limited that an agreement in restraint of trade in the to the states of Pennsylvania and New Jersey, for the protection of those engaged in a wholesale business in interstate commerce and in export and Canadian trade, is unreasonable. 3. APPEAL AND ERROR 1009(7)—FINDINGS OF TRIAL JUDGE REVERSAL. Argued before BROWN, C. J., and STEWART, WALLING, SIMPSON, and FOX, JJ. Where there is evidence sustaining the facts found by the trial judge in suit in equiHugh W. Walkinshaw and Lewis C. Wal-ty, which were approved by the court below, kinshaw, both of Greenburg, for appellant. Benjamin H. Thompson, of Pittsburgh, and H. K. Shaffer, of Mt. Union, for appellee. SIMPSON, J. Plaintiff issued a writ of foreign attachment and summoned five garnishees, viz. himself, three other individuals, and John P. Kilgore, the sheriff of the county. Defendant moved to quash the writ as to all the garnishees, none of whom joined in the motion, without averring any reason therefor, but evidently upon the ground that money in the hands of a sheriff is in custodia legis, and not the subject of an attachment. The attachment was quashed expressly upon that ground, and plaintiff appeals. The court below should have refused to entertain the motion to quash until and unless defendant stated of record his reasons for the Supreme Court will not reverse such findings, unless clear and plain error has been shown. Appeal from Court of Common Pleas, Philadelphia County. Bill in equity for an injunction by Israel Sklaroff and others, trading as S. Sklaroff & Sons and others, against Harry Sklaroff and others, trading as the Pennsylvania Smoked Fish Company, H. Sklaroff & Son, Samuel H. Sklaroff, and others, to enjoin defendants from conducting the business of smoking and curing fish in the states of Pennsylvania and New Jersey, either in their own name or in any other name. From a decree for plaintiffs, defendants appeal. Affirmed, and appeal dismissed. and KEPHART, JJ. Joseph Gilfillan and Alex. J. Brian, both of Philadelphia, for appellants. asking the intervention of the court. The rec-ZISKER, FRAZER, WALLING, SIMPSON, Argued before BROWN, C. J., and MOSCHord was regular on its face; and the attachment, so far as appears, was properly issued. No affidavit of cause of action was asked for or filed, and no depositions were taken. Under such circumstances it was an abuse of discretion (if it was the exercise of a discretion) to quash the writ; for its effect, if sustained, would be to deprive plaintiff of an opportunity to have the action of the court below reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes David Bortin, Jacob Singer, and Emanuel Furth, all of Philadelphia, for appellees. SIMPSON, J. Plaintiffs since 1892 have been carrying on, in the city of Philadel phia, the business of curing and smoking | fendants or that the latter had any interest fish, and disposing of the same at wholesale. in the new business. The court below entered Harry Sklaroff and Samuel Sklaroff, two of a decree substantially as prayed for in the the defendants, were formerly in plaintiff's bill, and therefrom the defendants jointly employ, but in March, 1914, entered into prosecute this appeal, raising two questions: similar business for themselves. Disputes (1) Is the agreement an unreasonable reand litigations arose between the parties, re-straint of trade? (2) Does the evidence jussulting in plaintiffs agreeing to purchase the tify the decree? business. The agreement alleged that the vendors were trading as Harry or H. Sklaroff & Son, and provided, inter alia, as follows: "IV. Samuel Sklaroff and Harry Sklaroff, individually and trading under any of the names hereinbefore mentioned as parties of the second part, are to discontinue their present business of curing and smoking fish, and are not to engage in said business in the states of Pennsylvania and New Jersey. "V. It is further agreed that neither Samuel Sklaroff nor Harry Sklaroff will hereafter engage in any business pertaining to fish or delicatessen under the firm name of 'Harry Sklaroff & Son,' or 'Sons,' or 'H. Sklaroff & Son,' or 'Sons.'" When the consideration money was ascertained and paid in the manner provided by the agreement, a bill of sale was executed and delivered which specified, inter alia, as follows: "We, Harry Sklaroff and Samuel Sklaroff, individually and trading as Harry or H. Sklaroff & Son, further agree not to engage in the business of curing and smoking fish directly or indirectly in the states of Pennsylvania and New Jersey." The present bill in equity avers these defendants are violating the covenants above set forth, and are engaging in the same kind of business through the agency of Harry Granoff and Morris Beloff (or Belofsky), the other defendants, under the name of Pennsylvania Smoked Fish Company, H. Sklaroff & Son, Samuel H. Sklaroff, S. H. Sklaroff & Co., and Harry Sklaroff & Son. In their answer the two Sklaroffs denied that they were violating their covenants, asserting that the purchase of their business was in pursuance of a scheme of plaintiffs to establish an illegal and vicious monopoly, and averred "that the restraint of trade sought to be effected is unreasonable." In what sense it was thought to be unreasonable is not stated, nor was any evidence produced at the trial to show that it was unreasonable. The answer of the other defendants averred ignorance of the restrictive agreements, and denied that they were agents of their code So. [1-3] The agreement being limited in space, though unlimited in time, is prima facie good, and there is nothing in this case to enable us to review the decision below holding it to be Instances may arise in which, without evidence being produced, a court can determine that such an agreement would be unreasonable; as, for instance, in the case of a like restraint on the sale of a small retail grocery business. But where, as in this case, the business is a wholesale business, and all the defendants expressly admit "complainants