276 Pa. 452 | Pa. | 1923
Opinion by
This action is by a lessee against the lessor for the appraised value of certain machinery left in a coal mine. The plaintiff, Dodson Coal Company, Inc., was lessee of a certain coal mine in Mahanoy Township, Schuylkill County, of which the New Boston Land Company, defendant, was the lessor. The lease, which was for a thirty-year term, expired December 31, 1917. The twelfth section of the lease, inter alia, provides: “And it is further agreed that at the final end and determination of this lease, each of the parties hereto shall, without delay and by the method fully set forth and provided for in the sixteenth section, appoint one disinterested person for the purpose of appraising in detail the value of all such property and improvements, paid for by the lessees, on the herein demised premises, and such valuation being definitely determined, the parties of the first part, their heirs, executors, administrators or assigns, shall have the option of taking such property or any portion thereof which shall become the absolute property of said parties of the first part upon payment by them of such adjudged value; but if the said parties of the first part shall decide not to take such property or any por
Defendant also submitted to plaintiff, inter alia, a list of appraised property called “Schedule C,” amounting to $174,706.19, with an annotation thereon as follows: “Ultimate Rejections. To be removed as soon as we can liberate them, by reason of new installations.” The latter clause refers to electric machinery which defendant was then placing in the mine, at an expense of over $300,000, but the installation thereof was progressingslowly; meantime, defendant was obliged to use plaintiff’s old machinery or close the mine. The old machinery, however, was depreciating in value and plaintiff objected to its continued use in the mine. Thereupon, the presidents of the two companies (plaintiff and defendant) met on April 9, 1918, and entered into an agreement for the disposition of the Schedule C property. On the next day (April 10th) plaintiff’s president wrote defendant a letter setting forth his understanding of the agreement, to which defendant’s president replied two days later. So far as disclosed by the two letters, both understood the agreement as to Schedule C alike, in effect, that defendant should release the property to plaintiff before October 1, 1918, and pay the latter at the rate of ten per
Tbe case was tried with great care and we find no reason to disturb tbe judgment. Allowing tbe jury to construe tbe contract, whether right or not, did defendant no barm; otherwise it would have been tbe duty of tbe trial judge to direct a verdict for plaintiff on tbe written evidence. Tbe letters required defendant to pay for all tbe property it failed to return to plaintiff before tbe first of October, and there was no dispute as to what that property was or its appraised value. It was also defendant’s duty to collect tbe outside property and bring tbe inside property to tbe mouth of tbe mine and give plaintiff notice of its readiness to deliver, but it did none of these things. In tbe face of defendant’s failure to return or offer to return tbe property, tbe title thereto vested in it, while tbe right to recover therefor vested in plaintiff. In other words, plaintiff was bound to receive all property delivered or tendered prior to October 1st, and defendant was bound to pay tbe inventory price for all property it failed to deliver or tender by that date: see Dewey v. Erie Borough, 14 Pa. 211. Where a debt may be discharged by tbe delivery of certain property within a specified time, a failure to so de
It is no excuse that defendant could have turned over tbe property bad it seen fit to do so. Tbe language in defendant’s letter, “We will pay for what we cannot turn over,” taken in connection with the entire letter, means, “We will pay for what we fail to turn over,” and that such was the understanding of the parties appears in the correspondence and especially in defendant’s letter of September 30th. It is a novel proposition that a party may escape the performance of a contract because of an undisclosed ability on its part to perform it. Such construction would defeat the purpose and object of the contract,—which, if possible, should be avoided: Bangor P. Slate Co. v. Bangorvein Slate Co., 270 Pa. 161. The offer therefore, to show defendant’s ability to turn over the property on October first was rightly rejected; as was the evidence tending to show what use was made of the property on or after that date, while the request to charge that defendant should be excused because it could have returned tbe property in question witbin the time stated, was correctly refused.
It was proper for tbe trial judge in tbe course of bis charge, and when giving additional instructions, to read from and comment upon letters wbicb were in evidence.
There was no error in refusing defendant’s first' point, viz: “1: Tbe letter of April 10th, 1918, from T. M. Dodson to Warren Delano and that of April 12th, 1918, from Delano to Dodson must be construed in connection with tbe understanding of tbe parties that tbe articles belong
Defendant’s third point could not be affirmed because founded on an erroneous assumption that the letter of April 12th fixed no time for the delivery of the articles mentioned in Schedule C.
The assignments of error are overruled and the judgment is affirmed.