Lennox v. Vandalia Coal Company
| Decision Date | 12 November 1900 |
| Citation | 59 S.W. 242,158 Mo. 473 |
| Parties | LENNOX, Appellant, v. VANDALIA COAL COMPANY |
| Court | Missouri Supreme Court |
Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
J. D Johnson for appellant.
(1) In the first count of the amended petition, plaintiff only sued for the installment of fixed rental for that month, together with other installments for subsequent months, omitting from the account all averments regarding the said royalties; but in the second count of the amended petition she sued to recover the royalties for the said month of August, 1895 which were embraced in the original petition, also to recover royalties which accrued for other months subsequent to that month. The trial court, therefore, erred in striking out the entire second count of the amended petition. (2) The claim for fixed rentals and for royalties for the month of August 1895 -- and for that matter, for all the other months mentioned in the first and second counts of the amended petition -- should probably have been embodied in the same count; but defendant did not object to their being declared on in separate counts, so that the defect, if it was one must be considered as having been waived by it. (3) The enlargement of the original petition in the first count of the amended petition, so as to declare on the monthly installments of fixed rentals which had accrued between the filing of the two petitions, does not constitute "a substitution of a new cause of action;" neither do the averments of the second and third counts which are predicated on royalties that accrued to plaintiff under the lease during other months than the month of August, 1895, which were unpaid at the time the amended petition was filed, amount to such "a substitution of a new cause of action." The trial court, therefore, erred in striking out both these counts and the portions of the first on the grounds assigned. Union Depot Co. v. Railroad, 131 Mo. 311; Childs v. Railroad, 117 Mo. 436; Nave v. Adams, 107 Mo. 421; Railroad v. Calkins, 90 Mo. 538; Ward v. Davidson, 89 Mo. 455; Schwab v. Railroad, 71 Mo.App. 244; R. S. 1889, secs. 2063 and 2104; Liese v. Meyer, 143 Mo. 555.
Geo. Robertson and Peers & Morsey for respondent.
(1) When this action was first brought, there was due only the amount for the month of August, 1895, and therefore could not include any installments for the future, and any installment for any subsequent month is a distinct action. Flaherty v. Taylor, 35 Mo. 451; Railroad v. Traube, 59 Mo. 355; Hoffmann v. Hoffmann, 126 Mo. 487; Boyce v. Christy, 47 Mo. 70. The court did not err in striking from the first count of plaintiff's amended petition the claims for the months accruing after August, 1895, for the reason that each month thereafter constituted a new cause of action. Davis v. Clark, 40 Mo.App. 515; Scoville v. Glassner, 79 Mo. 449. The court did not err in striking out the second count, as it was a substitution of a different cause of action from the original and was based solely on an erroneous construction of the contract as stated in that count. (2) By refiling the petition as amended and filing reply to answer, the plaintiff acquiesced in the action of the court in striking out the parts of the petition. The point is waived by failing to stand on the original pleading. Coffman v. Walton, 50 Mo.App. 404; Fugle v. Hobbs, 42 Mo. 537. And it makes no difference that plaintiff excepted to the ruling of the court in sustaining the motion. Gale v. Foss, 47 Mo. 276. (3) The court should have allowed the defendant to show that the coal was exhausted, for a contract to work is terminated by the exhaustion of the mines. Walker v. Tucker, 70 Ill. 527; Beach on Contracts, sec. 235; Lawson on Contracts, sec. 425.
Geo. W. Lennox owned a tract of land containing about one hundred and forty acres adjoining the Wabash Railway, at Wellsville, Montgomery county, Missouri. This land was supposed to be underlaid with coal, and valuable for mining purposes. On December 27, 1887, Mr. Lennox and his wife, the plaintiff herein, executed a mining lease to defendant for the period of twenty years, ending December 27, 1907.
