69 W. Va. 292 | W. Va. | 1911
In a proceeding by motion on a forthcoming bond, by the White Oak Fuel Company, as principal, and S. Dixon, as surety, to release property from distraint under a distress warrant for rent, claimed under a coal lease and amounting to something over $6,000.00, Justus Collins obtained a verdict
The first assignment of' error charges nonjoinder or mis-joinder of issue. The defendants tendered three so-called special pleas. The first two, though concluding with verifications, bring no new matter into the ease and amount to mere denials of liability. The first one says there is no rent due; the second, in substance, that the demand of the plaintiff is made under the eighth clause of a written contract, described in the notice, and denies liability for any rent under that clause of the contract or any other. Objections to these two pleas having been overruled, they were filed, and, without reciting any-replication, the order says issue was joined thereon. The third plea claims a suspension of the operation of the clause under which the proceeding was instituted, under another clause providing therefor in case of strikes by employes of the lessee or unavoidable accident, delaying shipments of coal and coke. It avers, as an unavoidable accident, an explosion in the mine on or about the first day of May, 1907, which it says greatly delayed and hindered the lessee from shipping coal for and during the entire period for which the rent was claimed, under the distress warrant. Objection to this plea having been overruled, it was filed, a general replication entered and issue joined.
That this is an informal proceeding, not governed in all respects by the common law rules of pleading and practice, is well established. Knox v. Horn, 58 W. Va. 136; Board v. Parsons, 22 W. Va. 308; White v. Sidenstricker, 6 W. Va. 46; Higginbotham v. Hazelden, 3 W. Va. 266; Hale v. Chamberlain, 13 Grat. 658. Under this view of its character, the technical requirements of formal pleadings and joinder of issue have been dispensed with. Hornbrooks v. Lucas, 24 W. Va. 493; Wallace v. McCarty, 8 W. Va. 193, 199; Land Co. v. Calhoun, 16 Va. 361, 375; McKinster v. Garrott, 3 Rand. 554. The last clause of section 7 of chapter 121' of thg Code, says: “Defense to such actions may be made in the same manner and to the same extent as in actions at law”, and the decisions just referred .to were rendered in cases submitted to the court,
A statement of salient facts is necessary to an intelligent disposition of the other assignments of error. The original lease, covering about a thousand acres of coal, was executed by Collins to the Whipple Colliery Company,. Sep. 21, 1901. After that company had driven its main entry or hallway for some distance into the property, mining the coal on each side thereof, it encountered what is known in coal mining
An important element in the case is the construction of the suspension or exemption clause in the supplemental agreement. 'On this question, very divergent views are expressed in the argument. The defendants claim contract with the fault, defined and understood as described by its witnesses, anywhere in the Collins land, no matter how far distant from the point at 'which it was originally encountered, was contemplated and will work a suspension of the minimum royalty. This conclusion is reached by placing particular stress upon the words “no minimum royalty shall be paid so long as the fault in existence in said Whipple mine is a hindrance and obstacle to its successful operation”. On the other hand, the plaintiff says no obstruction, other than that already encountered at the time of the execution of the supplemental agreement, or to any other
In seeking the intention of the parties to a contract, all the provisions of the instrument, together with its purpose, the nature of the subject matter and the situation of the parties at the time, are to be considered. All of the facts known to
The respective claims and contentions of the parties and the material facts have now been sufficiently shown to enable us to consider some of the additional errors assigned. Exception was taken to the action of the court in admitting the evidence of certain witnesses, relating to the time required to overcome the obstruction. The competency of these witnesses to express their opinions upon that question is entirely clear. They were both practical mining engineers and had personally inspected the defendants’ mine and particularly the rock heading or fault, and knew its extent and character. Treating their evidence as expert testimony, it-was clearly admissible. Redd v. Carnahan, 65 W. Va. 330; Delmar Oil Co. v. Bartlett, 62 W. Va. 700; Schell v. Barrow, 36 W. Va. 212; McKelvy v. Railroad Co. 35 W. Va. 500. In support of this assignment, the attorneys for the defendants in error have said very little in their brief, a circumstance from which we infer that, at the time the exception was taken, it was based largely upon the construction of the clause we have just interpreted. If their view of it were the true one, this evidence might have been inadmissible, for, if the fault had not been pierced nor the normal vein recovered, it might have been prejudicial to allow the lessor .to prove a lapse of time necessary for the performance of work which
The defendants requested a peremptory instruction to find for them, 'which the court refused. Upon their motion, it gave six other instructions, five of which fairly submitted to the jury the question, whether the fault had been pierced and ceased to be a .hindrance to the successful operation of the mine, and the other one the additional question whether the explosion of May 1, 1907, was an unavoidable accident and delayed the shipping of coal from the leased premises for any portion of the period for which the plaintiff claims rent, and in each of those relating to the fault told the jury to find for the defendant, if it had not ceased to be a hindrance, and, in the other, told them they might take the fact of delay by the explosion into consideration. At the instance of the plaintiff, the court gave seven instructions, three of which relate to the fault, and the others to credibility of witnesses, burden of proof, the explosion and diligence on the part of the lessee in the operation of the mine. All of these were objected to, but the brief takes no notice of any except those three which relate to the fault. The criticism upon these three instructions has been substantially disposed of in the construction of the exemption clause of the supplemental agreement. It rests largely upon the construction put upon that clause of the contract by the defendants. As their interpretation has failed, the criticism likewise fails. A further objection is made to one of them on account of its form. Though binding in form, it takes no notice of the defense'based upon the explosion. This objection is also without merit, since the evidence of delay, resulting from the explosion, does not cover the whole period for which the rent is claimed. It did not make out a complete defense. All that it tends to prove could be conceded and yet there would necessarily be a verdict for the plaintiff. This instruction does not deal with the amount of the recovery. It simply tells the jury that, if they should find for the plaintiff upon the issue respecting the fault in the mine, they should render a verdict for. him. It relates to the right to recover, not.the amount of the recovery.
We think the defendants’ peremptory instruction was.prop
The evidence introduced under the defense of unavoidable accident, if sufficient to prove delay from that cause, and not negatived by any evidence to the contrary, would reduce the amount of the recovery, and justify the action of the court in setting aside the verdict, since the jury allowed the whole amount sued for. But there were circumstances tending strong
What we have said here on the subject of the peremptory instruction applies to the motion to set aside the verdict as being unsupported by the evidence or against the preponderance thereof. In sustaining it, the trial court erred.
These conclusions result in the reversal of the order setting aside the verdict, reinstatement of the verdict and rendition of the judgment thereon in favor of the plaintiff in error for the sum of $6,113.64, with interest on sard sum from the date of the verdict, the 14th day of February, 1910, until paid, and judgment for his costs in the court below, as well as his costs in this Court.
Reversed and Rendered.