Light v. Miller

• Decision Date: 26 February 1909
• Docket Number: 145-1908
• Citation: 38 Pa.Super. 408
• Parties: Light v. Miller, Appellant
• Court: Pennsylvania Superior Court

38 Pa.Super. 408

Light v. Miller, Appellant

No. 145-1908

Superior Court of Pennsylvania

February 26, 1909

Argued October 29, 1908

Appeal by defendants, from judgment of C.P. LebanonCo.-1905, No 163, on verdict for plaintiff in case of Daniel S. Light v Levi F. Miller and Edwin Wolfe, trading as Miller & Wolfe.

Assumpsit on a written contract.Before Ehrgood, P. J.

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

Verdict and judgment for plaintiff for $ 242.78.Defendant appealed.

Errors assigned were in the following form:

1.The court erred in refusing the defendants' fourth point, the point and answer of the court being as follows:

4.Under all the evidence in this case the verdict must be for the defendants.Answer: Fourth and fifth are refused, and we will not read them.

2.The court erred in refusing the defendants' second point, the point and answer of the court being as follows:

2.Under all the evidence in this casethe defendants are not liable for the belt destroyed by fire.Answer: The second is refused, and we will not read it.

3.The court erred in refusing the defendants' fifth point, the point and answer of the court being as follows:

5.Under all the evidence in this case the verdict must be for the defendants for the sum of $ 130.50, with interest.Answer: Fourth and fifth are refused, and we will not read them.

4.The court erred in charging the jury as follows: " There was still fire there, still fire in the engine."

5.The court erred in charging the jury as follows: " If, on the other hand, you find that they were negligent at least in not remaining there a longer time than within quarter of an hour after they stopped, that they were negligent, then we say to you that there can be a recovery, and there should be a recovery in this case."

6.The court erred because, even if the court was justified in submitting the question of the $ 300 item to the jury, the charge to the jury was inadequate in that it failed to direct the attention of the jury to the possibility and legal effect of a mutual mistake of the parties as to the subject-matter of the contract.

Robert L. Adams, with him Walter C. Graeff, Paul G. Adams and J. G Adams, for appellants, cited as to the descriptions: King v. Gas Coal Co.,204 Pa. 628;Thompson v. Kaufman,9 Pa.Super. 305.

Cited as to the bailment: Zell v. Dunkle,156 Pa. 353;Moyer v. R. R. Co.,31 Pa.Super. 559.

H. Rank Bickel, for appellee, cited: Hetherington v. Clark,30 Pa. 393;Scott v. Sheakly, 3 Watts, 50;Todd v. Figley, 7 Watts, 542.

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

OPINION

MORRISON, J.

On December 14, 1903, the plaintiff and defendants entered into a written agreement signed, sealed and delivered on that date.Portions of it material to be considered here are as follows: " The said Edwin Wolfe and Levi S. Miller, parties of the second part agrees to pay to Daniel S. Light, party of the first part the sum of $ 1,440 for the timber on tract No. one or lower tract, saw-mill, shingle mill, engine and boiler, the extra shaft the cord wood that is cut and logs that are cut, the shingle packer and all the tools that belong to said saw-mill, the above tract is situated in Bethel Township, Lebanon Co., __ Pa. __, and on the east and west side of Rattling Run. . . .The said Edwin Wolfe and Levi S. Miller, parties of the second part agrees to pay said Daniel S. Light, party of the first part the sum of $ 300 for tract No. 2 lying south of tract No. 1 and lying on the east and west side of Rattling Run and situated in Bethel Township, Lebanon Co., __ Pa. __, and should the said second party be stopped from cutting wood or timber from said 2nd tract, then said article of agreement of tract No. 2 is void."

