66 Fla. 106 | Fla. | 1913
This case comes here for the second time. For the opinion upon the former writ of error see Savage v. Ross, 59 Fla. 407, 52 South. Rep. 16, wherein we reversed the judgment for the reasons stated. Upon the going down of the mandate, divers and sundry proceedings were had, to which it is unnecessary to refer. What is termed the “amended third count to the amended declaration” is as follows:
“3. And the plaintiffs further sue the defendant for that heretofore, to-wit, on the 11th day of June, A. D. 1907, in the County and State aforesaid, the plaintiffs and the defendant made and entered into a contract in writing under seal in the words and figures, following to-wit:
‘This Lease made this eleventh day of June, A. D. 1907, between Herbert W. Savage, of the County of Hamilton and State of Ohio, and Thomas P. Denham, of the County of Duval and State of. Florida, hereinafter called the lessors, wherein Edith E. Savage, wife of Herbert W. Savage, and Mary S. Denham, wife of Thomas P. Denham, join parties of the first part, and R. G. Ross, of the County of Duval and State of Florida, hereinafter called the lessee, party of the second part.
WITNESSETH, That the lessors in consideration of the sum of One Dollar ($1.00) to them in hand paid by the lessee, the receipt whereof is hereby acknowledged and in further consideration of the covenants, conditions and provisions of this lease to be kept and performed by the lessee do hereby let, remise and release unto the lessee, for a term of ten years from and after the first day of July, A. D. 1907, the right to dig, mine, handle and remove
Then follows a lengthy description of the land, which we omit.
“Together with the right of ingress and egress on, over and upon Said hereinabove described premises, and to do all such other and further things on and upon the said lands as the lessors have the privilege and right to do and perform under and by virtue of the rights and interests and privileges reserved to the lessor Herbert W. Savage, in and by that certain deed of conveyance to Long & Buddington dated the 7th day of September, 1905, recorded in Deed Book ‘P. IV page 461 of the Public Records of Clay County, Florida ;and any and all subsequent deed or deeds of conveyance to said Long & Buddington of lands conveyed by the National Bank of the State of Florida to the lessor Herbert W. Savage; and subject nevertheless, to any and all rights of way evidenced by instruments now of record through, over or across any part of said described premises or that may be hereafter granted upon said described lands, it being expressly understood between the parties hereto that this lease is made for the sole purpose of granting to the lessee the rights and privileges of exploring for mining, taking out and shipping therefrom the merchantable phosphate rock, as well as all other minerals of whatsoever kind or nature as hereinafter provided for, which is or may hereafter be found on, in or under the said land, with the right in the lessee to construct all buildings, and to make all excavations, openings, ditches and drains and construct all railroads, wagon-roads and all other improvements which are or may become necessary or suitable for the purpose
2. The lessee hereby covenants and agrees to pay to the lessors a royalty on all phosphate rock mined and shipped from said lands under this lease, while the same shall remain in force at the rate of fifty (50c) for each gross ton. The royalty shall be due and payable on the 10th days of October, January, April and July in each and every calendar year (which days are hereinafter called ‘quarter days’). The payment on each quarter day shall be for the full amount of phosphate rock mined and shipped from said lands during the three months immediately preceding the first day of the month in which the payment shall become due as aforesaid.
The lessee further covenants that during the existence of this lease it will mine and ship, as the agreed minimum output of phosphate rock as follows: From the first day of July, 1907, to the first day of October, 1907, two hundred (200) gross tons, from the first day of October,- 1907, to the first day of January, 1908, eighteen hundred (1800) gross tons, from and after the first day of January, 1908, and during the remaniing existence of this lease, a minimum output at the rate of twelve thousand (12,000) gross tons each and every year, or in case in any one or more years the -lessee shall not actually ship from said premises the full quantity of said minimum output the lessee will nevertheless pay to the lessors advance royalties to be treated and considered as ground rent, in addition to the royalty paid for the phosphate rock actually shipped during that year, such sum as shall together with the amounts paid as royalties for phosphate rock shipped during said year, amount to Six Thousand Dollars ($6,000.00). It being expressly understood that said ad
3. The phosphate rock shipped from said lands shall be weighed or scaled by the lessee before shipment, and the weights so ascertained by the lessee, shall be taken as the true weights determining the quantity thereof as between the parties hereto, in the absence of any inspector on the part of the lessee, provided, however, that the lessor shall have the privilege of appointing and keeping at their own expense, at the works br mines so operated by lessors,
4. The lessee covenants to conduct all its mining-operations on the said lands in a good workmanlike manner and in accordance with the requirements of good engineering, and so as not to do or cause or permit any unnecessary or unusual permanent waste or injury to the said premises, or inconvenience or hindrance in the subsequent operations of the mines thereon.
