62 W. Va. 489 | W. Va. | 1907
The writ of error herein is prosecuted to the action of the circuit court of Harrison county in setting aside a verdict rendered in favor of the defendant below, and granting to the plaintiffs there a new trial.
Camisee D. Robinson and others instituted their action against Flavius J. Kistler, in amrmpdt, at March Rules, 1904, for the recovery of royalties alleged to be due and unpaid upon a certain lease for coal mining purposes, executed by the plaintiffs to the defendant on the 11th day of January, 1901. The general issue was joined, and upon trial had the jury found a verdict in favor of the defendant. Thereupon, the plaintiffs moved to set aside the verdict of the jury, and the motion being considered by the court, the verdict was set aside and a new trial awarded, and the defendant excepted.
The lease declared upon, and under the terms of which payment for royalty was demanded in said action, contained the following clause:
*491 “ The said party of the second part agrees to pay to the said parties of the first part at least $900.00 for the first year, $1,500.00 for the second year and $2,100.00 for each year thereafter until the said coal is all mined; that is the minimum royalty to be 15,000 tons for the first year, 25,-000 tons for the second year, and 35,000 tons for each subsequent year until the coal is mined. The first year under this clause is to commence when the Short Line Railroad Company is ready to receive coal at this point, not to be later than January 1st, 1902; but it is understood that in case of strikes, accidents or any cause of stoppage of transportation over which the second party has no control and he is disabled or prohibited thereby from mining or shipping coal from the said mine then the minimum royalty as above specified is to be suspended for the period of such disability.”
There is no conflict of testimony on any material point, and the record shows that defendant began shipments of coal under the lease on May 8,1902; that for all the coal actually mined and shipped during the period covered by the declaration, the defendant made payment to the plaintiffs; that the defendant was never, after he began shipments of coal, furnished, by the only railroad company or public carrier by which transportation could be had from the mine, with sufficient railroad cars to mine and transport the minimum amount of coal stipulated in the lease; that the defendant was urgent and insistent in his efforts to secure such supply of railroad cars; that such lack of supply of cars was beyond his personal control; and that by reason of the failure to receive a sufficient supply of railroad cars he was disabled and prohibited from mining and shipping the minimum amount agreed. The mining lease in question was introduced upon behalf of plaintiffs, and is the basis of their action.
The case coming here upon error assigned to the action of the court below in setting aside the verdict in favor of defendant and awarding plaintiffs, a new trial, we are therefore called upon to inquire from the record what errors, if any, the trial court had committed to the prejudice- of the plaintiffs, and that justified a disturbance of the verdict, or whether or not said verdict was contrary to law and the evidence.
It appears that at the close of defendant’s testimony the plaintiff s re-called a witness, who was asked if he ever applied to the coal office of the mine for permission to examine the books and see as to the shipments of coal and was refused. There was objection by defendant to the question, which objection was sustained, and the plaintiffs excepted. The only purpose of this question could have been for rebuttal of matter brought out on the cross-examination of the defendant, and which we iind to' be wholly collateral and immaterial to the real controversy, and not related to or connected' with anything that the witness had been asked or testified in chief. It was properly rejected. “When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question.” 1 Wharton on Evidence, section 559; State v. Goodwin, 32 W. Va. 177.
Are the three instructions that were given on behalf of plaintiffs at such variance with the law and facts applicable to the case as made, as to justify the court below, upon more mature consideration of them, to set aside the verdict? In view of the final conclusion we are compelled to reach in this opinion, it avails nothing to set out these instructions
The construction of this minimum royalty clause contended for by counsel for plaintiffs below, who argue that it simply defers or postpones the payment of the minimum until the happenings mentioned have passed, is untenable. The clause is definite, direct and wholly unambiguous in its stipulations. It is a most usual one in such contracts, and the provision against the penalty of the minimum royalty, or “dead rent” as it is called in England, in the event of accidents or other insuperable contingencies, wholly beyond the fault of the lessee and ■ for which in justice he should not be penalized by the payment of such dead rent, when something other than his own idleness has caused him to fail to produce the minimum, is also most ordinary and is sane-
The fourth instruction asked by the plaintiffs was refused, and properly so. It would have instructed that the defendant was required to use all reasonable effort to obtain cars to carry coal from his mine, and if the railroad company that supplied cars for said mine refused to furnish cars
The two instructions given on behalf of defendant, and without objection by the plaintiffs, are proper, and their soundness not being questioned by counsel, we may pass them without discussion.
In consideration of what we have said, it appears that the trial court had committed no errors to the prejudice of plaintiffs, and we must therefore see whether the verdict in defendant’s favor is so contrary to law and the evidence as to demand its being set aside and new trial awarded.
As has been said, there is no substantial conflict in the evidence. The parties practically stand agreed on the material facts. The lease has been introduced, and speaks for itself. It provides that the first year under the minimum royalty clause “is to commence when the Short Line Railroad Company is ready to receive coal at this point, not be later than January 1st, 1902.” It is shown clearly by the evidence, the defendant’s own testimony, that the first shipment of coal from the mine was on May 8, 1902. All the coal for which' cars could be secured was mined and shipped after that time, and payment of the royalty thereon made, but it was less than the minimum. It is shown that the railroad company, notwithstanding pleadings and insistence by the defendant almost daily, would not furnish sufficient cars to carry away the minimum, and that the same could have been easily mined if such transportation of the product could have been secured. But there is not a word in the case to excuse the defendant’s liability for the minimum royalty from January 1, 1902, the definite date when it became effective to May 8, 1902, when shipments began. He¡
The order of the circuit court in setting aside said verdict and awarding a new trial is therefore affirmed, and this case is remanded.
Affirmed. Remanded.