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directly testified to, not only by the parties who did the work, but by others who saw it afterwards, and it is not necessary therefore to rely for it upon Shaffer's after vaporings; and, as there was no reason for this peculiar preparation, except for purposes of deception, this is the only one that is able to be ascribed to it. There is no proof, it is true, outside of Shaffer's own statements, that in starting out with Haseltine he put a pick into the wagon, which subsequently disappeared, so as to make evidence of his declarations as to how he afterwards took it out and conveniently left it behind. But there is enough without this to convince of the duplicity which he professed to have practiced. It is also true that, notwithstanding all, Haseltine was able to get a pretty accurate section of the vein, as is shown by the comp parison of his report with that of Mr. Baton, who examined it under favorable conditions after the plaintiffs had taken possession of the property. So that, if the matter stood on this alone, there would be little, if anything, to lay hold of. But it is not, after all, the deceptive appearance given to this opening, nor the obstacles thrown in the way of a correct examination of it, although on the question of intent they are not to be lost sight of. It is the positive assertion by Shaffer that the vein so shown was the Upper Freeport that is justly complained of, and that it extended easterly to Rohr and Bee Run in a continuous field, which was not the fact, to his certain knowledge. Coupled with his reiterated declarations that he knew every foot of the territory, and had traced the outcrop around it, it could not have been understood or intended to be taken as a mere expression of opinion, which was to go simply for what it was worth, except as it was verified, but as a matter upon which he was fully advised, and which, therefore, could be relied on; in the face of which it will not do to say that no one had any right to do so.
Nor does the case stop here. In fact it is merely the beginning. The next day Haseltine was taken to the Lucy Burke mine, over toward the Cheai river, the vein there being declared by Shaffer to be the same as at the Old Mill mine at Masontown, which he confirmed by pointing out what he said was the Upper Freeport or Mahoning sandstone over it; a very persistent rock, as he explained, by which it was usually identified. From there they went on down into the Cheat valley until they came to Bee Run, and then up that stream to the Gibson mine, where the vein, according to Shaffer, was the same—a statement which its fiber and the surroundings seemed to verify. The course taken to reach this place was misleading, and in all probability purposely so, but the statements made with regard to it as well as the Lucy Burke, might pass as nothing more than expressions of opinion, to be correspondingly allowed for. Neither is it necessary to stop over the evidence, which is abundant, that Shaffer knew, or was at least convinced, contrary to his assurances to Haseltine, that the vein at the Lucy Burke was not the Freeport; nor to refer to his boasting afterwards to his neighbors as to how he had fooled him with regard to it. All these merely come in, in the general summary of his conduct. As to the Gibson mine, however, there is something more serious. These openings were located on his father-in-law's farm, where he had lived
for a couple of years; and 200 feet higher up in level, and not more than 100 rods distant, on the Mary J. Shaffer (his brother's wife's) farm, was another opening, known to be into the Upper Freeport, with which he was familiar. The vein at the two places could not be the same, by reason of differences of elevation; and if this were so, and if it was the Kittanning and not the Freeport which outcropped at the Gibson, which was thus demonstrated, it was essential to a correct knowledge of the field to be shown the proofs of it. Nothing was said, however, with regard to the Mary Shaffer mine, although Haseltine and Shaffer went by there the next day in coming down to the Everly. Shaffer's excuse is that the mine had fallen in, of which there is some evidence. But even so, and although this may have prevented seeing the vein, it was still most important as showing the outcrop, and should not have been passed by. That it was designedly done there can be little question, and there was thus at this point in the examination not only willful misrepresentation but practiced concealment, sufficient, of itself, to justify a rescission if the defendants are responsible for it.
