Big Black Creek Improvement Co. v. Kemmerer

Opinion by

Mr. Justice Fell,

The plaintiff sued to recover: (1st) rent reserved by the lease of a colliery; (2nd) the price of a breaker and improvements ; (3rd) the rent of miners’ houses. The first of these claims was not allowed by the jury for the reason that they found that the defendant was prevented from mining coal by causes beyond his control, and with that claim fell the many vexed questions which it involved. As to the remaining claims, a peremptory instruction was given to find for the plaintiff, and unless there was error in this the judgment should be affirmed. As to these claims, the liability which the plaintiff sought to enforce was for the price of a breaker and improvements sold by it to its lessee, and by him transferred to the defendant when the lease was assigned, and the payment of which the defendant assumed by covenant with the plaintiff; and his liability as assignee of a lease of dwelling houses for a fixed rent expressly assumed.

All liability as to these claims was denied on the ground that the conveyance of the reversion by the plaintiff carried with it to the grantee the right to recover for the breaker and improvements, and the right also, if any existed, to the rents of the dwellings due at the time of .the conveyance, and that the occurrence which excused the defendant from his covenant to mine relieved him from his obligation to pay rent for the miners’ houses.

The conveyance of the land would not carry accrued rent or at all affect the price of buildings sold to a tenant in possession, and the obligation to pay rent rested upon agreements both expressed and implied. The exemption from liability claimed could arise only from the agreements, and we think they are open to no other construction than that given them by the learned judge before whom the case was tried. The covenants to mine and pay, rent for houses were not made dependent upon each other, and the only exemption from liability is for coal not actually mined for causes beyond the control of the lessee. The exemption being expressed as to one should not be implied as to the other, unless there is between them a clearly necessary dependence.

The claim to set off damages for the failure of the plaintiff to construct a canal to divert the water which flooded the mine was properly denied. The plaintiff owed no duty to the defendant in the matter, either under the contract or independently of it, and it assumed no obligation to him in that regard.

The case was carefully and ably tried, and we see no just cause for complaint on the part of the defendant.

The judgment is affirmed.