Montour American. (Danville, Pa.) 1866-1920, 1910-06-16
HERRING ASKS
FOR NON-SUIT

} Trial of the Pursel case against the
Reading Iron company was resumed
at o'clock Thursday morning. Three
witnesses were examined, when, at
1915 O'Clock, the plaintiff rested and
Hon. Grant Herring for the defend
ant asked for compulsory non-suit.
The witnesses heard were George
Perry, Sr., Harry Yerrick and A. G.
Harris The two former were employ
es of the Reading Iron company, who
with others, were sent by the COM
pany to Pursel's slope, with wheel
barrows and horses and carts to fill
up the sink on the north side of the
public road. The cave-in was some
seven or eight feet from the public
road and ran into the field" 1t was
30 to 40 feet across. A. G. Harris had
taken photographs for use in the trial
and was merely called to identify the
pictures and to describe the position
of the camera.
At the conclusion of the testimony,
when the plaintiff rested, the "subse-
quent deed or agreement" on which
so much interest centered, was made
| the basis of action.
At this juncture Mr.. Herring asked
if the defendant was to understand
that the plaintiff declined to offer in
evidence the agreement of 1888" and
whether it was not a fact that rec
ord of said agreement was in the
next room? Learning that the plain
tiff did not propose to submit the
agreement in evidence, he asked for a
compulsory non suit, assigning seven
reasons, which in substance were as
follows:
1st. The plaintiffs statement on it's
face shows that subsequent agree
ment-of Feb. 16 1SS3-was made be-
tween the heirs of Daniel Pursel,
decd, and the Montour Iron and Steel
Co. and that the present administrator
was not party to it. The plaintiffs
| declaration AYERS that the contract
with Waterman & Beaver twas modi-
fed and changed, " but persists in re-
fusing to produce the modified con-
tract.
End. Persistent Withholding of testi-
mony constitutes ground for non-suit.
3rd. Proof is not sufficient to sup
port the allegation.
4th. The original agreement shows
that the royalties were to be paid to
Daniel Pursel, his heirs and assigns
and not to his administrator There
fore, the proper parties have not
brought action.
9th. The evidence shows that after
the flood of June, 1899, the Montour
Iron and Steel company abandoned the
mines, the buildings were taken down
and the railroad was torn up Yet no
protest came from William r. Pursel,
whose administrator brings this suit.
He acquiesced, never making a de-
! mand, which showed that he consent
ed to the throwing up of the lease. 1t
is not until after twenty years, when
a purchaser comes in who has bought
the property at a sheriff. sale that
suit is brought and the Reading Iron
company is called upon personally to
pay under the agreement of 1888.
9Th. That the defendant, purchas-
er at a sheriff's sale, never exerted
| acts of ownership or sovereignty over
the property conveyed by said sheriff s
deed
eth. The substituted agreement was
the one that was operated under for
six years, between 1883 and 1889. In
the sheriff's deed there were no words
to show that the grantee should as
sumo any personal responsibility. AT
this point Mr.. Herring quoted the
provisions of the act of 1878, relating
| to the transfer of real estate on which
encumbrances exist.
In the course of his argument Mr..
Herring explained that the second ag-
reement was made between the child
rem and other heirs of Daniel Pursel
and the Montour Iron and Steel COM
| pany i'll 1888, when in order to carry
on the mining of ore, it became nee
essary to sink the slope ninety yards
| deeper and to incur considerable other
expense. The new agreement between
the parties provided that the royalty
on soft ore should be reduced fom rs
cents to 80 cents per ton and ON hard
ore from 371a cents to % cents per
ton; also that all minimum ROYALTIES
should be suspended during the time
that the company was engaged in
sinking the slope the additional 80
| yards.
! Mr.. Herring held that the mere act
of filling up the sink along the road
at the slope, although authorized by
! the superintendent of the Reading
Iron company here, did not constitute
exercising the right of sovereignty or
ownership. He denied that any act of
/ the superintendent in the premises
could affect the property rights of the
Reading Iron company Indeed, the
act of filling up the sink, which was
really filling up the slope. he held,
was only another evidence of the final