Dunham v. Haggerty

Mr. Justice Tuunkey

delivered the opinion of the court, October 26th, 1885.

By the deed dated October 7th, 1871, the grantors conveyed to the grantees, their heirs and assigns, all the coal and other minerals under the described land, “ with the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing said coal and other minerals, and to occupy such land as may be necessary for the same, by paying a reasonable rent therefor, as well as for the refuse of said mines.” And Sarah Haggerty, one of the grantors, had the privilege to take, without charge, as much of the mined coal or slack as necessary for the use of herself and family. The grantees covenanted “to pay twenty-five cents for eacli and every ton of 2,150 pounds screened coal so mined by them.”

It is apparent that at the time of making the bargain the parties had in view screened coal, refuse and slack, and the consideration for the grant of the coal was a certain sum for each ton of screened coal. The grantees were entitled to the whole for a price to be ascertained in the stipulated mode. They did not agree to pay for slack or refuse. The parties to this action do • not differ on one point, namely, that for every ton of coal the defendants were liable to pay for, they were bound to pay twenty-five cents. But the court ruled that the stipulated price did not apply to the entire grant, but only to lump coal; and for nut coal, or nut coal mixed with slack, sold by the defendants, they are bound to pay so much as the same was worth. No argument was made in support of that ruling, for neither party believes it was correct; and we are of opinion it was at variance with the contract. Nor does such ruling seem reconcilable with the plaintiffs’ second arid third points, which were affirmed. The instruction in those points was, that the defendants were liable for all the coal that should have been screened and was not, which was taken by them under the contract, and that the plaintiffs had a right to recover twenty-five cents for each ton of either lump or nut coal mined or removed from the land. The first, second and sixth assignments of error must be sustained.

The defendants’ second point was, “ That under the terms of the instrument in suit the defendants are required to pay for only such coal as would pass over the customary screen in general use by the operators in block coal mines in the Shenango valley coal regions, where this mine was situated, at the time said instrument was executed.” Answered thus “ This point is denied under the facts in this case.” That was error. The proposition was sound, and the facts were for the jury to determine. Testimony was adduced bjr both parties tending to show the meaning of “screened coal.” The contract embraced the whole of it, whether one or two sorts; One party contends that at the date of the contract, lump coal was the only sort produced in that valley; the other, that both lump and nut were produced and sold. They differ as to what was the usage. If only lump coal was meant, the defendants had no right to use a screen with larger spaces than was customary ; and if nut coal was also meant, they could not escape liability to pay for it by omitting the proper screen and disposing of the nut coal with the slack. The parties are presumed to have used the words “ screened coal ” in the sense in which they were commonly understood in the locality. It follows, also, that the defendants’ third point should have been affirmed.

We are not convinced that there is error in the instructions complained of in the third, tenth and eleventh assignments. The defendants mined, screened, weighed, and made statements of the weight, and, from time to time, paid for the coal and took receipts, in accord with their statements. The plaintiffs were not present when the coal was screened or weighed, and did nothing except to receive the money and execute the receipts. This is not an ordinary case of mutual settlement of accounts, but of a party making a statement of what he has done and paying accordingly. If it be shown that the statements were false, that coal ought to have been screened and weighed which was not, the burden is cast on the party who did the wrong to show that the other knew the real facts when he received the statements and gave the receipts. Unless there was an actual settlement there is no ground for application of the rule, that a settlement is conclusive unless fraud or mistake be shown by clear and satisfactory evidence. It is not presumed that the defendants are guilty of fraud; they made no mistake in stating the weight of the coal they screened, and they paid for that; but if it be true that because of their mistaken claim of right under the contract, they omitted to screen a large quantity of coal that ought to have been screened, how can it be said that the parties intended a settlement and payment for coal that was not screened ? Only on proof that the plaintiffs knew of such omission.

It is hardly necessary to note the twelfth assignment. We do not understand that the plaintiffs claim to recover for slack, and it is already said that they are only entitled to recover the balance of the contract price, due for coal that ought to have been screened by the defendants in case the jury find that nut coal was meant to be included.

The chief inquiry as to disputed facts is, whether the parties understood that “screened coal” included nut coal; if they did, the defendants cannot avoid payment for the nut coal by showing that the lump coal was badly screened and contained nut and refuse. They screened the lump to suit themselves, and cannot be permitted to estimate refuse to deduct from the nut. The thirteenth assignment is not sustained.

Judgment reversed, and venire facias de novo awarded.