163 N.Y. 173 | NY | 1900
Lead Opinion
This controversy arises out of a written agreement for the mining of coal in a tract of land in Pennsylvania. The instrument is denominated a lease. The material parts of the lease are stated in the report of a prior litigation between the parties found in
This is the third litigation between the parties which has come before this court, and though the litigations spring from the same instrument the causes of action in each suit have been essentially different and distinct from those in the other suits. The first action (
The present suit is based on four causes of action. The first and fourth allege that the defendant failed to make proper returns of the amount of coal mined and seek to charge the defendant with royalties due on the coal for which it failed to make return. The amount due to the plaintiff on these causes of action was adjusted on the trial by the stipulation of the parties, and the appeal presents no controversy on this subject. The second and third causes of action are to recover in assumpsit and not in tort the value of the waste coal or culm which passed through a mesh of a half-inch square. Coal of this size was, at the time of making the contract, considered of little or no value, but changes in the requirements of the coal market and new mechanical inventions have rendered this waste coal valuable. The defendant *Page 177 marketed part of it and used the rest in the operation of its own engines.
The plaintiff claims that under the lease the defendant had no right to take any coal, except such as would not pass through a half-inch mesh, and that the title to the smaller or waste coal remained in her; hence, she sought to recover, and by the judgment below has recovered, the full value of such small coal, which exceeds the stipulated royalty of 12½ cents a ton, which the defendant was required to pay on the other coal. The provision in the lease as to payments is as follows: "And the said party of the second part agrees to pay for the coal mined and taken out in pursuance of this agreement at the rate of 12½ cents for every ton of 2,240 pounds of clean merchantable coal, exclusive of culm or mine waste, that will pass through a mesh of one-half inch square." The defendant's contention is that, under the agreement, it acquired title to all the coal, and that the provision that it should pay royalty only on coal of the specified size is not to be deemed as payment for such coal alone, but for all. Before entering upon the discussion of the proper construction of the agreement or lease, it is necessary to first dispose of certain special pleas interposed by the defendant to defeat the plaintiff's claim.
The defendant pleaded in its answer that by the laws of the state of Pennsylvania, in which the demised lands are situated, the lease operated as a present conveyance of all the coal contained in the premises as land, and that after its execution no title to the coal remained in the plaintiff. Of this it is sufficient to say that foreign law is a question of fact, not of law. The referee found "That there is no law peculiar to Pennsylvania governing the construction of written instruments; but the rule of the common law prevailing in New York, that the intention of the parties is to be gathered from the terms of the instrument, prevails in like manner in the state of Pennsylvania." This finding has been unanimously affirmed by the Appellate Division, and under the constitutional provision (Article 6, sec. 9) we are precluded from reviewing its correctness. *Page 178
The defendant further pleaded the judgment of this court in the first action which came before it (
The rules governing the construction of contracts are well settled. "The mutual intention of the parties to the instrument is the great and sometimes the difficult object of inquiry, when the terms of it are not free from ambiguity. To reach and carry that intention into effect, the law, when it becomes necessary, will control even the literal terms of the contract, if they manifestly contravene the purpose. * * * But, if the intention be doubtful, it is to be sought after by reference to the context and to the nature of the contract. It must be a reasonableconstruction. * * * The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual." (2 Kent, 554.) "The rules for the construction of statutes are substantially the same as for the construction of contracts and other written instruments. The intention is to be deduced from a view of the whole statute, and that intention when ascertained will always prevail over the literal sense of the terms." (Matter of New York and BrooklynBridge,
Viewing the lease before us as a whole, and considering all its provisions, we think the intention of the parties quite clear and plain. The instrument commences with a lease of "all the coal contained in, on or under, etc." This would seem to entitle the lessee to take the whole of the coal if it so chose. The provisions for minimum royalties are as follows: "And the said party of the second part doth hereby promise and agree to mine from said land, in the year 1864, not less than ten thousand tons of coal; in the year 1865, not less than ten thousand tons of coal, and twenty thousand tons in each and every year thereafter. It being understood that the said party of the second part is to pay for ten thousand tons in each and every year, whether the same shall be actually taken out in such year or not; and that in case the maximum quantity of twenty thousand tons is not taken out in 1866 or any subsequent year, interest at the rate of seven per cent per annum shall be paid by the said party of the second part to the said parties of the first part, their heirs and assigns, upon such sums as the deficiency shall amount to. Said interest to be continued until the full quantity agreed to be taken out as aforesaid shall be reached. * * * Provided, further, that the said party of the second part shall have the privilege of taking out without charge at any time thereafter a quantity of coal equal in amount to the deficiency they may have paid for in any previous year or years." It will be seen that in these provisions no qualification that either the coal shall be merchantable or of a certain size is to be found. The lessee is to mine not less than ten thousand tons a year, and is to pay for ten thousand tons whether the same is "taken out or not." This language clearly contemplates that if coal is taken out it is to be paid for.
As was said by Judge FINCH, in the case last before us (
Under our construction of the contract the judgment which the respondent has recovered cannot be upheld, but it is not necessary that there should be a new trial, unless the plaintiff elects to take that course. The amount of small coal or culm taken by the appellant was fixed by the stipulation of the parties on which stipulation was based the finding of the referee. The referee awarded the plaintiff the value of the small coal. This value as to part of the coal exceeds the stipulated royalty. As to the remainder of the coal the value is not equal to the royalty. In our judgment the plaintiff should have been awarded royalties on all the coal, regardless of its value. This can be done now, for it is a matter of ready computation, and it is not necessary to change the form of the action, since, as already stated, it is brought on contract, and not in tort. As we calculate it, reckoning the interest from the same dates as those taken by the referee, the referee should have awarded the plaintiff $24,171.55.
The judgment appealed from should be reversed and a new *Page 183 trial granted, costs to abide the event, unless within twenty days the plaintiff stipulates to reduce her recovery of damages to $24,171.55; in case of such stipulation being made, then the judgment as reduced should be affirmed, without costs of appeal in this court to either party.
Dissenting Opinion
I dissent. I think that the judgment should be affirmed, upon the ground that the coal which passed through the mesh remained the property of the plaintiff, as much as was the land. It was excluded by the terms of the agreement between the parties and never became the defendant's property. That was the effect of our former decision. (
PARKER, Ch. J., O'BRIEN, HAIGHT, LANDON and WERNER, JJ., concur with CULLEN, J.; GRAY, J., dissents.
Judgment modified, etc.