138 Ga. 289 | Ga. | 1912
Lead Opinion
(After stating the foregoing facts.)
Judgment affirmed. Gross-bill of exceptions dismissed.
Dissenting Opinion
dissenting. It will be noted, from the terms of the contract, that the brick company did not lease the land for all purposes, as the owner reserved the right to the use of the farming lands, provided such use should not interfere with the brick company’s right of ingress and egress. The brick company, under the contract, procured the exclusive right to take from the land “such amount of dirt and clay as they may see ■proper,” for a given time, to be used in the manufacture of brick, as well as the right to use such parts of the land as might be necessary for establishing a brick-yard thereon and building such houses, etc., as might be necessary for the carrying on of the business of making brick “in such quantities as to them may seem proper,” the company agreeing to pay a given price per thousand “for all merchantable brick manufactured out of the clay taken from said land.” The company was to pay down a given amount in cash and $100 on the first day of each month for a specified time, but, on the first day of January in each year thereafter, an accounting should be had between the parties, when the owner of the land should account for any overpayments made, and the brick company should account for any deficit, on the basis of the price stipulated as royalty. In view of these express stipulations in the contract, there was no implied obligation on the part of the brick company to use reasonable diligence in operating the clay mine and brick plant under ordinary conditions. The cardinal rule of construction of contracts is to ascertain the intention of the parties. If that intention be clear and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Civil Code, § 4266. Of course, the whole contract should be considered in arriving at the intention of the parties, and all parts of
If, however, the majority of the court are right in deciding that, under the terms of the contract, the brick company was under an implied obligation to use reasonable diligence in operating the clay mine and brick plant under ordinary conditions during the entire lease, then we are of opinion that the measure of damages which the owner of the land would be entitled to recover of the brick company for failure to mine the clay and operate its brick plant would not be $100 per month with interest thereon. The exclusive right given to the brick company under the contract in this case to taire clay from the land for the purpose of making brick does not stand upon the same footing as, say, a lease by the owner of his grist-mill to another for a- given term, the rental to be paid being a given proportion of the tolls. In such a case, if the lessee should immediately shut down the mill and refuse to operate it at all during the term, the lessor at the end of the lease would merely get back his mill without receiving any rental, and would therefore have a right of action for the value of the full amount of what would have been his proportion of the tolls had the mill been operated as the parties contemplated. Where, however, a right to mine minerals is granted in consideration of the reservation of a certain portion of the product for the lessor, and the lessee wholly fails to operate the mine, the lessor, at the end of the term, would still have the minerals which the lessee had failed to mine, and therefore the lessor would not be entitled to get back all of his ore and also recover from the lessee for the portion of it which he would have received had the lessee mined it all.' In such a case, as to the proportion of the mineral which the lessor would have received had it been mined as contemplated, the damages which he would be entitled to recover would be the difference between the stipulated price-and its value in the mine. Lyon v. Miller, 24 Pa. St. 392.