By the terms of the lease defendant was given "the exclusive right to enter upon the land hereby leased, to search for coal, and to drive tunnels, passages, and ways in and through said land, and to mine and remove coal therefrom in such manner as may be expedient." The lease also gave defendant two hundred and ten feet square of surface, of the leased premises, adjoining the Wabash Railway, on which to sink hoisting and air shafts and erect necessary hoisting machinery, buildings, etc. Also a strip of land seventy feet wide, running from the hoisting shaft along the railroad to the northeast corner of the tract, on which to deposit debris from the shaft; also the right of way of a wagon road from "the said shaft to the nearest public highway." In addition thereto, it gave defendant the right to hoist the coal mined on the land adjoining the leased premises up through said hoisting shaft. In respect to the rents to be paid by defendant therefor, the lease provided as follows: "And lessee agrees that commencing with the month of July, 1888, they shall pay to said lessors the sum of fifty dollars per month, and commence the running of the coal not later than the first day of July, the same year, and continue mining operations until all the workable coal shall be taken out, producing therefrom monthly not less than eight hundred tons of merchantable coal, such as may pass over a screen of one inch mesh, for which said lessee agrees to pay 6 1-4 cents per ton royalty, and the said lessee further agrees with the said lessors to make monthly settlements with said lessors for above specified monthly payments of fifty dollars, also for all coal mined from the land so leased, on or before the twenty-fifth day of each succeeding month; provided, however, that in case of a failure to produce the amount of coal herein stated, as the monthly minimum production, the said lessee agrees to pay said lessors, their executors, administrators, or assigns, the sum of fifty dollars for each month; the difference between this sum and the amount actually due for royalty on the coal mined to be regarded as advance royalty, and to be deducted from the excess production of any succeeding month of the current year."
The defendant immediately took possession of the leased premises, sank shafts, erected buildings and machinery, mined and removed coal therefrom, and from the adjoining land up through said hoisting shaft on said leased premises, and was still in possession of the land, using the same and hoisting coal through said shaft from the adjoining land at the time of the trial in the court below. Mr. Lennox died in March, 1894, having, by a will subsequently probated, devised and bequeathed to the plaintiff, all his right, title and interest in and to the leased premises, together with all his rights, benefits and interests under such lease and made her his residuary legatee, appointing her executrix of the estate. This action was brought by the plaintiff, as such devisee, in the Montgomery Circuit Court, on October 10, 1895, to recover an installment of rent of $ 50, and the royalty then alleged to be due, under the lease in question, for the month of August, 1895.
The case was tried at the November term, 1895, and resulted in a judgment in favor of defendant. From this judgment an appeal was taken to the St. Louis Court of Appeals, where the judgment of the trial court was reversed and the cause remanded for a new trial. [Lennox v. Vandalia Coal Co., 66 Mo.App. 560.] On the return of the case in November, 1896, plaintiff filed an amended petition, containing three separate counts.
In the first count plaintiff enlarged her demand, as set up in the original petition, so as to include the installment of rent of $ 50, for the months of August, September, October, November and December, 1895, and January, February, March, April, May, June, July, August and September, 1896, aggregating the sum of $ 700. All of these installments, except the one for August, 1895, accrued subsequent to the filing of the original petition; the claim for royalty of 6 1-4 cents per ton contained in the original petition, being omitted from this count.
The second count sought an accounting for all coal mined by defendant under the lease, from the date of Mr. Lennox's death, at which time under the provisions of the will, plaintiff became seized of the leased premises in fee, until November 24, 1896, the date of filing the amended petition, and prayed judgment for the royalty of 6 1-4 cents per ton thereon, as provided for in the lease, which, it is alleged, amounted in the aggregate to the sum of $ 1,500.
The plaintiff sought in the third count to recover for royalties which had accrued under the lease on coal mined by defendant, during the period beginning October 1, 1892, and ending at the death of Mr. Lennox, upon the theory that the royalties were bequeathed to her by her husband's will as residuary legatee; that the administration, upon said estate, had been finally settled before this suit was brought and all demands against the same paid, hence, the royalties became the absolute property of the plaintiff and an action therefor could be maintained by her in her individual capacity.
On motion of defendant, the court below struck out the second and third counts of the amended petition, and all of the first count "except the claim for rent for the month of August, 1895," thereby leaving the action as stated in the original petition. Defendant based its motion to strike out the first, second and third counts of plaintiff's...
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