Jack v. Hixon

• Decision Date: 05 October 1903
• Docket Number: 51-1903
• Citation: 23 Pa.Super. 453
• Parties: Jack v. Hixon, Appellant
• Court: Pennsylvania Superior Court

23 Pa.Super. 453

Jack v. Hixon, Appellant

No. 51-1903

Superior Court of Pennsylvania

October 5, 1903

Argued May 20, 1903.

Appeal by defendant, from judgment of C.P. Venango Co., Nov. T 1901, No. 87, on verdict for plaintiff in case of C. H. Jack v. L. C. Hixon.

Assumpsit on a promissory note. Before Criswell, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 1,124.18. Defendant appealed.

Errors assigned were various rulings on evidence, and affirmance of point quoted in the opinion of the Superior Court.

Affirmed.

Robert F. Glenn, with him Isaac Ash, for appellant.

John O McCalmont, with him B. H. Osborne, for appellee.

Before Rice, P. J., Beaver, Orlady, W. D. Porter, Morrison and Henderson, JJ.

OPINION

MORRISON J.

On March 7, 1901 C. H. Jack, the plaintiff, and others assigned to L. C. Hixon, defendant, certain leaseholds situate in Venango county, for the consideration of $ 13,000. The defendant alleged that the plaintiff represented the production of oil from said leaseholds was within five barrels of 250 barrels per month. Twelve thousand dollars of the consideration was paid in cash, and a note for the balance, $ 1,000, was given by the defendant to Jack, the plaintiff.

On January 13, 1902, judgment was confessed and entered on the note in the court of common pleas of Venango county. On January 20, 1902, a petition was presented to the court alleging want of consideration for the note in that the production from the leaseholds was much less than represented by the plaintiff, Jack, and praying the court to open the judgment entered on the note. The judgment was afterwards opened and defendant let into a defense. On the trial the court submitted the evidence to the jury and the result was a verdict in favor of the plaintiff for the full amount of the original judgment and interest. From the judgment entered on this verdict defendant appealed and assigns in this court sixteen assignments of error.

At the trial there was no question raised as to the title of the leaseholds assigned to the defendant, and it was conceded that the note upon which the judgment was entered was executed and delivered by the defendant to the plaintiff. The sole defense was that the representation made by the plaintiff, Jack, that the wells were doing within five barrels of 250 barrels per month was untrue, and that the wells were doing not more than 200 barrels per month at the time of the sale. At the trial the plaintiff having put his note in evidence made a prima facie case and rested. The burden was then on the defendant to sustain his allegation that the production of the wells was less than as represented by the plaintiff, Jack. It appears from the testimony that all of the oil produced from the leaseholds in question was run into the pipe lines both before and after the transfer of the leaseholds to Hixon. There was considerable evidence tending to show that if Jack represented that the wells were doing within five barrels of 250 barrels per month at the time of the sale, such representation was true. It is well known in the oil regions, and the evidence shows, that the production of these wells could have been ascertained by bringing the pipe line books into court and putting them in evidence. The testimony tends to show that in accordance with the custom of oil men that it would be necessary in order to establish the actual production to show the production for a period of five or six months, and to do this it would be necessary to start from a time when the tanks were empty, or to ascertain the amount of oil in the tanks at a given time and then subtract this from the total runs from that period until, say the time of sale. This method would furnish an accurate rule for ascertaining the average production of the wells for the time taken. If the defendant desired to show the actual production of the wells at the time he took possession of them and for any given time thereafter, the same method could have been resorted to. The court below admitted considerable evidence offered by the defendant for the purpose of showing that the production was less than 245 barrels per month, but a careful examination of the testimony...