5 Johns. Ch. 174 | New York Court of Chancery | 1821
The representatives of Robert Fulton, deceased, are sued at law, upon a covenant which he made with the defendant, to pay him an annuity of 1,000 dollars a year, for twenty years, to be computed from the 5th
There can be no doubt, that the sole inducement, on the part of Fulton, in making the purchase, was to obtain the ownership of a mine of mineral coal. This is apparent from the contract itself, and from every document connected with it, and referred to in the pleadings.
The representations made by the defendant were in writing, and in answer to a letter of Fulton, and were made a few days before the execution of the contract, and those representations gave a very flattering account of the situation of the coal mine, of its productiveness, and of the facility With which it might be worked.
In that answer, the defendant stated “ the quality of the coal to be excellent; that the first stratum had not been worked to the bottom; that when he first discovered the mine, after removing a few inches of earth, he did, with the aid of a hatchet and a few wooden wedges, break or split off squares of coal as large as two men could handle, and then threw in his boat a few chaldrons, procured in that way, and kept with it a constant fire all the way to Natchez. That when he arrived at Natchez, he sold what remained, say 30 or 40 bushels, for smiths’ use. That on his second descent with the steam boat, he had, on arrival at the coal hank, no Occasion to take any coal out of the mine, as he found, ready
These representations are contradicted by two witnesses, who have been examined on the part of the plaintiffs, and who prove that the mine is not on the bank of the river, and is not productive, and is almost incapable of being worked.
James M'Daniel, jun. says, he knows the tract of land said to belong to the heirs of Fulton, and that he lives in Perry county, in the state of Indiana, and about five miles from the tract, and is a farmer of fifty years of age and upwards. That he is acquainted with the Ohio river, to the distance of forty miles above the mouth of Anderson’s river, and that there is a coal mine four or five miles above the motith of that river. That a bed of coal was discovered opposite the said tract of land, “ in the bed of the river,” and that coal has been raised from that bed, though he knows of no boats taking in coal there, except a small canoe, and he assisted in raising 8 or 10 bushels from that mine. That in some seasons, it is covered throughout the year with water, and is always covered, except in very low water. That the water of the Ohio rises from 35 to 40 feet, and the current is rapid, and the coal mine could not be worked, “ but at a very great expense.”
John Bristow says, he is upwards of thirty-three years of age, and is by occupation a carpenter, and resides at Troy, in Perry county aforesaid, and is acquainted with the tract
The defendant examined three witnesses, in support of the truth and accuracy of his representations.
Thomas C. White says, he has been in the state of Indiana, upon the river Ohio, and rode on horseback from Troy, in that state, at the request of the defendant, to view the tract of land mentioned in the contract, though he had not seen the map or survey of the land, made by order of the government of the United States. He says, he passed over these tracts twice on horseback, and in crossing the land, he discovered a bed of mineral coal, on which several men were at work, digging up the coal, and it appeared to him to extend along the surface of the bank of the Ohio, for about 30 or 40 yards; and it was evident to him, “ that the bed of coal was in its natural situation, and constituted a part of the land.” That from the circumstance of there being “ much coal in the neighbouring land,” and from the appearance and extent of the bed of coal, he should suppose that it would yield a great quantity. That the bed of coal aforesaid was “ on the bank of the river,” and covered with water in the wet seasons, by the rise of the river. That when he saw it, the water was low, and the spot which he viewed -could not be worked when the river waá full; and it would
Elias Rector is a postmaster at St. Louis, in the state of Missouri. He descended part of the Ohio river with the defendant, in 1809. He had, before that time, discovered that there was a quantity of mineral coal on the west side of the Ohio, in the state of Indiana, “ some distance above” the mouth of Anderson’s creek, and he went down the river for the purpose of showing the mineral coal to the defendant. He believes that there is a coal mine there, “ as he has seen the coal in different places.” He and the defendant, and others, took out of the mine some of the coal, for the purpose of trying it. He has seen coal “ on that land, and on other tracts in the neighbourhood.” The land he refers to “ was just above the mouth of Anderson’s creek.” The coal was not found in the bed of the Ohio, and it was not a deposit, and he believes it to have been a mine of mineral coal; and the said coal mine, he believes, is not generaly covered with water, but he does not know the greatest height of the river, or the expense of working such a mine.
This is all the material testimony in the case, for I have not considered the testimony of Lalrohe as having any bearing on the point, touching the truth and accuracy of the representations of the defendant, which were the inducement to the contract; and the examination of Jacob Harvey being after publication and the inspection of the testimony previously taken, was irregular.
The most precise, accurate, and authentic testimony on the subject is given by the two witnesses who reside in Indiana, near the land in question ; and they disprove completely the allegations contained in the defendant’s letter to Fulton. The coal mine, which may be deemed appurtenent to the land conveyed to Fulton, is in the bed of the river Ohio, and could not have been conveyed to Fulton, for that river is a navigable water, a great national highway,
Do the two witnesses, examined on the part of the defendant, restore truth or credit to his representations ? If there had been colour for these assertions, it would seem that they must have been very susceptible of proof; for the'matters to Which they related were, from the nature of them, of great and general notoriety; yet we have but two witnesses, one a stranger in that country, or only a transient visiter, and the other does not appear to have been there since his visit with the defendant, in 1809; and
Elias Rector speaks still more loosely. The land he refers to was “just above” the mouth of Anderson’s creek; and he says, that before he went down the Ohio with the defendant, he had discovered coal “ some distance above” Anderson’s creek; and he believes there is a coal mine there, “as he has seen the coal in different places.” It is worthy of notice, that he speaks very drily of his discovery, in company with the defendant, and only observes, that he and the defendant took some of the coal to try it; but he says nothing of slabs or squares of coal, and of loading the boat with chaldrons, and sufficient to have a superabundant quantity of 30 or 40 bushels, at the Natchez.
Upon the whole, I consider the representations made to Fullon as altogether fallacious, and that the consideration for the stipulation of such an extravagant annuity, did not
The bill seeks to have the contract delivered up td be cancelled ; but it has been partly executed, as' the land described in the contract has been conveyed, and part of the consideration paid. The want of a coal mine corresponding with the representations of the defendant, seems to have been intended by the parties to apply to the annuity, as there was a provision in the contract itself, that if the mine should not be competent to yield a stipulated quantity of coal, after faithfully and scientifically working the same “ and within the boundaries of the land described,” the annuity should cease. It has not been so worked by Fulton, or his representatives, and it might therefore, be alleged, that the experiment intended has not been made. The answer to that objection is, that there was no coal mine within the boundaries of the land conveyed, but it was adjoining to it, in the bed of‘the Ohio ; and this, if true in point of fact, (as I believe it to be) is a decisive answer, to the objection. Another answer toil would b,e sufficient, if the mine was covered by the deed, and that is, that it would have been an idle, hopeless and ruinous project,, to have attempted to work such a mine “ scientifically, according to the plan and manner of working coal mines in Europe,” in the middle of a mighty river, covering the spot most part of the year, and rising 40 feetj with a resistless current. It would be absurd to suppose, that Fulton was obliged to expend the whole amount of the accumulated annuity in the attempt, before he could be entitled to be discharged from the annuity. This would be making the end entirely subservient to the means.
I shall accordingly decree that the defendant be perpetually enjoined from suing or prosecuting any suit pending at law, for the recovery of the annuity, or any part thereof, and that he also pay to the plaintiffs the costs of this suit.
Decree accordingly