Krum v. Mersher

Citations

• 116 Pa. 17
• 9 A. 334
• 1887 Pa. LEXIS 359

Syllabus

<p>By articles under seal M. sold to K. and P. his one half interest in the leasehold of a slate quarry, with certain personal property used in the working thereof, part of the purchase money being paid in cash, the balance and larger part payable in monthly instalments, “ out of the clear proceeds, that is after deducting all expenses. And out of the clear proceeds cash in hand he shall receive the balance that is out of the one-half. Should the quarry prove a failure that no proceeds should be in hands of the second party, or that they shcmld abandon the quarry, believing that the quarry would not be a paying one or a profitable one to them in their estimation, and if the quarry had not netted any clear profit to the second party at abandoning said quarry, then the second party shall not be responsible for any further payment and this agreement shall be null and void and of no effect.” After several months’ operations the purchaser, with the owner of the other one half interest in the leasehold, abandoned the quarry, on the ground that no profits had been made, or could be made, as they believed, by the working thereof. In an action to recover purchase money unpaid, the Court instructed the jury that if they found from the evidence that the defendants when they abandoned the quarry, by ordinary business enterprise could have worked it with a profit, and that it was not given up in good faith, the plaintiff would be entitled to their verdict.</p> <p>Held, that this was error, and that the test of the right of the defendants to terminate the contract was the fact that they had made no profit and they believed that the quarry was not a profitable one to work.</p>