Brooks v. Cook, 141 Ala. 499

141 Ala. 499 | Ala. | 1904

SIMPSON, J.

This ivas an action brought by the appellees against appellants, to recover $75.00 claimed to be due, under a contract which is set out.

This case was heretofore before this court, and the court then construed the contract in question to be “a grant to the defendant of the right and privilege to mine all iron ore in and under the land designated.” The court further said: “We have but to call attention to the recitals of the lease to see that the payment of royalty was based upon the assumption of the parties that ore existed under the land. The grant was of ore in place, and, if the subject matter of the contract failed, the price is not payable.” The court further says: “After all, the lease was nothing more nor less than a sale by them of iron ore” which both parties supposed to exist, and, if the evidence shows that said ore did not exist, then “the obligation of the lessees to mine ':f * was at an end, as was likewise their obligation to pay royalty.” — Brooks, el al. v. Cook, et al., So. Rep. 960; 135 Ala. 219.

The appellant raises a question which does not seem to have been before the court, when this ease was passed upon, to-wit, that this contract having been originally signed by R. E. Cook, agent, in such a way as not to bind his principal, but only to bind himself personally, there was a lack of mutuality as between these plaintiffs and defendants, and that plaintiffs could not, by bringing suit on the contract, ratify it and make it binding on the other party.

Upon the general principle, this court has held that, when an agent makes a contract for the benefit of his principal, even though the principal be not disclosed, the principal may sue on it in his own name-Bell v. Reynolds d See, 78 Ala. 511; McFadden & Bro. v. Henderson, 128 Ala. 221, 229; City of Huntsville v. Huntsville Gas Light Co., 70 Ala. 191.

While there is some conflict in the decisions of other states as to whether the principal, who was not originally bound, can, by ratifying the contract make it binding on the other party, -we follow the weight of authority and the leadings of our own State court as above indicated in holding, that although, this contract as originally executed might have bound only the agent, and not the principals, yet the principals had the right to ratify it and bring suit on it.

As stated in some of the authorities, the liability of the agent, upon the. contract, as originally signed, forms a sufficient consideration to the other party, and he is not injured by allowing the principal to come in and ratify and claim the benefits of the contract. — See note to Atlee v. Bartholomew, 5 Am. St. Rep. 109.

The statute of frauds does not prevent the operation of this principle, in the present case, because our statute requires only that the writing be signed “by the party'to be. charged.” — Lagerfelt v. McKic, 100 Ala. 430.

As the contract makes no requirements as to the qual-' tiy of the ore to be taken, the exclusion of evidence on that point was proper. — Watson v. Kirby & Sons, 112 Ala. 436.

The defendant objected to the introduction of the contract in evidence on the ground that the attesting witnesses, Sawyer and Cook, were beneficiaries under iiie contract, it being admitted that Sawyer was a member of the firm of Cook & Sawyer, provided for in said contract, and Cook is one of the parties interested. We think this objection well taken, and the paper should have been excluded.

Rent is the consideration paid for the use of the land.

Whether you denominate it a lease or by any other name, when a man acquires the right to take ore out of the land, he takes away a part of the substance of the real estate itself, and whether the consideration be called “royalty,” or by any other name, it is paid for the purchase of the substance which is taken away.

Consequently, such a contract is a conveyance of a part of the real estate, and must be executed with the formalities required for conveyances of real estate. Milliken v. Faulk, 111 Ala. 658.

In a. case before the House of Lords in England, which was a mineral lease for twenty-one years, Lord Cairns said: “Although we speak of a mineral lease, or a lease of mines, the contract is not, in reality, a lease at all in the sense in which Ave speak- of an agricultural lease. There is no fruit; that is to say, there is no increase, there is no soAving or reaping in the ordinary sense of tbe term, there are no periodical harvests. What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there, if he can find them, and to take them away, just as if he had bought so much of the soil.” — Scotch & D. Appeals, L. R. pp. 273, 283-4.

The great weight of authority, as well as the logic of the situation SO' fully bear out this principle, that we consider it fully settled that minerals in the earth are a part of the real estate, and that any instrument by which they are conveyed must be executed in accordance with the law in regard to conveyances of land. — 2 Lindley on Mines, § 812, 859b, 861; Barringer & Adams on the Law of Mines and Mining, pp. 35, 36; Caldwell v. Fulton, 31 Penn. St. Rep. 475, (72 Am. Dec. 760).

One who is a party to a deed or a beneficiary thereunder is not a competent attesting witness thereto. — Coleman v. The State, 79 Ala. 49.

As this proposition is fatal to the case, it is unnecessary to notice further the assignments of error.

The judgment of the court is reversed and the cause remanded.

McClellan, C. J., Tyson and Anuekson, J.J., concurring.