Baugh's Executors v. White

• Decision Date: 21 May 1894
• Docket Number: 15
• Citation: Baugh's Executors v. White, 161 Pa. 632, 29 A. 267 (Pa. 1894)
• Parties: Baugh's Executors, Appellants, v. White
• Court: Pennsylvania Supreme Court

29 A. 267

161 Pa. 632

Baugh's Executors, Appellants, v. White

No. 15

Supreme Court of Pennsylvania

May 21, 1894

Argued May 8, 1894

Appeal, No. 15, Jan. T., 1894, by plaintiffs, Margaret Baugh et al., executors of Samuel Baugh, deceased, from order of C.P. Bedford Co., April T., 1893, No. 116, striking off judgment against defendants, J.K. & G. B. White. Reversed.

Rule to strike off judgment.

From the record it appeared that in 1892 Samuel Baugh was the owner of a tannery in Bedford county, and also of a number of tracts of timber land adjoining. The tannery tract consisted of twelve acres of land. On Aug. 18, 1892, Baugh sold defendants the tannery tract by an agreement in writing under seal which was in part as follows:

"This agreement made August 18, 1892, between Samuel Baugh, of the city of Philadelphia, of the first part, and John K. White and George B. White, trading as J.K. & G. B. White, of the second part: Witnesseth that the said party of the first part, for the consideration hereinafter mentioned, doth hereby, for himself, his heirs, executors and administrators covenant, promise and agree with the said parties of the second part, their heirs and assigns, that he the said party of the first part, shall and will on or before at the proper cost and charges of the said parties of the second part their heirs and assigns, by a good and sufficient deed of conveyance, grant, convey, and assure unto the said parties of the second part, their heirs and assigns, all that certain tract of land of about twelve acres known as Mann's Choice Tannery, situate in the borough of Mann's Choice Bedford county, Pa., with the railroad siding, track, scales, tenement houses and appurtenances, gravel pit, bark shed and scales, and Madley bark shed and scales, excepting and reserving unto the party of the first part all the leather now on said premises. All bark is to be sold to the party of the second part at the cost price thereof. Together with all and singular the buildings and other improvements," etc.

Defendant subsequently accepted a deed for the tannery tract, and took possession of it, and the bark thereon. Plaintiffs brought suit for the bark, claiming $15,979. Defendants filed an affidavit of defence which was as follows:

"John K. White, one of the above named defendants, being duly sworn, says that he and his codefendant have a just and full defence to the whole of the plaintiffs' claim in the above stated action except the amount of $13,253.82, for which they tender judgment in this action, and upon its acceptance they will demand in further performance of plaintiffs' contract, that he convey all the bark belonging to plaintiffs, at the making of the contract upon his lands in Bedford county, upon payment of the cost price therefor as bargained for and sold by plaintiffs to defendants, under the terms of the contract of August 18, 1892.

"And as for a defence to any part of plaintiffs' claim in excess of $13,253.82, defendants say that the same is wrong and unjust because the plaintiffs did not have the quantity of bark on the premises which he alleges, in this action, he sold the defendants, nor has he charged the defendants with the cost price thereof, according to the terms of their contract, but has charged a price greatly in excess thereof, to the amount (with the excess on quantity) of the sum claimed in excess of that offered, and defendant verily believes that by reason of the refusal of plaintiff to convey the bark on the lands which he also contracted to sell, that the defendants have sustained great damage and will be entitled to a further reduction on the sum offered on the trial of this case if the tender be refused."

On March 27, 1893, plaintiff entered a rule for judgment for want of a sufficient affidavit of defence.

On April 21, 1893, defendants filed a supplemental affidavit of defence which was in part as follows:

"It is true that the plaintiff did, on or about the 18th day of August, 1892, enter into an agreement with the defendants as set forth in said contract, copy of which is attached to the plaintiff's statement, and by the terms of said agreement as well as by the distinct understanding between the parties, the plaintiff was to sell to the defendants all the bark upon his lands which he had purchased for use in connection with this tannery, and from which in part he had been obtaining his supply for said tannery, which said lands are situated in a region contiguous to this tannery, and in the townships of Cumberland Valley, Harrison and Londonderry. The item of all bark was understood to include all bark upon the trees on the lands aforesaid as well as the bark peeled, and said bark upon the trees is highly necessary to a proper conducting of the business in said tannery, and, without such understanding between the parties, the defendants would not have paid or agreed to pay the price mentioned in said agreement. That after the making of said contract and the rebuilding of the tannery, which had been destroyed by fire shortly before the sale thereof to defendants, and after defendants had gone into possession of the tannery property and taken the bark then peeled, and when it was desired to close all the details of the contract, the defendants demanded of the plaintiff full performance of his contract by conveying to them the bark on the trees on the lands aforesaid upon payment of the cost price thereof. This the plaintiff refused to do, whereby the defendants have been prevented consummating the contract, although they were anxious, ready and willing to do the same according to the agreement made as aforesaid. This failure on the part of the plaintiff to perform his contract will result in great damage to the defendants, they having built the tannery of its present size in anticipation of obtaining the bark on said lands. That the defendants do not owe the plaintiff on the bark peeled a sum in excess of $13,253.82, and this sum is payable only under the terms of the contract when plaintiff shall convey all the bark on the lands aforesaid, at the cost price thereof, to the defendants, and this the defendants are now ready to do on the conditions aforesaid, and defendants are entitled to an abatement on said sum by way of damages arising from plaintiff's failure to perform his contract as aforesaid, in a sum exceeding two thousand dollars. The defendants have heretofore agreed and do now agree to pay the said sum of $13,253.82 on conveyance to them by the plaintiffs of the bark on the lands aforesaid at the cost price thereof. The defendants deny that the agreement was fully consummated and completed on the first day of September, A.D. 1892, and they deny that plaintiff sold and delivered to the defendants bark amounting in the aggregate to 2502 1695/2000 tons, but defendants aver that from actual measurement of said bark, and from the books of the plaintiff, the true amount does not exceed 1918 462/2000, which at the actual cost price thereof amounts to the sum of $13,253.82, a statement of which was exhibited heretofore to the plaintiff and settlement demanded on the basis thereof."

The prothonotary, at plaintiff's request, entered judgment for $11,000 of the amount which they claimed was admitted to be due. The court subsequently stayed the execution issued on the judgment, and granted a rule to show cause why the judgment should not be stricken from the record. After hearing, ...