22 A. 1099 (Pa. 1891), 143, Duncan v. Hartman

Docket Nº:143
Citation:22 A. 1099, 143 Pa. 595
Opinion Judge:MITCHELL, JUSTICE
Party Name:P. S. DUNCAN ET AL. v. J. L. HARTMAN
Attorney:Mr. H. M. Baldridge and Mr. Alexander King, for the appellants. Mr. Martin Bell (with him Mr. John D. Blair), for the appellee.
Judge Panel:Before PAXSON, C.J., STERRETT, WILLIAMS, McCOLLUM and MITCHELL, JJ.
Case Date:October 05, 1891
Court:Supreme Court of Pennsylvania

Page 1099

22 A. 1099 (Pa. 1891)

143 Pa. 595

P. S. DUNCAN ET AL.

v.

J. L. HARTMAN

No. 143

Supreme Court of Pennsylvania

October 5, 1891

Argued: April 21, 1891

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF BLAIR COUNTY.

No. 143 July Term 1890, Sup. Ct.; court below, No. 58 October Term 1888, C.P.

On August 4, 1888, a statement of claim was filed in trespass, brought by P. S. Duncan and others against Jesse L. Hartman. Issue.

At the trial on May 26, 1890, an agreement was given in evidence waiving proof of plaintiffs' title to the lands the locus in quo of the alleged trespass, the contention being as to the validity of the lease under which the defendant claimed. Having proved acts of the defendant upon the plaintiffs' land, by way of taking ganister stone therefrom in 1887 and 1888, and the amount thereof, the plaintiffs rested.

The defendant then offered in evidence a power of attorney to James M. Cooper executed under seal by John W. Duncan, Peter S. Duncan and Angelo T. Friedley, attorney in fact, bearing date January 15, 1886, as follows:

"Know all men by these presents that we, John W. Duncan, Peter S. Duncan, and A. T. Friedley do hereby employ James M. Cooper to act as our agent for our properties, situated in Bedford and Blair counties, Pennsylvania; and if the said Cooper shall honestly and diligently manage said properties, we do hereby agree to pay him the sum of seven hundred dollars for a period of one year from the first day of April, A.D. 1886, and agree to find the said Cooper house rent, fuel delivered at his house, horse, buggy, horse feed and cow pasture without charge, and traveling expenses necessarily incurred in our behalf; said Cooper on his part undertaking to provide and furnish a boy to attend horses, cows, cut wood, go errands," etc., etc.

The offer was objected to, because the paper did not give any power or authority to James M. Cooper, or any one under him, to go upon the property of the plaintiffs and commit the trespass shown to have been committed.

By the court: Objection overruled, offer admitted; exception.

The defendant then proved and offered in evidence the following paper:

"This agreement, made and concluded this 8th day of January, 1887, by and between James M. Cooper, agent for the Duncan heirs, of the one part, and J. L. Hartman, of McKee's Gap, Blair county, Pennsylvania, of the other part, witnesseth, that the said James M. Cooper, agent, doth lease or let unto the said J. L. Hartman, the sole and absolute right and privilege to quarry, take and sell any or all the ganister stone off the south end of what is known as Short mountain, and also off the north end of what is known as Dunning's mountain, the space of said ends to comprise one mile either way, northward or southward, from the centre of that portion of said mountain, facing the Gap, known as McKee's, for the term of fifteen years from the first day of January, 1887.

"For and in consideration of which the said J. L. Hartman agrees to pay the said Duncan heirs or their agent seventy dollars per year for each and every year, payment to be made in advance.

"It is further agreed that the said J. L. Hartman may cut and use timber from the above named lease, as much as may be necessary to build chutes and planes. And further, that this agreement is not transferable to any other person or persons.

"In witness whereof we have hereunto set our hands this day and year above written.

"J. M. COOPER, Agent, [SEAL.]

"J. L. HARTMAN."

Objected to: This paper is signed, "J. M. Cooper, Agent;" if he had the power, under the first paper offered, to make a lease of this kind, then he has not executed that power in the manner provided by law: he should have introduced the names of his principals, and he should have signed it in their names.

By the court: Objection overruled for the present, offer admitted; exception.

J. M. Cooper was then called by the defendant and testified that, little and big, he had altogether fifteen farms belonging to the Duncan heirs, in his control as their agent, the principal part of the land wild mountain land; and that, under a like power of attorney he had previously leased the ganister on Short mountain to J. K. McLanahan. The lease to McLanahan, which was for seven years, being identified by the witness, it was offered in evidence for the purpose of showing "Mr. Cooper's course of conduct and his powers." Objected to.

By the court: Objection overruled, offer admitted; exception.

The witness testified, further, that the McLanahan lease was canceled on January 3, 1887, upon the request of McLanahan, and that the rents received while it was in force were accounted for to the plaintiffs, who had knowledge of their source; that other prior leases of long terms had been made by him under like powers of attorney. There was some testimony, however, tending to show that the McLanahan lease was made with the knowledge of the landowners; also that defendant Hartman paid rent under his lease which was accounted for by the agent to his principals, and that the latter had regularly examined the agent's books and accounts submitted to them.

The case being closed, the court, DEAN, P.J., charged the jury in part as follows:

It is alleged by the plaintiff that this lease made to Hartman was in fact a conveyance of the land; that it was all the stone upon a certain specified territory, to be taken within a limited period; that this constituted all the value the land...

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