Court of Common Pleas of Lancaster County

Byron Franks v. Lancaster Iron Works, Inc. (No. 2).

Nuisance-Disturbing Noises-Boiler works.

There can be no recovery of damages for maintaining a nuisance against a boiler factory by a lessee of a neighboring dwelling house, where the defendant had been operating its factory under the same conditions for ten years before the plaintiff moved into the neighborhood and it is not contended that the business was not conducted in a proper and ordinary way or that special damages not incident to such conduct of the business were suffered by the plaintiff.

Question of law raised by affidavit of defense. September Term, 1919, No. 35.

Walter S. Mellinger, for plaintiff.

S. R. Zimmerman, for defendant.

April 17, 1920. Opinion by LANDIS, P. J.

In our opinion filed in this case on January 31, 1920 [see ante, page 73], the plaintiff was given an opportunity to set forth sufficiently a cause of action by a supplemental statement. He apparently has endeavored by the averment of certain facts to bring himself within the purview of the authorities therein stated. However, in my judgment, he has not bettered his situation. I will not again cite the cases thus referred to, for they are fully set forth in the opinion of this Court and are discussed at some length. A repetition of them would throw no additional light upon the proposition.

The plaintiff admits that, for ten years prior to the inception of his alleged cause of action, the defendant was operating its manufactory at the place complained of and under exactly the same conditions. It has not been asserted that the same conditions did not exist at the time of and prior to his moving into the neighborhood. It is not contended that the business was not conducted in a proper and ordinary way, nor is it asserted that any special damages not incident to the usual manner in which such a business should be carried on were suffered by him. The neighborhood had, of course, dwelling houses erected in it, but so has every portion of a town or city, and it can be clearly seen from the statement that it was not a purely residential quarter into which the defendants had interjected a business which was a nuisance per se to the detriment and damage of those whose houses had already been established there. The plaintiff, with a full knowledge of his surroundings, rented a house not far from these works, and, coming into it, he remained for about five months, and then moved away to another location.

He now claims, among other things, that he is in the real estate business, and that, by reason of the disturbance of his thoughts, owing to the noise, he lost customers, and in addition was obliged to pay the expenses of a moving. It seems to me that such a proposition borders upon the absurd. How could such damages be proven, even if the case was submitted to a jury? It must be remembered that he lived in a city and was bound to bear the noises and annoyances incident to it. The Pennsylvania Railroad Company, the traction companies and many

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Byron Franks v. Lancaster Iron Works, Inc. (No. 2).

other enterprises disturb residents to some degree, or at least until they become accommodated to the noises that arise from such sources; but who will say that an action of damages can be brought by anyone on that account? If such a claim could be sustained, not a manufactory of any considerable extent could exist within the boundaries of a municipality, for the damages claimed for pretended losses of this character would render the enterprises unprofitable. In Austin v. Converse, 219 Pa. 3, it was held that, "while noise from a factory is an inconvenience and discomfort to adjoining property-holders, yet where it is of a class incident to the neighborhood when the complainant went into it, and not materially greater, there is no cause for injunction."

This is not even a bill in equity to restrain a nuisance. The plaintiff, about the time he changed his residence, seems to have discovered himself to have been damaged, and sues to recover the money value thereof. It looks to me as if it was only an attempt on his part to speculate at the expense of the defendant,-such an attempt as is not supported by the law and should not be countenanced.

And now, April 17, 1920, it is directed that judgment shall be entered on the pleadings in favor of the defendant.

Court of Common Pleas of Lancaster County

Warfel v. Burkholder (No. 1).

Farm sale agreement Penalty or liquidated damages agreement-Denial in affidavit.

Rescission of

A stipulation attached to a farm sale agreement providing that "for the true performance of all the covenants the parties bind themselves in the sum of five hundred dollars," embodies a penalty and not liquidated damages and there can be no recovery in a suit for the whole sum as liquidated damages.

A party who signed an agreement to purchase real estate with a penalty for non-performance and shortly afterwards notified the owner that he elected not to purchase and to pay the penalty, cannot subsequently, on suit for the penalty, defend on the ground that the title was not good, that not being the reason for his rescission of the contract.

