126 A. 761 | Pa. | 1924
Argued October 6, 1924. William Daniels, now deceased, was the owner of a tract of land containing a deposit of limestone. On February 13, 1901, he entered into a written agreement with one James Nevin by which there was granted to the latter, his heirs and assigns, for the term of eighteen years, "the full, free, uninterrupted and exclusive right and privilege to enter upon the land and take possession of all limestone which may be found upon, in and under that certain tract of land [describing it] and to quarry, mine, remove, market and dispose of [the same] during said term." As a consideration, it was agreed that certain rents and royalties should be paid.
This contract was assigned later to the Lehigh Portland Cement Company, defendant here, and it took possession, constructing the railroad necessary for operating the plant. It paid the price agreed upon for all stone removed until 1910, taking appropriate receipts. Thereafter, until the expiration of the term fixed in the agreement, additional payments were made covering amounts admittedly due, but not recognized as settlements in full to the respective dates. This suit was brought to recover royalties for the total number of tons of stone mined and actually taken away during the period in question, credit being given for the sums advanced. All of the essential facts were agreed upon, and placed upon the record. The defendant insisted that it owed nothing, contending that the rental fixed was payable under the agreement only under certain conditions, which had not been met, and that it had liquidated all just demands. If the claim of the plaintiff is sustained, *355 he is entitled to recover $28,868.68; otherwise a finding for the defendant was proper. The controversy was submitted to the jury, which rendered a verdict for the amount demanded. Judgment non obstante veredicto was subsequently entered, and this appeal followed.
The correctness of the decision reached depends on the proper construction of that paragraph of the written contract which reads as follows: "Said party of the second part further agrees to pay said party of the first part, his heirs, executors, administrators or assigns, five cents royalty for each and every ton of twenty-two hundred and forty (2,240) pounds of limestone quarried and removed from said land during said term, and to pay for not less than ten thousand (10,000) tons of limestone each year, provided that amount can be obtained on said land without being obliged to strip and remove more than fifteen (15) feet of dirt, clay or other material from the upper surface of the limestone where the bed of the limestone worked lies in place is fourteen (14) feet thick or more, and a proportionate amount less in depth of stripping where the said limestone worked in place is less than fourteen feet thick, so the second party, his heirs or assigns, shall not in any event be required to pay for any limestone which cannot be obtained by stripping a depth which shall be in proportion to the thickness of limestone uncovered thereby as fifteen feet is to fourteen feet." The sentence following also refers to minimum royalties.
It will be noticed, provision is thus made (1) for the payment of a fixed sum for such stone as is mined and taken away, and (2) a minimum royalty on 10,000 tons where stone can be obtained of fourteen feet in thickness, without taking away more than fifteen feet of dirt, or of less thickness where a smaller top covering is removed. The learned court below was of opinion that the last phrase in the portion of the written agreement quoted, beginning with the word "so," applied to any rental or royalty payment, and that no liability existed, *356 though stone was actually "quarried and removed" unless it further appeared there was a relation between the thickness of vein and stripping of fifteen to fourteen. It read the portion of the sentence referred to as if it followed the clause fixing the compensation when stone was taken, and declined to give effect to the provision that five cents was to be paid for "each and every ton" removed.
An examination of the context of the agreement shows the limiting clause to apply to the obligation to pay a minimum royalty on ten thousand tons. If this amount was not obtainable under the conditions laid down, then the defendant was relieved from making the stipulated payment. Evidently the parties had in mind that there should be no compensation where no product could be secured except at a prohibitive cost, and therefore provided for the relief of the grantee from liability in such instance. Stipulation was made, however, for a five-cent allowance, where actual quarrying and removal occurred. It would be a strained construction to say, if the defendant saw fit to mine, where the thickness of top covering and layer of stone were not within the fixed proportion, it could remove that procured, and appropriate it to its own use without any return whatever.
The words preceding the restriction of liability refer clearly to the minimum royalty, as do those which follow, and there is no justification for wresting the clause referred to from its given position, and considering it as if also inserted after the first portion of the sentence, which fixes responsibility where any stone is quarried and removed. There is no allegation of any fraud, accident or mistake, and the contract must be construed as written (Stitzer v. Fonder,
The defendant insists that it is entitled to judgment, since this stone, which it took, was mined where the stripping and width of vein were not in the proportion referred to in the contract, and the statement of agreed facts sets forth that the tonnage unpaid since 1910 was entirely within this class. It contends that the arrangement between the parties constituted a sale of the mineral in place, thereby making the grantee owner of all the stone, subject to pay under the circumstances provided for, and none other. If the contract had the effect suggested (Hosack v. Crill,
The assignment of error is sustained, judgment is reversed, and the record is remitted to the court below with direction to enter judgment for the plaintiff for the amount of the verdict.