34 Pa. Super. 637 | Pa. | 1907
Opinion by
The court below entered a nonsuit and subsequently refused to lift it, for the reason that there was not sufficient evidence on the facts as developed in the plaintiff’s testimony. On July 1, 1899, the plaintiff purchased, by a parol agreement, from the defendant, all the timber on a described tract of land, at a price which was paid in full; the plaintiff entered into possession, expended money in making improvements, roads, etc., cut down and removed some of the timber, when on December 10, 1901, the defendant stopped plaintiff from cutting any more timber and from removing from the tract some already cut down and made into logs and railroad ties. The action was in assumpsit to recover damages for the breach of the contract, and the statement of claim embraces two specific items of claim, first, for the manufactured logs and ties remaining on the land, and, second, for the timber standing at the time the defendant gave his notice.
Having shown the actual damages sustained as to this branch of the case, it should have been submitted to the jury under proper instructions as to the measure of damages.
The judgment is reversed and a venire facias de novo awarded.