An affidavit of defense must deny the averments of the plaintiff's statement clearly and explicitly, and a denial "for the purpose of the affidavit of defense" that the agreement sued upon contained a certain paragraph, and demand of proof coupled with an admission that the defendant did not know whether it did or did not is evasive and insufficient.

Rule for judgment for want of a sufficient affidavit of defense. October Term, 1919, No. 98.

H. Frank Eshleman, for rule.

H. Edgar Sherts, contra.

December 27, 1919. Opinion by HASSLER, J.

In his statement the plaintiff alleges that on September 27, 1919, he entered into a written agreement with defendant, in which he agreed to sell and defendant to take and pay for a farm in East Drumore

Warfel v. Burkholder (No. 1).

Township, this County, on April 1, 1920. A copy of the agreement is attached to the statement, and contains the following: "And for the true performance of all and every the covenants and agreements aforesaid, each of the parties bindeth themselves, their heirs, executors and administrators, unto the other, their heirs, and administrators and assigns, firmly by these presents in the sum of Five Hundred Dollars." On September 29, 1919, two days after the agreement was made, the defendant told the plaintiff that he would not comply with his part of it, to take and pay for the farm, but elected his right to reject the same upon the payment of Five Hundred Dollars, and thereupon gave to the plaintiff a check for that amount, payment of which was refused by the bank when it was presented, at the request of the defendant.

In his affidavit of defense the defendant does not deny any of these averments. He admits he signed an agreement for the purchase of the land, says he does not know whether the copy attached is a correct copy, but for the purposes of the affidavit of defense denies that it contained the stipulation as to binding himself to perform his covenants and agreements in the sum of Five Hundred Dollars, and alleges that if it does contain that stipulation the amount so mentioned is a penalty and not liquidated damages. He further alleges that the plaintiff is unable to convey the farm with a marketable title, as he had agreed to do.

The allegation as to plaintiff's inability to convey a farm with a good title is not a legal defense to plaintiff's claim, as the defendant rescinded and repudiated the agreement two days after it was made, and six months before conveyance was to be made, and did not do this because of plaintiff's failure or inability to carry out what he had agreed to do. That was not the reason for his rescission of the agreement. This action of the defendant excused the plaintiff from performing or attempting to perform his part of the contract. Nor is the allegation that he denies that the agreement contains the paragraph that he bound himself in the sum of Five Hundred Dollars to perform his part of the agreement for the purpose of the affidavit of defense, sufficient. He must deny the averments of plaintiff's statement clearly and explicitly to prevent judgment. A denial that the agreement did contain that paragraph, for the purpose of the affidavit of defense and a demand that plaintiff prove it, coupled with an admission that he does not know whether it does or does not contain it, is not such a clear and explicit denial, but is evasive, and therefore insufficient.

The plaintiff having elected to proceed on the contract, and not on the check, can only recover if the sum of Five Hundred Dollars mentioned in the contract is liquidated damages, as he claims it to be such in his statement. Whether it is a penalty or liquidated damages is a question of law. The defendant's denial that it is liquidated damages, therefore, is a legal conclusion and not sufficient to prevent judgment.

In March v. Allabough, 103 Pa. 335, it is said: "The question whether the amount stated in a conditional bond or contract is to be taken as a penalty or a liquidation of damages arising from a breach of the condition, is to be determined by the intention of the parties,

Warfel v. Burkholder (No. 1).

drawn from the words of the whole contract, examined in the light of its subject matter and its surroundings; and that in this examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach of damages, and such other matters as are legally or necessarily inherent in the transaction." In Emery v. Boyle, 200 Pa. 249, it is said: "The difficulty of measuring the damages which would result from a breach of contract is always an important element, if not a controlling one, in determining whether the intention of the parties was to fix a sum certain as the just amount to be recovered instead of leaving the question to the uncertain estimate of a jury. Generally where the covenant is for the performance or the non-performance of a single act or of several acts, damages for the breach of which cannot be measured by any fixed standard, the sum named if reasonable in amount will be considered as liquidated damages." In York v. York Railways Co., 229 Pa. 236, these cases are cited and followed. It is said: "It thus appears that there are in this contract two covenants, one upon the part of the plaintiffs and one upon the part of the defendant, upon the breach of either of which there would be no difficulty in ascertaining the amount of damages. Where the contract is for the performance or omission of various acts which are not measured by any exact pecuniary standard, together with one or more acts, in respect of which the damages on a breach of the covenant are certain or readily ascertainable by a jury, and there is a sum stipulated as damages to be paid by either party to the other for the breach of any one of the covenants, such sum is held to be a penalty merely, and not liquidated damages: Shreve v. Brereton, 51 Pa. 175; March v. Allabough, supra; Keck v. Bieber, 148 Pa. 645. We cannot, in view of these authorities, hold the stipulation in this contract for the payment of a thousand dollars in case of a breach to be liquidated damages."

