Morgan v. Phillips
| Decision Date | 18 April 1956 |
| Docket Number | 4259 |
| Citation | 122 A.2d 73,385 Pa. 9 |
| Parties | Irvin S. MORGAN, t/a Morgan Construction Company v. Charles A. PHILLIPS, Charles Deist, Norman M. Shoemaker, Olive N. Phillips, Marian Bird and Anna Bird Walker, Partners, t/a Niverton Coal Company; and W. & R. Corporation. Appeal of Irvin S. MORGAN. |
| Court | Pennsylvania Supreme Court |
Argued March 15, 1956
Appeal, No. 126, March T., 1955, from judgment of Court of Common Pleas of Somerset County, Continuance Docket, 1953 No. 1378, in case of Irvin S. Morgan, trading as Morgan Construction Company, v. Charles A. Phillips, Charles Deist et al., trading as Niverton Coal Company, and W. & R Corporation. Judgment of nonsuit reversed as to one defendant and affirmed as to other defendant.
Assumpsit. Before LANSBERRY, P.J.
Compulsory nonsuits entered; plaintiffs' motions to take off nonsuits refused. Plaintiff appealed.
The order of the court refusing to take off the nonsuit as to Niverton is reversed and a new trial is granted as to that defendant. The order of the court granting a nonsuit as to W & R. Corporation is affirmed.
Leland W. Walker, with him Walker & Kimmel, for appellant.
Simon K. Uhl and William Moldovan, for appellees.
Before STERN, C.J., JONES, BELL, MUSMANNO and ARNOLD, JJ.
In order to recover in this case plaintiff was confronted with a difficult burden, but whether he succeeded in establishing his claim was a question for the jury and not for the court and therefore the court erred in entering a nonsuit and subsequently refusing to remove it. Plaintiff's appeal is from that refusal.
On September 2, 1952, plaintiff, Irvin S. Morgan, entered into an agreement with the defendants, who were partners trading as Niverton Coal Company (hereinafter called Niverton), wherein he leased from them the right to strip-mine a tract of coal consisting of 112 acres owned by them in Elk Lick Township in Somerset County. The agreement had been prepared by Niverton, but, when presented to plaintiff for his signature, he found that it was not in accord with the preliminary negotiations. Accordingly he discussed with Charles A. Phillips, one of the partners, certain amendments which he requested should be made. Two weeks later Phillips returned and submitted to him a paper, partly typed and partly written, which was captioned: "Changes agreed to before the lease signed"; there were also some erasures and changes made in the original draft itself. Both plaintiff and Phillips thereupon signed the agreement, to which the signatures of the other partners had already been appended, and Phillips left with plaintiff a copy of the agreement with the additional paper (referred to in the testimony as "Exhibit A") attached thereto.
As to the erasures and changes in the original draft and all but one of the provisions in "Exhibit A" there is no dispute between the parties, plaintiff and Phillips apparently agreeing in their testimony with respect thereto. But as to one item, vital to the present issue, there was complete disagreement. "Exhibit A" created changes in which were referred to as "paragraphs 3, 7 and 9" of the original draft, and, while there was no such actual numbering in the draft, no question arises as to the application of those changes to the respective paragraphs therein. There followed, however, on "Exhibit A" the words on one line: and on the next line: "Paragraph 11. Voided." The words "Only apply to law of Penna." clearly and properly relate to the eleventh paragraph which dealt with the obligation of the lessee to restore the surface after stripping. But to what did the succeeding words: apply? It was plaintiff's contention that they referred, not to the eleventh, but to the twelfth paragraph which prohibited the lessee from transferring or assigning the rights granted by the lease or subletting the premises or any part or portion thereof without the prior written consent of the lessors. He testified that it had been agreed between him and Phillips that this paragraph was to be voided and that the figure "11" in the line in question was presumably a mistake in the typing. Phillips, on the other hand, denied that there had been any such agreement as to paragraph 12, although it is significant that he offered no explanation as to how it could have been intended that Paragraph 11 was to "apply to law of Penna." and at the same time be "Voided."
The reason for the importance of the issue thus arising was that plaintiff, after obtaining his lease, found himself unable to operate the property because, as he testified, his equipment was employed elsewhere. Accordingly, on January 26, 1953, he entered into an agreement with one David C. Jones, wherein he engaged the latter to strip-mine the property, a royalty to be payable by Jones of 55 cents per ton; this arrangement constituting in effect a subletting. Niverton had provided for a royalty of only 40 cents per ton, and hence he stood to profit at the rate of 15 cents per ton on whatever coal should be mined by Jones. However, the latter, like plaintiff himself, had no equipment of his own available with which to operate, but in March he commenced to strip-mine with equipment owned by the defendant W. & R. Corporation of which he was an employee and the general superintendent. At or about that same time, namely on March 19, 1953, Niverton entered into an agreement with W. & R. Corporation wherein they gave to the latter the exclusive right and privilege to strip-mine the property, the royalty to be 40 cents a ton. Under this agreement W. & R. Corporation carried on operations for some five or six months during which period they mined 3,336 tons of coal.
Plaintiff brought the present action to recover against Niverton and W. & R. Corporation the sum of 15 cents per ton on all the merchantable coal which underlay the tract and which he claimed he would have been entitled to remove under his lease, the 15 cents being the excess of the royalty which Jones had agreed to pay him over the 40 cents payable by him to Niverton, and of which profit he was allegedly deprived by reason of Niverton's leasing the property to W. & R. Corporation in violation of his rights under his own lease. The court entered a nonsuit on the ground that the written agreement between plaintiff and Niverton could not be altered by his testimony concerning the oral agreement with Phillips that the paragraph forbidding assignment or subletting of the lease was to be voided.
The court's entry of the nonsuit was improper as to Niverton. It is of course true that in the absence of fraud, accident or mistake parol evidence of a prior or contemporaneous oral representation or agreement...
To continue reading
Request your trial