2 Md. 326 | Md. | 1852
delivered the opinion of the court.
The present appeal will be settled by the construction which we place upon the covenant which constitutes the basis of this action. It is in these words, viz:
■“Memorandum of agreement between Col. Lyde Griffith and Washington Waters, witnesseth: That the said Griffith agrees and obliges himself to let Washington Waters have the privilege to dig for, get and remove chrome ore or mineral from his land, formerly occupied by Benjamin King, it being understood by the parties, that the said Griffith shall not stop the said Waters from mining, or in any way interfere with his operations, so long as he may continue to follow the vein of chrome he may commence with, or continue to dig in the part of land marked out for him. Also, that the said Waters shall pay unto the said Griffith the sum of five dollars for each and every ton of ore he may obtain and remove from said land. In witness whereof we have hereunto set our
Lyde Griffith, (Seal.)
Washington Waters, (Seal.)
Witness:—Walter Griffith.”
We gather from the terms of this agreement the intention •of the parties to be, that before the defendant could be charged for the chrome ore, which he designed to purchase, it must not only be excavated fiom the earth, but actually removed from the premises of the plaintiff. Whatever ambiguity may be supposed to exist as to the terms first employed, namely: “dig for, get and remove chrome ore,” &c., that ambiguity is destroyed by the subsequent language in the agreement, •which provides, that the defendant shall pay five dollars for each and every ton of ore “he may obtain and remove from said land.” We must give, if we can, some distinct meaning to every word employed in the contract, and believing that the word “o&iam” is broad enough to embrace all the ore that may have been excavated and thrown out upon the surface, without the aid of the words “removed from said landf we must therefore assign to the latter terms some other office or meaning. This we have no difficulty in doing, and do declare, that the plain import of the language is, that the ore should be actually removed from the premises of the plaintiff, before the defendant can be charged with it.
This construction appears too, to be in perfect harmony with reason and good sense. The defendant, when he entered into the contract, must have looked to the purchase of such ore as would be of use to him in his future operations, and if the ore which was left upon the ground, and for which the present suit seeks to make him answerable, was of such a character, what possible motive could he have had in not appropriating it to his own use?
Again, unless we are to assume that the value of the ore was diminished by exposure to the action of the atmosphere, or by some other agent, which is not at all probable, there is no room for the plaintiff to complain, for if it was worth five
The appellee’s argument, that in the event of the price of the article falling in the market, the appellant might, under the view we have taken of the contract, shelter himself from responsibility, by refusing to carry away the ore, would apply with equal force to the contract as construed by himself. As he regards it, the defendant would only have to cease digging to relieve himself from further liability, for it is not pretended that all the ore in the land of the appellee, or any specific portion of it, was sold, but only so much as was excavated.
We consider, therefore, as before stated, that the defend- ■ ant was only chargeable for so much of the ore as he had removed from the appellee’s land, and accordingly we reverse the court below upon the second exception. The disposal of the point directly presented by this exception, renders any notice unnecessary of the other questions presented by the record or in argument, as in our opinion the case is concluded by what we have already said.
Judgment reversed and procedendo awarded.
Tuck, J., dissented.
