Strathmore Coal Mining Co. v. Bayard Coal & Coke Co.

Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the appellee, the Bayard Coal and Coke Company, a corporation, against the appellant, the Strathmore Coal Mining Company, likewise a corporation, in an action of ejectment brought by the former against the-latter. On the 9th day of December, 1915, the Bayard Coal and Coke Company leased and demised unto John W. Galloway and William A. Price, “their successors and assigns,” all the merchantable coal in and upon all that certain piece, parcel or tract of land, situate, lying and being in District Ho. 8 in Garrett County, Maryland,” consisting of a number of lots, therein fully described and particularly designated by numbers, “for the term of twenty years,” commencing with the date of the execution of said lease-, “with the privilege of renewal for a similar additional period, unless all the merchantable coal in the said tracts of land above described shall sooner be exhausted or taken therefrom,” in which event the lease was to terminate. The lessees, under the terms of said lease, were to pay to- the lessor on or before the 25th of each month, “the rent or royalty of five cents for each and every ton of coal of 2,240 pounds weight mined, dug and carried away from said tracts of land above described, or consumed thereon, or manufactured thereon into other products.” In addition thereto, the lessees were to- pay to the lessor "one-half of the taxes, national, state and local,” which might “be laid, levied or assessed upon the tracts of land” described ³⁶¹ in said lease after January tlie 1st, 1916, and all the taxes upon the personal property, “when and as soon as the same shall become due and payable,” and the lessees were to exhibit receipts therefor on the 1st day of January each and every year during the continuance of the lease.

The lease further provided that “The said rents or royalty shall be ascertained as follows: On or before the 25th day of each month the said lessees shall exhibit to the said lessor a copy of the statement from the agent or agents of the railroad company transporting the coal a statement showing the number of pounds of coal shipped by said lessees during the preceding month, and taken from said lands above described, and if any of the said coal taken from the said lands is stored, sold or disposed of by the lessees at the mines, plant, tipple, or any other j)art or portion of the lessees’ operation or elsewhere, and it is not shipped away by the lessees, or is consumed or manufactured on the said lands in the other products, or it is so that a record of the amount of coal mined by the lessees cannot be secxxred by the railroad company, then, each and every case, the lessees shall furnish the lessor a statement of the coal so mined, giving the lessor complete information as to the quantity of coal so mined from the said lands during the previous month.” The lease contains the further provision that should the lessees or their assigns default in the performance of any of the stipulations, covenants or agreements therein, that were to be performed by them or their assigns, and such default continued for a period of three months, “the said lessor, its successors or assigns (having given thirty days’ notice of its intention to do so, by a writing signed by the lessor and directed to the lessees or their assigns), may, at its option, declare this lease or agreement terminated or ended, and the rights or privileges of the said lessees or their assigns hererm ³⁶² der shall be forfeited, and this lease or agreement, so far as it gives interest, right or privilege to the said lessors shall become null and void, and the lessor or its assigns may enter and take possession of the demised premises and all the improvements thereon, and remove the lessees and all persons, firms and corporations claiming under them.” The lessees took possession of the property rights acquired, by them under the lease, but in about three months thereafter assigned the lease to the appellant corporation. On the sixth day of June, 1918, the Bayard Coal and Ooke Company passed the following resolution: “Resolved, That D. A. Arnold, the vice-president of the company, be and he is hereby authorized to serve a new legal notice to quit upon Messrs. John W. Galloway, William A. Price and the Strathmore Coal Mining Company, for the reason that they had defaulted in the terms of the lease dated December 9th, 1915, and that the said D. A. Arnold and George S. Rees are further authorized to enter suit or take such proceedings as they may deem necessary to again obtain possession of the property covered by said lease.” Upon the authority of such resolution the following* notice, dated as of August 31st, 1918, addressed to John W. Galloway, William A. Price and the Strathmore Goal Mining Oompany, was prepared and signed by the Bayard Coal and Ooke Company, through its vice-president, D. A. Arnold: “Gentlemen: “Pursuant to a resolution passed by the board of directors of the Bayard Coal & Ooke Company, a corporation organized under the laws of the State of West Virginia, at a regularly called meeting held at the office of the company at Reyser, West Virginia, on the 6th day of June, 1918, at which the entire members .of the board were present, the undersigned was unanimously authorized, empowered and directed to give you the following notice: ³⁶³ “On behalf of the said Bayard Coal & Coke Company, I hereby give you thirty (30) days’ notice, expiring thirty days from the date of the receipt of this notice, to quit and deliver up the possession the property conveyed to John W. Galloway and William A. Price under a certain lease, dated the 9th day of December, 1915, of certain lands in Garrett County, State of Maryland, in District Yo. 8, being more particularly described in said lease. You are also given a similar notice to deliver up all of the personal property now upon the premises. “This notice to quit is given under the terms of the lease contained in the tenth and eleventh paragraphs thereon, for the reason that there has been default on the part of the lessees and their assigns in the performance of the stipulations, covenants and agreements contained in paragraphs four (4), five (5), six (6), seven (7), eight (8), ten (10) and twelve (12) of said lease. “A certified copy of the resolution of the hoard of directors is attached hereto and marked Exhibit ‘A’ and asked to be made a part hereof. “Bayard Coal & Coke Company, “(S.) D. A. Arnold, “Vice-President.” The breaches referred to in said notice were: (1) The failure of the appellant to render monthly statements from the agents of the railroad company showing the number of pouuds of coal shipped over its road by the lessees during each preceding month, as provided by Section 4; (2) its failure to pay tbe royalties as and at the times provided in the fifth paragraph; (3) its failure to work tbe mines as covenanted and stipulated in the sixth paragraph; (4) its failure to comply with the Federal and State laws regulating the working of mines and providing for the safety of persons employed therein; (5) its failure to provide maps as required by the eighth paragraph of the lease; (6) those relating to the appellee’s ³⁶⁴ right of entry in case of default; (7) the appellant’s failure to insure the property, as provided for in the 12th paragraph of the lease.

