93 W. Va. 115 | W. Va. | 1923
This is an action of assumpsit brought to recover rentals accruing under the- minimum royalty provision of a coal mining lease, and also for damages for failure to develop the mine as provided therein. Defendant craved oyer of the "writing' obligatory” sued on, which being produced, defend- and demurred to the declaration. The demurrer was overruled and the questions arising thereon were certified here.
The declaration avers that on June 20, 1917, plaintiff being the owner in fee of the undivided 5/6 interest of a certain tract of land containing 137 acres, by a certain indenture then and there made between the plaintiff and defendant and sealed with their respective seals, the plaintiff, for certain considerations therein mentioned and especially of the covenants
Among other averments, plaintiff further says that defendant covenanted, promised and agreed to mine said coal in the most effective, workmanlike and proper manner with due regard for future mining and according to the most approved and suitable methods of mining, complying with the laws of
From the questions certified and from brief of counsel for defendant, it appears that four grounds for demurrer to the declaration are urged:
First, that assumpsit will not lie for breach of a covenant to* develop 'coal lands, notwithstanding sections 10 and 16a, chapter 99, Code. It is clear that section 10 applies only to a promise, undertaking or obligation to pay money,'and where it is signed by the party who is to be charged thereby or his agent. In that' case debt or assumpsit lies whether the prom
We are also cited to Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516, for the proposition that assumpsit can not be maintained where a covenant affecting real estate is the basis of the action, as for instance in the present case, the mining and development of coal. A careful examination of that case, however, does not support that proposition in any sense. In that case items in contract and an item in tort were combined in the same declaration, the item in tort being for certain damage done to some of plaintiff’s property; it was there said that there can be no recovery in an action of assumpsit for damages for a mere wrong, and Judge MilleR, in his opinion, says: ‘ ‘ The rule which has the support of our decisions, as well as the de
That under section 16a, above quoted, the action of as- • sumpsit will lie for breach of a covenant to mine or develop coal lands we think there can be no doubt.
Second. It is contended by defendant that there is no specific breach of any covenant averred in plaintiff’s declaration. On the contrary, the declaration avers that the defendant breached all of his covenants and particularly breached his covenants to pay the royalties as they accrued and properly and diligently to develop the seams of coal or either of them for coal mining purposes as required by the lease. It is true that this court held in Kern v. Zeigler, 13 W. Va. 707, that in an action in assumpsit on a writing under seal containing dependent covenants when the covenant sued on contains a promise, undertaking or obligation to pay money, the same particularity in pleading is required as if the declaration was in covenant on the instrument. We think the declaration in this respect is sufficient.
Third. That the following clause in the lease, which became a part of the declaration upon craving of oyer and being produced to the court shows that plaintiff has no right of action; in other words, that the lease has become forfeited by its terms. It reads: “It is further agreed and understood .that in event the lessee shall remain in default for three months in the payment of any installment for rent or royalties, or any part thereof, shall abandon the demised premises or shall fail and cease, except when prevented by strikes or any other causes beyond his control, to prosecute a mining
The forfeiture provision quoted was inserted therein for the benefit of the lessor, and he may insist upon the forfeiture or waive it. It has been so held in numerous instances by this court in relation to such forfeiture provisions, as for instance, in Roberts v. Bettman, 45 W. Va. 143, 30 S. E. 95, a case involving the construction of an oil lease; in Lawson v. Williamson Coal & Coke Co., 61 W. Va. 669, 57 S. E. 258, involving a coal mining lease; and in Union Central Life Ins. Co. v. Zihlman, 68 W. Va. 272, 69 S. E. 855, involving a forfeiture provision in a policy of insurance. This is so well established that further citation of authority is unnecessary.
Fourth. The copy, of the lease exhibited to the court by plaintiff purports to be signed and sealed by defendant but not signed by plaintiff. Counsel for defendant contends that it is not binding upon him for lack of mutuality. Plaintiff’s counsel contends that the lease can not be considered upon a demurrer to the declaration and cite us to the case of State v. Pingley, 84 W. Va. 433, 100 S. E. 216, wherein it was held that papers annexed or attached to a declaration as for exhibits or parts thereof, are not parts of it; and cannot be considered upon a demurrer thereto. That statement, however, refers to the bill and final decree, which were filed with plaintiff’s declaration in that case in an action on an injunction bond. It has no reference to the bond itself; it was produced and read on oyer thereof before the demurrer to plaintiff’s declaration was disposed of. As a general rule, the right to crave oyer of papers mentioned in a pleading at law applies only to deeds and letters of probate and administra
The defendant claims that the lease is a “nudum pactum”; that the plaintiff is not bound, therefore the defendant is not bound. Defendant contends that our Statute of Frauds (Code, Ch. 98) which provides that no action shall be brought to charge any person upon any contract for the sale of real estate or the lease thereof for more than one year, or upon any agreement that is not to be performed within a year, unless the contract be in writing and signed by the party to be charged thereby or his agent, is a bar to plaintiff’s right of action, because the copy of the lease is not signed by plaintiff. But this makes no difference. He has brought an action upon it, says that he has performed all the conditions therein required of him. “The statute of frauds does not require that both parties sign the agreement, but only that it shall be signed by the party to be charged thereby; therefore, an agreement by the defendant to purchase land at a certain price may be specifically enforced though the plaintiff is not bound to convey, where, by his bill, he offers to perform his part.” Mountain Park Land Co. v. Snidow, 77 W. Va. 54, 86 S. E. 915.
The question of lack of mutuality was raised in Monongah Coal & Coke Co. v. Fleming, 42 W. Va. 538, 26 S. E. 201, where the purchaser of certain coal had not signed the sale contract, but sought specific performance. Upon that question the court there said:
“Upon principle, such a contract for the sale of real estate, in order to be binding, is not required to be signed by both parties, for it is signed by the owner and seller of the land, the party sought to be charged*123 and compelled to convey. And the contract does not lack mutuality, for, the payment of the consideration being in money, no writing is required, either to prove the agreement of the buyer to pay, or to make such agreement binding on him; and it has long- been the practice in this state to enforce against the vendor, who alone has signed, a title bond for the sale and conveyance of real estate in favor of the vendee and his as-signee, for if the vendee has performed his part of the agreement, is ready and willing to perform it, or has been prevented from performing it by the wrongful act of the vendor, the vendee will not be confined to his action at law for the amount of the penalty, but may choose his remedy in equity for specific performance. ’ ’
In Land Co. v. Snidow, supra, the principle was applied to a contract of purchase signed by the vendee but not signed by the vendor. It was held that the owner might enforce payment by bill in equity. If a contract for the purchase of real estate signed only by the vendee is binding on him, we see no reason why a lease executed by the lessee but not executed by the lessor should not be enforced at the suit of the lessor. The lessee is the party to be charged thereby. If the lease is executed by the lessee and delivered to and accepted by the lessor it binds the lessee. Lagerfelt v. McKee, 100 Ala. 430, 14 So. 281; Singer Mfg. Co. v. Converse, 23 Colo. 247, 47 Pac. 264; Page, Contracts, § 1325, and authorities there cited.
The great weight of authority in this country and England is that the statute of frauds is satisfied by the signature to the contract of the party to be charged thereby only, whether the suit to enforce it be at law or in equity, and whether it relates to the sale or lease of real estate or personalty. Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Kilday v. Schancupp, 91 Conn. 29, 98 Atl. 335, L. R. A. 1917A 151. Of course, there must be acceptance by the party who does not sign, but suit upon the contract by the party who does not sign is evidence of acceptance.
One other question not raised by the parties or the trial court, but which has occurred to us in our discussion, grows
Affirmed.