Barry v. White , 59 Pa. 172 ( 1868 )

The opinion of the court was delivered, October 29th 1868, by

Thompson, C. J.

The following was the instrument upon which the plaintiff’s claim is founded, and a copy of which was filed under the rule of court as a copy of claim:—

“ This is to certify that I will pay W. L. White $250 for town lot No. 144, on Seneca street, on or before June 1866. If I should sell said lot before that time for more than $250, said White is to have the benefit of it.

(Signed) “A. W. Barry.”

The execution of the instrument was admitted, and it was read without objection. There was no testimony explanatory of it given by either side, nor was the testimony demurred to; the court below was brought, therefore, to interpret the instrument to the jury unaided by anything but its very letter. The court thought it expressed an executed consideration past and received, namely, the title for the lot in question. That this was the case is, in addition to the terms used in the promise, strongly to be inferred from the last clause in it: “ If I should sell said lot before that time (June 1866) for more than $250, said White is to have the benefit of it.”

He could not sell it, strictly speaking, without the title was under his control — in his possession; the claim admits this by force of these terms and serves to show that the consideration had passed, viz.: the lot. It is true this would not, perhaps, authorize a recovery on a common count for goods sold and delivered, but we were informed by the counsel for the defendant, the plaintiff in error, that the narr. contains the common money counts, and, of course, among them is a count on an account stated. Under this common count, at all events, a recovery may be sustained on this instrument: Siltzell v. Michael, 3 W. & S. 329. The court was right in its rulings, we think, in every particular in the case, and the judgment must be affirmed.