Citation Numbers: 67 A.2d 798, 165 Pa. Super. 108
Judges: OPINION BY FINE, J., July 15, 1949:
Filed Date: 4/12/1949
Status: Precedential
Modified Date: 1/13/2023
Argued April 12, 1949. J.W. Edwards, appellee, instituted this action in replevin against Arthur H. Glaske, appellant, for the return of cut timber. Appellant filed a counterbond to retain the logs and after trial the jury rendered a verdict in the amount of $425.00 for appellee. Appellant's motions for judgment n. o. v. and for a new trial were *Page 110 dismissed by the court en banc, and this appeal followed.
Since appellee obtained the verdict, he is entitled, upon review, to have the testimony viewed in a light most favorable to him, resolving any conflicts in the testimony in his favor, and according him the benefit of every inference of fact reasonably deducible therefrom. Scholl v. Philadelphia SuburbanTransportation Co.,
Appellant's principal contention that the oral contract was within the statute of frauds (Act of 1772, 1 Sm. L. 389, § 1,
The question is: Does the evidence support the verdict of the jury that the contract was fully executed? We are satisfied it is amply sufficient to warrant such a finding; the statute of frauds is therefore inapplicable. *Page 112 The court below did not err in submitting this question for the jury's determination upon instructions to which no specific exceptions were taken.
Briefly summarized, the testimony indicates that after the logs had been felled, appellee manifested his intention to reduce them to possession in every way possible. He "skidded" the logs out of the forest, stored them on pasture land adjacent to the road, and thereby took possession by openly segregating them and hauling some to his logging mill. The removal of all logs was interrupted only by the onset of inclement weather. The contract having been fully executed, title to the logs vested in appellee and the statute of frauds passes out of the case. This contract was so far executed that it would be unjust and inequitable to rescind it; to do so would utilize the statute as an instrument of fraud.
Appellant contends further that though the contract is fully executed and the statute of frauds does not apply, such contract is not binding on appellant for the reason that he was "a stranger to the contract." The frailty of appellant's position is immediately apparent for he admittedly had notice of the deed reservations and took title to the realty subject thereto.
The statute of frauds does not apply where, as here, an immediate severance of the timber was contemplated and the intention of the parties and their conduct pursuant to the oral contract indicated the sale of the timber as personalty. That such was their intention is clearly revealed by the testimony. The original oral contract was modified, i. e., limiting the time of performance, by an agreement requiring removal within the six months period. The oral modification had been acted upon and fully executed; hence there is no issue present: Brownv. Aiken,
In Strouse v. Berger,
One further complaint raised by appellant's assignments of error may be mentioned briefly, i. e., that the *Page 114 court erred in dismissing appellant's motion for compulsory nonsuit since appellee's probata materially varied from hisallegata. Appellant complains that the oral contract pleaded by appellee provided no specific time for removal and that testimony of a modified contract contemplating actual immediate severance was improper. Appellant's contentions are without merit. The appellant failed to properly note his objections on the record in moving for nonsuit or at any other time. Moreover, the alleged variance, if any, was fully supplemented by appellant's own testimony; he chanced a favorable verdict and cannot now be heard to complain because it was adverse.
A careful review of the entire record clearly reveals that the factual questions were properly submitted to the jury and that there is ample competent and credible. evidence to support the verdict.
Judgment affirmed.
Johnson v. Bumpus , 34 Pa. Super. 637 ( 1907 )
Yeakle v. Jacob , 33 Pa. 376 ( 1859 )
Pattison's Appeal , 61 Pa. 294 ( 1869 )
Huff v. McCauley , 53 Pa. 206 ( 1866 )
McClintock's Appeal , 71 Pa. 365 ( 1872 )
Bowers v. Bowers , 95 Pa. 477 ( 1880 )
Miller v. Zufall , 113 Pa. 317 ( 1886 )
Patterson v. Graham , 164 Pa. 234 ( 1894 )
Novice v. Alter , 291 Pa. 64 ( 1927 )
Scholl, Admrx. v. Phila. Sub. Transp. Co. , 356 Pa. 217 ( 1947 )
Robbins v. Farwell , 193 Pa. 37 ( 1899 )
Parry v. Miller , 247 Pa. 45 ( 1915 )
Mahan v. Clark , 219 Pa. 229 ( 1908 )
Strause v. Berger , 220 Pa. 367 ( 1908 )
Havens v. Pearson , 334 Pa. 570 ( 1939 )
Brown, to Use v. Aiken (Forte) , 329 Pa. 566 ( 1937 )