Dougherty v. Stephenson

• Decision Date: 01 May 1852
• Citation: 20 Pa. 210
• Parties: Dougherty v. Stephenson.
• Court: Pennsylvania Supreme Court

Page 210

20 Pa. 210

Dougherty v. Stephenson.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Montgomery county.

COPYRIGHT MATERIAL OMITTED

Mulvany, for plaintiff in error.—It was contended that the action of the executors did not excuse the plaintiff from performing his contract: 1 Wharton 71, Fritz v. Thomas; and that the evidence admitted should not have been received.

Also, that there was no such evidence of performance, or readiness to perform, on the part of the plaintiff, as would enable him to maintain the action against the executors. It was submitted, that if all that was testified to as having been said by Dougherty was true, that it was left optional with the plaintiff to resume operations or not: that nothing was said or done by Dougherty to prevent the plaintiff from proceeding with the work. The testimony of Peter Righter should have been overruled, on the ground that Dougherty, as executor, had no right to release the plaintiff from his contract.

As to the 5th assignment, it was contended, that the whole evidence showed that the $1.12½ cents per ton was to include both the digging the ore and the stripping off the ground over the ore.

Fornance and Rich, for defendants.—It was contended that the effect of the testimony of Peter and John Righter was to excuse and release Stephenson from performing the entire contract, and that it was properly admitted and submitted to the jury. The plaintiff, however, might have proceeded with the work had he chosen to do so, under the disadvantage of not having the ore mined paid for and hauled out of the way as it was mined, and as the contract provided for; but he chose to accept of a release from one of its stipulations — the mining of the residue of the quantity contracted for.

As to the allegation of want of power, by the executors, to release or excuse performance, it was observed, that the suit is not brought on a contract with the executors, but on that made by the decedent; and it was contended that it was in the power of the executors, with the consent of the opposite party, to abandon or release a part of the contract. That executors are bound to do the best they can for the estate, and that they are not responsible for the unfavorable consequences of the exercise of their discretion, unless it be accompanied with negligence so gross as to raise a presumption of wilful misconduct: 4 Watts 177, Dillebaugh's Estate; 4 Barr 140.

That the question of negligence or misconduct can be raised only when the executors came to account with the legatees or heirs.

As to the 3d assignment, it was submitted that there was sufficient evidence as to the plaintiff having been excused from performance of his contract to be submitted to the jury. The Court is not to give a legal interpretation to the words of a witness, and say, whether, in point of law, they sustain the allegation of fact: 1 Pa. Rep. 383, Sidwell v. Evans; 4 Watts 409. The testimony of Peter Righter, that he stopped the work at the request of Mrs. Kunzie, was an important fact in connection with the fact that the operations at the furnace were never resumed by the executors of Kunzie after his death, and that his executors, under the terms of his will, were bound to lease the property, and also in connection with what the executors said or did when the plaintiff called on them to see whether he should go on with the work: 10 Watts 107. Contracts may be abandoned otherwise than by words; the conduct of the parties and their...