Appeal, No. 126, March T., 1955, from judgment of Court of Common Pleas of Somerset County, Continuance Docket, 1953, No. 1378, in case of Irvin S. Morgan, trading as Morgan Construction Company, v. Charles A. Phillips, Charles Deist et al., trading as Niverton Coal Company, and W. & R. Corporation. Judgment of non-suit reversed as to one defendant and affirmed as to other defendant.
Leland W. Walker, with him Walker & Kimmel, for appellant.
Simon K. Uhl and William Moldovan, for appellees.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
In order to recover in this case plaintiff was confronted with a difficult burden, but whether he succeeded in establishing his claim was a question for the jury and not for the court and therefore the court erred in entering a non-suit and subsequently refusing to remove it. Plaintiff's appeal is from that refusal.
On September 2, 1952, plaintiff, Irvin S. Morgan, entered into an agreement with the defendants, who were partners trading as Niverton Coal Company (hereinafter called Niverton), wherein he leased from them the right to strip-mine a tract of coal consisting of 112 acres owned by them in Elk Lick Township in Somerset County. The agreement had been prepared by Niverton, but, when presented to plaintiff for his
signature, he found that it was not in accord with the preliminary negotiations. Accordingly he discussed with Charles A. Phillips, one of the partners, certain amendments which he requested should be made. Two weeks later Phillips returned and submitted to him a paper, partly typed and partly written, which was captioned: "Changes agreed to before the lease signed"; there were also some erasures and changes made in the original draft itself. Both plaintiff and Phillips thereupon signed the agreement, to which the signatures of the other partners had already been appended, and Phillips left with plaintiff a copy of the agreement with the additional paper (referred to in the testimony as "Exhibit A") attached thereto.
As to the erasures and changes in the original draft and all but one of the provisions in "Exhibit A" there is no dispute between the parties, plaintiff and Phillips apparently agreeing in their testimony with respect thereto. But as to one item, vital to the present issue, there was complete disagreement. "Exhibit A" created changes in which were referred to as "paragraphs 3, 7 and 9" of the original draft, and, while there was no such actual numbering in the draft, no question arises as to the application of those changes to the respective paragraphs therein. There followed, however, on "Exhibit A" the words on one line: "Paragraph 11. Only apply to law of Penna.," and on the next line: "Paragraph 11. Voided." The words "Only apply to law of Penna." clearly and properly relate to the eleventh paragraph which dealt with the obligation of the lessee to restore the surface after stripping. But to what did the succeeding words: "Paragraph 11. Voided" apply? It was plaintiff's contention that they referred, not to the eleventh, but to the twelfth paragraph which prohibited the lessee from transferring
or assigning the rights granted by the lease or subletting the premises or any part or portion thereof without the prior written consent of the lessors. He testified that it had been agreed between him and Phillips that this paragraph was to be voided and that the figure "11" in the line in question was presumably a mistake in the typing. Phillips, on the other hand, denied that there had been any such agreement as to paragraph 12, although it is significant that he offered no ...