Sargeant v. Leach

• Decision Date: 28 March 1911
• Docket Number: No. 7,174.,7,174.
• Citation: 94 N.E. 579,47 Ind.App. 318
• Parties: SARGEANT et al. v. LEACH.
• Court: Indiana Appellate Court

47 Ind.App. 318

94 N.E. 579

SARGEANT et al.

v.LEACH.

No. 7,174.

Appellate Court of Indiana, Division No. 2.

March 28, 1911.

Appeal from Circuit Court, Warrick County; Roscoe Kiper, Judge.

Action by Margaret Leach against Eugene Sargeant and another. From a judgment for plaintiff, defendants appeal. Affirmed.

William Reister and H. F. Fulling, for appellants. F. B. Posey and W. Z. Bennett, for appellee.

IBACH, J.

This action was brought by appellee against appellants to recover royalties alleged to be due under the terms of a coal mining lease, originally executed by one O. P. Sargeant to one Robertson. Said lessor has since died, and appellee is one of his heirs. The lease was subsequently assigned by said Robertson to the appellants. The cause was tried by the court, resulting in a finding and judgment in favor of appellee in the sum of $415.

The complaint originally was in three paragraphs. The first and second paragraphs were dismissed, and the third charged, in substance, that O. P. Sargeant, the father of these appellants and this appellee, in his lifetime executed a coal lease to one Robertson, the provisions of which lease, so far as they are pertinent to this action, are as follows: “That Robertson is to have a shaft sunk, and ready for operation twelve months from the date of the lease, and thence to dig and mine coal and pay the party of the first part for all salable coal at the rate of forty cents per hundred bushels of eighty pounds per bushel; payment to be made monthly for all coal dug and mined during the succeeding years. Said party of the second part (Robertson) reserves the right to all slack for fuel for engine.” It is further averred in the complaint “that afterwards the contract was orally modified by an agreement that the royalty should be 25 cents per hundred bushels, instead of 40 cents per hundred bushels as provided in the lease, and under said agreement the said Robertson operated the mine and paid the royalty therefor to the said O. P. Sargeant; that after the death of said Sargeant the said Robertson continued to pay the royalty at the rate of 25 cents per hundred bushels until 1897, when Robertson assigned said lease to the appellants, who now and for 10 years last past have operated the same; that the plaintiff is the owner of two-fifths interest in the coal covered by the lease, having purchased a sister's one-fifth interest; that there is due plaintiff $2,000 for royalties unpaid,” for which she asks judgment. To the complaint appellants filed an answer, first, in general denial, and, second, an answer pleading special matter, in which it is averred that the plaintiff is only entitled to one-fifth of the royalties, said royalties to be computed upon a basis of 25 cents per hundred bushels, instead of 40 cents per hundred bushels, and that they are entitled to all the pea and slack coal by reason of a construction which had been placed upon the lease by the conduct of the original parties to the same, that no royalty had ever been paid...