123 Pa. 240 | Pa. | 1889
OuiNroN,
The plaintiff brought his action of covenant to recover the value of certain “shutes, tipples, inclines, and shops,” which
The instrument is in terms a sale and conveyance; it is of all the coal, and is exclusive in the vendees. In Railroad v. Sanderson it was determined that it makes no difference what the parties call the instrument, whether lease or deed, or what terms they use to express the parties or the consideration paid, the whole instrument must be taken into view to ascertain the intent of the parties. If that fixes its character as a sale or conveyance it must so stand. In the instrument in question, a coal plant with the coal to be mined was sold and conveyed. Specifically, the agreement sold and conveyed houses, a blacksmith shop, shutes, drums, and an almost exhaustive mention of appurtenances necessarily connected with the mining and transportation of coal. In this part of the agreement there was no covenant to repair, nor to return anything whatever. There was the right granted to remove iron, “&c,” shutes, “&c,” and the provision that they shall not take down or remove any of the houses, shops or other buildings. This provision is after the technical leasing of the forty-three houses above referred to, but if it be taken to be part of the conveyance, it would only apply to the single blacksmith shop mentioned in the evidence, and which had, under the undisputed evidence, been so long in use and become so decayed and dilapidated that its removal
In regard to the incline and the tipple, the evidence shows they were an independent structure of great value, originally erected by the defendants themselves to enable them to carry out their covenants in the conveyance; that they took the place of a temporary or inadequate shuté or dump which had been destroyed. It is very doubtful if it would not be a fixture under a mere leasehold interest which the tenant has the right to remove, either without express right or under such terms as are contained within the clauses of this agreement which are of the nature of a lease. Be this as it may, an examination of the entire testimony in the record shows that the plaintiff had no cause of action, and the first point of the defendant’s counsel should have been unqualifiedly affirmed. The learned judge seems to have refused the point for the reason that it would have left no duty for the jury to perform. This is always true where the whole burden of the case under the law and the evidence is upon the court. The court did more explicitly answer the fourth point of the defendant which probably contains the reasons not expressed in the answer to the first point, but, as we have seen already, the error of confusing the clauses for a lease of the houses with an actual conveyance of the coal and property in question, runs through the answer, as it does the charge of the court to the jury.-
The judgment in this case is reversed.