Passing by the excursion through the Bull Run valley, which followed—where a large cascade of conglomerate in the bottom of the creek was represented to be Upper Freeport sandstone, and that vein was declared to underlie the entire valley, which was said to constitute a synclinal or trough—and also the visit to the Roby, several miles farther up, which was stated to be the other side of the synclinal, with all of which Haseltine, as a coal expert, ought not perhaps to have been deceived, the next day, after an intermediate visit to the Mary Cress and the Everly, they went to the Old Mill mine, near Masontown, which they examined, together with an opening some 500 feet across the creek, on a corner of the Falls Tract, on all of which the Upper Freeport was unquestionably found. According to McMillan's map, a further opening was also shown in this section of the field, and Haseltine accordingly inquired about it; but was met by the statement that there was none, and that its entry on the map was a mistake. The country about there was. declared by Shaffer to be an unbroken forest, with no way to get through it, owned by people in the East, who paid no attention to it. As a matter of fact, the map was correct, and there was a wellknown mine (the McKinney) in the direction indicated, which had long been opened, and to which a county road directly led, from a point across the railroad near the station, up over the hills, somewhat obscured from observation, however, where it started. Of all of this Shaffer, of course, knew; but the openings told too plainly against the property to have Haseltine visit them. As will be seen by the diagram, they were in the Freeport vein, on the southerly exposure or outcrop, establishing beyond a peradventure the very narrow and limited range of the field in that vicinity. Knowledge of this was thus of the utmost importance, and its concealment a most flagrant breach of faith, which nothing will excuse. This practically closed the examination of the property by Haseltine; his subsequent visit, October 7th, after Murray and his party had been there, being without particular significance, merely for the purpose of obtining samples for coking, which he got from the Old Mill mine.
The next person to go upon the field on behalf of the plaintiffs was Theo. O. Deaumer, sent out by Mr. Selwyn M. Taylor, whose opinion had also been asked, to make a preliminary examination preparatory to that of his own. In the main Deauner's experience with Shaffer was similar to Haseltine's, but was somewhat peculiar at the outstart. As will be recalled, the option expired October 8th, and had been renewed for another 15 days; a further renewal beyond that being refused. The time was therefore short, and on the day named Deaumer went to Morgantown with written instructions from Mr. Taylor to trace approximately the outcrop of the Freeport, which was recognized as the controlling vein, and to get samples. Driving to Rohr, he inquired for Shaffer, and found he was at Masontown. Calling him up by telephone, Shaffer came to Rohr at his request, but upon Deaumer telling his errand, and presenting his letter of instructions, Shaffer positively refused to show him the property, telling him that he might as well go right back to Pittsburg. Apparently reconsidering the matter later on, he said that he would go and see his people (the defendants), and find out what was the matter, whether anything had gone wrong; and he went off in the direction of Morgantown to do so. The next day, having heard nothing from him, Deaumer concluded to start out and find what he could unaided. Shaffer had told him that the coal was down at the bottom of a ravine, which he pointed out, and so had one or two others, but going down into it Deaumer found nothing, and after wandering around for a couple of hours and getting lost he gave up the task, managing in some way, he hardly knew how, to get back at last to Rohr. Getting a message from Shaffer, he then went to Morgantown; but on reaching there he found that Shaffer had gone on to Uniontown, Pa.—as he left word—to see his people. Puzzled by these maneuvers, Deaumer telegraphed Taylor, and got instructions to go ahead and do the best he could. In the meantime, however, Shaffer reappeared, and stated that his people knew nothing about this, and that he had no orders to go with him; but the next day he came, and said he had decided to do so. Three days had been wasted in this way, and the rest of that one was consumed in getting back to Rohr. Starting out from there the next day (Sunday) they had not gone far before the team balked, throwing them out, and breaking the harness, and they were compelled to return to Morgantown for another outfit. Considering that it was the evident desire of Shaffer to use up time, and that this team had been procured at his urgency at a livery kept by a friend, whom he particularly recommended, after Deaumer had already secured a conveyance at another, it requires no stretch of the imagination to conclude that Shaffer had a good deal to do with its being balky. Be that as it may, another day was gone, making five in all, and leaving but ten in which to make an examination and report and take up the option.
Getting back, however, to Rohr, they made a final start from there the next morning, and driving along toward Masontown they came to the outcrop or coal blossom in the road, which is shown on the diagram. Deaumer wanted to stop and examine it, asking whether
it was not Freeport coal. “Oh, no,” said Shaffer, "that is one of the upper veins in this territory. Come on about half a mile or so. I can show you the Freeport at a much lower depth, and you can get a sample.” That this coal blossom was the Upper Freeport, and that Shaffer knew it, there can be no question. Arguing with Dr. Cobun on the subject, on one occasion, before any negotiations with the plaintiffs, Shaffer contended at first that it was the four foot or Masontown vein. But upon Dr. Cobun declaring that it was not, and that it was the Freeport, Shaffer acknowledged that he knew it, but that it was all right to make others believe so. Discussing with U. C. Watson, before the option on his property had been taken, whether certain farms to the north carried the Freeport vein, Shaffer declared that he had leveled across from where it came out at this point; thus conceding the identity of the outcrop there. On the other hand, in several different talks with Squire Scott with regard to taking up these same farms, Shaffer maintained that it was not material whether they were secured or not, as the Freeport ran out there. Not far away, also, Shaffer had helped to survey and lay out on the Scott farm a two-acre reservation around a coal opening, which was recognized to be in the Freeport vein. There is other evidence, more or less conclusive, to a similar effect, which might be referred to. But without going into it, there is enough, as it stands, to show a willful misrepresentation by Shaffer of the facts with regard to this coal blossom, the importance of which to a correct estimate of the field was conspicuously apparent and fully known to him. Located high up in the hills, as it was, if this coal blossom was the Upper Freeport, it showed that the vein, rising rapidly from the Old Mill mine on the south, ran out at this point, discrediting the entire territory beyond it. This the expert whom he was conducting over the property was entitled to know, and Shaffer was bound to disclose it, or, at least, not to misstate, as he did, the facts which he knew with regard to it.
