177 Pa. 387 | Pa. | 1896
Lead Opinion
Opinion by
The plaintiff operated coal mines upon a large body of land in Luzerne county, adjoining a tract of seventy-five acres owned by these defendants. Before the 29th of November, 1879, the plaintiff held a lease of the coal on this tract from the ancestor of defendants. By agreement of the parties on that day, however, the old contract was canceled and a new one entered into, which leased to plaintiff “ All the coal upon and under ” the
“And the said party of the second part, its successors and assigns, whether coal be mined or not, shall pay to the said party of the first part, their executors, administrators and assigns, in the proportions aforesaid, an annual minimum rental of not less than four thousand dollars, payable in quarterly instalments on the said first days of April, July, October and January. And if the said party of the second part, its successors and assigns, shall fail in any year to mine coal to amount to the said minimum, which it or they shall have paid, the deficiency may be made up in any subsequent year during the time of this lease without any payment therefor. And should the breaker of the said party of the second part, its successors and assigns, be destroyed by fire or other unavoidable cause, the rent may be postponed for the time which may be necessary to erect a new breaker, not however to exceed three months.”
By section 11, it was agreed that, on default of any quarterly payment, all the right of plaintiff under the lease should be forfeited at the option of the defendants; or they might issue a landlord’s warrant and distrain for arrears of rent; or if forfeited, then by authority of a power of attorney thereby given, judgment in ejectment might be confessed and possession taken of the premises.
The quarterly payments of the minimum annual rental, that is, the one fourth of $4,000, were regularly made up until 1st of July, 1888, when plaintiff notified the defendants that the minimum rental they had received up to that date had overpaid them for all the coal in the tract, not only for what had been mined, but for what remained in place, computing its value at 25 cents per ton, aud therefore, no further payments would be made; thereupon, May 29, 1889, this bill was filed, to restrain defendants from enforcing at law the forfeiture of the lease and further, to restrain them from re-entry under the power of at
By the illness and death of two masters appointed by the court, the event of the issue in the court below was delayed; then, on a former appeal to this court, after full consideration, there were developed such differences of opinion on the question at issue, as to call for a reargument before the full bench, which was accordingly had; so that now, after elaborate argument by the able counsel concerned, and with the report of the master and opinion of the learned court below, we proceed to enter final judgment.
The learned master finds as facts, that: 1. Up to July, 1888, the plaintiff had mined seventy-nine thousand seven hundred and forty-four tons, nine hundred weight of coal. 2. That up to that time, it had paid for one hundred and fifty-four thousand four hundred and thirty-one tons. 3. That, computing the coal actually mined at twenty-five cents per' ton, there was then an overpayment of $12,000. 4. That, estimating the quantity of coal yet in place by the methods which determine it with approximate accuracy, this $12,000 more than paid, for all that remained when this bill was filed.
He concluded that a forfeiture of the lease would be unconscionable ; that the true construction of the contract made it a sale in fee simple of the coal in place at the price of 25 cents per ton, to be paid in annual installments of $4,000 ; that as by the annual installments of purchase money already paid, plaintiff had paid more than (at 25 cents a ton) for every ton of coal in and out of the mine, no more money was payable to defendants, and there was consequently no right to forfeiture when they proposed to exercise it; further, that plaintiff, under the contract, was entitled to a reasonable time to remove the remaining coal, which time was not yet up, and which he suggested should be fixed as January 1, 1895, until which time defendants should be restrained from re-entering.
The court below concurred in the master’s findings of facts, and in his opinion that the contract was a sale of the coal in place, but dissented from his conclusion of law that the amount
As preliminary to a construction of this contract we remark that the mere use of technical words or phrases which have a definite legal signification, cannot be allowed to defeat the contrary intention of the parties, if that intention be manifest from the whole contract: Caldwell v. Fulton, 31 Pa. 475; Funk v. Haldeman, 53 Pa. 229. So that the words, demise, lease, mine-let, lessors and lessees,' and like words specially appropriate to a contract between the owner and tenant for years have no bearing if the contract is in fact not a lease, as this is not. If the owner of a tract of land grant the right for a fixed term to mine coal, ore or other mineral, or to cut wood or timber, to be paid for at so much per ton, per cord or per thousand, as mined or removed during the term, the intention of the parties to such a contract might with some approach to accuracy, have been expressed by the use of these technical words; but they give us no aid in the construction of this one. We must ascertain the intention here, in determining whether the exercise of the right to forfeit is sustainable, from the whole contract, the subject of it, the surroundings and the purpose of it.
