116 Pa. 17 | Pa. | 1887
Opinion,
We think the learned court below was in error in their interpretation of the clause of the contract which subjected its obligatory force to the will of the grantees. The language of this portion of the agreement is certainly inartistic and indeed uncouth, but it is not unintelligible. It is practically conceded in the charge that “ Krum & Peters had a right to give up the lease if they in good faith believed it could not be made to pay.” We agree with this, but, as we understand the charge, this is not the question upon which the case was given to the jury. On the contrary, the court said, “I say to you that when this lease was given up in June, 1884, if it is proved that at that time, by ordinary diligence and ordinary business enterprise and capacity it might have been made to pay a profit, Mr. Mersher majr recover, because there is implied in this agreement a covenant or understanding that they shall work it in an ordinary workmanlike manner.” And again:. “If the plaintiff has satisfied you that the quarry when the lease was given up, was of such a kind and the material was of such a quality, and the quarry itself was of such a character as to be workable with profit, the plaintiff can recover..... If you consider all the evidence on that question and you are
According to this view of the defendants’ obligation, it did not depend in any degree upon their own estimation or belief as to their ability to work the quarry at a profit, nor even upon the actual results of the best and most faithful efforts they could put forth with whatever capital or facilities they possessed. Instead of that, the crucial test of liability as stated to the jury was the possibility of the quarry being worked at a profit with ordinary diligence by anybody or by any means. That of course is a mere question of opinion to be proven by witnesses who would testify as to their belief on the subject, and who might thus induce a jury to find according to their belief as to what could be done with the quarry. Such opinions as this are easily obtained from willing friends of the interested parties, as unhappity is the case in too many other kinds of cases. They cost nothing to the witness. He does not go through the hazardous ordeal of actually conducting at his own expense the practical operations concerning which he testifies. He ventures nothing but an opinion and in that he assumes no risk. Upon reading the testimony in this case we find it was tried upon this principle precisely. Witnesses were examined on behalf of the plaintiff to prove that the quarry could be worked at a profit and they gave their opinions to that effect. It was proved most clearly for the defence that in point of fact no profit was made, but on the contrary a heavy loss, and there was no proof in the case that in reality any profit was made, yet the jury were instructed that if they found that the quarry could be worked at a profit the plaintiff was entitled to recover. But the agreement provided for a very different standard of liability. The language is, “Should the quarry prove a failure that no proceeds should be in hands of the second party, or that they would abandon the quarry, believing that the quarry would not be a paying one or a profitable one to them in their estimation, and if the quarry had not netted any clear profit to the second party at abandoning said quarry, then the second party shall not be responsible for any further payment, and this
We also sustain the fifth, as we do not see the relevancy of the testimony there offered and admitted, and we are unable to discover any evidence of bad faith on the part of the defendants.
Judgment reversed.