186 Pa. 648 | Pa. | 1898
Opinion by
There was no absolute obligation in the lease in question to pay a fixed royalty or rental throughout the whole period of the term, as there was in Timlin v. Brown, 158 Pa. 606, and therefore the liability of the lessees must be measured by the ordinary reading of the terms of the contract. The sixth clause of the lease provides that the lessees shall mine and ship each year as much coal as will produce $5,000 yearly at the rents designated, “ unless prevented from doing so by any unavoidable accident or occurrences beyond their control.” If therefore the coal on the premises became exhausted before the end of the term this would be an occurrence beyond their control, which would abso
In Kemble Coal & Iron Co. v. Scott, 15 W. N. C. 220, the lessee covenanted to pay fifty cents per ton of ore mined, and that after the first year the rent should not be less than $10,000 whether ore to that extent was mined or not. The defendant offered to prove on the trial that the premises did not contain the necessary quantity of ore fit for use in a furnace to yield the amount of royalty to be paid, and we decided that this was a good defense. Gordon, J., delivering the opinion said: “ Hence the material question was, could the ore found in the leased premises, under the present methods of making iron, be properly used for the pxirpose indicated ? If it could be so used, and there was enough of it, the plaintiff had a right to require the full performance of the contract; if however there proved to be a failure in either of tliese particulars, then was the defendant released from payment in whole or in part, as the case might be.” In Muhlenberg v. Henning, 116 Pa. 138, our late Brother Clark;, in a very clear and exhaustive opinion, held that there was no liability on the part of the lessee to pay a fixed minimum royalty if there was no ore on the premises to mine, or if the ore that was there was not of the kind that was
Judgment affirmed and procedendo awarded.