The lessee, it seems, failed and refused to comply with the direction contained in the notice of the lessor to it, hut remained in possession of the leased premises, and was in possession of the same at the time this suit was instituted on the 15th day of November, 1919. The case was tried by the court sitting as a jury, and its verdict was “for the plaintiff for the coal and mining rights appurtenant thereto, as claimed iii the declaration, and $10,000 damages against the Strathmore Goal Mining Company; and for the defendants, William A. Price and John W. Galloway,” who had been sued with the Strathmore Goal Mining Oompany. In the trial of the case four exceptions were taken to the rulings of the court, one upon the prayers and the others to the court’s rulings upon the admission of evidence. The plaintiff asked for eight and the defendant for ten instructions.

All the plaintiff’s prayers as offered were rejected, though its fifth prayer, after modification by the court, was granted; and of the defendant’s prayers only its fifth and twelfth were granted, the others were all refused. The court, however, granted an instruction called by it “the court’s statement of the law of the ease.” There were special exceptions filed to the court’s instruction, as well as to the plaintiff’s fifth prayer*, as modified by the court. A motion was also made by the defendant at the conclusion of the evidence, to strike from the record the tesr timony (admitted subject to exceptions) of W. A. Price and Robert Stallings called as witnesses for the plaintiff, tending to prove the market and government prices of coal during the years 1918, 1919 and 1920. The court refused to strike out this testimony, but from such ruling no separate exception was taken, which it seems; to say the least, should have been done; but the same was em ³⁶⁵ braced in the exception to the rulings upon the prayers,, in which exception the defendant excepted to the action of the court in granting the plaintiff’s fifth prayer and in rejecting* the defendant’s 1st, 2nd, 3rd, 4th, 6th, 8th, 9th, 10th and 11th prayers, and in overruling defendant’s special exceptions to the “court’s statement of the law of the case,” and to plaintiff’s fifth prayer, and in adopting its own instructions.

