Baugh's Executors v. White

Citations

• 161 Pa. 632
• 29 A. 267
• 1894 Pa. LEXIS 745

Syllabus

<p>[Marked to be reported.]</p> <p>Contract — Construction of — Affidavit of defence.</p> <p>The owner of a tannery also owned a number of timber tracts adjoining the land upon which the tannery was situated. He agreed to sell to defendants the tannery and the tract of land upon which it was situated, together with a railroad siding, track, scales, tenement houses and bark shed. The agreement provided: “ All bark is to be sold to the party of the second part at the cost price thereof.” Defendants subsequently accepted a deed for the land, and took possession of it, and the bark thereon. In an action to recover the price of the bark, defendants claimed that they were entitled to all the bark on plaintiff’s adjoining tracts, and that they were willing to pay the sum claimed ‘ ‘ on conveyance to them by the plaintiffs of the bark on the lands aforesaid at the cost price thereof.” Held, (1) that the contract did not include any other bark than such as had already been peeled, and was then on the premises sold; and (2) that plaintiff was entitled to judgment for want of a sufficient affidavit of defence.</p> <p>Written contract — Parol evidence — -To vary.</p> <p>In such a case an averment in the affidavit of defence that it was understood that all of the bark of the plaintiff was included in the agreement, is insufficient to vary the terms of the written agreement,, no fraud, accident or mistake being alleged.</p>