74 Pa. 286 | Pa. | 1873
The opinion of the court was delivered, November 16th 1873, by
— It is not controverted that under the lease from the Schenleys to Garrard & Co., the malt-house erected on the premises was personal property, and a parol contract for the sale of it not within the provision of the Statute of Frauds. It was stipulated that it might be removed at the end of the term, and was made subject to distress and sale by the lessors for rent in arrear. This action was instituted by the plaintiff below to recover damages for the non-performance~of a contract by the defendant to sell and deliver to him the' malt-house. It is true that the declaration as originally filed in both counts set out an agreement for the sale of certain leasehold premises and malt-house, but an additional • count was filed as an amendment, which declared upon a contract for the sale of a malt-house, with the privilege merely of using and occupying the lot of ground upon which it was erected. If there was any contract of sale at all absolute in its terms — a question submitted to the jury and found by them in favor of the plaintiff below — it -was a contract by the defendants to sell what had been distrained upon for rent, and was to be sold by the constable in virtue of his warrant to distrain.
In this view of the case the plaintiff in error has no just ground to complain of the refusal of the learned judge below to affirm his points as requested, and this refusal is all that is assigned for error. It is unnecessary, therefore, to consider what would be the effect of the Statute of Frauds in the case of a parol agreement for the sale of a term of more than three years.
Judgment affirmed.