Etowah Min. Co. v. Wills Valley Min. & Mfg. Co.

• Decision Date: 13 April 1899
• Citation: 25 So. 720,121 Ala. 672
• Court: Alabama Supreme Court
• Parties: ETOWAH MIN. CO. ET AL. v. WILLS VAL. MIN. & MFG. CO. ET AL.

25 So. 720

121 Ala. 672

ETOWAH MIN. CO. ET AL. v. WILLS VAL. MIN. & MFG. CO. ET AL.

Supreme Court of Alabama

April 13, 1899

Appeal from chancery court, Etowah county; J. R. Dowdell Chancellor.

Bill by the Wills Valley Mining & Manufacturing Company and others against the Etowah Mining Company and others. From a decree dismissing respondents' cross bill they appeal, and the Etowah Mining Company also applies for mandamus. Affirmed and mandamus denied.

On the 14th of March, 1894, appellees filed a bill in the chancery court of Etowah county purporting to be a creditors' bill, averring that defendant Etowah Mining Company had, on the 28th day of July, 1893, executed a deed of trust to appellant Nixon of certain mining property, etc., for the purpose of securing the creditors of the said Etowah Mining Company, averring that said Nixon was misappropriating the trust funds and mismanaging the trust property, and asking the removal of said trustee, the appointment of a receiver and that the chancery court would take charge of and proceed to administer the trust created by said trust deed, order a reference to ascertain the amount of the just debts due, and that the proceeds of said trust estate be applied to the payment of such debts. In said bill it is stated that on the 10th day of June, 1888, W. O. Peoples and others entered into a contract of lease with the Etowah Mining Company of the mines involved in controversy, and that subsequently the Wills Valley Mining & Manufacturing Company became possessed of all the interests of the lessors of said contract of lease, having succeeded to the rights of the lessors. The bill averred that under the terms of said lease said lease expired on the 19th day of November, 1893, but that the trustee had continued to operate the mines, and had elected to enter upon the new term of five years as provided in said lease. It further avers that the trustee wrongfully claims that the first period of five years extended to the 18th day of March, 1894, and had notified the Wills Valley Mining &amp Manufacturing Company that he would surrender the property on that day. On the filing of this bill a receiver was appointed by the register, and on appeal his appointment was sustained by the chancellor. From this decision of the chancellor an appeal was taken by this court, and the chancellor's decision reversed, the receiver removed, and required to turn all the property over to the trustee. On the 19th day of August, 1895, after the removal of said receiver, appellants filed an answer to the bill, and asked that the same be taken as a cross bill. Said cross bill denied the charges of mismanagement, etc. It admitted the execution of the contract of lease made an exhibit to said cross bill, but denied that it was executed on the 19th day of June, 1888, but averred that it was not fully executed till the 18th day of October 1888, nor delivered till after that date. Under the term of the lease respondent had five months from the date of signing said lease in which to begin shipping ore, and the lease was to run five years from the first shipment of ore. The cross bill avers that the first shipment of ore was made in March, 1889, which was within five months from October 18, 1888, when it is averred the lease was executed by three of the five lessors, and that, therefore, the lease would expire in March, 1894, if respondent corporation was charged with the full period that had elapsed. But there was a clause in said lease that time unavoidably lost by the lessee by the shutting down of furnaces, striking of employés, suspension of railroad shipping facilities, or any providential hindrances should not be counted in the time of the lease or its extension. And the cross bill charges that respondents unavoidably lost time since the first shipment of ore on account of these matters, amounting to 325 days, which they had the option of deducting. This extra time, the cross bill alleged, the complainants therein were willing to waive, as they had the option to do, and surrender the property to the Wills Valley Mining & Manufacturing Company on payment therefor as provided in said lease. The extension clause in said lease is as follows: "The parties of the first part shall have the privilege of extending this lease for five years more after the first five years shall have elapsed: provided, they notify parties of the second part four months before the expiration of the first five years of their intention of accepting the five-years extension: and provided, they shall have complied with the terms of this lease up to that time; but in case of such extension the price to be paid for said ore during the said five years of extension shall be fifteen cents per ton for both hard and soft ore, instead of ten cents per ton as in the first five years." The lost-time clause is as follows: "If the parties of the second part fail to pay any royalties within four months after due, then this lease shall be null and void, at the option of the party of the first part: provided, however, that the time unavoidably lost by the party of the second part by reason of shutting down of furnaces, striking of employés, suspension of railroad shipping facilities, or any providential hindrances shall be excepted from the operation of the above clause, and shall not be counted in the time of this lease or its extension." Another important clause in the lease is the following: "At the expiration of the lease or its extension, the parties of the first part are to take the entire plant, including live stock, tools, buildings, railroads, tramways, inclines, and all other property (except store goods or stock of merchandise in store) pertaining to the business, together with all rights of way, through property of others, and pay the parties of the second part a fair valuation therefor. And, if the parties hereto cannot agree upon the price to be so paid for the entire outfit, plants, tools, buildings, railroads, rights of way, etc., it shall be settled by arbitration, each of the two parties hereto choosing one arbitrator, and the two so chosen to select a third man, if necessary; and the finding and award of this tribunal so chosen and selected shall be final and binding on all parties concerned. But in no event shall parties of the first part be bound to pay to the parties of the second part any greater amount for said outfit, plant, etc., than the same could be built and constructed for at the time, less wear and tear then existing thereon." The prayer of the cross bill is as follows: "That your honor would, on final hearing, render a decree against said Wills Valley Company in favor of these respondents construing said lease contract, and requiring said Wills Valley Company to take said property so tendered by...