When this contract was entered into, the defendants were the owners of the coal under seventy-five acres of land; the coal was in place; they wanted to get and enjoy the value of it; if plaintiff had wanted to buy and indefinitely leave it in place for future operation, each party would have dealt on the basis of a lump sum for the coal under the tract, or at so much per acre for it, and would have arranged for payment, just as they would have done if the subject of the contract had been land. Each might, as preliminary to the contract, have sought by surveys'to ascertain the proximate quantity in place, and thus have fixed in their judgment the value, but the number of tons and value per ton would have been no express part of the written contract; a round sum for the whole or per acre would have represented the price the sellers were willing to accept and the buyers to give. But although the contract was a sale of the
The owners’ enjoyment of the value of their property would largely depend on receiving that value soon; if the payments, by reason of slow mining, were stretched into the future, they would receive far less than if made within a period of two, three or even five years, and all this coal could easily be mined within that time. Both parties assumed the value of the coal in place to be 25 cents per ton, and this value, defendants would have proximately got if it had been mined diligently; but, if, on account of conditions of market, charges for transportation or price of labor, it paid plaintiff better to mine very slowly, defendants would not receive nearly that value. For example, take the $4,000 paidfor the sixteen thousand tons mined the ninth year; if the sixteen thousand tons were worth 25 cents per ton at date of contract, then defendants had lost nine years’ interest, or $2,160; deducting this from the $4,000, left only $1,840, equal only to 111 cents per ton-by reason of the long de
The provision, that if there were a failure to mine coal any one year up to the minimum the deficiency should be made up any subsequent year, in no respect conflicts with the construction here given. That only means, if in one year, say but eight thousand tons had been mined and $4,000 paid, then the next, or a subsequent year, if plaintiff mined, say twenty-four thousand, the $2,000 might be credited on the excess beyond sixteen thousand tons. The plaintiff is given the privilege of recouping the excess of payment above what it has mined in a preceding year, by an excess of coal in a subsequent year; there is no intimation in the language employed that there is to be any reduction oi
The possession of the premises, with the right to timber or other material on the surface, was granted to plaintiff along with the coal under the surface. The position of appellant is, that having already paid for more coal than the tract originally contained at the rate of twenty-five cents per ton, it has the right to cease payment and retain possession of the premises, with these rights on the surface, until all the coal be mined. As already noticed, this is not our construction of the contract. The intention of the parties to every contract of this kind must determine their rights and remedies. In the authorities cited there is no real conflict; the difference in the surroundings of the parties at the date of the contract and a distinction in the subject compel different constructions to give effect to the intention ; the language of no two of them is the same ; the covenants are different. It is useless to go over them, because, to be in point, they should be in verbis ipsissimis concerning the same subject and the parties in the same situation. On one proposition they all agree, that in contracts like unto this they must be construed as a sale of the coal or other mineral in place. The determinination of the price as well as the remedies for the enforcement of the contracts are as different as the minds of the parties. And while we do not go to the length the English cases do in enforcing payment of the purchase money where there is a total failure of consideration, yet where the consideration has not failed, as here, the law of the contract which the parties have made for themselves is the law of the land.
The appeal is dismissed and decree affirmed.
Dissenting Opinion
October 5, 1896.
We dissent from this judgment because we regard the contract as a simple sale of coal in place to be paid for by the ton. The right to mine and remove it was an incident to the sale. When all the coal in the tract was paid for the purchase money was extinguished. If the company remained in possession for an unreasonable time in closing up its mining operations after the coal had been fully paid for it was liable to the owners of the land for such occupation, and subject to an action for the recovery of the possession. It is not liable to pay $4,000 per year for coal that has no existence.