Blygh v. Samson

• Decision Date: 05 January 1891
• Docket Number: 83
• Citation: 137 Pa. 368,20 A. 996
• Parties: PATRICK BLYGH v. J. A. SAMSON ET AL
• Court: Pennsylvania Supreme Court

20 A. 996

137 Pa. 368

PATRICK BLYGH v. J. A. SAMSON ET AL

No. 83

Supreme Court of Pennsylvania

January 5, 1891

Argued May 6, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF McKEAN COUNTY.

No. 83 January Term 1890, Sup. Ct.; court below, No. 161 February Term 1888, C.P.

On January 23, 1888, Patrick Blygh brought assumpsit against J.A. Samson and J.C. French, copartners as J.A. Samson & Co. upon a promissory note for $475, with interest, dated May 17 1887, drawn by J.A. Samson & Co., and payable to the order of the plaintiff on January 2, 1888. The defendants pleaded non-assumpsit, payment and set-off.

At the trial on June 5, 1889, the plaintiff having proved and put in evidence the note sued on, the following matters relating to the defence set up against it, were shown:

In the spring of 1887, the plaintiff, being the owner of a tract of land in Ceres township containing fifty acres, under an unrecorded deed, dated January 26, 1886, from the executors of Charles Kernan deceased, proposed to sell to the defendants the timber standing thereon. Some time in April the plaintiff and Samson, one of the defendants, met and went upon the land in company with Abel Hammond to inspect it. No one else was present. As Samson testified, the plaintiff then pointed out the boundaries of the land as being at a brush fence on the north; at or near the ridge of a hill on the east; at or near the "stub" of a tree on the south; and at the edge of a cleared field, belonging to Thomas Lynch, on the west. The plaintiff, testifying on his own behalf, denied that he pointed out any boundaries, and stated that, on the contrary, he told Samson on that occasion, that he did not know where they were, and that he had on two previous occasions made attempts to find them with the help of Thomas Lynch, but had failed each time. The plaintiff testified, further, that Hammond pointed out to Samson what were said to be some of the corners and lines of the property. Hammond was dead at the time of the trial.

While on their way home, after having finished the inspection, the plaintiff and Samson made a bargain, agreeing upon the sum of $950 as the price to be paid for the timber, one half to be payable in cash and the remainder by note. On May 17th, they met again at the plaintiff's house, to complete the transaction. Samson testified that the plaintiff then produced his deed for his timber tract, saying "This here is a description in this deed of my timber on King's run;" and on being asked by the witness whether that deed described the same timber he had shown to the witness on King's run, the plaintiff replied, "It does; I wouldn't deceive you;" and that the witness then said, "Very well; that is all I want." The plaintiff and his son testified that when the deed was handed to Samson, the plaintiff said to him, "Here is the deed of the lot, and you know as much about the line as I do." The deed had appended to it a plan of the land therein described.

Samson then drew up a written contract for the sale of the timber from the plaintiff to the defendants, embodying therein the description by metes and bounds contained in the deed. The subject of the sale, as stated in the contract, was all the timber suitable for sawing, or needed for removing or manufacturing said sawing timber, upon a lot of land described as in the deed, with the stipulation that the vendees should have two years from the date of the articles for removing it, and the right to erect mills, etc. The consideration stated was $475 in hand and $475 payable on January 2, 1888. The agreement having been signed by the plaintiff and by Samson in the name of the defendant firm, Samson paid to the plaintiff $475 by a check, and gave to him the note in suit.

