79 Pa. Super. 511 | Pa. Super. Ct. | 1922
Opinion by
The parties plaintiff in this action as brought were L. J. Goodwin and Pittsburgh-Texas Gas & Oil Company, a corporation. At the trial the record was amended by eliminating L. J. Goodwin. The suit was in assumpsit. Susan J. Neth was the owner of a tract of land containing 57 acres more or less in Westmoreland County, Pennsylvania. On February 16, 1920, she entered into an agreement or lease with Montgomery and Murrie, giving them and their successors, heirs and assigns the exclusive
.“In Consideration of the sum of Five Hundred ($500) Dollars, and an additional sum of Two Hundred and Fifty ($250) Dollars, said Two Hundred and Fifty ($250) Dollars to be paid when drilling operations begin, and a further consideration of One-fourth (%) of all Gas saved and sold or produced from the said premises.
“A condition of this agreement is such that a lease will be prepared and assigned to the party of the second part, said lease to comply with all the conditions contained in an original lease from Susan J. Neth to the parties of the first part.
“Receipt is hereby acknowledged for the sum of One Hundred ($100) Dollars as payment on the above consideration, and balance to be paid upon delivery of above mentioned lease, said lease to be delivered the 28th day of May, 1920, at Noon.
“Signed in the presence of J. A. Montgomery [Seal]
“W. S. Robbins, A. B. Adams [Seal]
“L. W. Hunter. L. J. Goodwin [Seal]”
Plaintiff sued to recover the fifteen hundred dollars ($1,500) paid. It alleged in addition to the above facts, that, as part of the parol agreement of May 29th, Adams representing defendant, promised that the fourteen hundred dollars ($1,400) then paid, as well as the one hundred dollars ($100) paid on May 25th, would be held in escrow subject to the approval of the leases by plaintiff and their attorney, and that if the leases were not satisfactory the checks were to be returned to plaintiff; that defendants, through fraud, accident and mistake did not incorporate in the agreement of May 25th, that the check of one hundred dollars ($100) was to be returned if the gas and oil lease was not satisfactory to the attorney representing plaintiff, and that, in violation of the entire agreement, defendants used the checks; that when the leases were disapproved by plaintiff’s attorney, notice of the fact was given to defendant; that defendants were, unable to procure satisfactory leases, whereupon demand was made for the return of the checks or the money representing the value thereof, and, upon defendant’s refusal to pay, the suit was brought.
At the trial, plaintiff offered and was permitted to prove that at the time the agreement of May 25th was
The assignments of error are six in number. The first challenges the admissibility of an offer of plaintiff to prove that something was omitted by fraud, accident or mistake from the receipt given by defendant on May 29, 1920. This assignment is overruled because the receipt did not constitute a written agreement and was subject to explanation. The only agreement made on May 29th was verbal.
. The second assignment charges error in permitting the filing of the amendments to plaintiff’s statement on
The third assignment charges error in that part! of the charge of the trial judge wherein he undertook to recapitulate the points which the jury must pass upon. The main point in the case was whether there was a contemporaneous parol agreement which induced the execution of the written agreement. While the trial judge, by one expression in this portion of the charge, instructed the jury that the plaintiff could not recover unless the parol agreement was omitted from the writing by fraud, accident or mistake, the expression was used in connection with a full and correct statement relative to the effect of a contemporaneous parol agreement and the amount and character of the evidence necessary to sustain it. The error herein charged was harmless, because it gave the defendants an advantage which they did not deserve: Croyle v. Cambria Land & Impr. Co., Ltd., 233 Pa. 310; Diehl Mfg. Co. v. Philadelphia Electric Co., 49 Pa. Superior Ct. 257. Taken as a whole the charge placed the issues fairly before the jury, and this assignment is overruled.
The fourth and sixth assignments attack the refusal to enter judgment non obstante veredicto. We have read the entire record and thoroughly considered the argument upon this proposition and are satisfied that the questions of fact in the case had to go to the jury, and ' that there was sufficient evidence to sustain the verdict. The main question in the case was whether, at the time of entering into the agreement of May 25th, there was a parol agreement which induced the execution of the written agreement. The learned court below correctly instructed the jury in substance that in order to prove a
The fifth assignment complains of the trial court’s affirmance of plaintiff’s third point, the point and answer being as follows: Point: “If the jury find from the testimony submitted by the plaintiffs, that the $1,500, paid by the plaintiffs to the defendants was secured either by fraud, accident or mistake, we instruct you that your verdict should be for the plaintiff.” Answer: “All of that point is affirmed with this modification that if you find there was an agreement that counsel should examine the papers relative to the transfer of the defendant’s right, title and interest in this lease and you find that was left out of the agreement of May 25,1920, by either fraud, accident or mistake and you find there was a contemporaneous parol agreement made at the time of the execution of this paper that the money would be returned if the plaintiff’s counsel decided adversely to the papers representing their title and that was the inducing cause of its execution and that he did pass adversely, then your verdict ought to be for the plaintiff.” The point should have been refused as written, because it was inapplicable to the case as tried. The answer, however, was prejudicial to the plaintiff rather than to the defendants, and gave defendants an advantage to which they were not entitled. Assignment overruled.
The judgment is affirmed.