The Safe Deposit & Trust Co. of Pittsburg v. Diamond Coal & Coke Co.

• Decision Date: 02 January 1912
• Docket Number: 118
• Citation: 83 A. 54,234 Pa. 100
• Parties: The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company, Appellant
• Court: Pennsylvania Supreme Court

83 A. 54

234 Pa. 100

The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company, Appellant

No. 118

Supreme Court of Pennsylvania

January 2, 1912

Argued October 19, 1911

Appeal, No. 118, Oct. T., 1911, by defendant, from decree of C.P. No. 3, Alleghenv Co., Nov. T., 1909, No. 486, in equity sustaining demurrer to cross bill in The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company. Affirmed.

Cross bill in equity for the reformation of a written agreement for the sale of coal, and for the specific performance of the agreement as reformed. Before DAVIS, J.

The Midland Steel Company is the owner of about 903 acres of the Pittsburg or River vein of coal in Washington county adjoining a tract of the same vein of coal owned by the Diamond Coal & Coke Company. On December 2, 1905, the steel company executed and delivered to the Safe Deposit & Trust Company of Pittsburg as trustee, a first mortgage on its coal to secure the payment of a bond issue. The trustee accepted the trust set forth in the mortgage and has since continued to act as such trustee. The entries in the mine of the coal company were in close proximity to the coal of the steel company and the former having threatened to extend its entries into and mine the latter's coal, the trustee, in October, 1909, filed a bill to restrain the coal company from entering upon, mining or in anywise interfering with the body of coal covered by the mortgage. The coal company demurred to the bill but the demurrer was overruled and the company required to answer. An answer and replication having been filed, the court, after hearing, dissolved the preliminary injunction, but retained the bill in place "that compliance with the terms of this agreement may be enforced in case there should be a default on the part of the Diamond Coal & Coke Company." The agreement referred to in the decree was a contract, dated December 12, 1908, by which the steel company sold to the coal company 200 acres of its coal the part of the agreement material to this issue being the description of the coal land sold as follows: "The precise bounds of the coal land, proposed to be sold, cannot be exactly stated, but will be substantially as follows: The same is to be the Pittsburg or River vein of coal, underlying one contiguous block of 200 acres to be carved out of said larger tract, bounded on the East by the line between the Vesta Coal Company and the Steel Company extending from the point of intersection of the lands of the Coal Company, the Vesta Coal Company and the Steel Company at least to the point of intersection of lands of Williams and Dorsey now owned by the Steel Company and the Vesta Coal Company with the privilege of the Steel Company extending the line to any portion of the Williams farm; bounded on the North by the line of the lands of the Coal Company at least the full length thereof, with the right of the Steel Company to extend said line along the line of the lands of the Lilley Coal so far as in its discretion it may determine. The Western boundary of said tract shall be the boundary line as decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company as determined by a proposed trade arrangement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company, and bounded on the South by a straight line so determined in consideration of the other boundaries that the tract shall contain 200 acres. A description of the precise boundaries of the coal land, sold, to be defined as above by the Steel Company, shall be by the Steel Company furnished to the Coal Company in writing at least ten days prior to the delivery of the deed hereinafter mentioned."

Upon the dissolution of the injunction the steel company presented its petition to the court for leave to intervene and to become a party to the proceedings instituted by the trust company and to file a cross bill against the coal company and trustee. The coal company filed an answer denying the right of the steel company to intervene and become a party by filing a cross bill, and praying that the petition be dismissed. The court, however, granted the prayer of the petition, permitted the steel company to intervene and file its cross bill which prayed for an injunction to restrain the coal company from mining the coal, and for the surrender and cancellation of the agreement between the steel and coal companies for the sale of the 200 acres of coal sold.

The steel company having thus become a party to the proceedings the coal company filed the present cross bill against the latter company and the trustee, averring, inter alia, as follows: "Ninth. That prior to the consummation of said agreement the defendant, the Midland Steel Company, through its representatives, exhibited to the officers and agents of this cross-plaintiff a general map showing its coal property at this point, and thereupon marked and designated the coal agreed to be conveyed and more particularly showed on said map the Western boundary of said tract, fraudulently misrepresenting to the agents of this cross-plaintiff that the Western boundary line as designated and pointed out on said map was substantially the boundary line decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company as determined by the proposed trade arrangement and that while it might be required to move said line a few feet one way or the other, that said line would be substantially as directed and pointed out at that time; that this cross-plaintiff . . . accepted said designation and description of the Western boundary line, and in the preparation of the agreement between the parties the said boundary line was so designated and described; that this cross-plaintiff . . . avers that the said line as designated and pointed out to them by the representatives of the Midland Steel Company, the defendant, did not constitute substantially the boundary line as decided between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company, as determined by said proposed trade arrangement, and that a line entirely different from this one was the one proposed by the Monongahela River Consolidated Coal & Coke Company, and the line pointed out by the officers of the defendant company did not constitute the line substantially decided upon; that this crossplaintiff, relying upon the fraudulent misrepresentations of the defendant, the Midland Steel Company, representations which were entirely within the knowledge and possession of the said defendant, the Midland Steel Company, entered into said agreement . . . .; that a true and correct boundary line of said property as designated and pointed out to this cross-plaintiff and said to have been the boundary line in the proposed trade arrangement is the extension or continuation in the Southerly direction of the Western boundary line of Lilley Coal which immediately joins the coal of the Midland Steel Company at this point." The bill prayed, inter alia, as follows: "1st. That said tract be reformed in its description so that the description of the Western boundary line of said property which reads as follows: 'The Western boundary of said tract shall be the boundary line as decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company, as determined by a proposed trade arrangement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company' -- shall be modified, reformed and changed so that the same shall read -- 'The Western boundary of said tract shall be a line constituting an extension or continuation in the same Southerly direction as the Western boundary line of the Lilley Coal which immediately adjoins the coal of the Midland Steel Company, said line to be continued in such length so that the straight line fixed in this agreement as the Southerly line taken with this Westerly line shall close and the entire area constitute 200 acres.'" The bill further prayed that the steel company be directed to furnish a description of the precise bounds of the coal lands sold, to be defined as contained in the contract, that the court decree the specific performance of the contract and thereafter the steel company deliver to the coal company a deed in fee simple for the coal as substantially described in the agreement upon delivery by the coal company of the consideration money stipulated in the agreement, and that the trustee be directed to release from the lien of the mortgage held by it the 200 acres of coal described in the agreement. The steel company and the trustee demurred to this cross bill on the grounds, inter alia, that (1) "the bill shows that the efficacy as a contract of the so-called agreement is inherently dependent on the consummation of the proposed trade agreement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company, but fails to allege that said trade was ever made;" and (2) "the allegations of the bill show that under the Pennsylvania Statute of Frauds the plaintiff is not entitled to the prayer for reformation and specific performance." After hearing, the court entered a decree sustaining the demurrer and dismissing the bill. From the decree the coal company has taken this appeal.

Error assigned was in sustaining demurrer and dismissing the cross bill.

The decree is affirmed.

William A. Stone, with him Stephen Stone, for appellant.

M. W Acheson, Jr., of Patterson, Sterrett and Acheson, for appellees. -- Even if the memorandum were enforceable nevertheless since it is executory, parol evidence, even of a fraud, while admissible to strike the paper down, would be...