5. The lessee further covenants to pay all further taxes and assessments, ordinary or extraordinary, general and specific which may be levied or assessed upon mining rights in the lands hereby leased, and on the phosphate rock mined thereon and on all improvements and per
The lessee covenants that while this lease shall remain in force and until it is surrendered, or assigned in manner herein provided, he will protect the said lands and the improvements and phosphate rock in stock pile thereon from all mechanics’ or laborers’ liens or other liens, and keep the title to the same free and clear from all clouds and encumbrances arising from such liens in any way because of its mining operations thereon, or the use and occupation thereof, by the lessee, his agents, servants, employees or contractors.
<5. The several payments required to be made hereunder shall be made to the Atlantic National Bank of Jacksonville, a banking corporation doing business in said Jacksonville, Florida, or such other bank as the lessors,, their executors, administrators or assigns may,
The payments by this lease required to be made' by the lessees shall be made in gold coin of the United States of America of the present standard of weight and fineness.
7. It is mutually covenanted between the parties, and this lease is granted and accepted upon condition that the lessee shall have the right at any time, upon ninety days’ notice, to terminate this agreement and lease by giving written notice in the manner hereinafter provided to the lessors, their heirs, executors, administrators or assigns, who will in such case, acknowledge in writing the receipt of such notice, and this lease shall terminate ninety days after the giving of such notice, whether the same shall be so acknowledged or not.
All arrearages and sums, including taxes that shall be due and payable under this lease, up to the time of this termination, as set forth in said notice, must and will be paid by the lessee within thirty days from such termination and the lessee upon such termination, must and will forthwith execute and record in the office of the Clerk of the Circuit Court in and for Clay County, Florida, a formal relinquishment of such lease.
Said notice of termination of this lease may be given by regisfered letter, mailed from any postoffice in the United States, postage prepaid and addressed to lessors or their heirs, executors, administrators or assigns, at their respective last known places of residence.
And it is further agreed that the lessee shall have the right to assign this lease or to contract with others to work any mine or mines which are now, or hereafter may
8. This lease is granted and accepted upon condition that if the royalty hereby reserved or the advance royalty of ground rent hereby provided for and agreed to, be paid, or any part thereof, be and remain unpaid, after the days and times above specified, and if the same shall remain in default for a period of sixty days, or in case the lessee shall fail to keep any of the covenants or conditions herein expressed, to be kept and performed by him, and such failure shall continue for sixty days, after the receipt by him of written notice, from the lessors specifying the default, neglect and failure complained of, then and from henceforth, and in either of the said events, but not otherwise, it shall be lawful for the lessors, at their option, to terminate this lease, and to take possession of the said leased premises, which are without any previous process whatever, to re-enter and have and possess the ■ same as fully as if no lease had been given to the lessee and the said lessee and all parties claiming under him shall be wholly excluded therefrom, and this lease shall become and be wholly void, and at an end, subject to the provisions of Article Nine hereof; and the lessors reserve and at all times shall have possession and hold a lien for all unpaid balances due hereunder, and all rock mined upon said premises, and upon all improvements made upon said premises by the lessee.
9. It is mutually covenanted that upon the termina
10. All covenants, conditions and provisions of this lease shall run with the land and shall inure to the benefit of, and be binding upon the heirs, executors, administrators, successors and assigns of the lessors and lessees respectively.
IN WITNESS WHEREOF the parties hereunto set their respective hands and seals in triplicate, the day and year first above written.”
We omit the execution and acknowledgments by the parties.
