Ellis v. Lane

• Decision Date: 09 November 1877
• Parties: Ellis <I>versus</I> Lane.
• Court: Pennsylvania Supreme Court

Page 265

85 Pa. 265

Ellis versus Lane.

Supreme Court of Pennsylvania.

October 15, 1877.

November 9, 1877.

October 15th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1877, No. 61.

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Jenks & Clark, for plaintiff in error.—When a case is submitted under the provisions of the Act of 1874, the court should first separately and distinctly find the facts with sufficient fulness and precision to warrant the entry of a judgment thereon, and then, as in case of a special verdict, find the law applicable to the facts, apply it and enter therefrom the appropriate judgment, which it is claimed was not done in this case.

The third and fourth assignments of error raise the question as to the defendants' right to recover in this case against the plaintiff the consideration for building the mill. The only fact found by the court on the subject that was relevant to it is, that the defendants had substantially performed their contract. But even if they had, it does not follow they have right to judgment against Ellis for it. The contract is that Ellis "shall pay over all and every sum or sums of money which he may receive or has received on account of any insurance against loss by fire," "and in case said amount should not be paid by the companies promptly, said Ellis shall not be compelled to pay the same until received by him."

Now, before the Lanes had a right of action on this clause, it was necessary that they should show he had received some of the money, or had failed to receive it through some default of his. This was not alleged. On the contrary, it was proven Ellis had not received anything, but had brought suit for the amount due and the suit was still pending. Why, then, should judgment be rendered against him, when the express terms of the contract forbid it?

Gordon & Corbett, for defendant in error.

Mr. Justice STERRETT delivered the opinion of the court, November 9th 1877.

This was an action of covenant on an article of agreement executed by the parties on the 13th of August 1873, whereby the defendants undertook, for the consideration therein named, to "construct and erect a saw-mill on the site of the mill burned; said mill to be of the same length, breadth and general dimensions, and to be furnished with machinery in all respects similar to that in the mill so burned, so that the said mill, to be so erected, shall be in all respects as good as the said mill was at the time it was destroyed; * * * and all machinery to be fit and suitable for its intended purposes and capable of doing as much work as that in the mill destroyed," &c.

We have not been furnished with the declaration, and are therefore not fully informed as to what breaches were assigned. The pleas were non est factum, covenants performed, absque hoc, with leave, &c.

By writing filed the parties agreed to dispense with trial by jury and submit the decision of the case to the court. The Act of April 22d 1874, under which the submission was made, provides that the decision of the court shall be in writing, statingeparately and distinctly the facts found; the answers to any points submitted in writing by counsel, and the conclusions of law. It is of the utmost importance that these plain and explicit requirements of the law should be strictly complied with. In the first place the facts found by the court, so far...