277 F. 625 | 8th Cir. | 1922
This action was brought at law by Fremont Stokes to recover royalties upon coal mining leases, alleged to have been made to the Pennsylvania Mining Company, assigned to the defendant Arkansas Anthracite Coal & Fand Company) and operated with the other defendant, Fernwood Mining Company. The last-named defendant prevailed in tire District Court. A-jury was waived, and the cause was tried to the court, with the result that the issues were found generally in plaintiff’s favor, and he obtained judgment against the coal and land company for $14,649.39, with interest and costs.
The assignments upon which a reversal is sought are, in substance, that the trial court erred in (1) refusing to transfer the case to the equity docket; (2) awarding royalty with interest to plaintiff, and not deducting therefrom certain payments and credits; (3) failing to enter a decree for a conveyance of mine 1 and a waiver of royalties at mine 2; (4) failing to award the defendant considerations paid for said conveyance and waiver; (5) allowing royalty on occasion of strikes and water in mines; (6) denying motions for a new trial and rehearing.
At the conclusion of the trial the cause was submitted generally to the court. Fater the defendants filed a motion to reopen the case for the introduction of further testimony, and this motion, with an amendment thereto, was denied, and they excepted. They made no request for findings, or for any declaration of law in their favor, saved no oth^r
In our opinion, these authorities dispose of every specification of error adversely to the plaintiff in error, except the refusal of the District Court to transfer the cause to the equity docket and to sustain the alleged equitable defenses tendered in the answer and amendments. The complaint specified the demands claimed on leases, one of them verbal, by an exhibit of royalties accruing on four tracts and a lesser item for rent. The defendants answered, denying the execution and validity of the verbal lease, the assignments and possession of the leases, and the operation of the mines, alleging that the matters in controversy related to an accounting between the parties and James K. Gearhart, and were wholly cognizable in equity, and that the suit involved innumerable credits, debits, and transactions between them, and praying for a transfer of the cause to equity.
The plaintiff’s exhibit was amended to show six items of royalties, one for rent and another for interest. At the trial, nonsuits were taken for the first two and sixth items, and those retained were for (3) minimum royally on land of plaintiff, Gearhart, and defendant, from March 31, 1915, to December 31, 1918 (less a credit) ; (4) interest thereon; and (5) minimum royalty, “No. 2 shaft,” from March 31, 1914, to December 31, 1918. Those tracts were known as mines 1 and 2, respectively.
The defendants filed an amendment to their answer, in which they again moved for the transfer to equity. They denied owing items 1 and 2, and alleged payment of the royalties by numerous transactions, etc., which required an accounting. They claimed payment of royalty on item 3 (mine 1), by a system of accounting, including credits and debits, beginning prior to 1909, and extending to date, consisting of innumerable items evidenced by oral and written agreements, checks, and letters, not triable in a court of law. As to “No. 2 shaft” (mine 2), the same allegations were adopted, and it was alleged that plaintiff had received all the royalties due him, the matter being determinable only by an accounting, and for a valuable consideration had waived the royalties. Payment of the royalty on item 6 was claimed by means of
By a second amendment to the answer the defendants alleged that said agreements to waive royalties and make the conveyance were oral, and were made in January, 1915, and twice later reaffirmed, and they renewed former prayers for relief. They filed another amendment, alleging that the agreement of waiver was oral, and effective until mine 2 was put in operation, and thereafter the royalties were to be payable on coal produced, and the plaintiff expressly waived all royalties at mine 1. The considerations paid therefor were specified, and the former prayers again renewed.
After demurring unsuccessfully to the answer and amendments, the plaintiff filed a reply, whereby he denied the alleged agreements to waive royalties and make a conveyance, and the payment therefor, and challenged the validity of the agreements because not in writing.
Judge HOOK presided at the hearing of this case and concurred in the result, but died before the opinion was prepared.