196 Ky. 432 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
On July 15, 1916, the appellees, J. A. Hurst and his wife, Virginia Hurst, leased to W. C. Pitman and John Centers, for a term of fifteen years, a boundary of coal land at the month of Yellow creek, in Bell eonnty, Kentucky, containing about one hundred and ninety acres. By the’ terms of the lease it was provided:
2. That the minimum royalty or rent paid to the lessees should he $150.00 a month, but that any amount thus paid in excess of the royalty on coal actually mined should be applied in payment of royalties on that subsequently mined in excess of the minimum monthly rental provided. But that if the lessees should at any time be prevented from carrying on mining operations by reason of any epidemic, riot, strike, insurrection, or the occurrence of faults or natural obstructions in the mine, without fault or negligence on the part of the lessees, or on account of inability to procure necessary railroad cars in which to ship the coal, then the minimum royalty or rent chargeable for the year, including the periods when mining was prevented by any of the causes mentioned, should be reduced in proportion to the amount of time lost by reason of the interruptions; provided that the lessees should, at the end of the month in which such interruptions occurred, make claim for rebate, and, in support thereof, file with the lessors the affidavit or affidavits of the lessees.
3. That the lessees would at all times, during the existence of the lease, conduct the mining operations on the leased premises in a skillful, judicious and workmanlike manner, and in full accord with the mining laws of Kentucky then in force, and would not do or permit or suffer any damage to the leasehold or appurtenances other than such as would be necessary in conducting proper mining operations.
4. That the lessees would make no assignment of the lease without the written consent of the lessors.
5. The lessors were given a liqn on the goods, wares, merchandise and material placed on the premises by the lessees, for the faithful performance of the lease, and it was agreed that should the lessees fail to comply with the agreements of the lease, or fail to pay the rents and royalties at the time and place therein specified, and continue in such default for thirty days, then the lease should, at the option of the lessors, be forfeited and become null and void, and all the rights and privileges of lessees at once cease and terminate.
The lessee, Pitman, took possession of the property under the lease, and in the name of a corporation known
The cancellation of the lease was adjudged on the three grounds relied on by appellees; to-wit: First, the assignment of the lease without the consent of the lessors; second, unskillful and improper operation of the mining property; and, third, the non-payment of minimum royalties for the years 1918 and 1919. We do not deem it essential to the decision of this case to indulge in a discussion of the first two grounds mentioned, as we have concluded, from an examination of the record, that a cancellation was justified on the ground of the failure of the lessees to pay the minimum royalties.
That there was no payment of the minimum rental for the years 1918 and 1919, to the extent that á recovery was allowed, is unquestionable. Appellants attempt to avoid liability for those rents on the ground that the mine could not'be operated at a greater capacity during that period than it was actually operated, because of natural defects in the mine, miners ’ strikes, and shortage of railroad cars. Any of these pleas in avoidance, if established by the proof, would constitute a sufficient defense to the claim of appellees, but none of them is sustained by the evidence, except to a minor extent, for which credit was allowed appellants by the trial court. It is in evidence that there was a strike and an epidemic of influenza in November and December of 1918, that pre
It is true that the contract is a hard one from appellants’ viewpoint, and ordinarily a court of equity will relieve against the forfeiture of a contract on account of the non-payment of rent, where the circumstances shown justify such an interposition. But here such circumstances are not shown, and, as stated by this court in Wender Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339, “the court cannot make for the parties a different contract than they have made for themselves.” It is the general rule laid down by the text writers, that forfeiture will not-be decreed for breach of the terms of a lease in the absence of a forfeiting clause, but where the lease provides that a breach of one or more of the
The judgment is affirmed.