Barnes v. Pickett Hardware Co.

<p>EEBOE TO THE COUNT OE COMMON PLEAS OE ERIE COUNTY.</p> <p>No. 113 January Term 1889, Sup. Ct.; court below, No. 198 February Term 1887, C. P.</p> <p>On March 2, 1887, a declaration in the common counts was filed in an action of assumpsit brought by William H. Hind-march against Edward Hoffman, claiming the sum of 1400. The defendant pleaded non-assumpsit, with leave, etc.</p> <p>By agreement in writing, the cause was submitted to the decision of the court, without a jury, under the act of April 22, 1874, P. L. 109, and on February 22, 1888, the court, Gunnison, P. J., filed the following decision :</p> <p>BINDINGS OE EACT.</p> <p>On the morning of October 10, 1885, one Richard Savanaek stole from the plaintiff, in Buffalo, N. Y., a sum of money, f400 of which upon the same day he deposited with the defendant, to be returned to him or upon his order. There is no allegation that the defendant knew the money was stolen at the time, and as a fact I find he did not know it. He was after-wards notified by the attorney for the plaintiff that the plaintiff claimed the money, that it had been stolen from him by Savanack, and after this notice he paid it, upon the order of Savanack, to Messrs. Branda ge, Weaver & Bell, of Buffalo, receiving from them a bond to indemnify him against any liability to any other person for the money. Upon his refusal afterwards to pay the amount to the plaintiff, this action in assumpsit was brought.</p> <p>CONCLUSIONS OK LAW.</p> <p>I have been unable to find any authority sustaining the right to maintain assumpsit in a case of this kind. The rules governing the action are well established, and inquire that there should be privity of contract, express or implied, between the parties, in order to maintain it: Finney v. Finney, 16 Pa. 380 ; Wells v. Stewart, 5 Binn. 325 ; Allen v. Irwin, 1 S. & R. 549. “ To maintain assumpsit, privity of contract, either express or implied, is necessary. The mere fact of one man’s money coming into the hands of

<p>Special Assumpsit against the defendant as surviving partner of Ambro Hildreth, deceased, upon a promissory note signed with the firm name of H. C. Gleason & Co. Heard on general demurrer to the defendant’s second plea, at the March Term, 1902, Washington County, Start, J., presiding. 'Demurrer sustained pro forma, and plea adjudged insufficient. The defendant excepted.</p> <p>The plea demurred to is as follows: “And for a further plea in this behalf, etc., the defendant says that the plaintiff ought not to have or maintain, etc., because the defendant says, that after the said several, supposed debts and causes of action in said declaration mentioned' were contracted and accrued, and before the commencement of this suit by the plaintiff in this behalf, to- wit, on the' eighteenth day of October, 1898, the said defendant became and was adjudged a bankrupt, in accordance with an Act of Congress entitled ‘An act to establish a uniform system of bankruptcy throughout the United States/ at, to- wit, Burlington aforesaid, and that the said defendant received his discharge as such bankrupt on, to wit, the first day of May, 1899, from the United States District Court for the district of Vermont, and1 that the debts were contracted, and the said causes of action, — if any there be— in said declaration mentioned, and each of them, did accrue to the said plaintiff before the said defendant soi became a bankrupt as aforesaid, to wit, at Richmond in the county of Chittenden on the eleventh day of June, 1888, and of this the said defendant puts himself on the country.”</p> <p>The plea of bankruptcy is sufficient, at least against a general demurrer. 3 Chitty Pleading, 10 Ahí- Ed. *956; The Bankruptcy Act 1898, § 21, f; Downer v. Chamberlin, 21 Vt. 414; Belnap v. Davis, 21 Vt. 409.</p> <p>In the reported cases when a discharge in bankruptcy has been pleaded, and the plaintiff claimed that his case was not affected by such discharge, the plaintiff has replied specially. Batchel

<p>Appeal, No. 259, Jan. T., 1902, by plaintiffs, from judgment of C. P. Lackawanna Co., Nov. T., 1901, No. 669, on demurrer to statement in case of Henry E. Pittsley, trading as Sayre Lumber Company, to use of J. Hibbs Buckman and O. L. Haverly, Trustees, v. F. M. Young, E. K. Atherton et al.</p> <p>Assumpsit on a contract to furnish and equip a milk condensory. Before Edwards, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining demurrer to statement.</p>

<p>Appeal, No. 26, Oct. T., 1896, by plaintiff, from judgment of O. P. No. 3, Allegheny Co., May Term, 1894, No. 602, on verdict for defendants.</p> <p>Assumpsit on a gas lease.</p> <p>The material portions of the lease were as follows:</p> <p>“This lease, made this 11th day of December, A. d. 1885, by and between Gotleab Minsinger of the county of Allegheny and state of Pennsylvania of the first part, and J. M. Guffey & Co., of Pittsburg, Penna., of the second part,</p> <p>“ Witnesseth, That the said party of the first part, in consideration of the stipulations, rents and covenants hereinafter contained, on the part of the said parties of the second part, their executors, administrators and assigns, to be paid, kept and performed, has granted, demised and let unto the said parties of tbe second part, their executors, administrators and assigns, for the sole and only purpose of- drilling and operating wells, and storing, transporting and conveying petroleum oil or gas through, over and from all that certain tract of land situated in Hemp-field township, Westmoreland county and state of Pennsylvania, bounded and described as follows, to wit: . . . .</p> <p>“ To have and to hold the said premises, for the said purpose only, unto the parties of the second part, their executors, administrators and assigns, for, during and until the full term of twenty (20) years next ensuing the day and year above written.</p> <p>“ The said parties of the second part hereby covenant in consideration of the said grant and demise to deliver unto the said party of the first part, his heirs and assigns, the full and equal one-eighth (£) part of the petroleum oil discovered and produced on the premises herein leased, and deliver the same in pipe lines to the credit of the party of the first part free of charge. It is further agreed that if gas is obtained in sufficient quantities and utilized, the consideration, in full to the party of the first part shall be five hunched (500) dollars for e

<p>Appeal, No. 154, Oct. T., 1905, by defendant, from judgment of C. P. Armstrong Go., Dec. T., 1904, No. 122, on verdict for plaintiff in case of R. A. McCullough, Receiver of the Manufacturers’ Natural Gas Company v. The Ford Natural Gas Company.</p> <p>Assumpsit to recover the value of natural gas. Before Thomas, P. J., specially presiding.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,566.68.</p> <p>On the rule for a new trial Thomas, P. J., filed the following opinion:</p> <p>While a number of reasons, mostly with reference to the answers of points, are assigned for the granting of a new trial, but two were urged therefor upon argument. It was urged there, as upon the trial, that the plaintiff must first establish his title to the well from which the gas was produced by an action in ejectment before bringing this action for compensation for the gas taken; and, secondly, that the plaintiff had mistaken his form of action, as assumpsit would not lie.</p> <p>There is no doubt but that if defendant were in adverse possession under a claim of title, that question must first be determined by an action of ejectment before an action for the gas taken would lio, and such is the trend of all of the authorities cited by defendant upon this subject. The trouble with this case is that the facts do not meet the very necessary element of being in adverse possession.</p> <p>The fact is that the plaintiff company placed its supervising manager in charge of the property, and it never had any notice of any adverse claim of title until this suit was brought. The said manager happened to be the president of the defendant company, if, indeed, he was not the company itself. Now, the said manager could not turn over to himself, as president, without right or authority, the property of plaintiff without any notice, and then claim that the company of which he is president holds or claims to have an adverse title.</p> <p>John Wick, Jr., was the manager of the compa