PHILADEELPHIA v. HOLMES ELEC. PRO. CO., 353 Pa. 296 (1946)

45 A.2d 22

Philadelphia v. Holmes Electric Protective Company of Philadelphia, Appellant.

Supreme Court of Pennsylvania.November 27, 1945.
January 10, 1946.

Appeals — Review — Assumpsit — Defenses — Consideration — Question of fact — Municipal corporations — Ordinances — Amendment.

Where suit was brought for money alleged to be due a municipality under an ordinance, as amended, and the question of liability turned on the existence of consideration for another amendment to the ordinance in which the municipality surrendered its right to revoke the grant conferred by the original ordinance, and it appeared that there was no consideration for such surrender, it was Held that a judgment for the municipality should be affirmed.

Argued November 27, 1945.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

Page 297

Appeal, No. 293, Jan. T., 1944, from judgment of C. P. No. 7, Phila. Co., March T., 1941, No. 3278, in case of City of Philadelphia v. Holmes Electric Protective Company of Philadelphia, a Corporation. Judgment affirmed.

Assumpsit. Before LEVINTHAL, J.

Disagreement by jury. Motion by plaintiff for judgment on whole record granted. Defendant appealed.

Benjamin O. Frick, for appellant.

Abraham Wernick, Assistant City Solicitor, with him Samuel Feldman, Assistant City Solicitor, and Frank F. Truscott, City Solicitor, for appellee.

PER CURIAM, January 10, 1946:

When this matter was here before on the plaintiff’s appeal from an order sustaining the defendant’s statutory demurrer (347 Pa. 69, 73) we reversed and sent the case back for a trial on the merits to determine whether the defendant had given any consideration for the City’s surrender in the 1921 ordinance of its right to revoke the grant conferred by the 1906 ordinance. In the view we took of the statutory demurrer, no other course than a trial on the merits was available for bringing the matter on for final adjudication. On the one hand, the demurring defendant relied upon the alleged but yet unproven fact of consideration as support for its legal contention while, on the other hand, the plaintiff sought no more summary disposition of the matter than by trial of the claim and the defense so interposed. The learned trial judge has justifiably found from the undisputed evidence that there was no consideration for the 1921 ordinance. That finding, without more, was a presently sufficient answer to the defendant’s contention and the judgment now appealed from appropriately followed.

Judgment affirmed.

Page 298