The defendants at once took possession, and commenced the removal and manufacture of the timber upon the northern side of the tract, working gradually to ward the southern side of it. At the close of the peeling season, and when nearly two thirds of the timber included within the lines which, as the defendants alleged, were pointed out to them by the plaintiff, had been taken off, the men who were working on the tract were notified that they were about to get over the southern line of the tract and must stop. The defendant French testified that about six weeks before the maturity of the note he told the plaintiff that the defendants had been notified that the lines of the tract were not where the parties had understood them to be, and that the plaintiff replied that he thought they were. The testimony of several witnesses tended to prove that, about the time when the note matured, the plaintiff admitted that he had pointed out to Samson the "stub" as marking the southern boundary line, and that he assured the defendants that they had not yet cut and peeled more than half of the timber on his lot. A survey was made, however, for the purpose of ascertaining definitely where the line was, and it disclosed the fact that the "stub" was nearly fifty rods south of the southern boundary of the land owned by the plaintiff, and that about one third of the timber which the defendants thought they were buying was on the land that did not belong to the plaintiff. Samson testified that the defendants had sold the timber and bark before they found out that the line did not run where the plaintiff had represented it to be. Before the bringing of the suit, the defendants tendered the plaintiff $200, and this tender was renewed on the trial.

At the close of the testimony the court, MORRISON, J., charged the jury in part as follows:

This transaction is to be treated the same in law, so far as the questions raised here are concerned, as though it were a sale of the land upon which the timber stood. The principles governing the case are not different. In Pennsylvania, where one man sells or conveys land to another, and takes a note or bond or obligation for the purchase money, the transaction is considered closed; and ordinarily the seller is entitled to collect his bond, or note, or obligation without any defence being made to it, whether the bargain was a good or a bad bargain. The seller, because it is discovered afterwards that the land included more within its boundaries than they supposed, cannot collect more than the price; and the purchaser, where it is found to contain less, cannot ordinarily deduct from the purchase price, when the contract has been closed by the conveyance and the giving of an obligation of this kind. So that, ordinarily, the plaintiff would be entitled to collect the amount of his contract or note without defence.

We are asked by the plaintiff to charge you:

3. If the jury believe from the evidence that the defendant had the same facilities that the plaintiff had, to have ascertained the boundaries previous to the making of the contract, and the plaintiff having contracted in writing to sell them the timber, etc., upon the land described in said contract, and the defendants attempting to stretch the boundaries beyond those described in the written contract, and the parties being evenly balanced in their evidence, one for and the other against, in such case the contract offered in evidence must prevail, the preponderance being with the plaintiff, and the plaintiff is entitled to recover.

Answer: Answered in the affirmative, if you find that the plaintiff did not knowingly misrepresent the boundaries and thereby induce the defendants to enter into the contract.

Defendants' counsel ask us to answer the following points:

1. If the jury believe that the timber was pointed out by the plaintiff as on his lot, and included in the sale, which was subsequently found not to be on the lot as described in the contract, and to which the defendants got no title, then the defendants are entitled to a reduction on the whole, in the proportion that the timber not on the lot bears to the whole amount pointed out and represented by the plaintiff as on his lot.

Answer: We cannot affirm this point as drawn. We say to you that if the plaintiff in bad faith pointed out timber that he knew or had good reason to know was not on his lot, and thereby induced the defendants to enter into a contract, this point would be correct. But if you should find from the evidence that the plaintiff did not know the lines and also that the defendant did not, but that they went there and looked over this land and were mistaken as to where the lines were; that subsequently the contract was made from the deed and that each party had equal facilities for correcting the error if there was one, and no fraud or misrepresentation existed on the part of the plaintiff, then this point does not correctly state the law and they are not entitled to this reduction.

2. It makes no difference whether the misrepresentations were mistakenly or fraudulently made by the plaintiff; if made by the plaintiff or any one for him in his presence, he is equally bound by such misrepresentations, and the defendants are entitled to a deduction on the whole price in the proportion stated in the first point.

Answer: Answered in the negative.

* * *

Now that there may be no mistake, although I think we have fully instructed you upon the law, we will reiterate our view of the law in this case. If the plaintiff acted in bad faith by pointing out timber standing on land that he knew or had good reason to believe did not belong to him, and thereby induced the defendants to agree to pay a larger sum for the timber than they otherwise would have done, the defendants may in this action defend to such an amount as you find from the evidence they were injured by the bad faith of the plaintiff. [But, if the contract was the result of a mutual mistake of the parties, without any fraud...