In this case there is but a single undertaking by each of the parties. The plaintiff was to convey the land with a good title, and the defendant to pay the amount agreed on for it. On the failure of either to comply with his undertaking, the damages sustained would be easy of ascertainment. They might be very small or very large. The intent of the parties, drawn from the words of the contract, shows that the parties intended to limit their liability to that amount in case of a breach of the contract, and not that that amount was to be paid regardless of what the loss of the other party was. It is, therefore, in our opinion, a penalty and not liquidated damages; and as the plaintiff can only recover from the defendant, for his breach of this contract, such sum as will properly compensate him for all losses sustained by reason of the breach, the plaintiff is not entitled to recover under his statement, because in it he seeks to recover not the actual amount of loss he has sustained by reason of the defendant's breach of the contract, but the whole amount as liquidated damages. The rule for judgment for want of a sufficient affidavit of defense is, therefore, discharged. Rule discharged.

Court of Common Pleas of Lancaster County

Warfel v. Burkholder (No. 2).

Contract-Mistake of law-Farm sale agreement-Penalty.

A party cannot be relieved from a contract entered into through a mutual mistake of law by both parties.

In a suit on a check, an affidavit of defense is insufficient which avers that the parties had executed a farm sale agreement by which each bound himself in the sum of five hundred dollars to perform his part, and the defendant having decided to rescind his contract, both parties believed that he was liable for five hundred dollars, and he gave the check for that amount on which he subsequently stopped payment, and for which the suit was brought, under a mistake as to the legal interpretation of the contract, the sum named being a penalty and not liquidated damages.

Rule for judgment for want of a sufficient affidavit of defense. January Term, 1920, No. 80.

H. Frank Eshleman, for rule.

H. Edgar Sherts, contra.

April 17, 1920. Opinion by HASSLER, J.

This is an action on a check, given by the defendant to the plaintiff, on September 29, 1919, for $500.00 on the Strasburg National Bank, payment of which was stopped by the defendant. In the statement and affidavit of defense it appears that the check was given under the following circumstances, there being no dispute as to the facts.

The plaintiff and defendant entered into a written agreement on September 27, 1919, wherein the plaintiff agreed to convey a farm to the defendant on April 1, 1920, for which the defendant agreed to pay the sum of ten thousand dollars. Each party bound himself in the sum of five hundred dollars to perform his part of the contract. On September 29, 1900, the defendant informed the plaintiff that he would not comply with his part of the agreement, and expressed his willingness to pay the plaintiff such damages as he had or would suffer by reason of such failure on his part. Both the plaintiff and defendant understood that by the terms of the written agreement the defendant was liable to the plaintiff in the sum of five hundred dollars, and the defendant gave the check for that amount, which is the subject of this suit.

In his affidavit of defense the defendant resists payment of the check for the reason that it was given under the mutual mistake of the plaintiff and defendant, as to the interpretation of the written agreement, which had been entered into by them. Both were of the opinion that it meant that either party refusing, or failing to comply with the terms of the agreement was liable to pay to the other the sum of five hundred dollars as liquidated damages, whereas the amount so mentioned was not liquidated damages, but was a penalty, so that the defendant was not liable to pay the sum of five hundred dollars, but only such damages, not in excess of that amount, as the plaintiff actually suffered by reason of the defendant's failure to comply with his part of the agreement. In disposing of this rule for judgment for want of a sufficient affidavit of defense, the only question, then, is whether the

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