The declaration then proceeds as follows:
“And that under the terms of the said contract, or lease, by the election of the defendant, the same was terminated on, to-wit, the 6th day of February, A. I). 1908, by the
And the plaintiffs allege that under and in pursuance of the said contract and lease the defendant immediately entered upon the premises described in the said instrument and forthwith began to dig, mine, handle and remove phosphate rock and other minerals from the said lands; and did up to the termination of the said contract as aforesaid, enjoy the uses of the said premises for the purposes aforesaid; and was at the time of such termination of said contract in the actual possession of the said premises for such purposes under the said contract; and the plaintiffs allege that although they have well and truly kept and performed each and every condition in the said contract contained, entitling them to have and to receive from- the defendant a royalty at the rate of fifty cents (50c) per gross ton on two hundred (200) gross tons from the 1st day of July, 1907, to the 1st day of October, 1907, and on eighteen hundred (1800) gross tons from the 1st day of October, 1907, to the 1st day of January, 1908, and on twelve thousand (12,000) gross tons annually from and after the said 1st day of January, 1908, to the termination of the said contract as aforesaid, to-wit, the sum of sixten hundred dollars ($1600.00), yet the defendant has not paid to the plaintiffs the said sum of money nor any part thereof; and the plaintiffs claim three thousand five hundred dollars damages.
BAKER & BAKER,
Attorneys for Plaintiffs.
Bill of Particulars attached.
Jacksonville, Florida, February 6, 1908.
Mr. Roderick G-. Ross,
To Herbert W. Savage and Thomas P. Denham, Dr.
October 1, 1907, 200 gross tons of rock at 50c
per ton..................................$ 100.00
January 1, 1908, 1800 gross tons of rock at 50c
per ton.................................. 900.00
February 6, 1908, 1200 gross tons of rock at 50c per ton ................................... 600.00
$1,600.00”
The defendant filed certain pleas to this count, numbered from 6 to 9 inclusive, which are as follows:
“6 And for a plea to the third count of the plaintiffs’, amended declaration defendant says that there was in and upon the land mentioned in the said count no mineral for which defendant covenanted to pay fifty cents per gross ton, as in said count alleged.
7. And for a further plea to the said third count of plaintiffs’ amended declaration defendant says that there was in and upon the land mentioned in the said count no mineral for which defendant covenanted to pay fifty cents per gross ton, as in said count alleged suitable or practicable to be mined.
8. And for a further plea to the third count of said declaration, defendant says that defendant made or caused to be made due and diligent search for mineral of the character mentioned in said count, and said search failed to reveal any mineral of the character aforesaid.
9. And for a further plea to the third count of the said declaration, defendant says that defendant' made or caused to be made due and diligent search for mineral of the character mentioned in said count, and said search
The plaintiffs interposed a demurrer to these pleas, the grounds thereof addressed to the sixth and seventh pleas being as follows:
“1. That it is immaterial whether or not there was any mineral in and upon said land mentioned in contract declared in and set forth in said pleas. .
2. That there was no warranty or covenant contained in the lease sued on that there was any ‘mineral in and upon’ said land.
3. That there was no warranty or covenant contained in contract sued on that there was any ‘mineral in and upon’ said land.
4. That it is immaterial whether or not there was any ‘mineral suitable or practicable to be mined in and upon the land mentioned in plaintiffs’ declaration.’
5. That there was no warranty or covenant in lease sued on that there was ‘any mineral’ suitable and practicable to be mined in and upon land mentioned in plaintiffs’ declaration.’
6. That there was no warranty or covenant in the contract sued on that there was ‘any mineral suitable and practicable to be mined in and upon land mentioned in plaintiffs’ declaration.’
7. That the defendant in and by the contract sued on agreed to pay a specific and stipulated sum as an alternate price for use of said land to be called ‘ground rent.’ whether any phosphate or other mineral should be mined or not, reserving the privilege of terminating said contract upon expiration of ninety (90) days’ notice in writing.
8. That the defendant in and by lease sued on herein agreed to pay a specific rent for said land, whether any
The following grounds were addressed to the eighth and ninth pleas:
“1. That it is immaterial whether or not the defendant made due and reasonable effort to find rock on the land mentioned in plaintiffs’ declaration.
2. That it is immaterial whether or not the defendant failed to find rock on said land.
3. That the failure to find rock or other minerals on said land is not a matter of defense in this action.
á. ' That it is immaterial whether or not there was any ‘mineral in and upon said land mentioned in plaintiffs’ declaration.’
