Lucas Coal Co. v. Delaware & Hudson Canal Co., 148 Pa. 227

148 Pa. 227 | Pa. | 1892

Per Curiam,

The specifications of error here are too numerous to discuss in detail, nor is it necessary. The attempt to prove the market value of the coal sold and delivered to the defendant at the time of delivery, very properly failed, for the reason, the price was fixed by the contract between William Connell and others, and the Delaware, Lackawanna & Western R. R. Co., offered in evidence. All the information needed, under that contract, could easily have been obtained by resorting to the usual legal remedies. The attendance of the officers or employees of the company could have been compelled by the process of subpoena. The production of the books and accounts-of said company, so far as they affected the case, could have been compelled by a subpoena duces tecum, if taken out and served within proper time. There appears to have been no-real attempt to procure this testimony. In its absence it was not error for the court to decline to admit evidence of the market value of the coal.

The offer to prove that a portion of the coal had been improperly condemned was properly rejected. It was stipulated in the contract between the parties that “ all the coal delivered under -this agreement shall be subject to the inspection of the superintendent of the coal department of the party of the second part, or such other persons as they may employ for that purpose, whose decision as to the quality of said coal, and the manner in which the same is cleaned and prepared, shall be final and conclusive.” It will thus be seen that the parties-agreed to submit this question to the decision of the inspector appointed by the defendant. His decision, under such circumstances, is final and conclusive, unless fraud be shown. And such fraud must have been participated in by the defendant company. In other words, the fraud must have been the result of collusion between the defendant and the inspectors appointed by him: Hostetter v. Pittsburgh, 107 Pa. 419; Hartupee v. Pittsburgh, 131 Pa. 535.

If, as was alleged in the 17th specification of error, the court below erred in sustaining the demurrer to the last count of the-plaintiff’s declaration, it is immaterial, for the reason that there was no evidence to sustain said count.

Judgment affirmed.