Phœnix Silk Manufacturing Co. v. Reilly

Opinion by Mr. Justice McCollum, Two questions are raised by the assignments of error. The first question is whether the point upon which judgment was entered non obstante veredicto was properly reserved, and the second question is “ whether under the contract declared upon suit can be maintained for payment of water rent in excess of one hundred dollars for one year or number of years before the expiration of ten years from July, 1888.” The objection made to the reserved point is that it is not sufficiently comprehensive. There is however no specification of an omis [538] sion from it of any fact or circumstance material to an intelligent understanding or decision of the question presented by it. As the determination of this question obviously depended on the construction of the contract declared upon it was not necessary to include in the point extraneous and incidental matters. The entire contract is set forth in the declaration, and is therefore a part of the record. The cases cited by the plaintiff do not require the incorporation in the point of the pleadings in the case. The plaintiff admits that its case rests on the written contract and complains that the defendant did not demur to the declaration containing it. This they might have done, but were not required to do, and the fact that they did not raise by demurrer the question whether the suit was prematurely brought is no bar to the decision of it upon the reserved point. The provision of the contract out of which this litigation grows is as follows : “ The party of the first part further agrees that the party of the second part during the first ten years’ occupancy of the premises shall be exempt from borough taxation, and will be supplied with water for the natural uses of the business at a cost not exceeding $100 per annum.” The defendants are the parties of the first part and the plaintiff is the party of the second part. The contention of the plaintiff is that if, during the first ten years of its occupancy of the premises, the cost of the water required for the natural uses of its business shall in any year exceed $100, suit may be brought at once against the defendants for the excess. In other words, if in each year of the term the cost of the water needed for the natural uses of the business exceeds $100, the plaintiff may have a suit against the defendants at the expiration of each year for the excess of that year. If this is a correct interpretation of the contract it follows that, while the cost of the requisite water supply for one year may be $125, and the cost of it for another year may be but $75.00, the defendant must pay one eighth ($25.00) of the cost of the water for two years, while the plaintiff is required to pay but seven eighths (or $175) of it. It seems to us that this construction of the contract admits of results not contemplated by the parties. The defendants obviously entered into the contract for the purpose of aiding in the establishment of an important and permanent industry in Pottsville, and of promoting thereby its business [539] interests. This purpose is manifest on the face of the contract, and is emphasized by tbe pleadings in the case. The plaintiff, with full knowledge of the purpose in view, approved it, and that the parties mutually contemplated and provided for the establishment of a permanent enterprise is apparent from the terms of the contract, and notably from tbe provision in it we have' quoted above. The questions raised by tlie assignments were fully considered and discussed in an elaborate opinion by tbe learned judge of tbe court below, and as we fully concur in bis conclusions respecting them, and approve tlie reasoning by which they are supported, we deem further consideration or discussion of the questions unnecessary. Judgment affirmed.