Immel v. Herb

Citations

• 50 Pa. Super. 241
• 1912 Pa. Super. LEXIS 36

Syllabus

<p>Contract — Vendor and, vendee — Covenant—Breach of covenant — Statute of frauds — Partnership.</p> <p>1. In an action of assumpsit against an individual and an administrator for breach of a covenant made, when the plaintiff bought a dwelling house, that a foundry located on adjoining land owned by the defendants should be removed within two years, a verdict and judgment against both defendants will bé sustained where the individual defendant in his testimony admits that the dwelling house in question was built by him and the administrator’s decedent with other houses as a partnership transaction, and it appears that the individual defendant made the oral covenant for the breach of which the suit was brought. Such covenant is not within the statute of frauds.</p> <p>Practice, C. P. — Premature action — Pleading—Plea of abatement.</p> <p>2. Where an action is brought to recover damages for a breach of a covenant to remove a foundry within two years from a lot adjoining a dwelling house bought by the plaintiff from the defendants, the defendants cannot, at the trial, set up as a defense that the suit had been brought prematurely before the expiration of the two years, if it appears that they filed no plea in abatement, but pleaded the general issue, and it also appears from the testimony produced at the trial that they had executed a lease of the foundry, which put it out of their power to comply with the agreement to remove it within two years.</p> <p>Contract — Covenant—Breach of covenant — Damages—Vendor and vendee.</p> <p>3. In an action for a breach of covenant to remove a foundry within two years from a lot adjoining a dwelling house bought by the plaintiff from the defendants, where the case does not come on for trial until after the expiration of the two years and until after the foundry has been in fact removed, the measure of damages is the loss which the plaintiff sustained by reason of the operation of the foundry during the period of the continuance of