43 So. 831 | Ala. | 1907
Paragraph 3 of the lease is as follows: “The party of the second part shall pay to the party of the first part a rent or royalty of (7) seven cents per ton of two thousand (2,000) pounds on all coal mined of every quality and description, but an allowance of (1) cent per ton shall be made to lessee until sufficient tonnage has been mined, figured at one cent per ton, to cover one-half the cost of proposed branch railroad to be built to said land (which branch railroad is estimated to cost about $32,766 for 7,713 feet of grading, trestling, etc., the cost of track not to be considered) : provided, however, that, irrespective of the tonnage mined, such royalty of six (6) cents per ton shall not continue for more than seven (7) years from December 30, 1900.” It is .unnecessary for us to determine whether the lease required the plaintiff to pay one-half the cost of the branch line constructed, irrespective of what it may have cost the defendant, or whether it was to pay only one-half of what it actually cost the defendant; for, giving the plaintiff the benefit of a construction most favorable to it, and conceding that the contract meant that plaintiff was to reimburse the defendant by a reduction of one cent per ton on the royalty price, not to exceed a period of seven years, only to the extent of one-half of what the branch line actually cost the defendant — that is, the sum actually expended in the construction — the undisputed evidence shows that the amount of the royalty withheld by the defendant is $4,276.09, and that the road cost $27,-968.11. one-half of which was paid for by the defendant, being $13,993.05. Therefore one-half of said last sum should be borne by the plaintiff, which amounts to more
The plaintiff contends that the sum paid out by the defendant towards the construction of the branch line was repaid or refunded by the Southern Railway, and that said branch line did not, therefore, cost the defendant anything, and that it is not liable for any of the cost. of constructing said line. If this money was refunded or paid without any consideration moving from the defendant to the Southern Railway, then it could not be said that this branch line cost the defendant anything, and there might be merit in the plaintiff’s contention; but the evidence introduced and the contract offered by the plaintiff between the defendant and the ¡Southern Railway fails to show that this amount was repaid the defendant without a valuable consideration. The contract under which the money was paid the defendant was not unconditional, hut was dependent upon a compliance by the defendant with certain requirements of value to the Southern Railway, and a compliance with which required capital, energy, labor, and skill. The contract with the Southern Railway provided for the reimbursement si the defendant only in case the amount of coal shipped in G years would be sufficient to do so at the rate of five cents per ton, notwithstanding the contract covered a period of 20 years. Consequently, if the defendant did not mine and ship over the railroad a certain quantity of coal within a limited time, it would not be reimbursed for its cost of constructing the branch line. The contract also required the defendant to ship over the Southern road all coal mined by it for 20 years, that the defendant commence operating the mine within a fixed time, that a certain number of tons must be shipped each day, that the defendant should furnish the railroad a certain quantity of coal at a certain price, and that the railroad could cease operating the branch line and take up the rails in case defendant should abandon mining coal for six months or fail to make substantial shipments during a period of six months. Can it be said that the payment to the defendant of five cents per ton on all coal shipped by it
The trial court did not err in sustaining the demurrer to the plaintiff’s second replication. Since a ruling favorable to the plaintiff upon the evidence complained of would give it no right to recover, if the trial court erred in excluding the evidencee, it was error without injury, and the judgment of the city court is affirmed.
Affirmed.
