145 Pa. 187 | Pennsylvania Court of Common Pleas, Dauphin County | 1891
NO. 42.
Opinion,
We have not been furnished with a copy of plaintiff’s statement, but, from appellant’s history of the case and charge of the court, we understand that this action of assumpsit is based on the written agreement of August 30, 1890, wherein plaintiff leased to defendant, for sixty-seven years, a strip of land sixteen feet by three hundred feet, for the purpose of constructing and maintaining thereon a railroad track or siding, etc. In consideration of said lease, defendant agreed to pay one thousand dollars, and also to furnish plaintiff, in the language of the contract, “ with sufficient space under the track of said party of the second part, to accommodate the contents of four coal-cars, and also to put in, at its own cost, a spur track for the use of the party of the first part, and also keep the well open.” The damages claimed were: (1) One thousand dollars and interest for the unpaid cash consideration; (2) for addi
As to the first item of claim,- there was no controversy. It was not pretended that the one thousand dollars cash consideration for the lease was ever paid, and the only question was, from what time should interest be computed? That was a question of fact, properly left to the jury.
The testimony offered in support of the second item was excluded as incompetent and irrelevant.
Some evidence was introduced, under the amendment, for the purpose of sustaining the fourth item of claim; but the court, being of opinion that it was insufficient to justify- the jury in finding damages for the alleged breach of defendant’s agreement to put in the spur track, withdrew that subject from the consideration of the jury, and afterwards struck from the record the amendment under which the testimony relating to that subject was introduced. That order is as follows:
“ The subject matter of the amendment to the declaration allowed at the trial having been withdrawn from the jury by the court, and the issues involved therein not having been passed upon or considered by the jury; now, therefore, in order that the record may truly state the questions raised and determined by tbe verdict, it is ordered that the allowance of the amendment be revoked, and the amendment itself be stricken from the record.”
This left nothing for the consideration of the jury, except the questions of interest on the one thousand dollars and damages for alleged breach of agreement to provide the coal spaces under the track. It was, of course, the province of the court to construe the written contract. That was correctly done, and in connection therewith the two questions above stated were fairly submitted to the jury. Their verdict in favor of plaintiff shows that they found in its favor on both questions, and judgment was entered on the verdict.
The only specifications of error are (1) to that part of the charge wherein the learned judge withdrew from the jury the fourth item of plaintiff’s claim, viz., damages for non-compliance
The assignments of error are not sustained.
Judgment affirmed.
no. 48.
Opinion,
The facts necessary to a proper understanding of this contention are sufficiently stated in the charge of the court.
It is conceded that the land on which the spur track was constructed by the company defendant belongs to the plaintiff. It is not claimed by the company that it had any right to enter thereon, except such as it may have acquired under the clause contained in the contract of August 30,1890, wherein it agreed, as part consideration for plaintiff’s lease, “ to put in, at its own cost, a spur track for the use of the party of the first part.” After referring to the agreement, and reciting the clause above quoted, the learned judge, in charging the jury, said:
“ That is the clause under which the company defends. That clause, it says, justifies it in being where it is. But you will observe that there is no provision in this agreement at all, determining where this spur track is to go. The location was evidently left by the parties to be fixed by future adjustment.
It was undoubtedly the province of the court to construe the agreement on which, in connection with other evidence, the railroad company based its defence. Neither the right of the court to do so, nor the correctness of its construction, has been questioned by either party. The controlling question of fact, thus submitted to the jury, was found in favor of the plaintiff, and damages were accordingly assessed.
The only errors assigned are the learned judge’s answers to defendant’s first and second points for charge, and the entry of judgment on the verdict. In the first point, the court was requested to charge that “ the judgment recovered by the plaintiff against the defendant in No. 384 January Term 1891, is a bar to the recovery of any damages in this action, and the verdict must be for the defendant.” Either of the reasons given for refusing this point is a sufficient answer to the first specification of error. In the first place, no judgment had then been
There appears to be no error in either of the three rulings complained of
Judgment affirmed.