95 Pa. 25 | Pa. | 1880
delivered the opinion of the court,
The single question raised by the first three assignments of error is whether the trustee named in the will of Dr. Houtz can maintain an action on the contract for such breaches as are alleged to have occurred in the lifetime of the testator. As to those that occurred since his decease, it is conceded the trustee had a right to sue, but the defendant below contended that if any right of action accrued before, it vested exclusively in the executors; and in his first point the court was requested to charge that “ the plaintiff is not entitled to recover from the defendant for any alleged breaches of covenant prior to the death of Dr. Houtz.” The learned judge admitted testimony as to the prior breaches and refused the instruction prayed for.
By the contract of December 7th 1869, on which the action is based, Dr. Houtz, the party of the first part, agreed to lease certain tracts of land therein described to Mr. Shillingford, the defendant below, “for the purpose of mining, shipping and transporting coal from said lands and other lands owned and operated by the party of the second part, his heirs and assigns.” In consideration whereof, Shillingford agreed “ to proceed within thirty days to explore and prove the coal in said lands, and when the mines shall have been opened and all necessary improvements made, at the costs of the party of the second part, to operate the same in a workmanlike manner and pay for all coal mined and shipped from said tracts a royalty of fifteen cents per gross ton of twenty-two hundred and forty pounds.” The agreement is silent as to the time within which the coal is to be taken out as well as the quantity to be mined within any given period, and no time is fixed for the payment of the “royalty,” but by their subsequent dealings, the parties treated it as payable monthly. After the mines were opened, monthly returns and corresponding payments were made to Dr. Houtz until his decease in November 1873. By his will, dated July 8th 1872, Dr. Houtz devised all his lands in Woodward township, Clearfield county, including the lands above mentioned, to his three daughters, and as to the coal contract with the defendant below, he directed as follows: “ The coal leased thereon to remain in the hands and care of my trustee, together with my L. & A. Morrison paper, maturing, until all legacies in this will are paid and term of leases expired.” The legacies referred to aggre
The plaintiff’s testimony, if believed by .the jury, uncovered and exposed to full view repeated if not continuous acts of deception and fraud of a gross character in making up and rendering accounts of the products of the mines. The testimony on this subject was fairly presented and submitted to the jury with well guarded
When considered in connection with the context, there is no error in that portion of the charge embraced in the fourth assignment. The agreement of July 11th 1874, therein referred to, was offered and admitted “for the purpose of establishing the line claimed by the defendant as the division line of the coal on the Edmundson and Howell tracts.” While the learned judge properly held that the agreement was inoperative as a conveyance of land for want of the required acknowledgment, he recognised its effect, if fairly procured, as evidence of a settlement of the disputed boundary line by saying, in the same breath, that “ there is nothing in the law which forbids or prevents a married woman from settling a disputed boundary line without a formally acknowledged conveyance.” Proper effect was given to the agreement, and the questions of fact relating to the true location of the division line between the Edmundson and the Howell tracts, were fully and fairly submitted to the jury.
The fifth to the twelfth assignments inclusive relate to the question of fraudulent procurement and use of the agreement of July 1874, so far as it was claimed to be a settlement of the division line, and the submission of that question to the jury. The' plaintiff below recognised the validity of the agreement, as an exchange of the triangular piece of coal on his side of the line for a corresponding amount of coal alleged to have been mined on the other side and paid for by mistake; but he contended that it never was the purpose of the agreement to change or establish the location of the line; that, on the contrary, the parties who acted in the interest of the defendant below, in procuring its execution, expressly disclaimed any such object. Without referring specially to the several items of testimony on this branch of the ease, it is sufficient to say that it tended to sustain the position of the plaintiff below and to prove that the agreement, so far as it is now claimed to be a binding settlement of the disputed boundary line according to
The remaining assignments are not sustained.
Judgment affirmed.