It was conceded at the trial that the defendants had paid the plaintiff the full consideration mentioned in the first paragraph of the contract above quoted.The main controversy in this suit was in regard to the $ 300 mentioned in the second paragraph.The real question in dispute was a claim on the part of the plaintiff that tracts Nos. 1 and 2 were both embraced in a tract known as the Horst tract shown by the evidence to contain about 117 acres.No question was raised as to the title of the plaintiff to the 117 acre lot.If the evidence warranted the court in permitting the jury to find in favor of the plaintiff's contention that both lots were embraced in the 117 acre tract, then the judgment ought to be affirmed as to the recovery of the $ 300.But the defendants contended at the trial lot No. 1 embraced the whole of the Horst tract and that lot No. 2 mentioned in the contract adjoined the Horst tract on the southerly side and that at the date of the contract it was understood by the parties to be a vacant strip of timbered land lying between the Horst tract and the Weidman estate lands; that the very reason for inserting in the contract of December 14, 1903, that, " should the said party be stopped from cutting wood or timber from said second tract, then said article of agreement of tract No. 2 is void," was because it was not believed that the plaintiff had the right to sell the timber on the said strip of land.At the trial there was no evidence that both tracts were embraced in the Horst lot, except that of the plaintiff.Against this there was the positive evidence of two or more witnesses; the fact that the Horst tract and the narrow strip of supposed vacant land south of the Horst answered the requirements of the contract precisely; that in the contract, No. 1 is described as the lower tract, lying on the east and west side of Rattling Run, a small stream of water flowing down the mountain side; that tract No. 2 is described in the contract as being south of No. 1 and lying on the east and west side of Rattling Run, and the provision in the contract that should the parties of the second part be stopped from cutting timber on said tract No. 2, the agreement as to that tract was to be void.The evidence conclusively shows that the division of the tracts as made by the defendants fitted the description of the same as set forth in the contract.Rattling Run flows northwardly down the mountain side, cutting in two the Horst tract and the strip of vacant land lying south thereof.The division of the tracts as contended for by the plaintiff could not possibly fit the description of the tracts as contained in the contract, because, by the plaintiff's division, Rattling Run would not flow through lot No. 2 at all and it would not be correct to say that plaintiff's lot No. 2 lay south of lot No. 1.

The narrow strip of land which defendants contend is No. 2, was conveyed to Rufus Bohr by patent from the commonwealth of Pennsylvania, dated May 22, 1905, granted in pursuance of warrant dated May 3, 1905, and survey thereunder.The defendants were cutting timber on the land covered by this patent and they were stopped from such cutting by the grantee in the patent and for that reason they refused to pay the $ 300 for the timber on lot No. 2.

The testimony of Jerome Sholly and Edwin Wolfe strongly supports the contention that the tract of unseated or vacant land was tract No. 2, specified in the agreement.Again, the agreement recites that in consideration of the sum of $ 1,440 the defendants were to have " the timber on tract No. 1," and also " the cord wood that is cut and the logs that are cut" on tract No. 1.Yet the plaintiff testified that the cut portion of the Horst tract was to be tract No. 1 and the uncut portion tract No. 2.This testimony is flatly in conflict with the contract because it sells the timber on tract No. 1.If the timber was all cut on tract No. 1, it was folly to sell the timber thereon in the contract.Moreover, the contract sells " the cord wood that is cut and the logs that are cut," which are included with the timber, the timber seeming to have been made the principal item in the sale of tract No. 1.In addition to all of this we call attention to exhibit " E," a draft of the Horst tract and adjoining land, and exhibit No. 2, made from survey of May 3, 1905, by D. W. Hain, both of which the record shows were offered and admitted in evidence, and are now before the writer of this opinion, although they are not printed in either of the paper-books as they should have been.We consider these exhibits as evidence supporting the defendants' contention that lot No. 2 was the vacant strip of land above referred to and that it was not a part of the Horst tract.

In Harvey v. Vandegrift,89 Pa. 346, Mr. Justice Paxson, for the Supreme Court, said: " It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed .But was there any such ambiguity in the case at hand to bring it within the rule above stated?The authorities are equally clear that the rule which allows extrinsic evidence to explain the extent of the subject sold, has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance."See...