Johnston v. Filer , 201 Pa. 60 ( 1902 )

Opinion by

Mb. Justice Mitchell,

The contract contemplates the avoirdupois ton of 2,240 pounds. This is distinctly specified in regard to each separate subject for which royalty is to be paid, viz: iron ore, coal and limestone. Two kinds of coal are provided for, screened block and screened bituminous, and no distinction is made between them as to roj’alty or as to the size of the mesh in the screen. There is no ground to infer any intended distinction as to the ton by which the royalty is to be measured. On the contrary the kind of ton being specified at the first mention of coal, the presumption is that it was intended to apply to all kinds of coal that were mentioned.

On the other question the contract provides “ the screenings to belong to the party of the second part free of charge,” and stipulates for a maximum screen. Whatever passes through that belongs to the defendants, and whether they put it all in the culm pile, or rescreen it and sell part as nut coal is no concern of plaintiffs. Passing it a second time over a smaller mesh does not bring it under the description of “merchantable screened bituminous ” coal, for which royalty is to be paid, for that was already settled by the provision for a screen not exceeding one and a half inches. This feature distinguishes the case from Mercer Mining & Mfg. Co. v. McKee, 77 Pa. 170, and Dunham v. Haggerty, 110 Pa. 560.

Judgment affirmed.