Having got Deaumer by the coal blossom, and saying nothing to him about the opening in the Freeport on the Squire Scott farm, just spoken of, Shaffer took him, as he had promised, to what was in reality an Upper Freeport opening farther on, known as the Sanford Scott Mine (not the Squire's) also sometimes called the Jacob Grove. This is a southerly exposure, and is down in a ravine, over the hill, so as to convey the idea of a low level, and is quite deceptive on that account, except as it be corrected by other data. It was correctly stated, however, to be Freeport coal, and the other matters, of course, were for the expert. From there the two went back to Rohr, and then out another road to the Mary Cress mine, which is also a southerly outcrop of the Freeport, and was so stated. It is similarly approached, however, in a way to suggest a low level, and is not calculated, therefore, to give an altogether correct impression; but for that, by itself, no one is to be held responsible. The Lucy Burke was next, and was also reached from Rohr, and pretty much the saine occurred there as at the visit of Haseltine. Deaumer was pleased with the coal exposure, and asked if it was the Upper Freeport, to
which Shaffer said, “Yes, this is the same coal we saw over at the Mary Cress bank.' It was at the foot of a pretty good-sized hill, and some boulders on top, which attracted Deaumer's attention, were said to be the Mahoning sandstone.
Following the same course pursued with Haseltine, Deaumer was next taken down into the Cheat valley, and then up it to Bee Run, and then up Bee Run to the E. C. Gibson property. Noticing 10 or 12 inches of slate in the vein at that point, Deaumer asked what was the matter, and whether Shaffer was sure it was Upper Freeport, to which Shaffer replied, “Yes”; that he knew it was the same as the Mary Cress. As to the slate, he said it thinned down farther in, and was merely local, and, going into the mine to satisfy himself, Deaumer found that this was so. Here, again, the same as with Haseltine, Shaffer omitted to point out any of the other openings in that vicinity, the importance of which to a fair knowledge of the field has already been alluded to. He did, however, show the Taylor mine farther down, going from there up the Bull Run valley to the Roby mine, which was correctly given as Upper Freeport coal, and thence to Masontown, where they examined the Old Mill mine and the Scott mine opposite it. “Now,” said Shaffer to his companion, "you have been around the outskirts of this field pretty well, and we have been to one or two places in the middle, and you can see that the whole of it is underlaid with Upper Freeport coal.” This he also undertook to demonstrate by the map by referring to the different places where they had been. After supper Deaumer got looking at the map again, and was led to ask whether there were not some openings on that part of the Falls Tract near where they were which he could see. "No," said Shaffer, “there is no use of going over there. The coal dips right under the creek. You can't see it. There's no exposure, and furthermore it's too rough. You can't travel back in there." Returning to Rohr, and again consulting his map, Deaumer noticed the indication of an opening (the McKinney) on this tract, the same as Haseltine had, and again brought the matter up, asking how it happened to be there. But Shaffer declared that the map was not right, and that the opening ought not to be on it; that McMillan put it on, but that it did not belong there. All of which, of course, was untrue.
The final point visited was the so-called “open cut,” on the northwest margin of the field, which Shaffer was possibly moved to show by reason of Deaumer's inquiry for developments on the Falls Tract. To this, therefore, the next morning, they started out, but found it in such a condition that, according to Deaumer, he could only get a glimpse of it. There is nothing to account for the transformation which had taken place in this opening in the three short weeks since Haseltine saw it, and there is at least ground for suspicion that it had not fallen in unaided. But that, after all, is not so material. The telling thing is, that here, as well as elsewhere, at essential points all over the territory examined, in the face of what he knew to the contrary, Shaffer declared that the vein was the Upper Freeport, the same as at the Mary Cress, establishing, as he said, the extent of