Reynolds v. Zarlengo

Decision Date12 November 1927
Docket NumberNo. 7885.,7885.
Citation22 F.2d 626
PartiesREYNOLDS v. ZARLENGO et al.
CourtU.S. Court of Appeals — Eighth Circuit

Cass M. Herrington, of Denver, Colo., for plaintiff in error.

Hudson Moore, of Denver, Colo. (Wilbur F. Denious, of Denver, Colo., on the brief), for defendants in error.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

POLLOCK, District Judge.

Error to review a judgment in an ejectment action brought by plaintiff in error (hereinafter called "plaintiff") against defendants in error (hereinafter styled "defendants").

The action was based on the claimed right of plaintiff to recover certain premises leased to defendant Zarlengo to operate coal mines thereon. The ground of the action is: That said lease had been forfeited by the failure to pay installments of rental accrued under the terms of the contracts of lease. The contracts of lease consist of an original lease dated September 18, 1918, between plaintiff and defendant Zarlengo, as thereafter modified by two subsequent agreements dated March 12, 1918, and September 17, 1925. Defendant the Shamrock Company was a sublessee under Zarlengo. While the original lease is quite lengthy in its terms, in brief, it provided for the payment of rentals reserved by the deposit of the same in the Colorado National Bank at Denver of ten cents per ton on all coal mined on the premises on or before the tenth day of each month to the credit of the lessor. It appears all royalties or rentals reserved in this lease and the subsequent agreement of modification of March 12, 1919, were promptly paid. The claimed right of forfeiture arose out of the modification of September 17, 1925. From this instrument it appears it was thought by the parties an operating coal company which had theretofore mined coal from the premises under a subcontract of lease from Zarlengo, named the National Fuel Company, had not truthfully reported the correct amount of coal mined or royalties it was agreed to be paid. By this modification of the original lease the lessee, Zarlengo, was to begin an action to recover such royalties as it was by the parties thought should be recovered on a true and just accounting of coal mined from the premises. That plaintiff would waive the right of forfeiture of said lease, because such rentals or royalties of ten cents per ton had not been paid that were not reported by the operating company, and that on the recovery in said action plaintiff was to have a first lien for the payment of ten cents per ton royalty under his lease to Zarlengo, and in case such amount of recovery should not be paid in cash, and a lien should be given to secure the same on the machinery placed in the mine operating the lease, such machinery should be regarded as the property of the plaintiff until his claim should be fully paid off and discharged; but that Zarlengo should have the right to use the same upon payment as rental therefor of a royalty of two cents per ton from the coal mined from the premises at the same time, same manner, under the same penalties for failure to pay as...

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