110 Pa. 560 | Pa. | 1885
delivered the opinion of the court, October 26th, 1885.
By the deed dated October 7th, 1871, the grantors conveyed to the grantees, their heirs and assigns, all the coal and other minerals under the described land, “ with the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing said coal and other minerals, and to occupy such land as may be necessary for the same, by paying a reasonable rent therefor, as well as for the refuse of said mines.” And Sarah Haggerty, one of the grantors, had the privilege to take, without charge, as much of the mined coal or slack as necessary for the use of herself and family. The grantees covenanted “to pay twenty-five
It is apparent that at the time of making the bargain the parties had in view screened coal, refuse and slack, and the consideration for the grant of the coal was a certain sum for each ton of screened coal. The grantees were entitled to the whole for a price to be ascertained in the stipulated mode. They did not agree to pay for slack or refuse. The parties to this action do • not differ on one point, namely, that for every ton of coal the defendants were liable to pay for, they were bound to pay twenty-five cents. But the court ruled that the stipulated price did not apply to the entire grant, but only to lump coal; and for nut coal, or nut coal mixed with slack, sold by the defendants, they are bound to pay so much as the same was worth. No argument was made in support of that ruling, for neither party believes it was correct; and we are of opinion it was at variance with the contract. Nor does such ruling seem reconcilable with the plaintiffs’ second arid third points, which were affirmed. The instruction in those points was, that the defendants were liable for all the coal that should have been screened and was not, which was taken by them under the contract, and that the plaintiffs had a right to recover twenty-five cents for each ton of either lump or nut coal mined or removed from the land. The first, second and sixth assignments of error must be sustained.
The defendants’ second point was, “ That under the terms of the instrument in suit the defendants are required to pay for only such coal as would pass over the customary screen in general use by the operators in block coal mines in the Shenango valley coal regions, where this mine was situated, at the time said instrument was executed.” Answered thus “ This point is denied under the facts in this case.” That was error. The proposition was sound, and the facts were for the jury to determine. Testimony was adduced bjr both parties tending to show the meaning of “screened coal.” The contract embraced the whole of it, whether one or two sorts; One party contends that at the date of the contract, lump coal was the only sort produced in that valley; the other, that both lump and nut were produced and sold. They differ as to what was the usage. If only lump coal was meant, the defendants had no right to use a screen with larger spaces than was customary ; and if nut coal was also meant, they could not escape liability to pay for it by omitting the proper screen and disposing of the nut coal with the slack. The parties are presumed to have used the words “ screened coal ” in the sense in which they were commonly understood in the locality. It follows, also, that the defendants’ third point should have been affirmed.
It is hardly necessary to note the twelfth assignment. We do not understand that the plaintiffs claim to recover for slack, and it is already said that they are only entitled to recover the balance of the contract price, due for coal that ought to have been screened by the defendants in case the jury find that nut coal was meant to be included.
The chief inquiry as to disputed facts is, whether the parties understood that “screened coal” included nut coal; if they did, the defendants cannot avoid payment for the nut coal by showing that the lump coal was badly screened and contained nut and refuse. They screened the lump to suit themselves, and cannot be permitted to estimate refuse to deduct from the nut. The thirteenth assignment is not sustained.
Judgment reversed, and venire facias de novo awarded.