72 Pa. 151 | Pa. | 1873
The opinion o-f the court was delivered, by
— The construction which the court gave to the agreement of the 7th of April 1846, by its qualified refusal to charge as requested in the defendant’s third ¡joint, was in accordance with the evident intention of the parties. It is clear that the use of the railroad, and of the other property specified in the agreement, was granted to the vendees of the coal, under whom the defendant claimed the right to their use, for the sole purpose of enabling them to dig and remove the coal purchased from the grantor. The defendant, therefore, had no right to use the property for the purpose of taking out other coal of which he was the owner. But if he had no such right, are the plaintiffs entitled to maintain an action of assumpsit for the use of the property for a purpose for which it was not granted ? Undoubtedly such use was illegal, and the plaintiffs are entitled to some remedy or redress for the wrong of which they complain. But is assumpsit for the use and occupation of the property for other purposes than taking out the coal sold by the agreement the appropriate remedy ? The action of assumpsit is founded on a contract, express or implied, and will not lie where the relation of landlord and tenant does not exist: 1 Chit. Pl. 107; Pott v. Lesher, 1 Yeates 576; Smith v. Stewart, 6 Johns. 46 ; Bancroft v. Wardwell, 13 Id. 489; Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Id. 24; Rogers v. Libbey, 35 Maine 200. Here the relation of landlord and tenant never existed between the parties. There was no promise to pay for the use of the property, and none can be inferred from the facts and circumstances established by the evidence. But if assumpsit will not lie, it does not follow that no action is maintainable for the wrongful use of the property. The plaintiffs’ interest in it is only in reversion, and for its misuse, as is well settled, case will lie and is the proper remedy:
Judgment reversed, and a venire facias de novo awarded.
