Cantrall Co-operative Coal Co. v. Level , 139 Ill. App. 104 ( 1908 )

Mr. Justice Freeman

delivered the opinion of the court.

The contention of appellant is that the court erred in directing a verdict in favor of appellee on the ground that under the lease appellant was not obliged to pay for anything hut “pea, nut, lump and egg coal” mined by them, and that “screenings” was not included under any of these designations. There is evidence tending to show that what is called screenings is merchantable coal and was sold by appellant as it sold other coal. This is apparently not disputed. Such coal therefore comes within the description of coal “of a merchantable quality” contained in the lease. The testimony of appellant’s secretary is to the effect that “screening’s are different sizes, inch screenings and one' and one-quarter inch,” and that “coal that passes through one and one-quarter inch screens would be called screenings,” that “pea coal passes through an inch and a quarter screen,” and “is screening’s when it is mixed with other coal”; that “screenings in the trade is pea coal and slack mixed,” that “slack is the finest portion of the coal,” that “you can call it different size screening,” that “what passes through the inch screen some call slack, some call screenings.” It thus appears from evidence introduced in behalf of appellant that what is called “screenings” includes different sizes of coal, some of it one and a quarter inch coal, and some of less size, that what is called pea coal passes through an inch and a quarter screen, and is itself literally screenings, and is called by that term when mixed with other coal. All coal that is passed through screens for the purpose of separating it into different sizes is in a sense screenings in that it passes through a screen. This is true apparently of all the coal described in the lease, unless it be lump coal of the larger sizes. It is, we think, a fair conclusion from all the evidence that whatever coal of a merchantable quality is, as the lease provides, “mined” by appellant is included in the general description of pea, nut, lump and egg’ coal. The lease makes no provision for screening. That is done apparently for appellant’s convenience only.

If, however, there was any reasonable doubt of the correctness of the conclusion stated, it would be obviated in this case by the construction placed on the contract by the parties themselves. Prior to the statement submitted November 20, 1906, showing the coal mined and removed between March 1, 1905, and October 31, 1906, in which ihc distinction between other coal and what is called in tint statement “screenings” was first made, appellant had paid for all coal taken out without distinction and without suggesting any distinction as to coal screened or unscreened. “It is a familiar rule of construction that where the terms of an agreement are in any respect doubtful or uncertain and the parties to it have by their own conduct placed a construction upon it which is reasonable, such construction will be adopted by the courts in the event of litigation -concerning it.” People ex rel. v. Murphy, 119 Ill., 159-166.

It is urged in behalf of appellant that the trial court erred in sustaining objections to certain questions put to a witness in appellant’s behalf as to the reasons why in statements made previous to March, 1905, no distinction had been made as to coal mined, between so-called “screenings” and other coal, and why the distinction was made in the subsequent statement. It is claimed that the purpose was to prove by the witness that the earlier statements made no such distinction by mistake. The testimony was correctly excluded. It may be the circumstances under which the statements in question were made might properly have been testified to as matters of fact, but appellant had no right to introduce testimony for the purpose of “proving a secret and unexpressed intention” or unexpressed purpose other than as indicated by the writings themselves. Brand v. Gallup, 111 Ill., 487—492. It is, we think, clear that appellant made these statements for some years and paid royalties on their showing in pursuance of its understanding and construction of the force and effect of the lease.

Finding no error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.