Genet v. President, Etc., of Delaware & H. Calan Co.

• Decision Date: 15 May 1900
• Citation: 57 N.E. 297,163 N.Y. 173
• Court: New York Court of Appeals Court of Appeals
• Parties: GENET v. PRESIDENT, ETC., OF DELAWARE & H. CALAN CO.

163 N.Y. 173

57 N.E. 297

GENET

v.PRESIDENT, ETC., OF DELAWARE & H. CALAN CO.

Court of Appeals of New York.

May 15, 1900.

Appeal from supreme court, appellate division, First department.

Action by Augusta G. Genet against the president, managers, and company of the Delaware & Hudson Canal Company, to recover the value of coal mined under a lease. From a judgment of the appellate division (43 N. Y. Supp. 589) affirming a judgment in favor of plaintiff entered on the report of the referee, defendant appeals. Affirmed on conditions.

Gray, J., dissenting.

Frank E. Smith and David Willcox, for appellant.

George C. Genet, for respondent.

CULLEN, J.

This controversy arises out of a written agreement for the mining of coal in a tract of land in Pennsylvania. The instrument is denominated a ‘lease.’ The material parts of the lease are stated in the report of a prior litigation between the parties found in 136 N. Y. 593, 32 N. E. 1078,19 L. R. A. 127. A similar abstract of its provisions, somewhat less full, is given in Genet v. President, etc., Delaware & H. Canal Co., 122 N. Y. 505, 25 N. E. 922; and the lease is set forth in full, with the exception of the description of the lands demised, in 13 Misc. Rep. 409,35 N. Y. Supp. 147. Under the circumstances, we do not feel justified in incumbering the Reports with a further repetition of the terms and conditions of the instrument, which may be readily ascertained by reference to the cases mentioned.

This is the third litigation between the parties which has come before this court, and, though the litigations spring from the same instrument, the causes of action in each suit have been essentially different and distinct from those in the other suits. The first action (122 N. Y. 505, 25 N. E. 922) was to recover damages for breach of the agreement, in failing to take from the land as much coal as could be mined therefrom, and for an injunction restraining the defendant from using the plaintiff's land, and the works erected thereon, to mine coal from contiguouslands, and from draining water from such lands across the plaintiff's lands. The referee before whom the action was tried dismissed the complaint as to the first cause of action, holding that under the lease the defendant was not required to mine any more coal than the minimum quantity prescribed by the lease. He directed judgment for the plaintiff on the second cause of action. Both parties appealed to this court, where on the plaintiff's appeal the judgment against her on the first cause of action was affirmed, and on the defendant's appeal the judgment in the plaintiff's favor was reversed, and the complaint dismissed, with costs. The second action (136 N. Y. 593, 32 N. E. 1078,19 L. R. A. 127) was to recover damages for the negligent and improper manner in which it was alleged the defendant had mined the coal, whereby the mine was destroyed, and further mining rendered impossible. The case came to this court on from a judgment sustaining a demurrer to the complaint. That judgment was reversed, the court holding that there was an implied covenant on the part of the defendant to properly conduct its mining operations, so that the mine would not be destroyed, and the plaintiff debarred from the expectation or prospect of further royalties from coal which would naturally be taken from the lands if the mine was in proper condition. The present suit is based on four causes of action. The first and fourth allege that the defendant failed to make proper returns of the amount of coal mined, and seek to charge the defendant with royalties due on the coal, for which it failed to make return. The amount due to the plaintiff on these causes of action was adjusted on the trial by the stipulation of the parties, and the appeal presents no controversy on this subject. The second and third causes of action are to recover in assumpsit, and not in tort, the value of the waste coal or culm which passed through a mesh of a half inch square. Coal of this size was at the time of making the contract considered of little or no value, but changes in the requirements of the coal market, and new mechanical inventions, have rendered this waste coal valuable. The defendant marketed part of it, and used the rest in the operation of its own engines. The plaintiff claims that under the lease the defendant had no right to take any coal except such as would not pass through a half-inch mesh, and that the title to the smaller or waste coal remained in her. Hence she sought to recover, and by the judgment below has recovered, the full value of such small coal, which exceeds the stipulated royalty of 12 1/2 cents a ton which the defendant was required to pay on the other coal. The provision in the lease as to payments is as follows: ‘And the said party of the second part agrees to pay for the coal mined and taken out in pursuance of this agreement at the rate of 12 1/2 cents for every ton of 2,240 pounds of clean, merchantable coal, exclusive of culm or mine waste, that will pass through a mesh of one-half inch square.’ The defendant's contention is that under the agreement it acquired title to all the coal, and that the provision that it should pay royalth only on coal of the specified size is not to be deemed as payment for such coal alone, but for all. Before entering upon the discussion of the proper construction of the agreement or lease, it is necessary to first dispose of certain special pleas interposed by the defendant to defeat the plaintiff's claim.

The defendant pleaded in its answer that by the laws of the state of Pennsylvania, in which the demised lands are situated, the lease operated as a present conveyance of all the coal contained in the premises as land, and that after its execution no title to the coal remained in the plaintiff. Of this it is sufficient to say that foreign law is a question of fact, not of law. The referee found ‘that there is no law peculiar to Pennsylvania governing the construction of written instruments, but the rule of the common law prevailing in New York, that the intention of the parties is to be gathered from the terms of the instrument, prevails in like manner in the state of Pennsylvania.’ This finding has been unanimously affirmed by the appellate division, and under the constitutional provision (article 6, § 9) we are precluded from reviewing its correctness.

The defendant further pleaded the judgment of this court in the first action which came before it (122 N. Y. 505, 25 N. E. 922), and put the judgment roll in evidence. It is contended that the final judgment rendered by this court proceeded on the ground that title to all the coal passed to the defendant on the execution of the lease, and that, whatever effect the subsequent decision of this court (136 N. Y. 593, 32 N. E. 1078,19 L. R. A. 127) may have had on the earlier decision as an authority, it could not limit its force as an estoppel when introduced in evidence in other litigations between the same parties. It is not necessary for us to consider how far the announcement in the argument of a judicial opinion of propositions by which a particular conclusion is reached is to be considered as an adjudication on those propositions which will be conclusive in other actions. The general rule is that ‘a judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the facts necessary to uphold it; and although a decree, in express terms, professes to affirm a particular fact, yet, if such fact were immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference to such fact.’ People v. Johnson, 38 N. Y. 63. It is a sufficient answer to the appellant's claim to say that neither the judgment of this court, nor the order and judgment entered thereon in the court below, dismissed the complaint on the merits. Before the enactment of the Code of Civil Procedure, while the dismissal of the complaint in an action at law was merely a judgment of nonsuit, a different rule prevailed in actions of equity. Wheeler v. Ruckman, 51 N. Y. 391. By section 1209 of the Code, ‘a final judgment dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.’ In the codifier's note it is stated that the object of the section was to make the rule which obtains in actions at law applicable also to action in equity, and such was held to be its effect in Petrie v. Trustees of Hamilton College, 92 Hun, 81, 36 N. Y. Supp. 636. As this judgment would not have been...