Daubert v. Pennsylvania R. R.

Per Curiam:, In response to plaintiff’s testimony in chief, the defendant gave in evidence the agreement of January 30, 1885, between plaintiff and the Reading & Pottsville Railroad Co., in connection with agreement of consolidation and merger, October 7, 1885, between that company and the Pennsylvania Schuylkill Valley Railroad Co., and also lease of last named company, December 1,1885, to the Pennsylvania Railroad Co., defendant, for all said lessor’s railroads, etc., in the counties of Philadelphia, Montgomery, Chester, Berks and Schuylkill, duly recorded, etc., and then rested. It was claimed by defendant that said first mentioned agreement was in effect “ a present grant to the railroad company, its successors or assigns, of the privilege of surveying, locating, constructing and using their railroad upon the plaintiff’s land,” etc., and, in its 8th and 9th points, it requested the learned president of the common pleas to charge: “ 8. An action of ejectment will not lie for the violation of any of the covenants made and to be performed by the railroad company under the agreement of January 30,1885.” “ 9. Under all the testimony in this case, the verdict must be for the defendant.” He rightly held that the agreement was merely a contract to convey and not a conveyance ; that the legal title was still in the plaintiff; and he virtually instructed the jury, pro forma, that under our system of administering equitable principles in common law actions, plaintiff hada right to maintain ejectment upon his legal title for the purpose of enforcing payment, by means of a conditional verdict, of the purchase money due him, etc : Cook v. Trimble, 9 Watts, 15 ; Krebs v. Stroub, 116 Pa. 405. He accordingly negatived the 9th point and reserved the question of law raised by the 8th point. That question he afterwards rightly ruled in favor of plaintiff, and thereupon judgment was entered in his favor on the conditional verdict returned by the jury, and subsequently so molded by the court as to require the deed, when delivered, to “ be accompanied with the release from all claims and damages, as per agreement.” The conditional verdict, as thus molded by the court, preserves all the equities of the defendant company as terre tenant under the Reading & Pottsville Railroad Co. The conditions [187] attached to the verdict are for its protection and the preservation of its rights, if it chooses to avail itself of them. Nothing, save compliance with the terms of the contract, is required. Less than that would be unjust and inequitable to the plaintiff. He is entitled, upon compliance with his part of the contract, to receive the purchase money, and to the performance, by the railroad company, of its covenants; and the court below will see that no injustice is done to either party. The defence in this case has, at least, the appearance of being obstructive rather than meritorious. It is a mistake to say that the court gave binding instructions to the jury. There was practically no conflict of testimony ; and, as the learned judge said in his charge, “ There seems to be no material dispute as to the facts.” He accordingly said to the jury that if they believed the facts testified to, the plaintiff was entitled to a verdict. There was no error in this ; nor do we find any error in the record that calls for a reversal or modification of the judgment. The sixty days within which defendant is required, by the verdict, to comply with the conditions thereto annexed, are to be computed from this date. Judgment affirmed.