64 So. 617 | Ala. | 1914
Action by appellee against appellant, for damages for the breach of a contract, as averred in amended counts 6 and 7, to extract ore from the
The contract alleged in amended count 6 is this: “* * * That the plaintiff should go upon the land of the defendant and open what is commonly known as the Ida ore and Big Seam ore, and quarry therefrom and furnish to defendant all the outcrop of said Ida ore and six feet of the Big Seam ore thereof, at a rate of from one to ten cars a day, and for which defendant agreed to pay plaintiff 60 cents a ton, for said ore.”
The contract alleged in amended count 7 is this: “* * * Defendant employed plaintiff to get out for and furnish to defendant all the outcrop ore contained in what is known as the Ida ore and six feet of the outcrop of the Big Seam ore, in the property of the defendant, at the price of 60 cents a ton.” The breach charged is alleged to have been expressed in the affirmative direction, of the defendant, to the plaintiff, to cease operations, under the contract averred, which when ordered stopped, had continued for approximately four months.
Consistent with appropriate grounds of demurrer, it is urged against these counts that the contracts therein averred are too indefinite and uncertain to afford the bases for an actionable breach thereof. This criticism is visited upon the contracts averred because of the asserted vital uncertainty in respect to the term “outcrop,” and, also, in respect of the related reference to “six feet of the Big Seam ore.” We do not understand that it is obligatory on a pleader, who- would state a cause of action in which there is a factor susceptible of identification by the employment of a term having a significance peculiar to the parlance of a particular business, service, or relation, to explain or define in his pleading the meaning or effect of the term so used. And, further, we do not understand that parties contracting in terms
“Outcrop” is a term within the common parlance of mineral operations in this state. Abstractly considered, these explanations of the term have been accepted elsewhere: “The definition of the word ‘outcrop’ as used in mining law is ‘given by one learned author (Geike) as the edges of strata which appear at the surface of the ground, and by another (Van Cotta) as that portion of a vein appearing at the surface.’ It is defined by Dr. Raymond in his Glossary as the portion of a vein or strata emerging at the surface or appearing immediately under the soil and surface debris.”—Duggan v. Davey, 4 Dak. 110, 26 N. W. 887, 896. See, also, Stevens v. Williams, 23 Fed. Cas. 43; Standard Dictionary. In Stevens v. Williams, supra, it is said: “The word ‘outcrop’ has been used in connection with it, and in the true definition of the word ‘outcrop,’ as it concerns a vein, is probably an essential part of the definition of its apex or top; but that does not mean the strict use of the word ‘outcrop.’ That would not, perhaps, imply the presentation of the mineral to the naked eye, on the surface of the earth; but it means that it comes so near to the surface of the earth that it is found easily by dig
While, as thus appears, the term, “outcrop,” has, in general, distinct meaning in mining law — a significance that comprehends the particular place and character of manifestation of mineral strata or vein — there is in the term itself, no quality definitive of quantity or area in respect of the mineral. As a noun, and so we have its use here, it describes that part of a mineral strata that lies at or near the surface of the earth. At what point, at what line — from the outer edge of the strata, which necessarily retreats, in progression, beneath the earth’s surface — the term “outcrop” alone does not define or describe. While its general meaning is well understood, its service to define contractual rights and obligations is, alone, negligible. It is too indefinite.
The subject-matter of a contract is, of course, an essential element thereof. A valid contract must describe the subject-matter thereof with definiteness and certainty. It cannot leave the designation of the subject-matter at large, and yet bind the parties. The application of the contract’s description of the subject-matter may be aided aliunde, but the contract’s description of the subject-matter must designate, must define. The obligations assumed by parties attempting to contract depends upon the duty each undertakes with reference to the subject-matter thereof; and, if, in undertaking to engage, the matter with reference to which the duty is to be performed is left uncertain, indefinite, there is the absence of an indispensable element to effectually bind the parties. Outcrop of ore, on defendant’s property, in the Ida and Big Seams, was the object of the intent
The word “all,” employed in the counts in stating the contract, has no force to render more certain, as to quantity, the amount of ore stipulated for extraction and delivery. All outcrop only comprehends the entire outcrop; but how far into or under the soil or debris the outcrop would extend before it ceased to be outcrop is unspecified. And the phrase “six feet of the Big Seam ore,” in the sixth count, and the phrase “six feet of the
Our conclusion is that the court erred in overruling the demurrer to amended counts 6 and 7.
Another general proposition pressed for appellant is that touching the sufficiency of the evidence to justify a recovery of profits that are claimed to have been lost to plaintiff in consequence of the breach of the contract.
The following authorities lay down the rules for the admeasurement of damages applicable to this case: Tenn. R. Co. v. Danforth, 112 Ala. 82, 20 South. 502; Worthington v. Gwin, 119 Ala. 44, 24 South. 739, 43 L. R. A. 382; Hardaway-Wright Co. v. Bradley Bros., 163 Ala. 496, 51 South. 21.
There was evidence which, if credited, afforded sufficient data to enable the jury to ascertain with reasonable certainty the amount of ore in the territory surveyed by Mr. Lea; the cost, per ton, of extracting and haul
Likewise, there was no error in submitting this issue of fact to the jury: Whether the contract in question was made by a representative of the defendant who was authorized — as the law treats authorization to that end when the rights of third parties are involved — to bind the defendant in the premises. The principles announced in the following authorities vindicate the court’s action on this aspect of the case.—Syndicate v. Catchings, 104 Ala. 187, 16 South. 46; Patterson v. Neal, 135 Ala. 482, 33 South. 39; United States Ins. Co. v. Lesser, 126 Ala. 568, 28 South. 646; British, etc., Co. v. Cody, 135 Ala. 622, 33 South. 832; Bibb v. Hall, 101 Ala. 79, 14 South. 98.
For the error in overruling the demurrer to amended counts 6 and 7, the judgment is reversed, and the cause is remanded.
Reversed and remanded.