Short v. Messenger

Citations

• 126 Pa. 637
• 17 A. 881
• 1889 Pa. LEXIS 922

Syllabus

<p>1. When a point is put as a matter of law, and it is refused by the trial judge without the reason therefor being given, it will be presumed that it was refused because as matter of law it was not good, and not because there was no evidence to support it.</p> <p>(a) Carriers sold to Messenger in 1881 all the down timber on a tract of land, to be paid for per cubic foot, a certain sum in a certain timo and the balance when the timber was sold, the vendors holding their interest in the timber until they should receive payment therefor.</p> <p>(5) Messenger paid the sum certain, cut and sold a portion of the timber and stopped. In 1883, Short, a vendee of the land subject to the contract with Messenger, erected a mill and cut and converted the balance of the timber. In 1885 Messenger brought trespass on the case against Short.</p> <p>2. An objection to the form of the action was purely technical, and though the suit was brought prior to the procedure act of May 25, 1887, F. L. 271, yet in the light of that legislation, the court would not reverse upon the ground assigned, after a trial upon the merits.</p> <p>3. On the trial of the cause, it was error for the trial judge to refuse to charge, as matter of law, that “if the jury believe that the plaintiff abandoned the job, the defendant was justified in taking off the timber and would not be liable in damages therefor.'1</p> <p>4. There being evidence that the plaintiff’s father had charge of the timber cutting for him, it was error to refuse the defendant’s offer to prove notice to the father, given on the premises by the defendant, to take off . the timber at once, as it was spoiling, or defendant would be compelled to take it off himself.</p>