Walker v. France

• Decision Date: 29 March 1886
• Docket Number: 10
• Citation: 5 A. 208,112 Pa. 203
• Parties: Walker v. France
• Court: Pennsylvania Supreme Court

5 A. 208

112 Pa. 203

Walker v. France

No. 10

Supreme Court of Pennsylvania

March 29, 1886

Argued February 23, 1886 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

ERROR to the Court of Common Pleas of Wayne county: Of July Term, 1885, No. 10.

Ejectment brought by George W. Walker for three lots or parcels of land October 30th, 1883, against W. B. France. Plea, not guilty.

The facts of the case, as they appeared on the trial before McCOLLUM, P.J., sufficiently appear in the charge of the court and in the opinion of the Supreme Court.

In the general charge the court instructed the jury, inter alia: [Now, in the investigation of this case, the first difficult question for you to determine is what was the actual contract between these parties? Does the writing fully and entirely express that contract, or does it not? In other words, was it a part of the contract and agreement between Walker and France, that Walker guaranteed to France that this mill had a certain capacity for sawing, and that there was 10,000,000 feet of good white hemlock lumber upon this land? Was that a part of the actual agreement between these parties? It is not in the writing, but if it existed, as a fact, it may be put there by the kind and description of evidence which we have mentioned.] (Eighth assignment of error.)

[If it was agreed between these parties, as a part of their bargain, that Walker should guarantee the quantity of hemlock lumber upon the land to be 10,000,000 feet, and the water power to be as claimed by the defendant, and by reason of that guaranty France was induced to sign the contract, as written, then that agreement must be treated the same as if it had been written in the contract. It then becomes a part of the contract. Because if a party is induced to sign a contract in consideration of a certain promise connected with the subject matter, made by the other party, then a breach of that promise, or a disregard of it, under those circumstances, would constitute a fraud upon him, so as to subject the writing to explanation or qualification, by parol evidence.] (Ninth assignment of error.)

Now, what are the facts in this case, and upon that branch of the case? The direct evidence upon that subject, on the part of the defendant, is found in the testimony of the defendant himself, and in the testimony of his wife and two sons. They all testify before you that Mr. Walker made this guaranty just before the execution of the contract. As we understand their testimony, it is that this guaranty was made by Mr. Walker at the house of Mr. France on the morning that the contract was executed. They say to you, in substance, that Mr. France said to Mr. Walker, when his attention was called to the execution of the contract, that he had been informed, or had learned, that what Mr. Walker had told him about the quantity of timber upon the land and the capacity of the mill was not true. And that if he had been correctly informed, he should not sign the contract, and that thereupon the conversation which they detail ensued between the parties. In that conversation, if correctly related by the witnesses, Mr. France declined to execute the articles without the insertion of the guaranty, but upon being told by Walker that it should make no difference, and that it should be the same as if it was in the contract, he finally consented to sign it, and did sign it.

The defendant also claims to find some corroboration of this testimony in regard to the alleged guaranty, in certain declarations which he alleges that Mr. Walker made to one or two persons. Declarations not directly admitting or conceding any such guaranty, but bearing, as the defendant claims, a construction to some extent corroborative of his claim of such a guaranty.

Opposed to this evidence you have the testimony of Mr. Walker, the plaintiff, and of his brother, S. T. Walker, as to what occurred upon the lot. Mr. France testifies that while upon the lot there was a talk about the quantity of hemlock timber upon it, and that it was there represented that there were 10,000,000 feet. Mr. Walker and his brother both testify that no such conversation took place, and that no statement of that kind was made by them, or either of them. They admit that there was some talk about the quantity of lumber upon the lot, but, according to their testimony, as we recall it, the highest estimate was made by S. T. Walker, the brother of the plaintiff, who said he thought there were about 5,000,000 feet. Mr. France estimated it at less. G. W. Walker, the plaintiff, denies entirely that he made any guaranty whatever as to the quantity of lumber upon this land, or any guaranty of the water power, or of the mill, or the capacity of either.

