Woodruff v. Gunton , 222 Pa. 384 ( 1909 )

Opinion by

Mr., Justice Brown,

This is an appeal by the plaintiff from the judgment from which we have just decided the defendant had no ground of appeal. It raises the single question of the right of the appellant, as a lessor, to recover from the appellee minimum royalties for years in which he did not mine the minimum quantity of coal provided for in the lease, having, however, mined and paid for in subsequent years enough coal to make up the deficiency in the royalties for the prior years. The years for which the minimum royalties are claimed are 1898 and 1899. The trial judge was of opinion, from his “construction of the whole lease,” that there could be no recovery for the minimum royalties for these years, and the jury so were instructed.

The lease is of a tract of land of 102 acres and 15 perches, for a period of ten years from March 23,1898, with the privilege at the expiration of that period of renewing for another period of ten years. The consideration inducing the lessors to “demise, lease and to mine let” their land was the following covenant: “The lessee will pay to said lessors in monthly installments for so much coal as they may mine during the year 1898 at the rates hereinafter named — $3,000.00 for the balance of 1898; $6,000.00 for the year 1899; $6,000.00 for each and every year thereafter until all the coal is exhausted, or this lease is determined in monthly installments payable on the 15th day of each month for the proportion of mine rent due for the preceding month. And in consideration of the payment of said mine rent the said lessee shall be entitled to mine and move each year from the demised premises so many tons of coal of 2,240 lbs. each as multiplied by twenty-five cents per ton will be the equivalent of mine rent for such year; and for all coal mined in any year in excess hereof the said lessee shall pay at the rate of twenty-five cents per ton of 2,240 lbs. each in monthly installments as aforesaid.” There is not another line in the lease upon the subject of how much the lessee is to pay, how or when he is to pay, how much coal he is to mine or when he is to mine it, and no other clause is, therefore, to be read in determining whether he must pay the minimum royalty provided for in the lease for 1898 and 1899, without regard to what he may have paid for excess coal mined in subsequent years. In construing the lease as to this we are confined to the portion above quoted. Though the court below spoke of its construction of the whole lease, there is nothing to be found in the remainder of it relating to the question before us.

The lessee agreed unconditionally to pay in monthly installments, on the 15th of each month, $3,000 for the remaining portion of the year 1898, $6,000 for- 1899 and the same sum for each succeeding year. This is an agreement to pay a fixed sum at a fixed time during a fixed period for a certain privilege. That privilege is to occupy the land of the lessors and mine and remove therefrom during each year of the fixed period a certain amount of coal — 12,000 tons of 2,240 lbs. during the remaining portion of the year 1898 and 24,000 tons during each of the remaining years of the lease. For all coal mined in 1898 in excess of 12,000 tons, and for all mined in any subsequent year in excess of 24,000 tons, the lessee is to pay twenty-five cents per ton. Whether the privilege to mine a certain amount of coal, in consideration of the payment of an annual royalty or rent, is exercised or not, the covenant of the lessee is to pay a fixed sum for the privilege. If the amount of coal which the lessee is permitted to mine in each year is not mined, there is no stipulation for a proportionate abatement of the annual royalty, nor is a privilege given to him to recoup himself after having paid such royalty by mining the deficiency in a subsequent year without paying therefor. Such was the privilege in the leases under consideration in Lehigh and Wilkes-Barre Coal Company v. Wright, 177 Pa. 387; Lehigh Valley Coal Company v. Everhart, 206 Pa. 118; Pennsylvania Coal and Coke Company v. Witherow, 215 Pa. 327; but the express covenant of the present lessee is that for each year and in each year he will pay a fixed sum, and in addition thereto twenty-five cents for every ton of coal mined in excess of what he is permitted to mine in consideration of the payment of the fixed sum. The payment of the royalty or rental for each year is independent of the payment in any other year, and the mining of the coal each year is independent of the mining in any other year. With the intention of the parties thus clearly expressed, it is impossible to attribute a different one to them and sustain the court below without reading into the lease a clause providing that the lessee may apply to the deficiency on the mine rent or royalty due for 1898 and 1899 the payments made in subsequent years for coal mined in excess of 24,000 tons. Counsel for appellee does not point to any clause in the lease sustaining his contention, but we are told that “ this claim of the plaintiff is unconscionable.” This is by no means to be conceded. The provision as to the payment of the annual' royalty was inserted to insure to the lessors prompt mining by the lessee and prompt payment for his occupation and use of the land. If by his delay in mining he is allowed to appropriate to the payment of the royalty for 1898 the royalties paid for excessive mining, five years thereafter, he is depriving the lessors of the use of their money for that length of time. This he may not do in the face of his express agreement to the contrary, and we may appropriately repeat what we said in Lehigh and Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387: “The owners’ enjoyment of the value of their property would largely depend on receiving that value soon; if the payments, by reason of slow mining, were stretched into the future, they would receive far less than if made within a period of two, three or even five years, and all this coal could easily be mined within that time. Both parties assumed the valué of the coal in place to be twenty-five cents per ton, and this value defendants would have proximately got if it had been mined diligently; but, if, on account of conditions of market, charges for transportation or price of labor, it paid plaintiff better to mine very slowly, defendants would not receive nearly that value. For example, take the $4,000 paid for the 16,000 tons mined the ninth year; if the 16,000 tons were worth twenty-five cents per ton at date of contract, then defendants had lost nine years’ interest, or $2,160; deducting this from the $4,000, left only $1,840, equal only to eleven and one-half cents per ton by reason of the long deferred payment. The hardship of the bargain by the happening of this very contingency the owners sought to guard against by two distinct methods of fixing the purchasing price; one, twenty-five cents per ton,-to be paid as mined; and this is all plaintiff would have paid if it had mined with diligence; but there was another method; if for any reason, it chose to retain possession, and not mine diligently, then defendants had provided for this by exacting a fixed annual income of $4,000.”

When the appellee declares the claim of the appellant to be unconscionable he forgets that it is based upon a' contract entered into by himself in terms so clear that but one meaning can be given to them, and as he intelligently contracted, he is bound. If he made what he now regards as a hard bargain, he cannot, in the absence of fraud, accident or mistake in making it, ask to be relieved from it, and if he was foolish in making it, neither the legal nor chancery side of the court will shield him from the consequences of his folly: Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118.

The first assignment of error is sustained and the judgment reversed, with a venire facias de novo.