Bear Cat Mining Co. v. Grasselli Chemical Co.

• Decision Date: 27 December 1917
• Docket Number: 4660.
• Citation: 247 F. 286
• Parties: BEAR CAT MINING CO. v. GRASSELLI CHEMICAL CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

247 F. 286

BEAR CAT MINING CO. v. GRASSELLI CHEMICAL CO. ^[1]

No. 4660.

United States Court of Appeals, Eighth Circuit.

December 27, 1917

Albert S. Marley, of Kansas City, Mo. (John S. Marley, of Kansas City, Mo., on the brief), for plaintiff in error.

A. E Spencer, of Joplin, Mo. (George J. Grayston, of Joplin, Mo on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

The plaintiff, the Bear Cat Mining Company, held a lease dated April 29, 1913, for a mining property in Jasper county, Mo including the machinery for the operation of the mine. The lease ran for a term of 10 years, with a royalty of 10 per cent. of the value of all ore sold. On July 18, 1913, the plaintiff subleased the same property to the defendant Grasselli Chemical Company, for similar purposes, for a term ending April 29, 1923. It was agreed in the lease that, if the defendant should at any time fail or refuse to keep any stipulation on its part, plaintiff might, at its option, terminate the lease, and retake possession of the property, giving the defendant 10 days' written notice thereof. The royalty was fixed at 15 per cent. The lease further provided that defendant 'shall also have the right and privilege of terminating this lease at any time upon giving said first party 30 days' notice in writing of its intention to terminate this lease at least 30 days after the delivery to said first party of such written notice. ' Defendant operated the mine until September 29, 1913, when it mailed a notice of its intention to terminate the lease to the plaintiff. The evidence is reasonably satisfactory that this notice was received. At the same time the defendant notified plaintiff that it would suspend operating the pumps. The mine was one which required the operation of the pumps constantly to prevent flooding. In the notice defendant also notified plaintiff that he could take possession of the property at any time, and operate the same, and do whatever was necessary for its protection. Defendant left the mine on October 4, 1913. Neither he nor the plaintiff did anything by its operation to protect it during the month of October, and at the end of the month the owner of the mine declared a forfeiture of his lease with plaintiff, and went into possession of the property.

The present action is brought by the plaintiff to recover $50,000 damages (the alleged value of plaintiff's lease), for defendant's failure to comply with the terms of his sublease, and the breach relied upon is his abandonment of the property during the 30 days covered by the notice, thus giving a right to the owner of the property to forfeit plaintiff's lease. The court directed a verdict in favor of the plaintiff for $1 damages only, upon the ground that it was the duty of the plaintiff himself, upon receiving the notice that was given him, and the right to retake possession of the property and safeguard his own leasehold interests, to do whatever was necessary to that end, for the purpose of mitigating his damages; that he could not stand by and permit his lease to be forfeited, and then seek to recover full damages therefor.

This decision was clearly right. The rule of law applicable to the case was never better stated than by Judge Selden in Hamilton v. McPherson, 28 N.Y. 72, 76, 84 Am.Dec. 330:

'The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness, allows

...