Pierce v. Tidwell , 81 Ala. 299 ( 1886 )

SOMERVILLE, J.

— The contract sued on imposes on the defendant a binding obligation to pay to the plaintiffs the sum of twenty dollars per month so long as “the said mine is worked, and to an advantage.” What is meant by the “said mine” as used in this written contract between the parties? The plaintiffs contend that it means the mine designated in the contract as “the Pierce Warrior Coal Mine,” which was being worked by the defendant, and in connection with which the land of the plaintiff, called the Tidwell tract, was being used, and of which it formed a part. The defendant, on the other hand, contends that it means the pit or excavation on the Tidwell tract of land, owned by the plaintiffs, in which tract the defendant had purchased the mineral right, also the right to use timber from it, and the right of way over it, for mining purposes. The latter had ceased to be worked, but the defendant still used the right of way over this tract, and preserved by grant, as we have said, the privilege of using timber from it.

The court sustained the plaintiffs’ construction of the contract, and we think correctly. There is no ambiguity in the subject-matter referred to — so far as we can see from the face of the paper or otherwise — either latent or patent. The contract sued on, and the deed from the plaintiffs to defendant, granting and conveying to him the mineral rights in the land, and timber on the place, suitable for mining, both having the same date and relating to the same subject-matter, must be construed together.

Each describes but one mine, which is said to be called and known as “the Pierce Warrior Coal Mine,” and each describes the Tidwell tract of land as forming a part of this “mine.” The “said mine” can, therefore, be referred to no other subject-matter than “the Pierce Warrior Coal Mine.” This construction is corroborated by the fact that the defendant is shown to use the right of way over the plaintiffs’ land in transporting his coal for shipment to the railroad, and has the right under the contract to use timber from it for mining purposes. The exhaustion of the supply of coal on the land is a contingency not provided for by the terms of the agreement, and is the misfortune pf the defendant, not of the plaintiffs. Under the contract, so long as he worked to advantage or profit “the Pierce Warrior Coal Mine,” the defendant was liable to the plaintiffs for the sum of twenty dollars per month, agreed by him to be paid.

2. Such being the construction of the written contract, the court properly refused to allow the defendant to introduce any parol evidence for the purpose of proving that the payment of the twenty dollars per month was to cease on a contingency or condition not named in the writing itself, or to otherwise contradict the express terms of the agreement.

Affirmed.