Bible v. Centre Hall Borough, Appeal, No. 218

Appeal, No. 218 | Pa. Super. Ct. | Jan 21, 1902

Opinion by

William W. Porter, J.,

On September 13, 1897, the plaintiffs entered into a written agreement with the borough of Centre Hall whereby the said borough acquired “ the right to take all the water and to exclusively appropriate the same (save as hereinafter excepted and reserved) upon all that certain tract and piece of land situate in Potter township, Centre County, Pa.,” accurately described by adjoiners and containing seventy-six acres, more or less. For this right the borough agreed to pay a rental of $50.00 per year for five years, and thereafter of $75.00 per year for the balance of a term of ninety-nine years. In addition to the payment of this sum the borough agreed to build a reservoir for the use of the plaintiffs, and to lay certain pipes, etc. For two years the borough paid the sum of $50.00 in advance under the agreement. It refused to pay the third year, and refused to lay pipes and make the other constructions as agreed. The plaintiffs now sue for the rent for the third year and for damages for the failure to put down the pipes. The amount in dispute was agreed by the parties to be $149.25.

At the trial the plaintiffs proved the agreement; the failure to pay the rent and to make the constructions contracted for; and that the defendant had laid pipes on an adjoining farm, taking water therefrom, and by means of ditches and pipes had, without entering upon the plaintiffs’ property, abstracted water therefrom. The defendant borough by some indefinite testimony, challenged the allegation that water was taken from the plaintiffs’ farm. This phase of the case is unimportant to its present determination.

The defendant then offered to prove that anterior to the lease or agreement a committee of the borough council investigated the amount and location of the water on the plaintiffs’ property; that a spring, called by the defendant the Laurel spring, was pointed out by some one as upon the plaintiffs’ property; that one, Ryder (a member of the council), “ represented to the said committee that he knew that this particular spring was upon the Bible property, and that he had been authorized by the owners of the Bible farm to show it to the committee; ” that no other water upon the farm was sufficient in quantity and elevation to be of value to the borough; that the plaintiffs contended and represented, “so far as the borough knew,” that the said spring belonged to their property; thatthe first two annual payments of rent were made upon the belief by the borough that the said spring belonged to the plaintiffs; that at the time of laying the pipes to the said spring one of the plaintiffs gave notice that the spring and the water therefrom belonged to the plaintiffs, 'and required the borough to comply with the lease; that the lease was executed by the borough on the belief that the said water and spring belonged to the plaintiffs and that the borough was purchasing the said water from the plaintiffs, and that the contract was not entered into by the borough for any other reason or upon any other condition; that subsequent to the payments of rent the borough was notified by one, Bruss, that the water and the spring were upon the Bruss farm, and that the borough must pay him; that subsequently the borough by survey discovered that the claim of Bruss was correct; and that the borough is “ not using any water from the Bible farm, nor intend to.” This offer was excluded. As no further evidence was submitted, the court directed a verdict for the plaintiffs. The exclusion of the offer and the directed verdict are the bases of complaint here. If the offer was properly excluded there was no course open to the court but to direct a verdict. The question is narrowed then to the ruling upon the offer.

The first item of the offer is seen to be to prove representations on behalf of the plaintiffs that a particular spring was upon their tract and that these representations induced the contract. But the offer does not include any proposition to prove the authority to the alleged agent making such representations, save as they might appear by his own declarations. Enough on this point. The appellant construes the balance of the offer to be to prove a mutual mistake of fact at the execution of the contract by reason whereof the contract should be rescinded. The mistake alleged is, that the spring (called by the appellant the Laurel spring) was upon the Bible farm, whereas it was upon the Bruss farm. The general rule is that an act done or a contract made under a mistake of a material fact, is voidable and relievable in equity. But the fact must be material to the act or contract, “for though there maybe an accidental mistake, or ignorance of the fact, yet if the act or contract is not materially affected by it, relief will not be granted; ” Riegal v. American Life Ins. Co., 153 Pa. 147. Assuming that such a mistake, relievable in equity, is admissible as matter of defense in a common-law action, the defendant does not explicitly offer to prove a mutual mistake. Furthermore, the evidence for the plaintiffs showed in effect that the spring (called by the defendant the Laurel spring) was not upon their property : that they knew of no spring by that name, and that they had never represented or asserted that the spring described by the defendant was upon their property. This the offer does not in terms propose to contradict. Again, the contract which the defendant executed and now desires to rescind, itself does not purport to be a lease of any particular spring. The existence of the spring described by the defendant is not a fact upon which the contract by its terms in any way depends. The language is general. The lease is of all the water upon the land of the plaintiffs, and, as appears by all of the testimony, there are several sources of water supply upon the land. As the mistake offered to be proven is not of a fact which one of the parties asserted, believed or assumed when the contract was made, mutuality is absent. As it is of a fact not material to, or of the essence of, the contract executed, another defect, equally fatal, appears in the offer. The proposition in this case is rather to prove a mistake made by the borough than a mistake common to both contracting parties. Had the learned trial judge given some intimation of the reasons which induced his action taken in this case, we would have experienced less labor in its review. Whatever his reasons, he reached a right result.

The judgment is affirmed.