253 Pa. 593 | Pa. | 1916
Opinion by
This was an action to regain the hand-money paid on an alleged contract for the purchase of certain timber lands; on a plea of set-off, a monetary verdict was rendered for the defendant, but this was reduced to one for costs only; both sides have appealed.
The plaintiffs’ statement averred they were copartners; that in January, 1905, the defendant claimed to be the owner of contiguous tracts containing over 30,000 acres of valuable timber land in the State of West Virginia, which he had placed in the hands of W. H. Cobb, as agent, “with full power and authority to sell and dispose of the same”; that in December, 1905, Cobb notified the plaintiffs he had this land for sale, and it would cut certain stated quantities of timber per acre, 90 per cent, thereof being hemlock and spruce and the balance poplar and hardwood; that Cobb “invited the plaintiffs to inspect the land and timber with a view to purchase same”; that, in response, agents of the plaintiffs visited the land, and were “furnished with one James Gibson as a guide to take them over the ground and inspect the timber,” who “pretended to point out to them the boundaries of said 30,000 acres”; that, “relying upon the information thus obtained and the representations thus made,” the plaintiffs decided to purchase the tract, and for this purpose Joseph Kaye, on January 15, 1906, visited the defendant, who “reiterated the statements made by his agent, W. H. Cobb, Esq., to the effect that he was
The defendant filed an affidavit of defense, in which he denied that “either he or his agent, W. H. Cobb, represented to plaintiffs......that defendant had more than 30.000 acres of valuable timber land......, but told the plaintiffs that he had, by deed or contract,......about 29.000 acres, and option on about 3,600 or 3,700 acres more”; that “plaintiffs......stated to the defendant all the land they would take of him was the 29,000 acres ......and if they wanted the 3,600 or 3,700 acres...... they would buy it directly from the owners themselves.” The defendant further denied any representations had been made to the plaintiffs that he owned contiguous tracts, and averred they had been informed the lands in question “consisted of a large number of smaller tracts purchased by defendant of different parties,” which were “almost but not entirely contiguous.” He denied that the lands were broken up into separate tracts so relatively located that it would be impossible to conduct a timber operation upon them, and averred the tracts “were located so as to make it practicable to conduct a lumber operation thereon”; moreover, the defendant averred that the titles to the whole of the lands tendered were “good and marketable”; that the plaintiffs, “lumbermen of many years’ experience,” had examined the lands for themselves before contracting to purchase,
When the case came to trial, the presiding judge ruled that a contract in writing sufficient to satisfy the requirements of the statute of frauds had not been shown, and this is complained of by the defendant in several assignments of error. All the other issues raised by the pleadings were sent to the jury on evidence which justi
It is conceded by all parties that the West Virginia statute of frauds controls the present case; this requires that a contract for the purchase of real estate shall be evidenced by “some memorandum or note thereof...... in writing signed by the party to be charged thereby, or his agent.” The defendant contends that a letter produced by him, signed by “C. B. Howard & Co.,” dated January 18, 1906, and addressed to John A. Innes, together with other writings, and oral evidence, was sufficient to meet the requirements of the law. This letter reads as follows: “Referring to our conversation over the ’phone yesterday in regards to the 30,000 acres on the head waters of the Elk river in West Virginia which our Mr. Kaye purchased from you last Monday, we think it would be a good plan for our Mr. Kaye to go along with you to Elkins next week, as we are anxious to get all the maps and descriptions of the deeds and rights of way belonging to all your holdings in these lands as soon as possible, so we will have plenty of time to examine same before we sign the final detailed agreement which you are making.”
After giving most thorough consideration to all the evidence offered upon the subject in hand, and reading the numerous authorities cited, we are not convinced the trial judge erred in his ruling that the proofs depended upon did not meet the requirements of the statute. The receipt given January 15, 1906, for the $10,000.00 paid on account, was signed by the defendant, not by the plaintiffs, hence, so far as the counterclaim is concerned, this writing, standing by itself, is not a memorandum “signed by the party to be charged.” When we come to the letter of January 18,1906, so largely depended upon by the defendant, while bearing the signature of “C. B. Howard & Co.,” yet it, as well as the other writing just
Orally to identify the subject-matter of a contract, referred to in a written instrument by general description or through the medium of a recognized name, is essentially different from an attempt by parol evidence to determine and define the subject-matter itself; in one case the name or description is simply applied to the thing in view, while in the other the thing itself is established: see Title, Guaranty & Surety Co. v. Lippincott, 252 Pa. 112, and cases there referred to. Here, notwithstanding the offers to show that the lands in question were known as the “Innes tract” and could be so identified, when all the relevant established facts are considered, it is too plain for discussion that the defendant attempted the latter, or forbidden, not the former, or permitted course, and we are not convinced the court below erred in refusing to allow this to be done. Before leaving the branch of the case now under consideration, we take occasion to say there is no material difference between our law and that of West Virginia on the subject in hand. The defendant’s assignments of error are all overruled.
On the other appeal, as already indicated, the plaintiffs contend for judgment in their favor notwithstanding the verdict. In disposing of this phase of the case, the court below states, inter alia: “The evidence is very conflicting as to the terms of the agreement. Plaintiffs’ evidence tends to show that it was an absolute unlimited contract; on the other hand, the defendant’s evidence is to the effect that it was a limited agreement, merely to sell and convey whatever interest the defendant had in the lands in question, expressly stipulating that the defendant would assume no responsibility as to titles, acreage or timber, and that the contract was for a reduced price because of such limited agreement. We instructed the jury that if they found for the plaintiffs on that question, then on account of certain defects
The above quoted excerpts from the opinion of the court below amply dispose of the plaintiffs’ appeal, but it may be noted that the matter of this twenty-year limitation is nowhere depended upon or referred to in the plaintiffs’ statement of claim; it appears to have been brought forward at trial after the deed showing the limitation had been allowed in evidence for an entirely different purpose, and even then the plaintiffs did not ask to amend their declaration, in order to add this restriction as an additional justification for the rescission of their contract. While it is true that Mr. Cobb’s original letter to the plaintiffs stated “There is no time limit for the removal of the timber,” with some general exceptions, yet it was not made clear that the plaintiffs in any sense depended upon that statement, or that, in point of fact, the defendant really had any greater knowledge upon the subject than the plaintiffs; furthermore, all the indications were that the limitation was not considered of material importance by any of the parties until its significance was urged at the end of the trial in the court below. After reading the voluminous testimony in the case, we find no justification for the assertion that Mr. Innes deliberately misled the plaintiffs as to the existence of the limitation, and, since there was a decided conflict in the evidence as to whether or not they were deceived in any other respect concerning the lands which they sought to purchase, all of the issues in that regard were properly submitted to the jury.
The crucial points in the case involved the character
The jury found for the defendant in the sum of $3,-547.20; whereupon the court requested them to retire and ascertain the amount which the plaintiffs would be entitled to recover should it thereafter be determined, as a matter of law, that on the entire evidence the plaintiffs, and not defendant, were entitled to the verdict. The jury fixed this amount at $18,267.08, and the plaintiffs subsequently moved for judgment n. o. v., accompanying their motion with a suggestion that should it be refused “then the plaintiffs hereby specifically object to the entry of judgment in favor of the defendant upon the verdict of the jury for any greater amount than the costs incurred in this case, for the reason that the amount of damages proved by the defendant......and awarded to him by the verdict......, to wit, $3,547.20, is less than the hand-jmoney paid by the plaintiffs..which
Tbe judgment is affirmed.