are engaged in interstate commerce, and are known, as stated in the bill, in the fish markets of the United States, Canada, and Europe," in the absence of proof showing the restraint to be unreasonable, and there is none, we would not be justified in holding it to be so. Upon the question as to whether or not there was sufficient evidence to support the decree, we need only say that a careful reading of all of it does not disclose to us any error. From a very careful review thereof, the trial judge concluded that the story of Granoff and Belofsky as to the money they had invested in the new business "was fabricated"; that "the money was Harry Sklaroff's" and that "there has been clearly established an intention on the part of defendants to evade the conditions of the contract between plaintiffs and defendants Sklaroffs; that the Pennsylvania Smoked Fish Company is, in reality, the business of Harry and Samuel H. Sklaroff; that Granoff and Belofsky are merely their agents, and that the plan was conceived for the purpose of avoiding the contract of March 18, 1916." From those findings the decree below was inevitable. True the trial judge might have found otherwise, but clear and plain error has not been shown, and hence as he saw the witnessesan exceedingly important matter in this class of cases-and there is evidence to sustain his findings, which were approved by the court below, we also must approve them, Hancock v. Melloy, 187 Pa. 371, 41 Atl. 313; Byers v. Byers, 208 Pa. 23, 57 Atl. 62. The decree of the court below is affirmed and the appeal dismissed, at the cost of appellants. (106 A.) (263 Pa. 480) (Supreme Court of Pennsylvania. 1919.) the par value of $1,000 each, and they were duly registered in her name by the defendant, the Pennsylvania Company for Insurance on Lives and Granting Annuities, the trustee named therein. George M. Wagner, until his Feb. 10, flight in May, 1913, was an attorney in good standing in the city of Philadelphia, was her counsel, and had charge of these certificates 1. ESTOPPEL 75-RECEIPT OF INTEREST for her. On January 19, 1912, Wagner preFORGED POWER OF ATTORNEY. Plaintiff, a woman, not versed in business matters, whose trust certificates were registered in her name by defendant, the trustee named therein, and who intrusted the securities to her attorney, would not be put upon notice of his forgery of her signature to a transfer and equitably estopped as against the trustee, which negligently acted to her injury when it had the power and the duty to protect both her and itself. 2. ESTOPPEL 75-RIGHTS OF INNOCENT PURCHASERS FORGED TRANSFER OF TRUST CERTIFICATES. The owner of trust certificates duly registered in her name by defendant company, the trustee named therein, who promptly gave notice after she knew, or should have known, of a forged transfer by her attorney, would not be estopped in favor of innocent purchasers who made no inquiry of her in regard to alleged transfer. Moschzisker, J., dissenting. sented to the trustee a forged power of attorney dated November 23, 1906, witnessed by himself and one other person, and guaranteed by two firms of stockbrokers, stating that said certificates had been sold, assigned, and transferred to him (Wagner), and the trustee thereupon transferred them to his name. On or about February 15, 1912, Wagner executed an assignment thereof to other parties, and, by sundry later assignments, the apparent title thereto was transferred to the individual defendants, John B. Stetson Company, Arthur A. Fleisher, John S. Dismant, and Annie H. J. Taylor, guardian of Frances E. and Johanna F. Betz. All the transfers were registered by the trustee in the names of the parties to whom the title was apparently transferred. Up to and including October 2, 1911, the interest which fell due on the certificates, was paid to plaintiff by the trustee, by checks drawn in her name. On April 1, 1912, a check was issued to Wagner for the Appeals from Court of Common Pleas, Phil-interest due that day, and he indorsed it adelphia County. Bill in equity by Marian Graves Walker against Pennsylvania Company for Insurance on Lives and Granting Annuities, John B. Stetson Company, Arthur A. Fleisher and Anna H. J. Taylor, guardian, and others, to declare a signature a forgery and for an injunction, a discovery, and an accounting. Decree for plaintiff, and defendants John B. Stetson Company, Arthur A. Fleisher, and Anna H. J. Taylor, guardian, take separate appeals. Affirmed, and appeals dismissed. over to plaintiff and forwarded it to her. Argued before BROWN, C. J., and STEW-unsuccessfully endeavored to establish their ART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Horace M. Rumsey and I. Hazleton Mirkil, both of Philadelphia, for appellant guardian. George A. Elsasser and Duane, Morris & Heckscher, all of Philadelphia, for appellant John B. Stetson Co. right to the certificates, plaintiff filed the bill in equity in this case against the trustee, the parties holding apparent title to the certificates, and Joseph Carson, trustee in bankruptcy of the said George M. Wagner, asking that her signature be declared a forgery; that the certificates be retransand that the trustee thereof pay to her inferred to her, duly registered in her name; terest thereon from and after the last date at which she received payment from Wagner. A decree was entered as prayed for, and the trustee and three of the other defendants, namely, John B. Stetson Company, Arthur SIMPSON, J. On May 4, 1898, Marian A. Fleisher, and Anna H. J. Taylor, guardian, Graves Walker, the plaintiff in this case, have prosecuted the several appeals now bepurchased six $1,000 trust certificates of the ing considered. The other defendants did Electric & People's Traction Company, of not appeal. J. W. Bayard, of Philadelphia, for appellants Fleisher and Pennsylvania Company for Insurances on Lives and Granting Annui ties. Geo. Munson, of Philadelphia, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |