Somerset Colliery Co. v. John
|219 Pa. 380,68 A. 843
|06 January 1908
|Somerset Colliery Company v. John, Appellant
|United States State Supreme Court of Pennsylvania
Argued October 25, 1907
Scire facias sur mortgage.
At the trial the whole of defendant's case was as follows:
Mr Ruppel: I offer the agreement between A. F. John, of the first part, and John A. Clark and William A. Somerville, of the second part, dated August 28, 1901.
We shall follow this by proof of another agreement of the same date between the same parties, relating to the same subject-matter, by which it was provided that the lessors Clark and Somerville, or their successors to the lease, shall erect a mining plant or other improvements in connection with the mines at a cost of at least $8,000, and, in case of failure, to pay said A. F. John the said sum of $8,000.
To be followed by proof that at the time the mortgage was given it was agreed between the parties that the question of damages to the mine under this lease and the question of payment of the $8,000 under the agreement between the same parties should be adjusted between the parties when the payments of the mortgage fell due, and that at the time the mortgage was given the question of damages to the mine and the claim of John for $8,000 for failure to erect the mining plant, or mining improvements provided for, were discussed, and it was agreed between them that the matter should be left open till the payment of the mortgage fell due, and the matters then adjusted between the parties in connection with the payment -- this agreement being in parol.
Mr. Kooser: These offers of evidence are objected to as irrelevant, immaterial and incompetent; all matters arising under the lease or agreement offered are closed by the sale and mortgage in suit; it is not competent to prove by parol any such purpose as evidence -- any matters to alter or contradict the written instrument.
The agreement is further objected to for the reason that copies have not been furnished with the pleadings, as required by rule of court.
Mr. Ruppel: In reply we wish to state that an affidavit of defense was filed and copies of the agreement given with it. Notice of special matter was filed and the agreements referred to and the statement made: "A copy of said agreements, marked exhibit 'A' and exhibit 'B,' is attached to said affidavit of defense, and is also in possession of the plaintiff."
The Court: The objection is sustained on the ground that the proposed oral testimony tends to contradict or change the written instrument upon which the plaintiff relies.
Mr. Ruppel: Your honor, we move to amend the pleadings and give copies of the agreement.
The Court: Very well, you may file the copies.
Mr. Ruppel: We now renew our offer.
Mr. Kooser: We renew the same objection.
The Court: And we renew the same ruling, and note an exception and seal a bill as to both parties.
Mr. Ruppel: We have nothing further, your honor.
Verdict and judgment for plaintiff for $21,296.62. Defendant appealed.
Error assigned was ruling on evidence, quoting the whole of the defendant's case.
Judgment reversed, and venire facias de novo awarded.
W. H. Ruppel and W. H. Koontz, with them J. G. Ogle, for appellant. -- The set-off sought to be introduced here consists of two items: 1. That of unliquidated damages resulting from negligent mining. 2. The amount stipulated to be paid in case of failure to erect the improvements, $8,000.
In the absence of a contract the claim for unliquidated damages could not be used as a set-off: Kelley v. Tibbals, 53 Pa. 408; Hopkins v. Stockdale, 117 Pa. 365; Philadelphia v. O'Conner, 23 Pa. C.C. Rep. 653.
As to the $8,000 claim it may be argued that under the defalcation act it was the duty of the defendant to raise that question in this proceeding, or else be barred from setting up a subsequent claim therefor; or, being an equity which the defendant could make use of, that he would have the right independent of the question of contract, to use it as a set-off in this action: Leitz v. Hohman, 207 Pa. 289. But in any event there was nothing to show, and no allegation even made, that the defendant had released his rights or claims as to either of these items, and by agreement between the parties it was perfectly legitimate to refer the matter for adjustment in connection with the collection of the mortgage. The mortgagees were nonresidents of the county. To settle the disputed question in connection with the payment of the mortgage would have insured the defendant against any possible hardship or inconvenience of seeking the mortgagors in another forum. ...
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