Appeal, No. 58, Jan. T., 1956, from judgment of Court of Common Pleas of Blair County, March T., 1954, No. 211, in case of F. R. Moudy and Frederick W. Moudy, trading as F. R. Moudy and Son v. West Virginia Pulp and Paper Company. Judgment reversed.
T. Dean Lower, for appellants.
Robert C. Haberstroh, for appellee.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiffs appeal from the judgment of the court below sustaining preliminary objections, in the nature of demurrer, to the complaint in this action of assumpsit. The action is founded upon a writing alleged by plaintiffs to be a contract entered into by the parties.
The complaint alleged, inter alia, that plaintiffs and defendant had been separately attempting to purchase a farm from a third party; as a result the price offered
had been substantially increased; on March 12, 1948, at defendant's request, and to resolve their interests, defendant's attorney prepared an instrument designated "Memorandum of Agreement" which was executed in his office by authorized persons. On this plaintiffs promised to, and did, cease negotiations upon defendant's promise that "if and when it purchased the same and succeeded in getting legal title to the same, it would give to .. plaintiffs, free of all costs, all of the quarry screenings ... on the said farm ..."; plaintiffs withdrew; defendant obtained title in April, 1951, but gave no notice of the same to plaintiffs and plaintiffs did not learn of the purchase until 1953; immediately after which they unsuccessfully sought to have defendant perform under the contract.
Defendant contends that there was no contract, on the basis that the instrument required a copy thereof be sent to the home office of defendant "and that an agreement setting forth substantially the [same] ... terms shall be prepared and executed by the officials of said Company, duly authorized to execute said agreement." It further contends that if deemed a contract it cannot be enforced because "discharged by the passage of time." Neither position can be sustained under the pleadings.
On its face the instrument constitutes in all respects a complete and binding contract. It recites a consideration acknowledged to have been received by defendant; gives plaintiffs the screenings and provides conditions for removal; grants to plaintiffs, for ten years, the right to quarry stone upon a stipulated royalty; and ...