McCahan v. Wharton

Opinion, Mr. Justice Paxson: We are asked not only to reverse this case without a venire, but also to enter a judgment for the plaintiffs. Just how we are to do this in view of the fact that there was a verdict for the defendants below, we are not informed. There is the further difficulty that this was ap action of covenant, and the narr is not printed in the paper book of plaintiffs in error as required by the rules of court. We do not know, therefore, with any certainty, what breaches of covenant were assigned, nor what the issue was in the court below. We might guess at it, But that is not our province. We would hesitate to Reverse a case so defectively presented and might well affirm the judgment for this reason. A careful examination of it as presented,,however, fails to disclose any substantial error. It is true the learned judge below fell into a slight inaccuracy in that portion of his charge in which he said that “no other covenant preceding this one required them to develop the iron ore.” This, however, was entirely harmless, as the entire covenants in the lease were submitted to the jury in a manner free frojn objection. If the defendants’ witnesses are to be believed there was not ore enough on the property to justify the defendants in expending any money upon it. There was also evidence that within the time limited the [437] defendants .abandoned tlie property and so notified the plaintiffs. It was immaterial that the notice was given to the attorneys of plaintiffs, as one of the plaintiffs admitted, when upon the witness stand, that he had been informed of the notice by the attorney in question. Under these circumstances no question of the authority of the attorney arises, and the plaintiffs’ repudiation of it is not material. Nor do we think the court committed any error in its construction of that part of the agreement which refers to the failure to give up possession of the premises by July 1, 1884, as evidence that there was sufficient ore on the premises to pay the royalty. The learned judge held this not to be conclusive, but an admission which threw the burden of proof upon the defendants to show that there was not ore there in paying quantities. The defendants assumed this burden and succeeded in convincing the jury that the ore was not there. And if it was not there, the plaintiffs could not be required to pay the royalty, under Muhlenberg v. Henning, 116 Pa. 138, and other cases there cited. Judgment affirmed.