Davie v. Lumberman's Min. Co.
| Decision Date | 18 November 1892 |
| Citation | 53 N.W. 625,93 Mich. 491 |
| Parties | DAVIE et al. v. LUMBERMAN'S MIN. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Menominee county; JOHN W. STONE, Judge.
Action by Josiah Davie and another against the Lumberman's Mining Company for breach of contract. From a judgment for plaintiffs, defendant appeals. Reversed.
Ball & Hanscom, (B. J. Brown, of counsel,) for appellant.
R C. Flannigan, (F. O. Clark, of counsel,) for appellees.
On October 7, 1889, the plaintiffs, who were practical miners entered into a verbal agreement with the defendant company through its mining captain, to go to work in what is called the "Cave Pit," and were to receive $1.50 per ton for all the ore they produced, as long as they could make it pay. The plaintiffs practically agree that the mining captain, with whom the contract was made said to them that he would give $1.50 a ton for all the ore they could produce any where in the pit, to which they responded, "All right we will take the contract, and work it as long as we can make it pay." The plaintiffs were to put in skip roads for hoisting the ore, and were to put it in position for hoisting, and the defendant was to furnish the hoisting machinery and do the hoisting. Acting under this contract, the plaintiffs went to work in the pit. They leveled off a place, and put down some plank platforms to pile ore upon, and sorted out some ore from the loose rock and took some ore also out of a seam in the foot wall of the pit, and placed it on these platforms. On the morning of the third day after they began to work, the captain of the defendant company went down, and found the plaintiffs digging into the foot wall of the pit, upon which he ordered them to quit mining at that point. A controversy then arose between him and the plaintiffs in reference to where they had a right to dig, and as to the extent of their right, which ended by the plaintiffs quitting the work. The plaintiffs contend that they had a right to mine at any point they chose, and that they had a right to dig into and through the foot wall, and that they had a right, under their contract, to mine all ore which might be newly discovered by them after digging through the walls of the pit, and that they were not confined to such ore as they might find within the pit, as it had already been opened and worked. The defendant contends that, even if the contract is a valid one, it merely had reference to such ore as might be found within the pit as it had been opened and worked, and that it gave them no right to dig or break through the walls of the pit, and mine ore found outside of the walls; that it was essentially what is known among miners as a "scramming contract," which is one that confers the right to mine and gather such ore as may be left within the limits of a mine or pit as it has been opened and mined before; that nothing beyond that was ever thought of, and that the act of the plaintiffs in breaking through the walls of the pit, and mining in a newly-discovered vein of ore, was never contemplated by the parties; and that it would greatly endanger the property of the defendant, as well as the lives of the miners, by rendering it likely to cave, as had happened before, and for which reason it is alleged this pit was named "Cave Pit;" and the defendant insists that the plaintiffs were stopped from digging in the foot walls for the reasons stated, while the plaintiffs contend that the real reason was that the defendant thought they would make too much money if allowed to mine in the rich vein of newly-discovered ore beyond the foot wall. The plaintiffs also contend that the term employed in the contract, "as long as we can make it pay," has a special signification among miners, and means as long as they could make "company account" wages, being such wages as the company was then paying by the day for such work; and they introduced some testimony, against the defendant's objection, tending to prove this to be so, while the defendant denies that this is so, and contends that the term has no special signification. The plaintiffs also contend that they had discovered a body of ore which amounted to at least 17,000 tons, and that, if they had been allowed to mine it,-as they claim they had a right to do under the contract referred to,-they would have realized a profit of $22,000; while the defendant contends that this is not true, and that the dangers and contingencies were so great that no estimate of profits could be...
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