This is an' action to recover the rent of what is termed a salt block. Two questions are presented; one a question of law, whether
This lease contains an express covenant pledging the net earnings of the salt company, in any one year, to the payment of the rents accruing upon this, and all other leases of solar or fine salt works during the same year—a provision inconsistent with the idea that it was understood that the company was to be liable to pay the rent in any event, whether any profits were made or not. And if this provision was not enough to preclude the idea of any implied covenant to pay the rent at all events, and to prevent the possibility of any such implication, from abundant caution, the draughtsman added to this pledge of the net earnings, the following language: “It being, however, further understood that the said party of the second part enters into no other, or different, covenant, or agreement respecting such rents.” After this provision, we do not see how there can be left a shadow of doubt, that the lessee did not
The plaintiff claims that the defendant is liable to the payment of the rent sued for, upon the ground that the net earnings of the current year were sufficient to pay the same. No such issue was presented by the pleadings, for the plaintiff in his complaint ignored the provision as to the net earnings, and sued upon an allegation of an unqualified agreement, on the part of the salt company, to pay the rent. The answer was a mere general denial. Nevertheless, evidence was given on the subject of the net earnings, and the court found, as a matter of fact, there were none, applicable to the payment of the rent sued for.
The lease commenced to run March 1, 1870. The rent was ten per cent of the value of the property, to be ascertained by appraisal. The appraisal was had, and the value found to be $7,220. The rent was therefore $722, and it was payable in four installments, on the first days of September, November, January and March. The rent sued for is that which accrued on the first day of March, 1872, all previously accruing rent having been paid. Contemporaneously with the taking of the lease in question, the salt company took some ° three hundred other leases of salt blocks, containing, substantially, the same provisions as the one executed by the plaintiff. It will be observed that the pledge of the net earnings is to the plaintiff, in common with all the other lessors. It appears that in the year 1871, the business of the company had been conducted at a loss, so that the capital of the company had become seriously impaired, and in February, 1872, in order to induce the salt company to continue its business, ah the lessors of the three hundred salt blocks, except the plaintiff and thirteen others, entered into an agreement with the salt
The actual net earnings of the company for the year in question, as we understand the facts, amounted, for the year 1872, to somewhat less than four per cent on the aggregate amount of the rents for which they were pledged. The plaintiff has received three quarters of his rent for that year, making in all seven and a half per cent on the valuation of his salt block, or more than three per cent above his proportion of the common fund to which, by the terms of the lease, he was strictly entitled. We therefore think the judgment for the defendant was correct.
Judgment affirmed.