McGowan v. Bailey , 146 Pa. 572 ( 1892 )

Opinion,

Me. Justice Green :

In the case of Close v. Zell, 141 Pa. 890, we considered with care the subject of the merger of stipulations, whether in writing or verbal, in contracts for the sale of lands, followed by deeds in pursuance thereof from which the stipulations thereof were omitted. In that particular case we held that a parol stipulation by the vendor of land, to refund the purchase money in the event of a failure of title and to reimburse the vendee for any costs and expenses incurred, was not merged in a deed containing a covenant of special warranty, but no covenant of title, afterward accepted by the vendee in consideration thereof. It was the absence of the omitted stipulation from the deed, or from the implied operation of the covenants which the deed did contain, that entitled the omitted stipulation to consideration independent of the deed, as a source of legal obligation. The various phases of the subject, as illustrated by the cases cited in the opinion, were considered at some length. It is not necessary to repeat here the reasoning contained in the opinion. We think the present case comes clearly within the decision.

While the deed from the plaintiffs to O’Neil is not printed in either of the paper-books, and we therefore cannot contrast it with the origiual articles of agreement for the sale, it is stated by the court and counsel that the deed to O’Neil did not contain that provision of the articles, or any substitute for it, which is expressed in the articles in the following words, viz.:

“ With rights of way for any railroads, entries, etc., which the said John O’Neil, his' heirs and assigns, may see proper to make at any time, for the purpose of working his pits; together with all suitable air-drifts, pit-mouths, water-courses, places for depositing slate and slack, and all other things necessary and proper for the suitable running of said coal, or any other coal that said O’Neil may want to run.”

We assume that there are no covenants in the deed which take the place of or supply the omitted clause of the articles. We will not now undertake to determine the importance of this omitted clause of the oi'iginal agreement to the defendants. As it contains, among other things, the grant of a right to run other coal than such as might be mined on the land, it is manifest that it does, or may, embrace consequences and rights which do not follow from a subsequent deed which merely conveys the coal on the land. We are clearly of opinion that the original agreement of May 7,1866, between the McGowans and O’Neil was competent testimony, and should have been admitted in evidence. This sustains the first assignment of error.

The second assignment contains no specific offer of proof admitted contrary to defendants’ objection, and we can find no exception which sustains it. It is therefore dismissed.

The matter covered by the third assignment seems to be a consequence of the rejection of the original articles of agreement, and in so far as that view of it is applicable, we sustain the assignment. It is difficult to see, however, in the specific language of the court, anything of which the defendant can complain. The court told the jury that, if the way were necessary to get out the coal, the right to it passed by the grant, and also, that if the plaintiffs stood by and saw the defendants building and using the trestle without objection, they might and ought to infer that it was a necessary right of way. All this was favorable to the defendants. But the court added, if it was not a necessary right of way and the jury could find there was any damage, they should find in favor of the plaintiffs. This, of course, ignored the effect of the articles, and if they were properly out of the case, the charge would be correct. We have held, however, that it was error to disregard the articles which expressly conferred the right in question.

As to the fourth assignment, we hardly think the learned court intended to say that damages resulting from the possible removal of supports in the future could be recovered. As we understand the language excepted to, it was meant to convey the idea that damages already suffered, and damages likely to result from the removal of supports already taken down, might be recovered, and in that view we see no error in this part of the charge, and the assignment is not sustained.

Judgment reversed, and new venire awarded.