The defendant’s twelfth prayer directed a verdict for the defendants, William A. Price and John W. Galloway; and its fifth prayer withdrew from the consideration of the court, sitting as a jury, all alleged breaches “by reason of any failure on the part, of the defendants, or either of them, to furnish maps or plats of the mine-si, or to pay the taxes on the property covered by tbe lease.” It appears from the record that a suit or action similar to tbe one here bronght was instituted by the appellee against the appellants, in the United States District Court for the District of Maryland, to again acquire the property rights leased by it to the assignors of the defendant, and, as we understand, because of the default of the defendant therein, the appellant here, in not performing the stipulations and covenants contained in said lease, that werei to he performed by it as assignee of Price and Galloway under the terms of said lease, and that such proceeding terminated adversely to the appellee here, and it was conceded, in the trial of this case in the court below, that by said decision the appellee was estopped in these proceedings from claiming any defaults occurring earlier than December, 1917. The said notice, as it appears from the record, was served upon or received by the president of the Strathmore Coal Mining Company on September the 9th, 1918. The first communication between the parties to this suit, so far as the record discloses, after the decision of the case in the United States District Court, was in the form of a letter dated the 7th day of February, 1918, from Samuel M. Llera, president of the Strathmore Coal Mining Company, to G. S. ³⁶⁶ Rees, treasurer of the Bayard Coal & Coke Company, Washington, D. C., offered through Rees, while upon the stand as a witness for the company. In this letter was enclosed a map1 of the mine, showing its condition when taken over by the Strathmore Goal Mining Company, and also a survey showing the operation of the mine in 1917, and in this letter the appellee company was asked to send to the appellant the amount of all taxes owing upon the leased property that were payable by it under the terms of the lease.

A reply was made to this letter on February 20th, in which Rees asked for a complete map of the mines in accordance with the terms of the lease to Price and Calloway, but nothing was said in reply to Llera’s request for information as to the amount- of taxes owing by his company. The next letter was from Llera to> Rees, dated February 23rd, enclosing check for $57.35, royalty on 1,147 tons of coal mined in January. Rees acknowledged the receipt of the check by a letter dated February 28th, in which h¿ said, “we wish you would look at section 4 of the lease which you claim title, and please send statement as required under the said section.” The statement mentioned in said section, and the one to which the writer referred, was the one from the railroad company showing amount of coal shipped over its road for the time named in appellant’s letter. On March 28th, Llera wrote Rees enclosing him check for '$G2.04, of which amount $58.28 was for royalties for the month of February, and balance $3.76 on January operations, which was not included in former cheek, as the error in the amount owing for that month was discovered after the check had been sent therefor.

In this letter, Llera gave the total number of tons mined, and with his letter enclosed two statements, one for each of the months of January and February, 1918, showing the amount, as claimed by his company shipped by the railroad — giving in separate columns, car number, initial of car, and number of tons — as well as the amount used ³⁶⁷ in production, but there still was no statement from the railroad company. This was the last communication until October the 26th, 1918, when Llera delivered in person to Rees a letter of that date, which is as follows: “Gentlemen: “We hand you herewith monthly statements of coal mined by this company from the Strathmore Mine, which we hold under our lease with you, our property. “Recapitulating the monthly statements which are furnished herewith, would state that the tonnage mined is as follows, including boiler tonnage: January, 1,219.77 tons mined; royalty, 5c. per ton............................... $60.98 February, 1,162.55 tons mined; royalty, 5c. per ton............................... 58.13 March, 1,501.48 tons mined; royalty, 5c. per ton.................................. 75.07 April, 778 tons mined; royalty, 5c. per ton. . 38.90' May, 1,016.03 tons mined; royalty, 5c. per ton.................................. 50.80 June,• 1,054.55 tons mined; royalty, 5c. per ton.................................. 53.23 July, 852 tons mined; royalty, 5c. per ton. . 42.60’ August, 933.50 tons mined; royalty, 5c. per ton.................................. 46.67 September, 1,081.08 tons mined; royalty, 5c. per