Garman v. Potts

Opinion,

Me. Chief Justice Paxson :

The clause in the lease which gives rise to the present contention is as follows: “ The parties of the second part agree to mine the iron ore at the rate of fifteen hundred tons per annum, on an average, provided the iron ore can be advantageously mined, and as much more as they see fit to mine.”

As the lease was in writing, its proper construction was for the court. The contention arises upon the words “ advantageously mined.” This language is peculiar, and was evidently intended for the benefit of the lessees. The plaintiff contends that its only effect is to relieve the lessees from hidden defects in the mine, such as a fault, or some physical difficulty in getting out the ore, not contemplated by the parties, but which is liable to exist in any mine. The court below gave the language in question a broader construction, and held that it meant that the defendant was not liable under the lease unless the ore could be “ advantageously, that is, beneficially, conveniently, profitably, and gainfully mined,” (see fifth assignment ;) and further instructed the jury that, “ under the terms of the lease given in evidence, the defendant was not liable for any rent or royalty, unless the ore would have been worth when mined as much as it cost to mine it,” (see eighth assignment.)

We are unable to see any error in this instruction. The court below gave to the word “ advantageously ” its common and popular meaning. It is not a technical word or term of art, and the parties must be presumed to have used it in its known sense. As before observed, it was for the relief of the lessees; hence, if the mining was no longer advantageous to them, they had a right to cease their operations. After defining, as we think properly, the meaning of the word, the court submitted to the jury the question whether the defendant could further work the mine to advantage, and they found specially that he could not. This settles the question of fact adversely to the plaintiff. It is to be observed that the cost of getting the ore to the market was not allowed to enter info the case. It was only the cost of the ore at the mouth of the mine that went to the jury. Surely, if it was not worth as much there as it cost to mine it, the defendant could not mine it advantageously to himself, however beneficial it might be to the plaintiff. We must take this contract as the parties have made it: they might have stipulated for a different rule ; it is our duty to construe the lease according to its plain meaning.

There are several other assignments, but the two referred to raise the pivotal question in the case. We find no error in the admission of the testimony referred to in the first four assignments. Under the construction we have placed upon the lease, it was not error to allow the defendant to prove that the ore could not be mined advantageously, why it could not be done, the cost of mining and putting the ore on the bank, and that, when it was so placed, it was not merchantable. Nor was it error to admit in evidence the papers referred to in the tenth assignment. The object was to prove that, in any view of the case, there was no royalty due under the lease. Upon this ground alone the defendant was entitled to a verdict. The remaining assignments do not require discussion. A careful examination of them discloses no error.

Judgment affirmed.