Jennings v. Decker

<p>Error to the Court of Common Pleas of Susquehanna county: Of January Term 1879, No. 83.</p> <p>Trover by E. C. Decker, against Silas Hartley, to recover damages for the conversion of a quantity of bark, which had been cut on the land of plaintiff.</p> <p>The plaintiff was the owner of a farm and entered into a written agreement with B. E. Decker, by which it was agreed that said “ B. E. Decker is to peel all the hemlock timber, from eight inches up to the largest, and start all the bark on said farm, and is to have one-half the bai'k after it is started to pay him for his labor. The bark is to be divided when started, and to be started as soon as the middle of March 1874, in good order and shape — to be measured in rack, and on good roads to the tannery.”</p> <p>B. F. Decker being indebted to the defendant sold his interest in the bark to Hartley and assigned his interest in the contract to him. Hartley was to get out the bark, and after disposing of his half, was to allow B. E. Decker the amount received for it over the debt and expenses. Hartley afterwards obtained a confession of judgment from B. E. Decker, upon which. B. E. Decker’s interest in the bark was sold at constable’s sale, and bid in by Hartley. The latter it appeared had hauled out and started the bark in accordance with the terms of the contract before the middle of March 1874.</p> <p>At the trial before Jessup, P. J., the plaintiff claimed, that Hartley had acquired no interest in any of the bark, because some trees had been left standing which should have been peeled, and the bark was not gathered up cleanly, and, therefore, the contract had not been fully complied with; and further, that being a sale of an unascertained quantity of bark Hartley could claim no title to or interest in it until measured and divided.</p> <p>The evidence upon the question of full performance of the contract was conflicting. Defendant claimed, that, as soon as there was a severance of the timber by B. E. Decker so as