Opinion by
Mr. Justice McCollum,
This is an appeal from the refusal of the court below to take off a compulsory nonsuit, entered because the plaintiff did not prove that it was practicable to mine merchantable coal “ in reasonable quantity ” from the Soult seam which he leased to the assignor of the defendant company. The lease was made on the twenty-third of February, 1888, and the lessee was to commence operations under it within three months from its date, but he was not bound to mine and ship coal from the demised premises prior to July 1,1895. He agreed to advance to the lessor, “ on account of royalty,” five hundred dollars, within four months from the date of the lease, and to pay after July 1, 1890, two hundred and fifty dollars a year until July 1,1895, after which time he was to mine and ship from the premises at least three *503thousand tons of coal annually, or to “ pay for that quantity whether mined and shipped or not.” The lease was assigned to the defendant company on the fifth of May, 1888, and the first installment of rent was paid. This action was brought on the 14th of October, 1892, to recover the rent or sums then due. The plaintiff put in evidence, on the trial, the lease, the assignment of it, and the mortgage of the leasehold by the defendant company, and he testified that the rent demanded by him had not been paid. Upon this showing, unanswered, we think he was entitled to a verdict for the rent which accrued after July 1, 1890. It is obvious that the lease was obtained for the defendant company, and that it was based on the mutual understanding of the parties to it that the Soult seam contained merchantable coal in paying quantities. There is nothing in the lease to indicate that one party was better informed than the other in reference to the subject-matter of it, and there is no presumption arising from it that what appears to have been intelligent action on their part was founded upon a mutual mistake. Why then should the plaintiff be required, as a condition precedent to a recovery of the sum sued for, to show the absence of such a mistake ? If a test of the property was necessary it was the duty of the lessee to make it. This is apparent from the following clause of the lease : “ It is further agreed that should said seam of coal prove faulty in the strata or unmerchantable in its quality, so rendering it impracticable to mine or dispose of the same in reasonable quantity, the said lessee shall have the right to abandon the same, with the light to remove all the improvements by said lessee erected on or under said premises, but all advances of royalty paid for coal not mined shall be forfeited to said lessor.” It may be that a condition such as is described in this clause would constitute a defence to an action for the rent, but the burden of showing that it exists lies on the defendant company. It has the right to mine and dispose of the coal in the Soult seam. In the exercise of this light it may develop a condition which will relieve it from further liability under the lease, but the lessor having parted with his right to mine the leased coal is not in a position to acquire by his own efforts further information respecting the quality and quantity of it.
The provision in the lease in relation to the application of the *504rent sued for to the payment of certain judgments against the lessor does not prevent the latter from maintaining this action. Under it the defendant company might have paid the rent to the owner of the judgments and relied on such payment as a sufficient answer to the plaintiff’s demand. But it did not do so, and its failure to exercise its privilege in this respect furnished no warrant for turning the plaintiff out of court.
We think the cases cited by the defendant company to sustain the nonsuit are not applicable to the facts of this case.
Judgment reversed and procedendo awarded.