They have also given in evidence, on the part of the plaintiff, declarations which they claim to have been made by Mr. France, which they say are corroborative of the claim of Walker, that no such guaranty was made, and inconsistent with the claim of Mr. France that such a guaranty was made. You have also, on the part of the plaintiff, the testimony of Mr. Little, the man who wrote the contract, and who is at present residing in Minnesota. His deposition has been taken and read to you. He testifies in substance, as we remember the evidence, that the parties came to his office and requested him to draw the contract, and stated its terms to him fully, and that he reduced the contract to writing, and that it was subsequently read to the parties, and that they agreed that it contained all of the contract, and that nothing was said on the subject of a guaranty of the capacity of the mill, or the water power connected with it, or the quantity of timber upon the tract.

We do not recollect, however, that Mr. France claims in his testimony that anything was said about this guaranty when they were at Mr. Little's office. We do not recollect distinctly how that was, but you will recall all the evidence in the case bearing upon this question. Now, the evidence to which we have referred, on the part of the defendant, and on the part of the plaintiff, is the material evidence in the case, by the aid and assistance of which you must determine this question: Was there, or was there not, this parol guaranty there not, this parol guaranty made by Mr. Walker, on the faith of which Mr. France signed this contract?

If you settle that question adverse to the defendant -- that is, if you fail to find from the evidence the existence of this alleged guaranty, then that is the end of the defence in this case. If, however, your finding upon this question should be adverse to the plaintiff -- that is, if you should find that this guaranty was made, as claimed by Mr. France, and that he executed this contract upon the faith of it, then, as before said, that guaranty became a part of the contract, and as operative in this case as if it had been written there, and you will proceed to the consideration of the remaining branch of the case: Was there a breach of that guaranty, either with respect to the quantity of timber upon the land, or with respect to the capacity of the mill, and the water power connected with it?

[If you find, under our instructions, the existence of such a guaranty, as claimed by the defendant, and also find that there was a breach of such guaranty, then the plaintiff must allow the defendant whatever damages he has sustained by reason of the breach of such guaranty. To illustrate; if there was a guaranty that there was 10,000,000 feet of hemlock lumber upon the land, and in fact there was but 1,000,000, or 3,000,000, then the defendant would be entitled, by way of equitable defence to this action, to abate from the purchase money which he had agreed to pay, the value of such deficiency. That is, if there was a guaranty of 10,000,000 feet, and in fact there were but 3,000,000 feet upon the lot, then the deficiency would be 7,000,000, and the value of that 7,000,000 feet the defendant would be entitled to have deducted from the price which he agreed to pay.] (Tenth assignment of error.)

[Next, as to the mill and water power. If it was guaranteed to have a certain capacity, had it less capacity than it was guaranteed to have, and if so, how much less? How would the value of the property be affected by this deficiency in the capacity of the mill, if it existed, and what would be the damage to the defendant, by reason thereof? We stated, in our answer to one of the plaintiff's points, that we thought perhaps there was some basis in this case upon which the jury might adjust the damages for any deficiency in the capacity of the mill or water power, if there was any such deficiency. That evidence is this. There is evidence in the case to the effect that the value of the mill, and the water privilege used in connection with it, was $1 per thousand for the lumber it would saw. For instance, if the mill would saw 10,000 feet per day, then, according to that, the value of its use would be $10. But we think, however, although it was not mentioned by the witnesses, that from that would have to be taken into consideration the wear and tear of the mill, and the expenses of maintaining it. But a mill which had the capacity to cut 10,000 feet a day, would certainly be more valuable than one which had the capacity to cut only 5,000.] (Eleventh assignment of error.)

We mention this only by way of illustration, and as a circumstance which may afford the jury some assistance in measuring damages upon this branch of the case, should they have occasion to do so.

It has been shown in this case that Mr. France, the defendant, has taken the legal title to this lot, and that he took it subsequently to making his contract with Walker, and that he paid the balance which was due from...