135 Pa. 411 | Pa. | 1890
In this action of covenant on the general warranty contained in the deed of defendant’s intestate to plaintiffs, the defence was that the vendor did not intend to convey, nor did plaintiffs suppose they were buying, the seven-foot vein of coal underlying the land described in the deed; that the coal had been sold and conveyed by a former owner of the land, and, by mutual mistake of defendant’s intestate and the plaintiffs, a clause, excepting said coal from the operation of the deed, was omitted therefrom. Evidence was introduced for the purpose of proving these facts, and the sole question was whether it was sufficient to reform the deed in that respect. The learned judge of the Common Pleas thought it was, and he accordingly submitted it to the jury, rvith instructions to which no just exception can be taken. He refused to charge, as requested in plaintiffs’ first- point, that, under the evidence, the verdict should be in their favor; but he affirmed their second point, wherein he was requested to charge “ that the deed of Thomas Giles to plaintiffs cannot be reformed, except upon clear and convincing evidence of a mistake on the part of Giles and Stafford and Kilpatrick, or that the scrivener wrote therein contrary to the instructions of Giles and both of the plaintiffs.” Other portions of the charge, recited in the second and third specifications, are not in conflict with that proposition. The case was fairly submitted to the jury on evidence that was clearly sufficient to justify them in reforming the deed in the manner claimed by defendant.
In view of the evidence, it is difficult to see how the jury could have done otherwise than find as they did. It was clearly and conclusively shown that plaintiffs knew their vendor did not own the coal, and did not intend to include it in his sale and conveyance to them; and it is equally clear that they never could have supposed the}»- were buying it. Neither of the specifications of error is sustained.
Judgment affirmed.
