Gilmore v. Hunt
| Decision Date | 03 January 1871 |
| Citation | 66 Pa. 321 |
| Parties | Gilmore <I>versus</I> Hunt's Administrator. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the District Court of Allegheny county: No. 21, to October and November Term 1869.
J. Mellon, for plaintiff in error.—As to the 1st and 2d assignments cited: Piper v. White, 6 P. F. Smith 90; Gardner v. Buckbee, 3 Cow. 120; Beck v. Greyball, 4 Casey 72; Seitzinger v. Ridgway, 9 Watts 496; Ervin v. Myers, 10 Wright 96; Fry on Specific Perf., § 796; Prothero v. Phillips, 25 L. J. Ch. 105; Duchess of Kingston's Case, 2 Smith's L. C. 674; Croft v. State, 6 Watts 375. As to the 3d assignment: Kain's Principles of Eq. 78; Penna. Railroad v. Kelly, 7 Casey 372; Penna. Railroad v. Vandever, 12 Id. 298; Heil v. Glanding, 6 Wright 493.
J. M. Kennedy, for defendant in error, referred to Piper v. White, Gardner v. Buckbee, supra; Sedgwick on Damages 131; Hunt v. Gilmore, 9 P. F. Smith 450.
The opinion of the court was delivered, January 3d 1871, by WILLIAMS, J.
This record was brought before us two years ago by the defendant, for the correction of the error of the court below, in not entering judgment in favor of his intestate for the amount found to be due him by the jury, under his plea of set-off, and the judgment was reversed by this court, and entered for the defendant on the verdict in accordance with the finding of the jury. The case is reported in 9 P. F. Smith 450. It is now brought up by the plaintiff, for the correction of alleged errors committed in the trial, before the finding of the verdict. The plaintiff and the defendant's intestate, who was living at the time of the trial, were the owners of a tract of coal-land in Westmoreland county, on which there was an open mine, which they had worked in partnership — but having become involved, the plaintiff sold out his interest in the coal property, subject to the payment of the judgments and other debts of the firm, to the defendant for the sum of $650 — $100 payable in seven days, and the balance, $550, in three equal instalments, for which the notes in suit were given at two, four and six months, each for the sum of $183.33.
On the trial, the defendant set up as a defence, under his plea of set-off, the refusal of the plaintiff to give him possession of the property, in accordance with the terms of his agreement, and gave in evidence the record of an ejectment which he brought against the plaintiff, in the Common Pleas of Westmoreland county, to February Term 1849, for the recovery of the possession of said property, in which a verdict and judgment were rendered in his favor; and showed, by the testimony of Kinney Goff, that he had made an agreement with the defendant to take out coal sufficient to pay $1000, at one-fourth of a cent a bushel; that he was ready and prepared to go on with the contract, but that it fell through in consequence of the refusal of the plaintiff to let him have possession of the property.
The jury, under the instructions of the court, found a verdict for the defendant, and returned a certificate in his favor for the sum of $450. The consequence of this finding is that the defendant gets the plaintiff's half of the property for nothing, and the sum of $450 as damages, because he did not...
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...Gilchrist v. Bale, 8 Watts, 355; Rockwell v. Langley, 19 Pa. 502. The instructions as to measure of damages were erroneous: Gilmore v. Hunt's Adm'r, 66 Pa. 321. statement is allowed to go to the jury only when a calculation is necessary: Com. v. Lebo, 13 S. & R. 178. W. W. Ames, with him G.......
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Reed v. Pittsburg, Carnegie & Western Railroad Co.
...charge inadequate and indefinite, and, therefore, error is apparent parent from the decisions of this court in analogous cases: Gilmore v. Hunt, 66 Pa. 321; Keil v. Gas Co., 131 Pa. 466; Pfeiffer v. Brown, Pa. 267. A new trial should be granted upon the equities of the case, under the Act o......
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