69 Iowa 213 | Iowa | 1886
I. -Defendant owned certain lands near the city of Des Moines, which it was believed were underlaid with coal in sufficient quantity to make its mining profitable. He entered into a contract with plaintiff, expressed in a written instrument, in the following language:
“Des Moines, Iowa, December 14, 1883.
“E. W. Chambers, Esq., City — Dear Sir: You can prospect my land in southeast quarter of section 12,'78, 25, the same being one hundred (100) acres, more or less; and if you find coal that justifies putting a shaft down, I will, upon your request, execute to you-a lease, giving you the exclusive right to mine the same for the next twenty (20) years, at a royalty of one-half cent per bushel for all coal mined, except the slack. You are to commence prospecting during the present month, and to put down a shaft of reasonable dimensions and capacity before the first day of November next. You are to guaranty a royalty of $1,500 per year, or surrender your lease.
“Very truly yours, T. E. Brown.
“T. E. Brown.
“Twenty-seventh December, 1883.”
After the execution and delivery of the instrument to •plaintiff, he proceeded to explore and “prospect” for coal upon the land, by boring in the usual manner. Coal was discovered in quantities which would render mining profitable. The “prospecting” was done within the time prescribed in the instrument; but, before the time allowed for putting down a shaft, defendant leased the land to another, or otherwise conferred the right to mine the coal upon other parties. Plaintiff went upon the land to begin work in sinking the shaft, but he and his hands were compelled to leave it by defendant. He also made a demand of defendant for a lease, in pursuance of the written instrument executed by defendant above set out. Defendant refused to execute the lease, or to permit plaintiff to sink a shaft for mining. Plaintiff seeks in this action to recover the damages he has sustained by reason of the failure and refusal of defendant to perform his obligations expressed in the contract with plaintiff.
The defendant in his answer admits the execution of the instrument which is the basis of the action, but, as defenses thereto, alleges that one Miller was intended to be a party to the contract with plaintiff, and equally interested therein, and is therefore a necessary-party to this suit. The answer admits that plaintiff and Miller did proceed to “prospect” for and “partially develop” the coal, but, failing to find it in sufficient quantity, did abandon the enterprise, and thereby released defendant of all obligation to execute a
YII. Two instructions as to the preponderance of the evidence and the burden of proof are complained of, on the ground that they are not relevant to the facts of the case. It is not claimed that they are incorrect as rules of law. We cannot concur in defendant’s objection. There was such a conflict of evidence as demanded directions given by the court as to what constitutes preponderance of evidence. The instruction as to the burden of proof was applicable to evidence given by plaintiff as well as by defendant. We think there is no error in the instructions.
We have considered all the questions presented in the case, and reach the conclusion that the judgment of the circuit court ought to be
Affirmed.