Johnston v. Cowan

The opinion of the court was delivered, November 16th 1868, by Thompson, C. J. It is important to settle, first, whether the article of agreement declared on, is an instrument of writing for the payment of money within the rule of court and Act of Assembly ; if not, the other questions would, so far as this case is concerned, be immaterial. But we are very clear that it is such instrument in the covenant declared on. The article is an agree [279] ment for the privilege of digging, mining and taking away clay .for the manufacture of fire-hrick, from the land of the plaintiff, and for every ton exceeding 1250, and including that number, the defendants agree to pay semi-annually, 12 cents per ton. But, if less than that amount were taken, the privilege was to be paid for in a gross sum semi-annually, to wit, $150 for every period of six months. The narr. claims to recover on this clause of the agreement. It is a fixed and certain sum; not contingent or conditional, and if the agreement be good for anything, it is extinguishable only in money. In Trent v. McGuire, 6 Watts 77, a lease reserving rent was held to be an instrument in writing for the payment of money under the Act of 28th March 1855, relating to the District Court of Philadelphia, substantially in its provisions, similar to the rules of court in this case. Such also was the decision in Dewey v. Dupuy, 2 W. & S. 553. The instrument before us is equally well' entitled to be regarded as an instrument for the payment of money as was either of these cases, and we so hold it to be. The defendants filed an affidavit of defence to the plaintiff’s claim; what defence was set forth we do not certainly know, as it is not in the paper-books, but presuming it to have contained or raised the matters insisted on in argument, we will briefly notice them. . t We think the special count was specific enough to enable the court to order a liquidation by the prothonotary. Besides, the article of agreement was filed as a copy of the claim, and no more could be recovered than was due on it. This was shown both by the covenant and copy of claim. It was further insisted that the contract was but a license, and if no clay were taken, no money was to be paid. We do not agree that this is the true interpretation of the instrument, or that that was what the parties meant by it. The covenant to pay for the privilege granted, and on which the action and count were founded, is as follows. After stipulating for payment by the ton, when it exceeded 1250 tons taken, semi-annually, it provides, “ and if less than that amount, then they (the grantees) are to pay on each of the days above mentioned $150; it being distinctly understood and covenanted and agreed by the parties of the second part (Johnston, Taylor & Co.) that they will pay $150 every six months during the term aforesaid, although they may not have mined and taken away an amount of clay equivalent, previous to the time the said sum falls due; but if they take more they are to pay for the same.” It then appears that the parties to the contract endeavored to be explicit, and to express clearly their understanding by this clause, and we think they fully succeeded in expressing without ambiguity, that the. defendants were to pay for the privilege of [280] mining and taking away clay whether they should choose to exercise it or not. It is not very material to refer the rights acquired under the contract to any specific class of interests in, or arising out of, real estate, for the intention to grant a privilege and to pay for it in a specified way, and at definite periods, is clearly expressed, and the soundest rule in the world is, that which carries into execution the intention 'of the parties. It is highly improper to call the fixed sums to be paid in the event of the minimum of clay not being taken, liquidated damages. It is an alternative price to be paid in an event which it was foreseen might happen, not as damages, but in payment for the privilege. However this may be, it is certain it is nothing like a penalty. We hold that the contract was not a mere license, but the grant of a right or privilege, which the parties were bound to pay for, whether they enjoyed it or not. This was their contract, and they must abide it. We are of opinion, also, that even if, as the defendants claimed, this was a grant of a corporeal interest, a hereditament, there was a sufficient signing to take the contract out of the Statute of Frauds and Perjuries. Cowan, the grantor, owner of the land, signed, and that bound him; and this was sufficient: Lowry v. Mehaffey, 10 Watts 387. The covenantees could enforce the contract against him, for he was bound as the statute requires, by writing. The intention of the framers of the statute was to prevent titles from being divested by parol. Hence he who has a title to convey, must be bound by writing, but the opposite party need not be, on account of anything contained in the statute, for he is not parting with title, and he may recover a conveyance without a written assent. But in this case we hold, as clearly indicated, that the contract before us was not a sale of a corporeal interest, but a mere privilege. This is sustained by Grove v. Hedges, 5 P. F. Smith 504. We see no reason, therefore, why one member of the firm could not bind the firm by signing the firm name in the course of its business. Nothing appears to show us that the contract was beyond its scope. Without enlarging, we think that the court below committed no error in entering the judgment complained of. Judgment affirmed.