Hamrick v. Nutter

• Decision Date: 13 February 1923
• Docket Number: (C. C. No. 224.)
• Citation: 116 S.E. 75
• Court: West Virginia Supreme Court
• Parties: HAMRICK . v. NUTTER.

116 S.E. 75

HAMRICK .

v.NUTTER.

(C. C. No. 224.)

Supreme Court of Appeals of West Virginia.

Feb. 13, 1923.

(Syllabus by the Court.)

Certified Question from Circuit Court, Clay County.

Action by P. A. Hamrick against T. D. Nutter. A demurrer to the declaration was overruled, and the question certified. Affirmed.

J. E. Springston, of Charleston, for plaintiff.

E. G. Pierson and E. P. Alderson, both of Clay, for defendant.

MEREDITH, J. This is an action of assumpsit brought to recover rentals accruing under the minimum royalty provision of a coal mining lease, and also for damages for failure to develop the mine as provided therein. Defendant craved oyer of the "writing obligatory" sued on, which being produced, defendant demurred to the declaration. The demurrer was overruled, and the questions arising thereon were certified here.

The declaration avers that on June 20, 1917, plaintiff being the owner in fee of the undivided five-sixths interest of a certain tract of land containing 137 acres, by a certain indenture then and there made between the plaintiff and defendant, and sealed with their respective seals, the plaintiff, for certain considerations therein mentioned, and especially of the covenants and agreements on the part of the defendant, his heirs, and assigns to be kept, paid, and performed, did lease the said 137 acres to the defendant, his heirs and assigns, for the sole and only purpose of mining and operating the coal and the manufacturing of coke, and for building switches, sidetracks, tipples, coke ovens, and other buildings and structures necessary for the mining and shipping of coke, the land being described by metes and bounds, and that the said lease was to remain in force for the term of 40 years unless sooner terminated as provided therein; that the defendant for himself, his heirs, and assigns, in consideration of the premises, covenanted, promised and agreed: (1) To pay plaintiff a royalty of 10 cents per ton of 2, 240 pounds each for every such ton of coal mined from or used or sold on the premises for any other purpose than the manufacture of coke for shipment; (2) to pay plaintiff 15 cents per ton of 2, 240 pounds each for every such ton of coke man-ufactured upon the premises; (3) to pay plaintiff 15 cents per long ton run of mine for every such ton of cannel coal mined in a seam distinct and separate from the seams containing other coals, and shipped from or used on the premises; (4) to pay the plaintiff a minimum royalty for the use of said premises of $5 per acre per year, whether the quantity of coal mined and coke manufactured should produce that amount of royalty or not; provided, however, that during the first year of the term royalties were to be paid only on the amount of coal mined and during the second year the minimum royalty was to be not less that $2.50 per acre per year, and for the third and each succeeding year thereafter during the life of the lease the minimum royalty was to be $5 per acre per year, all of which royalties and rentals became due and payable on the 20th day of January, April, July, and October of each year, after the 20th day of June, 1917.

Among other averments, plaintiff further says that defendant covenanted, promised, and agreed to mine said coal in the most effective, workmanlike, and proper manner, with due regard for future mining, and according to the most approved and suitable methods of mining, complying with the laws of the state regulating the mining of coal, and to keep the mine in good condition as a going property with all the entries and air courses requisite and proper for the future working of the mine protected by proper pillars of coal and well timbered; that he also covenanted, promised, and agreed reasonably and diligently to develop the said coal, and in like manner to produce the said coal, so that plaintiff might receive and have the income and royalties therefrom which the defendant covenanted, promised, and agreed to pay for the privileges so granted to him; that although each and every acre of the said 137 acres covered by said lease is underlaid with valuable seams of coal, and, although the plaintiff has always from the time of the making of said lease hitherto well and truly performed, fulfilled, and kept all things in said lease contained on his part to be performed and fulfilled and kept according to the tenor and effect, true intent, and meaning thereof, yet said defendant has not performed, fulfilled, or kept anything in the said lease contained or implied therefrom on the part of the said defendant to be performed, fulfilled, and kept, according to the tenor and effect and true intent and meaning thereof, nor has he properly and diligently developed the said seams of coal, or either of them, for coal mining purposes although often requested so to do, nor has he made reasonable efforts to do so, and has not paid to the plaintiff the minimum royalties as provided in said lease, and that, by reason of the defendant's failure to comply with said prom ises and undertakings, and to perform said express and implied covenants, conditions, agreements, and undertakings of said lease, plaintiff has been damaged $3,500.

From the questions certified and from brief of counsel for defendant, it appears that four grounds for demurrer to the declaration are

First. That assumpsit will not lie for breach of a covenant to develop coal lands, notwithstanding sections 10 and 16a, chapter 99, Code (sees. 4369, 4376). It is clear that section 10 applies only to a promise, undertaking, or obligation to pay money, ana where it is signed by the party who is to be charged thereby or his agent. In that case debt or assumpsit lies whether the promise, undertaking, or obligation is sealed or not. Under that section royalties to be paid in money, stipulated in the lease as rents, may he recovered; but this action is not only to recover the royalties or rents, but damages for defendant's breach of the covenant to develop the mining property; it is to this last-mentioned claim that objection is made, and we are cited to Slaughter v. Thacker Coal Co., 55 W. Va. 642, 47 S. E. 248, 65 L. R. A. 342, 104 Am. St. Rep. 1013, 2 Ann. Cas. 335, for defendant's proposition. That case, however, is against defendant's theory. That was an action in assumpsit by plaintiff for damages for breach of a contract to deliver coal for resale. Judge Poffenbarger, who wrote the opinion in that case, took the view that the action did not lie under section 10, c. 99, Code, inasmuch as the breach was a failure to deliver coal; the majority of the court, however, were of opinion that, even under section 10, assumpsit would lie because of a provision in the contract wherein the defendant agreed to pay 10 cents per ton as liquidated damages upon failure to deliver. That case, however, did not turn upon that question. It was brought July 31, 1897, though not decided by this court until 1904. In the meantime, in 1901 (Laws 1901, c. 17), section 16a, c. 99, Code, was enacted, which reads:

"That an action of trespass on the case in assumpsit may be brought in all cases to recover damages for the breach of any contract sealed or unsealed, express or implied."

We are also cited to Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516. Ann. Cas. 1918E, 449, for the proposition that assumpsit cannot be maintained where a covenant affecting real estate is the basis of the action, as, for instance, in the present case, the mining and development of coal. A careful examination of that case, however, does not support that proposition in any sense. In that case items in contract and an item in tort were combined in the same declaration, the item in tort being for certain damage done to some of plaintiff'sproperty; it was there said that there can be no recovery in an action of assumpsit for damages for a mere wrong, and Judge Miller, in his opinion, says:

"The rule which...