Duncan v. Campbell
| Decision Date | 23 January 1923 |
| Docket Number | 3310. |
| Citation | 115 S.E. 651,154 Ga. 824 |
| Parties | DUNCAN ET AL. v. CAMPBELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Grounds of a motion for new trial which complain of the admission of evidence, and which do not set forth such evidence literally or in substance, raise no questions for decision by this court. Rucker v. State, 97 Ga. 205, 22 S.E. 921; Denton v. Ward, 112 Ga. 532, 37 S.E. 729; Crozier v. Goldman, 153 Ga. 162, 164, 111 S.E. 666. This ruling disposes adversely to the defendants of grounds 4 and 6 of the amendment to their motion for new trial.
A ground of a motion for new trial, excepting to the admission in evidence of a deed between one of the defendants and third parties, which does not set forth literally or in substance the contents of the deed, but only refers to it as set forth in an exhibit attached to the brief of evidence, will not be considered by this court. McMichael v. Atlanta Envelope Co., 151 Ga. 776 (3), 108 S.E. 226. This disposes adversely to the defendants of ground 5 of the amendment to their motion for new trial.
The court erred in charging the jury as follows:
Where the owner of lands leased to another all the clay and minerals of every kind therein for a term of 90 years, in consideration of the sum of 25 cents for each and every ton of clay and minerals mined and shipped from said lands payments to be made each Saturday for shipments for the previous week, and where it was stipulated in the lease that should the lessee fail to pay to the lessor the said royalty of 25 cents per ton as above specified, then the lease was "to be null and void and of no force and effect," and where the lease contained this provision, to wit "It is also agreed that, if the mining, treating, and shipping of clay should stop at any time within the life of this lease for a period of one year, then this lease is to be void and to revert to the heirs or owners, but the heirs or owners are not to have any interest or claim on any improvements, buildings, machinery, etc., unless the same are not removed within one year from the forfeiture of this lease"-- held: (a) The failure of the lessee to mine, treat, and ship clay from the leased premises for a period of one year worked a forfeiture of this lease, and the mere mining and treating of clay alone, without shipping any of it, were not sufficient to defeat such forfeiture. (b) The failure of the court to give to the jury an instruction embodying the above principle was error.
When on April 20, 1918, the day the lease was executed, although dated July 27, 1917, the lessee agreed in writing to pay to the lessor the sum of $200 on or before May 3, 1918, or on the day be began operations under said lease, and further agreed to pay to the lessor at the rate of $50 per month for each month after May 3 until operations began, and where on February 13, 1919, the lessee paid to the lessor the sum of $350, the former taking from the latter a receipt reciting that said sum was in full payment of royalty for clay on the leased premises, subject to the lease of July 27, 1917, and further reciting that said agreement of April 20, 1918, was satisfied in full, and was to be canceled of record, the said agreement and the receipt of the money thereunder do not constitute a waiver of the right of the lessor to declare the lease forfeited where the lessee failed after February 2, 1919, for a period of one year, to mine, treat, and ship clay from the leased premises.
The verdict is contrary to law and to the evidence.
Additional Syllabus by Editorial Staff.
A clay and mineral lease providing for forfeiture upon failure for one year to mine, treat, and ship clay must be construed according to the intention of the parties, and with reference to the subject-matter.
Though, as stated in Civ. Code 1910, § 3717, the law inclines to construe conditions as subsequent, rather than precedent, and as remediable by damages, rather than by forfeiture, where the parties expressly stipulate for forfeiture for breach of covenant in a mineral lease, and where precise compensation cannot be made for such breach, the forfeiture will be enforced.
While equity generally abhors a forfeiture, where forfeiture of a mineral lease works equity, and protects the lessor against the laches of the lessee, and the lease is of no value to the lessor until developed, the forfeiture will be enforced.
Error from Superior Court, Wilkinson County; Jas. B. Park, Judge.
Action by L. U. Campbell against W. P.
Duncan and others. Judgment for plaintiff, and defendants bring error. Reversed.
Jno. S. Davis, of Irwinton, and Evans & Evans, of Sandersville, for plaintiffs in error.
Geo. H. Carswell and Victor Davidson, both of Irwinton, for defendant in error.
1. None of the headnotes require any elaboration except the third, fourth, and fifth.
It is insisted on behalf of the lessee that, under this provision for forfeiture, there could be no forfeiture if the lessee mined or treated clay, although he may not have shipped any clay for a period of one year during the life of the lease. The lessor insists that the failure of the lessee to do all three of these things, and especially his failure to ship any clay from the leased premises for the period of one year, would work a forfeiture of this lease. What is the proper construction of this stipulation?
The lease contract, like all others, must be construed according to the intention of the parties, and with reference to the subject-matter. Alexander v. Dorsey, 12 Ga. 14, 56 Am.Dec. 443; Snook & Austin Furniture Co. v. Steiner & Emery, 117 Ga. 363, 373, 43 S.E. 775. Can the lessee defeat forfeiture by either mining or treating clay? Can he defeat forfeiture by mining alone, or by mining and treating without shipping clay? It is said that the forfeiture can only result from his failure to do the three things mentioned in this stipulation, and, that, if the...
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