Lierz v. Morris

• Decision Date: 21 January 1902
• Docket Number: 154-1901
• Citation: 19 Pa.Super. 73
• Parties: Lierz v. Morris, Appellant
• Court: Pennsylvania Superior Court

19 Pa.Super. 73

Lierz v. Morris, Appellant

No. 154-1901

Superior Court of Pennsylvania

January 21, 1902

Argued October 18, 1901

Appeal by defendant, from order of C.P. No. 5, Phila. Co.-1901, No 107, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Henry Lierz to use of Louis Goos v. E. Joy Morris.

Assumpsit to recover royalties.

The material portions of the plaintiff's statement and affidavit of defense are set forth in the opinion of the Superior Court.

Error assigned was the order of the court.

Dwight M. Lowrey, with him Alfred R. Haig, Henry C. Thompson, Jr. and William F. Harrity, for appellant, cited: Garrett v Cummins, 2 Phila. 207; Perry v. Wall, 68 Ga 70; Carey v. Bostwick, 10 U. C.

Q. B. 156; Hunt v. Gilmore, 59 Pa. 450; Mack v. Patchin, 42 N.Y. 167; Lanigan v. Kille, 97 Pa. 120.

J. Campbell Lancaster, with him Charles E. Lex, for appellee, cited: Perry v. Wall, 68 Ga. 70; Matter of Emery, 93 Eng. Com. Law Rep. 423; Carey v. Bostwick, 10 U. C.

Q. B. 156; Groetzinger v. Latimer, 146 Pa. 628; Griffith v. Sitgreaves, 2 W. N.C. 707; Hopple v. Bunting, 3 W. N.C. 472; Jackson v. Farrell, 6 Pa.Super. 31; McBrier v. Marshall, 126 Pa. 390; Vollmer v. Magowan, 180 Pa. 110.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

This action was brought upon an agreement under seal entered into by Lierz and Morris, under the terms of which the latter acquired the right to erect and operate in Pastime Park, Philadelphia, a toboggan slide, the consideration to be paid for said privilege being fifteen per cent of the gross receipts. The statement makes it very clear that under the covenants of the agreement, Lierz having procured an extension of his own lease, the term for which Morris was to enjoy the right conferred by the agreement had been extended until January 1, 1904. Goos succeeded by assignment to the rights of Lierz under the agreement, and brought this action to recover royalties alleged to be due under the contract from the operation of the toboggan slide from May 1, to September 23, 1899. The affidavit of defense does not deny the items of the claim but alleges a set-off against the same.

Plaintiff's statement shows that the right of Morris to operate the toboggan slide terminated on January 1, 1899, unless Lierz procured an extension of his lease; this fact must be presumed to have been known to all the parties. Lierz having obtained an extension of his lease and operated the park thereunder for a considerable period sold out to Goos, who had full notice of the rights of Morris in the premises. The affidavit of defense distinctly asserts that Goos, after he had succeeded to the rights of Lierz, falsely and deceitfully represented to deponent that the lease to Lierz had not been renewed, and that he, the said Goos, had taken a new lease for said park direct from the owner and was in no way bound by the terms of the agreement between said Lierz and deponent, upon which this suit was brought; that Goos notified deponent to remove the toboggan slide from the premises and that deponent, believing and relying upon said representations, did in September, 1899, take down and carry away the said toboggan slide and did quit the said premises. The defendant in his affidavit distinctly states that he for the first time learned of the false and fraudulent...