Lawson v. Williamson Coal & Coke Co.

• Decision Date: 17 April 1907
• Citation: 57 S.E. 258,61 W.Va. 669
• Parties: LAWSON et ux. v. WILLIAMSON COAL & COKE CO.
• Court: West Virginia Supreme Court

57 S.E. 258

61 W.Va. 669

LAWSON et ux. v. WILLIAMSON COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

April 17, 1907

Submitted September 16, 1906.

Syllabus by the Court.

Stipulations in a lease of land for coal mining and coke manufacturing purposes, binding the lessee to pay to the lessors, from and after a date therein specified, the sum of $5,000 per annum during the life of the lease, as a minimum royalty for the demised property, whether the quantity of coal mined and coke manufactured shall produce that amount of royalty or not, and providing that all rents and royalties in the lease agreed to be paid shall be deemed and treated as rents reserved upon contract by the lessors, constitute, in the absence of any clause in the lease positively expressing contrary intent, an absolute undertaking to pay said sum.

A clause in such a lease, providing that, on failure of the lessee to comply with the provisions thereof as to payment of the royalties, or as to development of the property, it shall "become forfeited and utterly void," does not sufficiently manifest intent that it shall be optional with the lessee to develop the property and pay the rent or not as he may see fit, to overcome the expressed intention that the minimum royalty shall be paid, whether any coal is mined or coke manufactured or not.

As such clause is one of forfeiture and intended for the benefit of the lessor, the lessee cannot terminate, render inoperative or annul the contract by mere failure to enter upon the land and occupy or develop it as lessee.

Payment of royalties accruing under such a lease may be en forced by any remedy by which rent is recoverable, and the trial of any issue arising in an action or proceeding brought for the recovery thereof as rent is governed by the same rules that would apply if it were rent in the strict legal sense of the term.

Royalties accruing under such a lease are recoverable in assumpsit under an indebitatus count for use and occupation, or under a special count on the contract.

As to the lessor, such a lease is an executed contract, and is admissible as evidence under a common count to prove the amount he is entitled to recover.

To enable a lessor to recover rent due on the contract of lease no entry upon, or occupation of, the leased premises need be shown, except in the case of a common-law tenancy at will. Since the obligation to pay rent arises out of the contract, not the entry, the action may be maintained, though no entry was ever made.

Evidence to sustain a demand for rent is not admissible under a declaration containing no counts other than the indebitatus counts for goods, etc., sold and delivered, work and labor, money lent, advanced, etc., money had and received and an account stated, there being no evidence tending to prove a settlement so as to bring the case within the last-mentioned count.

When such evidence has been admitted under such a declaration, the errors committed and the variance occasioned by its admission may be cured by amending the declaration at any time before verdict, if the defendant waives the right to a continuance which the act of amendment gives him.

A reproduction of the original declaration with a new count added, entitled ""Amended Declaration," and so designated and treated in the order of the court filing it, is deemed an amended declaration, not a new and independent one.

To prevent resort to an action at law for breach of a contract, in the first instance, on the ground that the defendant is entitled to a determination of the matter in controversy by an arbitration, it must appear, not only that the contract provides for an arbitration in such case, but also that it has been made a condition precedent to such right of action.

Error to Circuit Court, Mingo County.

Action by George W. Lawson and wife against the Williamson Coal & Coke Company. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Sheppard, Goodykoontz & Scherr, for plaintiff in error.

Stokes & Bronson and D. J. F. Strother, for defendants in error.

POFFENBARGER J.

A judgment of the circuit court of Mingo county in favor of Geo. W. Lawson and wife against the Williamson Coal & Coke Company for $5,427.48, brought into this court by a writ of error, involves questions concerning the right of a lessor in a coal lease to recover from the lessee, who has never taken actual possession of the leased premises, the minimum royalty provided for in the written lease and taxes on the land which the lessee bound himself to pay.