5. That there was no warranty or covenant contained in lease sued on that there was any ‘mineral in and upon’ said land.
6. That there was no warranty or covenant contained in contract sued on that there was any ‘mineral in and upon’ said land.
7. That it is immaterial whether or not there was any ‘mineral suitable or practicable to be mined in and upon the land mentioned in plaintiffs’ declaration.’
8. That there was no warranty or covenant in lease sued on that there was ‘any mineral suitable and practicable to be.mined in and upon land mentioned in plaintiffs’ declaration.’
9. That there was no warranty or covenant in the contract sued on that there was ‘any mineral suitable and practicable to be mined in and upon land mentioned in plaintiffs’ declaration.’
10. That the defendant in and by the contract sued on agreed to pay a specific and stipulated sum as an
11. That the defendant in and by lease sued on herein agreed to pay a specific rent for said land, whether any phosphate should be mined or not, reserving the privilege of terminating said lease upon expiration of ninety (90) days’ notice in writing.” a
The trial court sustained the demurrer to all the pleas, and, the defendant declining to plead further, the following final judgment was rendered in favor of the plaintiffs:
“And now come the plaintiffs and move the court for judgment final on the amended third count to plaintiffs’ amend'ed declaration heretofore filed herein by leave of court first had and obtained; and plaintiffs’ demurrer to defendant’s several pleas to said amended third count, having been sustained and defendant having failed and refused to plead over; and the original contract and ¡ease dated June 11th, 1907, the written instrument sued on herein, having been produced and filed in evidence before this court.
It is, therefore, considered by the court that the plaintiffs, Herbert W. Savage and Thomas P. Denham, do have and recover of and from the defndant, Roderick G. Ross, the sum of Twenty-Two Hundred and Fifty and no-100 Dollars ($2250.00) as damages, and the further sum of Three and 44-100 Dollars ($3.44) as and for their costs in this behalf expended and herein taxed at such sum.
Wherefore, let execution issue.”
This judgment the defendant has brought here for review by writ of error, assigning the following errors:
“1. The court erred in its order and judgment sus
2. The Court erred in sustaining the plaintiffs’ demurrer to defendant’s plea numbered 6 because the said plea stated a good defense.
3. The Court erred in sustaining the plaintiffs’ demurrer to defendant’s plea numbered 7, because the said plea stated a good defense.
i. The Court erred in sustaining plaintiffs’ demurrer to defendant’s plea numbered 8, because the said plea stated a good defense.
5. The Court erred in sustaining plaintiffs’ demurrer to defendant’s plea numbered 9, because the said plea stated a good defense.
6. The Court erred in rendering final judgment for the plaintiffs.
Wherefore said defendant prays that the said several rulings and judgments may be reversed.”
As will be seen by reference to the opinion rendered upon the former writ of error, this “amended third count to the amended declaration,” which we have copied in full' above, is based upon the same lease or contract which was attached as an exhibit to the original declaration and by apt words made a part thereof. In the count of the declaration now before us such instrument is bodily incorporated. We see no difference, so fardas the legal effect is concerned, between bodily incorporating an instrument in. the declaration and attaching the same as an exhibit to the declaration and making it a part thereof by apt words. The original declaration contained two
It is obvious that the mutual intention of the parties executing the lease in question was to give to the lessee the mining rights set forth therein. If any doubt existed-as to what was the intention of the parties, it would be absolutely settled by the following language adopted and used by them in the lease, “it being expressly understood between the parties hereto that this lease is made for the sole purpose of granting to the lessee the rights and privileges of exploring for mining, taking out and shipping therefrom the merchantable phosphate rock, as well as all other minerals of whatsoever kind or nature as hereinafter provided for, which is or may hereafter be found on, in or under the said land, with the right in the lessee to construct all buildings, and to make all excavations, openings, ditches and drains and construct all railroads, wagon-roads and all other improvements which are or may become necessary or suitable for the purpose of mining or removing therefrom phosphate or other mineral of whatever nature or kind found thereon and of the carrying on of mining operations thereon.” This being
We think that the pleas set up a good defense to the declaration, therefore the court erred in sustaining the demurrer to the pleas.