Hall v. Clearfield & Mahoning Railway Co.

Per Curiam, The subjects of complaint in the first six specifications are the learned court’s answers to the defendant’s points for charge recited therein, respectively. We are satisfied from an examination of the record that there is no substantial error in any of said answers. Neither of said points, as presented, could have been affirmed, and hence they were rightly refused. Nor do we think there is any error in either of the excerpts from the learned judge’s charge, recited in the seventh to the ninth specifications, inclusive, or in directing a verdict for plaintiff as complained of in the tenth specification. There is nothing in either of the assignments of error that requires special notice. [72] The learned judge is substantially correct in his construction of the agreement of June 18,1892, on which this action is founded, and also in regard to the kind of conveyance therein provided for. The agreement is executory, and evidently contemplates the execution and deliveiy of a deed, in due form, expressed in such apt words as will secure to each party, respectively, the rights and privileges mentioned in the agreement or intended to be granted or reserved. The construction contended for by the defendants is unreasonable and wholly untenable. Their covenant to “construct and maintain a good and sufficient crossing over the right of way on said premises,” is not independent of and unconnected with the right of way acquired by the defendant, but a covenant running therewith, and thus securing to plaintiff the “good and sufficient crossing ” intended to be appurtenant to his land on either side of said right of way. Inasmuch as the time, fixed in the verdict and judgment of the court, within which the $149 consideration money should be paid, has expired, the same is hereby extended for sixty days from the date of filing this opinion. With this single modification, we think the judgment on the conditional verdict should be affirmed. The judgment, as above modified, is accordingly affirmed.