In the petition for the writ there are 22 assignments of error, all of which are insisted upon in the argument; but separate discussion of them is unnecessary, since they grow out of, and are reducible to, legal principles fewer in number. The first 15 are predicated upon the overruling of objections to oral testimony of the plaintiff, introduced for the purpose of proving the signatures to the contract, nonpayment of the royalty and taxes, correctness of the account filed, payment of taxes by the plaintiff, and similar matters. All these objections are based upon the theories of no right of recovery, because the defendant had made no entry upon the land under the contract, and lack of a count in the declaration under which the evidence is admissible. The sixteenth and seventeenth are founded upon the action of the court in refusing to strike out the evidence; the eighteenth upon the allowance of an amendment to the declaration, over the objection of the defendant, after all the evidence had been introduced and the case submitted to the court; the nineteenth upon the rendition of judgment; the twentieth upon the overruling of the motion to set aside the finding and judgment; the twenty-first upon the overruling of a motion in arrest of judgment; V and the twenty-second upon the overruling of a motion for judgment for defendant.

By the first and second clauses of the agreement the land, about 2,000 acres, is demised and leased to the defendant for coal mining and coal coking purposes only, for a period of 30 years, with the right of renewal for an additional like period, and certain stipulations made concerning reserved rights to prospect for and produce oil and gas from the premises, and respecting timber on the land. By the third clause the lessee covenants, agrees, and promises to pay to the lessor, during the continuance of the lease, as royalty or rent for the premises, 10 cents for each ton of coal mined and carried away from the premises or used or sold thereon, and 15 cents for each ton of coke made thereon. The fourth, fifth, sixth, seventh, and eighth clauses relate to methods of accounting, working the mines, and other matters, not involved in this action. The ninth, tenth, twelfth, fourteenth, and nineteenth clauses, all that have any really important bearing upon this inquiry, read as follows:

"Ninth. It is further covenanted and agreed that the lessee shall, within a reasonable time hereafter, proceed with all reasonable dispatch to establish his coal mining plant for the development of said property. And the said lessee doth agree and bind itself to pay to the lessors, from and after the first day of January, nineteen hundred and four (1904), the sum of five thousand dollars ($5,000.00) per annum as a minimum royalty or rental for the property herein demised, whether the quantity of coal mined and coke manufactured shall produce that amount of royalty or not. But in case the lessee shall fail to mine enough coal to produce the minimum royalty for any one year, it shall have the privilege of mining the next two succeeding years, free from royalty, a sufficient amount of coal above the amount necessary to produce the minimum royalty for that year to reimburse itself for the deficiency for the two preceding years; but no payment in excess of the minimum for any one year shall be credited against the deficiency of the subsequent year.

Tenth. The lessee agrees to pay all taxes that may be assessed against the demised premises and the improvements thereon, and upon the coal mined or coke manufactured, during the continuance of this lease, and also all other assessments by court or operation of law thereon when and as the same shall become due and payable."

"Twelfth. It is further agreed that all rents and royalties herein agreed to be paid shall be deemed and treated as rents reserved upon contract by the lessors, who reserve to themselves all rights of landlords under the laws of West Virginia for the collection of the same, and if any of the rents and royalties shall remain unpaid for thirty (30) days after the same shall become due and payable as hereinbefore provided, the lessors shall have the right to enforce the payment of the same by the remedies given by the law to landlords against delinquent tenants. It is further agreed that not only the personal property shall be subject to distress as contemplated and directed by law, but also that the lessors may enter upon the leasehold and sell the same or any part thereof, together with the improvements thereon, for the rents and royalties then due upon the default in the payment thereon as aforesaid. At any sale of this lease or leasehold, or any part thereof, under this clause, the lessors shall have the right to become the purchasers thereof free from any and all claims of the lessee."

"Fourteenth. In case the lessee shall fail to comply with the provisions of this lease as to the payment of royalties, or as to the development of said property, then this lease shall become forfeited and utterly void."

"Nineteenth. In the event that any controversy or difference or matter in dispute shall arise between the parties hereto, growing out of this contract and agreement

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