The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-03-15

Edwards sustaining the report OF the
viewers, recommending its condemna-
ton, was yesterday affirmed by the
Superior court at Harrisburg.
The road extends from the terminal
of the Providence and Abingdon or
Northern Boulevard company's road
at the little white church in Clark's s
Green, to the village of Factoryville. 1t
rs nine miles long. and passes through
South Abingdon, Glenburn, Dalton, La
Plume and Factoryville. 1t was built
in 1864 by u company, at whose head
was Gideon Palmer, of Glenburn, father
of Hon. Fl. w. Palmer, of Wilkes-Barre
Henry Northup is the present president
of the company. The capitalization OF
the company is $4,000.
Three years ago the court was petit
toned by large number of the people
of the municipalities through which the
road extends to have it condemned and
made free of tolls. A contemplation,
signed by many residents of South
Abingdon, was presented. 1t set forth
that South Abingdon was now taxed to
the legal limit for road repairs and
could not take care of any more roads.
REPORT OF VIEWERS.
Viewers We're appointed to take tes-
timony and report on the advisability
of condemning the road, and also what
the company should be allowed in
damages. They reported in favor OF
freeing the road, and fixed $500 as
fair remuneration to the company.
The Northern Boulevard company,
which had essayed to buy the mile-and-
n 1,o1c rfp fI1, re ,,I-
Green to Clark's Summit, as an extern
sion to its boulevard, also fought the
condemnation on the ground that a
boulevard company's road is not sub
ject to condemnation, once it is dedl-
Gated as a boulevard. Judge Edwards
decided that while this might all be
true, the mile-and-a-half stretch in
question could be condemned, because
the Northern Boulevard company ex-
ceeded it's charter rights when it as
sumed to buy it, The company was
chartered to construct and maintain q
boulevard between Providence corners
and Clark's Green and it could not,
without having it's charter amended,
even accept as gift any road or piece
of road other than that which would
extend between these termini. 1t was
too late to amend the charter in time
to forestall the condemnation and the
stretch coveted by the boulevard COM
pany goes free with the other seven
and one-half miles.
Attorney Richard Holgate appeared
for the parties favorng the condemna-
ton, and Attorney S. b. Price was
counsel for the opposition.
SUITS AGAINST CALENDER.
The Superior court also handed down
opinions affirming the findings of Judge
Kelly in the cases of G. T. Reynolds
and Mark *. Edgar against s. n. CAL
lender, and the finding of Judge Vos-
burg in the matter of the appeal OF
Silas Hartley in the Ezekiel Gumaer
estate.
In the first-named cases the plain
tilfs, each, bought of Mr.. Calender, at
his solicitation, one hundred shares os
the capital stock of the Arizona East
ern and Montana Smelling and Ore
Producing and Development company,
paying So a share Mr. Calender
agreed in writing that he would re-pur-
chase the stock at the expiration of six
months, at the option of the purchas-
ers, upon their giving fifteen days
notice of their desire to sell. At the
end of six months the purchasers chose
to exercise their option, gave the re-
quired fifteen days notice and pre-
sented their stock with a demand for
5000 apiece. Mr.. Calender refused to
re-purchase, and suit was brought to
enforce the contract
The defendant did not deny signing
the agreement. nor that he received
proper notice. He, however, denied the
plaintiffs right to recover 5000 apiece,
alleging that the most he could be
called upon to pay would be the diff
ference between the $500, each had paid
him, and the value of the stock at the
end of the sixty days.
He alleged, as a further defense, that
he did not understand the nature of
the paper he signed: that the plain
tiffs' attorney told him it was guar
antee that the stock would be worth as
much in six months as it then was:
that he so understood it, and was in
duced to believe it TO be so by the
statements made to him by the plain
tlffs' attorney.
JUDGE KELLY'S DECISION.
Judge Kelly decided that the contract
was enforceable specifically, and that
the attempt of the defendant to vary
the terms of the contract by alleging
fraud or MISREPRESENTATION could not
succeed when only supported, as it was,
by a general allegation
Judge Il. c. Newcomb and Clarence
Balentine represented the plaintiffs.
Watson, Diehl & Kemmerer were Mr..
Callenders attorneys.
The Gumaer case Is the first in which
an 'opinion from the new Lackawanna
Orphans court was passed upon by an
appellate court, 1t. incidentally, in
wolves a number of new questions OF
law, and, as consequence, some of
Judge Vosburg's findings in this, his
first reviewed opinion, will become au-
thority
The case involves the construction of
the will of the late Ezekiel Gunaer, OF
Benton, He gave various parcels of
land to his three sons Fred Frank and
George. A condition imposed was that
each of them should pay to their
mother annually the equivalent of six
per cent. on $4,000, and If she needed il.
the whole of $4,000, each paying a
third Freds land was sold at sheriff's
sale, bought in by Thomas Patterson
and by him conveyed to Silas Hartley.
Notice of the charge imposed on the
land by the will of Ezekiel Gumaer was
publicly given Mt The sheriff's sale.
Ten years after the probating of the
will, and several years after Hartley
got the Fred Gumaer land, the widow
came in and made claim against HART
ley for one-third of $1,000, alleging that
she needed it,
QUESTIONS AT ISSUE.