1 A. 667 (Pa. 1885), 78, Dunham v. Haggerty

Docket Nº:78
Citation:1 A. 667, 110 Pa. 560
Opinion Judge:Mr. TRUNKEY Justice
Party Name:Dunham et al. v. Haggerty et al
Attorney:Samuel Griffith and Thomas Tanner (Samuel Griffith's Sons with them), for plaintiffs in error. James A. Stranahan (Bowser and John McClure with him), for defendants in error.
Case Date:October 26, 1885
Court:Supreme Court of Pennsylvania

Page 667

1 A. 667 (Pa. 1885)

110 Pa. 560

Dunham et al.


Haggerty et al

No. 78

Supreme Court of Pennsylvania

October 26, 1885

Argued: October 14, 1885

Page 668

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Page 669

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Page 670

ERROR to the Court of Common Pleas of Mercer county: Of October and November Term 1885, No. 78.

Covenant, by Sarah Haggerty et al., heirs of Wm. Haggerty, deceased, against W. B. Dunham, Joseph McCleery et al., upon a contract under seal entered into by plaintiffs and defendants. Pleas, non est factum, covenants performed, etc.

On the trial, before NEALE, P.J., of the thirty-third judicial district, the following facts appeared:

On October 7th, 1871, plaintiffs conveyed to Dunham and McCleery, all the coal and other minerals under a certain described tract of land together with all the necessary mining rights and privileges and the grantees covenanted in consideration therefor "to pay twenty-five cents for each and every ton of 2,150 pounds of screened coal mined by them" and further agreed that all coal mined by them on the premises should "be weighed accurately and the weight entered in a book kept for that purpose." Dunham and McCleery went into possession under this deed and subsequently conveyed two thirds of the estate so vested in them to P. L. Kimberly et al., who are joined as defendants in this suit.

These parties mined continuously until February 1883, when the mine was exhausted. During this period they furnished plaintiffs with monthly statements of screened coal mined and made half yearly settlements and payments as required by the contract. Receipts for all payments were taken, a few being for payment on account, but generally they are in full and in form substantially the same as the following, which is a copy of one:

"Received, Sharon, Pa., April 18th, 1883, of Dunham, Roberts & Co., three hundred thirteen and 11-100 dollars, being balance due in full of royalty on coal mined to January 1st, 1883, from lands of the heirs of William Haggerty, late of Hickory township, deceased, under a lease or contract from Sarah Haggerty et al., to Joseph McCleery and W. B. Dunham, dated October 7th, A.D., 1871, said land being described in said lease."

After the mine was abandoned plaintiffs demanded payment for the slack and nut coal, for which they maintained defendants were liable because they had removed and sold the same.

Plaintiffs produced evidence to show that nut coal had a market value and that the slack which came through the screens used by defendants amounted to about one fifth of the coal mined and that one half of this was good nut coal.

Defendants produced evidence to show that previous to 1869 nut coal was made at a few of the mines in this section, but in that year a general market was found for the slack as it came through the first screen and that after that time the making of nut coal ceased and only large screened coal was made; that this was the well known situation in 1871, when the deed to defendants was made.

It appeared from the evidence that the screens in general use after 1869 were the same in size and construction as the large screens used previous to that date. Those used by the defendants, however, were smaller, being only ten to eleven feet long and four feet four inches wide, and the uncontradicted evidence at the trial showed that, on account of their small size and manner of construction, they would not screen coal sufficiently clean for market without unusual care; that as about nine tenths of this coal went to the rolling mills of P. L. Kimberly and his associates, who owned two thirds of this mine, no such care was taken because not required for that purpose, and that large quantities of slack went over and was weighed with the coal and accounted for to the plaintiffs. Some of the witnesses, experienced coal operators, estimated that this dirt would fully equal in quantity any nut coal which might have been made.

Plaintiffs presented, inter alia, the following points: --

2. That if the defendants did not screen all the coal mined by them, they are liable to the plaintiffs for all such coal as might or should have been screened, but which was not screened, but was used or taken by them from the lands of the plaintiffs under the contract.

Answer -- Affirmed. (Fourth assignment of error.)

3. That if the jury believe there are two kinds of screened coal, called lump and nut coal, then the plaintiffs have a right to recover twenty-five cents for each ton of 2,150 pounds of either lump or nut coal mined and removed from their lands under the contract.

Answer -- Affirmed. (Fifth assignment of error.)

Defendants presented the following points: --

1. That the indenture or instrument of writing upon which suit is brought operated as a sale of all the coal in and...

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