Kemble Coal & Iron Co. v. Scott, 90 Pa. 332

Kemble Coal & Iron Co. v. Scott

90 Pa. 332 | Pa. | 1879

Chief Justice Sharswood

delivered the opinion of the court,

*343The agreement of May 30th 1872, between the parties to this action was not an executory but an executed contract. It was not an agreement that a lease should be made at a future time; but a present lease by the most apt and formal words, “grant, let and lease” for the term of eleven years from the 1st of April 1872, of • “the exclusive right to mine, dig and take away the iron ore from four tracts of land in Black Valley, West Providence township, in the county of Bedford,” “also the right to make tramroads, erect machinery, open tunnels, deposit dirt, and to do all things necessary and appertaining to the mining of the said ore.” In consideration the lessees, the Kemble Coal and Iron Company, bound themselves and their successors to pay to the lessors, their heirs or assigns, on the fifteenth day of each month, fifty cents per ton of 2240 pounds for each and every ton of ore mined and taken away the month previous. It was provided that for the first year of the lease, the lessees were to pay rent on as' many tons as they might be able to mine, but for any period of three years thereafter the rent in the aggregate was not to be less than $10,000, whether ore to that extent or amount was mined or not. The lease .was executed by the lessors under their respective seals, and by the lessees under their corporate seal duly attested by their president and secretary, acknowledged by the several parties, and recorded July 13th 1872. Under it the lessees had the unquestionable and unquestioned right to enter upon the four tracts of land mentioned, and to commence' to mine and take away the coal. It was a grant of the ore in place. This was an action at the end of four years to recover the $10,000 for the last three years, under the express covenant to that effect contained in the lease. Clearly then it was not a case in which the equitable rules and principles adopted in bills for specific performance by courts of chancery have any application. That there was iron ore in the tracts a subject-matter upon which the lease could operate, was not controverted. The learned judge in the court below, in his ruling on the fourth offer of evidence, and in his answers to the fourth and sixth points in the fifteenth error, expressly decided that it was competent for the defendants to show the non-existence of ore in the land or that it was in a seam too small for mining, or affected by irregularities so as to prevent taking out 20,000 tons. It follows that the learned judge below was entirely right in his answers to the sixth, tenth and eleventh points of the defendants below, complained of in the sixth assignment of error; in his answer to the seventh point complained of in the seventh assignment; in the answer to the ninth point in the eighth error, and in refusing to affirm the defendants’ fourth point, as complained of in the sixteenth assignment. This last-dated point was “ that all the evidence in the case does not present such a state of facts and circumstances as would move a chancellor to decree a specific performance of the contract in suit, .and therefore the verdict should be *344for defendants.” All these points were based on the assumption that this action was brought for the specific execution of an executory contract for a lease, and not for rent due upon a lease actually executed. Much reliance is placed by the plaintiffs in error upon •the decision of this court in Miles v. Stevens, 3 Barr 21. But that was an action brought to recover the purchase-money covenanted to be paid in articles for the sale of land, It was therefore in effect a bill by the vendor to compel the specific performance of a mere executory agreement to sell, and it was held accordingly that where such a contract is made under a mistake or in ignorance of a material fact, it is relievable in equity.

The evidence offered and rejected, which forms the subjects of the first, second and third assignments was clearly irrelevant and rightly rejected. It was not offered to be proved that any representations were made by the lessors as to the construction of any railroad; or that the building of any such road was held out by the lessors as an inducement to the execution of the lease. The fact that an ore-vein was not found in one entire tract, as represented in the maj), was immaterial, because it was not embraced in the four tracts leased for mining purposes, but in the lands of which the defendants had the option to purchase, an entirely distinct and independent agreement. William Lauder by whom the offer was made to prove that the lessees executed the lease under the honest conviction that the clause relating to the payment of $10,000 in any period of three years was a mere stipulation and could be avoided by relinquishing the contract, stated that he was not present at any negotiations which led to the lease, and had no knowledge of them from the lessors or any of them. The refusal of the court to affirm the first and second points of the defendants was unquestionably right. The covenant in the lease Was express that for any period of three years after the first year the rent in the aggregate was not to be less than $10,000, and there is not a word to support the idea that it was a mere stipulation which might be avoided by abandonment or surrender of the contract by the lessees, or that it was not payable until after the expiration of the entire term. Nor would the court have been justified on any principle in instructing the jury as they were asked to do in the fourteenth point, that if the defendants ceased all operations in September 1873, and no royalty was demanded or paid before March 1876, they might presume that the contract was ended by the mutual consent of the parties. This forms the subject of the tenth error assigned.

The remaining assignments — the fourth, eleventh, twelfth, thirteenth and fourteenth — relate to the alleged defect in the title of the lessors. Without stopping to inquire whether anything short of an eviction from all or part of the demised premises can be a defence by a lessee to an action for the rent, it was submitted to the jury to say whether the lessees did not know of the alleged *345defect and took the risk of it. The jury found “that defendant took the Mensch tract with knowledge of the title and at its own risk,” and we think the evidence upon which this question was submitted to them was ample.

Having thus examined all the sixteen assignments, and finding no error of which the plaintiffs have any right to complain,

Judgment affirmed.