Rickol v. Seaton, 61 Pa. Super. 334

61 Pa. Super. 334 | Pa. Super. Ct. | 1915

Opinion by

Orlady, J.,

The court below granted a preliminary injunction to restrain the defendant from cutting and removing growing timber, and after a full hearing the injunction was dissolved, from which decree the plaintiff has taken this appeal.

The court found, as a fact, that the timber in controversy, with other timber, had been sold by the plaintiff to the defendant under an entire contract, and that a full and valuable consideration had been paid for the undivided body of growing trees. That while ah immediate removal of all the timber was talked about, it was not made an important or controlling part of the bargain, that all should be removed before the close of 1913, or within any specified time. Under the authority of Johnson v. Bumpus, 34 Pa. Superior Ct. 637, and Strause v. Berger, 220 Pa. 367, the timber involved in this controversy must be regarded as personal property. In the latter case it was stated, “the general rule undoubtedly is that, the specific performance of contracts for the sale of personal property will not be enforced, for the reason that ordinarily compensation for the breach of the contract may be had by way of damages,1’ and cases are therein cited to vindicate the rule and the reason for certain exceptions to it. It is conceded that the defendant has paid the full purchase price of all the timber, and to prevent the removal of a part of it requires more definite proof of the plaintiff’s contention than is presented in this record.

To justify us in reversing the finding of a chancellor on a question of fact, as we have often said, clear and plain error must be pointed out. It is not sufficient that our conclusions would be different on the testimony brought up on the record. Straus v. Berger, supra. The expression, immediate delivery, in such a contract, is to be construed in the light of the circumstances, having due regard to the subject matter, its location, the season, the difficulty of removal and the like, and in the light of the facts as found by the court, the entry on the land was under a sufficient claim of right. The defendant cannot under such facts have the aid of equity to enable him to keep both the timber and its purchase-price. The granting of an injunction is always the exercise of power to be cautiously used, and it should clearly appear that irreparable injury is likely to follow, and that there is no adequate remedy at law.

A pending action of trespass, brought by the plaintiff, will afford him an ample opportunity to recover any damages he may have sustained by the defendant’s delay of a few months in removing the trees that were left standing on a hillside, from which he alleges they could not be removed in the fall of 1913.

The decree is affirmed.