269 Pa. 127 | Pa. | 1920
Opinion by
The judgment complained of was directed because of insufficiency of the affidavit of defense filed in the case. The action was brought to recover a certain amount of money claimed to be due upon a written contract bearing date May 11, 1915, whereby plaintiff sold to the defendant company the right to mine and remove the merchantable coal underlying a certain tract of land in Clarion County, for the term of five years, to be paid for at the rate of five cents per ton, the defendant to mine a minimum of 12,000 tons annually during the continuance of the term, or to pay for so much at the above rate should a less quantity be mined. Another stipulation was that defendant should have the right to extend the term beyond the fixed period, for such length of time as might be required to mine and remove such merchantable coal as then remained. The affidavit of defense set up a subsequent parol agreement which, it is claimed, cancelled and avoided the written agreement. Because of conflicting statements we are left in doubt as to the exact date of this parol agreement, but it is quite clear, we think, that it was entered into subsequent to the bringing of the present action, one evident purpose of the agreement being, as we derive from the affidavit of defense, a settlement of a dispute that had arisen between the two parties touching their respective rights and obligations under the written contract. The affidavit recites, “That the plaintiff, S. A. Wilson,...... agreed with George T. Haldeman, vice-president and general manager of the Pennsy Coal Co. with power to act, that the said coal lease or contract between the parties, the subject of this suit, was cancelled and voided, providing the said defendant, the Pennsy Coal Co., would pay him any sum or sums of money due the said S. A. Wilson from the Pennsy Coal Company from the S. A. Wilson premises for coal actually mined by the
Briefly stated, appellant’s contention is that the parol agreement set up in the affidavit of defense constituted a legally binding contract between the parties, notwithstanding the failure of the plaintiff to execute the papers evidencing the contract. This states the only question in the case. The contention of appellant overlooks a well recognized rule of law. Nowhere is this rule better or more concisely stated than in Maitland v. Wilcox, 17 Pa. 231, by Lewis, J. It is there said: “An arrangement of terms, in contemplation of a written contract, is not a
It follows that no error was committed in making absolute the rule for judgment for want of a sufficient affidavit of defense.
The judgment is affirmed.
The foregoing opinion written hy Mr. Justice Stewart was adopted by the court after his death and is now filed as its opinion. Per Curiam.