Ross v. Savage

• Decision Date: 01 July 1913
• Citation: 63 So. 148,66 Fla. 106
• Parties: ROSS v. SAVAGE et al.
• Court: Florida Supreme Court

63 So. 148

66 Fla. 106

ROSS v. SAVAGE et al.

Florida Supreme Court

July 1, 1913

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Herbert W. Savage and another against Roderick G. Ross. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration, but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.

In construing any written instrument, whether a deed of conveyance, a bill of sale, mortgage, contract, or what not the entire instrument must be considered, in order to gather the real intent and to determine the true design of the makers thereof. To that end, all the different provisions of such instrument must be looked to, and all construed so as to give effect to each and every of them, if that can reasonably be done. If clauses therein seem to be repugnant to each other, they must be given such an interpretation and construction as to reconcile them if possible, remembering that the intent is the principal thing to be regarded. If one interpretation, looking to the other provisions of the instrument and its general scope, would lead to an absurd conclusion, such interpretation must be abandoned, and one adopted which will be more in accord with reason and probability.

When parties deliberately put their engagements in writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of the engagement, it is, as between them, conclusively presumed that the whole engagement and the extent and manner of the undertaking is contained in the writing. No other language is admissible to show what they meant or intended, and for the simple reason that each of them has made that to be found in the instrument the agreed test of his meaning and intention.

The first point in construing a contract is to ascertain what was the meaning and understanding of the parties, as shown by the language used, applied to the subject-matter.

When words or terms having a definite legal meaning and effect are knowingly used in a written instrument, the parties thereto will be presumed to have intended such words or terms to have their proper legal meaning and effect, at least in the absence of any contrary intention appearing in the instrument.

There must be a meeting of two minds in one and the same intention in order that there may be a contract.

Where a lease contains the following stipulation: 'It being expressly understood between the parties hereto that this lease is made for the sole purpose of granting to the lessee the rights and privileges of exploring for mining, taking out and shipping therefrom the merchantable phosphate rock, as well as all other minerals of whatsoever kind or nature as hereinafter provided for, which is or may hereafter be found on, in or under the said land, with the right in the lessee to construct all buildings, and to make all excavations openings, ditches, and drains and construct all railroads wagon roads and all other improvements which are or may become necessary or suitable for the purpose of mining or removing therefrom phosphate or other mineral of whatever nature or kind found thereon and of the carrying on of mining operations thereon'--it is obvious that the mutual intention of the parties executing the lease was to give to the lessee the mining rights set forth therein.

When the main purpose of the parties in executing a lease was to give to the lessee the right to mine the phosphate rock upon the lands described therein, even though there is no express covenant on the part of the lessors that there was phosphate rock on the leased premises, in the absence of any showing in the lease to the contrary, it must be held that the parties to the lease assumed that sufficient phosphate rock was in or on the land to enable the lessee to comply with terms of the contract, and that but for this mutual assumption the contract would not have been made.

Where a lease is executed for the purpose of giving to the lessee the right to mine the phosphate rock on the land described therein, and the lessee agrees therein to pay 'royalty on all phosphate rock mined and shipped from said lands under this lease, while the same shall remain in force at the rate of fifty (50¢ ) for each gross ton,' a further covenant therein, to the effect that the lessee shall pay advance royalties or ground rent up to a certain named amount, whether sufficient rock is mined or not, to yield such amount at the royalty per ton named, is not an independent covenant, but must be held to be dependent upon the covenant to pay royalty upon the phosphate rock mined. In an action upon such contract by the lessors, pleas setting up, in substance, the nonexistence of any minable rock in or upon the land constitute a good defense to the action, and it is error to sustain a demurrer to the pleas.

COUNSEL Bisbee & Bedell, of Jacksonville, for plaintiff in error.

Baker & Baker, of Jacksonville, for defendants in error.

OPINION

SHACKLEFORD C.J.

This case comes here for the second time. For the opinion upon the former writ of error, see Savage v. Ross, 59 Fla. 407, 52 So. 16, wherein we reversed the judgment for the reasons stated. Upon the going down of the mandate, divers and sundry proceedings were had, to which it is unnecessary to refer. What is termed the 'amended third count to the amended declaration' is as follows:

'(3) And the plaintiffs further sue the defendant for that heretofore, to wit, on the 11th day of June, A. D. 1907, in the county and state aforesaid, the plaintiffs and the defendant made and entered into a contract in writing, under seal, in the words and figures following, to wit:

"This lease made this eleventh day of June, A. D. 1907, between Herbert W. Savage, of the county of Hamilton and state of Ohio, and Thomas P. Denham, of the county of Duval and state of Florida, hereinafter called the lessors, wherein Edith E. Savage, wife of Herbert W. Savage, and Mary S. Denham, wife of Thomas P. Denham, join parties of the first part, and R. G. Ross, of the county of Duval and state of Florida, hereinafter called the lessee, party of the second part.

"Witnesseth, that the lessors in consideration of the sum of one dollar ($1.00) to them in hand paid by the lessee, the receipt whereof is hereby acknowledged and in further consideration of the covenants, conditions [63 So. 150] and provisions of this lease to be kept and performed by the lessee do hereby let, remise and release unto the lessee, for a term of ten years from and after the first day of July, A. D. 1907, the right to dig, mine, handle and remove [66 Fla. 110] phosphate rock and all other minerals of whatsoever kind or nature that may be situated upon, in or under the surface of the following described land situate in the county of Clay and State of Florida, to wit."

Then follows a lengthy description of the land, which we omit.

"Together with the right of ingress and egress on, over and upon said hereinabove described premises, and to do all such other and further things on and upon the said lands as the lessors have the privilege and right to do and perform under and by virtue of the rights and interests and privileges reserved to the lessor Herbert W. Savage, in and by that certain deed of conveyance to Long & Buddington, dated the 7th day of September, 1905, recorded in Deed Book 'P. P.' page 461 of the Public Records of Clay County, Florida; and any and all subsequent deed or deeds of conveyance to said Long &amp Buddington of lands conveyed by the National Bank of the state of Florida to the lessor Herbert W. Savage; and subject nevertheless, to any and all rights of way evidenced by instruments now of record through, over or across any part of said described premises or that may be hereafter granted upon said described lands, it being expressly understood between the parties hereto that this lease is made for the sole purpose of granting to the lessee the rights and privileges of exploring for mining, taking out and shipping therefrom the merchantable phosphate rock, as well as all other minerals of whatsoever kind or nature as hereinafter provided for, which is or may hereafter be found on, in or under the said land, with the right in the lessee to construct all buildings, and to make all excavations, openings, ditches and drains and construct all railroads, wagon roads and all other improvements which are or may become necessary or suitable for the purpose of mining or removing therefrom phosphate or other mineral of whatever nature or kind found thereon and of the carrying on of mining operations thereon.

"(2) The lessee hereby covenants and agrees to pay to the lessors a royalty on all phosphate rock mined and shipped from said lands under this lease, while the same shall remain in force at the rate of fifty cents (50¢ ) for each gross ton. The royalty shall be due and payable on the 10th days of October, January, April and July in each and every calendar year (which days are hereinafter called 'quarter days'). The payment on each quarter day shall be for the full amount of phosphate rock mined and shipped from said lands during the three months immediately preceding the first day of the month in which the payment shall become due as aforesaid.

"The lessee further covenants that during the existence of this lease it will mine and ship, as the agreed minimum output of phosphate rock as follows:...