66 So. 641 | Ala. | 1914
The appellant instituted this action to recover damages for the alleged breach of a contract to mine coal on the property of the defendant, appellee. The court gave the affirmative charge for the defendant, and so, it is asserted, upon the theory that the engagement shown by the evidence established an agreement to mine coal on defendant’s prop
The agreement (we may assume for present purposes of review) gave to plaintiff the right to mine, for the stipulated sum per ton, all the coal in a definite area in one of defendant’s mine entries; but no provision was made in the agreement for the time or period in or during which the right (assumed for the occasion) to mine the coal Avas assured the plaintiff. Indeed, the evidence of the plaintiff shows, without dispute, that the actual right of plaintiff to mine the coal depended upon the condition Avhether the mihe Avas operated by defendant; the plaintiff affirming, both in his testimony and in recital of his acts in this very relation, that this right to actually mine and avail of this agreement was subject to defendant’s right, unrestricted and unrestrained by anything in the contract, to determine Avhen the mine should be operated. If, as the testimony shows, the defendant might, Avithout breach of any obligation of the agreement, suspend the operation of the mine and thereupon suspend plaintiff’s right to mine the coal in the area in question, it is clear, as pointed out in principle in Lambie’s Gase, supra, that the mineoAvner would be clothed Avith an uncontrollable right and poAver to defer the plaintiff’s continu
Not being entitled to recover for the breach of the agreement recited in plaintiff’s undisputed testimony, there was no error in the action of the court in giving the affirmative charge for the defendant. All other rulings, if assumed to be affected with error, were without prejudice to the appellant.
The judgment is affirmed.
Affirmed;