Wilmore Coal Co. v. Holsopple

• Decision Date: 13 July 1917
• Docket Number: 68-1917
• Citation: 68 Pa.Super. 290
• Parties: Wilmore Coal Co. v. Holsopple, Appellant
• Court: Pennsylvania Superior Court

68 Pa.Super. 290

Wilmore Coal Co. v. Holsopple, Appellant

No. 68-1917

Superior Court of Pennsylvania

July 13, 1917

Argued April 11, 1917 [Syllabus Matter]

Rehearing Denied 68 Pa.Super. 290 at 297.

Appeal by defendant, from judgment of C.P. Somerset Co.-1916, No 190, on verdict for plaintiff in case of Wilmore Coal Co. v. Russell Holsopple.

Trespass to recover damages for the alleged wrongful cutting of timber. Before Bailey, P. J., specially presiding.

The plaintiff in its statement of claim alleged that the value of the timber cut was $ 125. The statement contained the following additional clause relating to damages:

3d: Wherefore the plaintiff brings this suit to recover damages for the cutting and conversion of the trees as aforesaid and upon the trial of this cause will demand damages in treble the value of the timber cut as aforesaid, being the sum of three hundred and seventy-five ($ 375.00) dollars, under the provisions of the Act of Assembly of Pennsylvania, approved the 27th day of March, 1824.

The defendant claimed title under the following agreement in writing:

This agreement made this 22d day of January, 1901, between the Berwind-White Coal Mining Co., of Windber, Somerset County, __ Pa. __, of the first part, and Russell Holsopple, of Holsopple, __ Pa. __, of the second part.

Witnesseth: That for and in consideration of the timber hereinafter stated, to be delivered on the stump or as standing at present, by the first party to the second party. The said second party hereby agrees to give, exchange and convey to the said first party, all that timber which was cut by the said first party upon the lands of the said second party at or near Eureka Mine No. 39.

And, it is hereby understood and agreed between both parties, that the said second party shall not cut any hickory upon the lands described nor shall he cut beyond the western limits of the proposed railroad right of way as shown upon the attached sketch.

In witness whereof, the said parties have hereunto set their hands and seals on the day and year above stated.

(Signed) Berwind-White C. M. Co. (Seal)

(Signed) Per S. H. Jencks. (Seal)

(Signed) Russell Holsopple. (Seal)

[Image Omitted]

Sketch.

Timber that can be cut

Center Line of R. R.

Western Limits of R. R. Right of Way.

It appeared that the business relations between the plaintiff and the Berwind-White Coal Mining Company, the plaintiff was bound by the agreement in question. At the conclusion of the trial the parties agreed that if the plaintiff was entitled to recover the damages should be $ 150, subject to the ruling of the court on the question of law reserved.

Verdict and judgment for plaintiff for $ 150. Defendant appealed.

Error assigned was in overruling motion for defendant n. o. v.

Alexander King, with him John G. Ogle, for appellant. -- If the cutting was wrongful, but mistakenly or accidentally done, only single damages could be recovered; and as there is no claim or count for damages at common law, in the statement, the appellee's case must fall: Kramer v. Goodlander, 98 Pa. 353; Hughes v. Stevens, 36 Pa. 320.

The agreement complies with the requirements of the statute of frauds. All that is necessary for the writing to show is, the parties, a consideration, the subject-matter, and be signed by the party to be charged: Smith & Fleek's App., 69 Pa. 474; Ferguson & Staver, 33 Pa. 411; Bubb v. Parker, Etc., Oil Co., 252 Pa. 26; Clark v. Smith, 25 Pa. 137; Shiffer v. Broadhead, 134 Pa. 539.

Charles H. Ealy, with him Charles F. Uhl, Jr., for appellee. -- Appellant obtained no title to the timber in dispute by his agreement with the Berwind-White Coal Mining Company: Huff v. McCauley, 53 Pa. 206; Yeakle v. Jacob, 33 Pa. 376; Soles v. Hickman, 20 Pa. 180; Ferguson v. Staver, 33 Pa. 411; Mellon v. Davison, 123 Pa. 298; Llewellyn v. Sunnyside Coal Co., 242 Pa. 517.

The judgment of the lower court was proper under the pleadings and evidence: O'Reilly v. Shadle, 33 Pa. 489; Shiffer v. Broadhead, 126 Pa. 260; Irwin v. Patchen, 164 Pa. 51; Patterson v. Graham, 164 Pa. 234.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

TREXLER, J.

The coal company cut down and converted to its own use certain white oak timber belonging to the defendant. The negotiations looking to the settlement of the claim for the injury done resulted in the agreement which reads as follows: " This agreement made this 22nd day of January, 1901, between the Berwind-White Coal Mining Co., of Windber, Somerset County, __ Pa. __, of the first part, and Russell Holsopple, of Holsopple, __ Pa. __, of the second part. Witnesseth: that for and in consideration of the timber hereinafter stated, to be delivered on the stump or as standing at present, by the first party (the coal company) to the second party (Holsopple). The said second party hereby agrees to give, exchange and convey to the said first party, all that timber which was cut by the said first party upon the lands of the said second party at or near Eureka Mine No. 39. And, it is hereby understood and agreed between both parties, that the said second party shall not cut any hickory upon the lands described nor shall he cut beyond the western limits of the proposed railroad right of way as shown upon the attached sketch." This is followed by a sketch showing a rectangle and a number of crosses put therein without any apparent design. Below it is a dark line indicating " Centre line of R. R." followed by a dotted line " Western Limits of R. R. Right of Way."

It has been held in a number of cases that a conveyance of timber that does not contemplate an immediate severance is within the statute of frauds: Yeakle v. Jacob, 33 Pa. 376; Pattison's App., 61 Pa. 294; McClintock's App., 71 Pa. 365; Bowers v. Bowers, 95 Pa. 477; Bennett v. Vinton Lumber Co., 28 Pa.Super. 495; Miller v. Zufall, 113 Pa. 317. In the latter case the rule is stated as follows: " A contract for the sale of growing timber to be taken off by the purchaser, without specification as to time, is an interest in land, within the meaning of the statute of frauds." See also Mahan v. Clark, 219 Pa. 229. This being so it follows that the rights of the parties must be determined by the above agreement and that nothing can be added to the agreement by parol. " When the law requires the contract to be in writing it means that the complete contract must be proved by the writing. That is not a written contract that is not self sustaining. It is verbal if it requires verbal testimony to sustain it by proving any essential part of it. So far as I know this has been the uniform course of the decisions" : Soles v. Hickman, 20 Pa. 180. See also Ferguson v. Staver, 33 Pa. 411, and Mellon v. Davison, 123 Pa. 298. " When an attempt is made to establish title to land under a parol contract, proof thereof in all its essentials, and in all its equities, should be so plain and clear as to preclude doubt or hesitation as to the contract and the equities arising thereunder: Moore v. Small, 19 Pa. 461; Bowers v. Bowers, 95 Pa. 477" ; Miller v. Zufall, supra. Judged by these standards the agreement before us is lacking. No boundaries are mentioned. No designation of the tract is made. No contents are given. The so-called sketch is meaningless. It indicates that the timber to be cut is located somewhere to the east of the right of way of the railroad company but what the extent of the timber is, we cannot ascertain. We think the court was right in holding that the contract could not be relied upon by the defendant and that the plaintiff having proven title to the land upon which the timber was cut, judgment in his favor followed.

Another question in the case and perhaps the most serious one...