Hammond v. Winchester , 82 Ala. 470 ( 1886 )

STONE, C. J.

— It may be stated as fact, that, during the whole of the time Hammond was working the mines which are the subject of this suit, and for some years before, Winchester was the sole owner of the minerals in his individual right. All the testimony bearing on this question, aud every attendant circumstance, tend to prove this, while there is not a semblance of testimony which points in the opposite direction. Even Hammond himself is forced to acknowledge this fact, for all the right of possession he claims, he derived from Line, charged by him to have been the agent of Winchester, strengthened by the acquiescence and laches he imputes to the latter. The real contention in this case requires us to determine, if we 'can, the true relation between Winchester and Hammond, and precisely what was done, which the appellant relies on as clothing him with the rights of a lessee. We will first consider the question last named.

Winchester was father-in-law to Line. He, Winchester, resided in Chattanooga, Tennessee, and Line in Gadsden, Alabama. They were each stockholders in- a corporation engaged in the manufacture of lumber at the latter place, Winchester being the president, and Line the resident managing agent. In a former lumber enterprise in which ■they had been engaged as partners,' doing business at Attalla, five miles distant from Gadsden, they, Winchester & Line, had mined some iron ore, and had dealt somewhat in iron ore. There was no. proof of such dealing by the corporation at Gadsden, nor was there proof that any of Winchester’s mineral lands had ever been let to others,-to be worked on -the royalty principle? or in any other way. Some time between August and November, 1884, Line and Hammond had a negotiation, looking to the taking of a lease by the latter from Winchester; ^on certain unoccupied or unseated mineral lands belonging to the latter, Hammond to pay a royalty of fifteen cents per ton .on all the ore he should mine. The proposed lease was to commence November 1, 1884, and was to continue two years. Line had the writing drawn up, and submitted it to Hammond, who made some pencil notes on it, suggesting alterations, and returned it to Line.

The testimony most favorable to complainant, and the writing drawn up proves it to be true, shows that neither party thought the contract of letting was then complete. It shows more. Neither party acted on the theory, or postulate, that Line was the agent of Winchester, authorized to give a lease. The writing was not drawn in form to be executed through or by Line as agent. It contemplated execution by Winchester himself, and all the proof, both positive and circumstantial, goes far to show — in fact does prove — that the contract was not to considered made and executed, until it should be signed by Winchester. Hence the wish and expectation, indulged by Hammond, as shown by his pencil memoranda, that Winchester would insert other stipulations, which, it seems, Line had been unwilling to insert. Why desire Winchester’s signature, if Line was the agent, authorized to grant the lease ? And why expect additional stipulations, if the contract of letting had been made and concluded?

We hold that no contract of letting was entered into, for the following reasons : First, the lease, when made, was to be for two years. To be binding, such contract must be in writing, subscribed by the party sought to be charged, or by some other person thereunto lawfully authorized in writing. — Code of 1876, § 2121; 3 Brick. Dig. 510, 512. In this case, there was no writing signed by anybody. Second, all the testimony, including the writing itself, proves that none of the parties considered that the contract was fully made and executed; nor would be, until certain alterations of the writing, suggested by Hammond, were considered by Winchester, and the writing signed by him.

It follows necessarily from these indisputable premises, that Hammond did not enter by virtue of any lease that was valid in law. And this would be the inevitable result, even if we were to hold that Line was the agent of Winchester, authorized to give a lease of the premises. What he did was, neither in law nor in fact, the granting of a lease. It was, at most, an oral assurance by Line that he could and would obtain, or endeavor to obtain from Winchester, a lease, such as the writing expressed ; and having confidence that he would be able to do so, he instructed Hammond to take possession of the premises. If we concede that Line had authority to grant the lease, or even that Winchester himself had had the writing drawn, and then refused to sign it, what was done could not rise bo a higher dignity than the granting of a parol license to enter and mine ore, with all the incidents and infirmities attending that relation. — Riddle v. Brown, 20 Ala. 412.

There is another fact which may be considered in determining whether a contract was treated or acted on as made. The unsigned writing, insisted on as the contract, is not a lease in the ordinary form, reserving rent. It contemplates a letting of the possession and use of the premises to Hammond, not that he might mine ore,and sell it on the market, paying so much royalty per ton for the privilege. Its provisions are, that he, Hammond, will dig the ore, and load it on cars for Winchester, at one and 43-100 dollars per ton, payable monthly, with a rebate of fifteen cents per ton royalty, for the unmined'ore. The ore, when mined and loaded, was to be Winchester’s, while. Hammond would be entitled to wages at one and 28-100 dollars net per ton, to be paid monthly. The labor done by Hammond under the contract, in no sense agrees with the' writing. It is not pretended that Hammond received, or demanded from Winchester, payment for mining the ore, or that he considered the mined ore as belonging to Winchester. On the contrary, he claimed and disposed of it as his own, with no right or interest reserved in Winchester, save the stipulated royalty of fifteen cents per ton. ' There is nothing in the continued occupation and working of the mine by-Hammond, even if known and acquiesced in by Winchester, which tends to show that the latter ratified the unsigned written lease. As w’e have said, this could amount to nothing more than a parol license.

It is urged that Hammond did not enter as a trespasser, but under color of title. An unsigned, incomplete writing can not be color of title, when the law requires written contract executed, to make it good. — 3 Brick. Dig 355, § 345.

It is further urged before us, that Winchester, by his tardiness, non-interference, and Inches misled Hammond, and authorized him to continue his .occupation and mining operations, believing he had authority therefor. We have scrirtinized the testimony bearing on this question, and it fails to convince us that Winchester was guilty of any laches, or of any tardiness in repudiating the proposed contract, as evidenced by the waiting. On the contrary, he promptly refused to execute the lease, and took several steps to notify Hammond of his refusal. The very fact that the contract was not signed, was itself a warning to Hammond that he was working another’s land, without any lawful authority therefor. The record fails to show any authority for imputing laches or negligence to Winchester. On the other hand, it is shown that Hammond peremptorily refused to quit, or surrender the possession, when notified to do so.

It is contended that equity has no jurisdiction in this case. We can not agree to this. The pleadings and proof alike show a clear case for injunction. Winchester owned only the minerals, and their loss to him would be in its nature irreparable. — Story Eq. Jur. §§ 928-9; 1 High. Inj. §§ 328, 667, 730; 2 Dan. Ch. Pr. 1631-2; Boulo v. N. O., M. & Tex. R. R. Co., 55 Ala. 480; Chambers v. Ala. Iron Co., 67 Ala. 353.

While Hammond exhibited undue persistence, after he should have known he was working under no valid lease, still this case presents some features of hardship. Both Line and Hammond appear to have had confidence that Winchester would execute the lease, the terms of which they had in a measure agreed on. Having such confidence, Hammond commenced working the property with the knowledge and approbation of Line. Line’s relationship tó Winchester, doubtless, strengthened that confidence. There is, however, a failure of convincing proof that Line was the agent of Winchester, authorized to make the lease of his property ; and action taken upon misplaced confidence can not supply the missing element in the defense attempted to be made.

The decree of the chancellor must be affirmed.