Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
GRAVES, J.
The opinion in this case should be read in connection with the opinion in our No. 24018, styled Sebastian County Coal & Mining Company, Respondent, v. Fidelity Fuel Co., Appellant, John Mayer et al., Defendants. Both appeals here arise out of the same record and trial nisi. In fact, one appeal is from one portion of a single judgment nisi, and the other appeal is from another portion of such judgment. The facts involved as to the two appeals are so different upon vital issues that two separate opinions are required. In the appeal of the Fidelity Fuel Company, we have outlined the general and common facts. So to that opinion we (for brevity) refer. In the instant case, being our No. 24017, and appeal by the plaintiff is from that portion of the judgment of the circuit court, by which it was adjudged that neither defendant John Mayer nor defendant Mayer Coal Company was liable for the defaults of the Fidelity Fuel Company, in relation to its lease from the plaintiff, Sebastian County Coal & Mining Company. It is sought to hold John Mayer and Mayer Coal Company as guarantors for the Fidelity Fuel Company under the lease fully discussed in the Fidelity Fuel Company appeal. In this case the defendants Mayer and Mayer Coal Company by answer pleaded the original lease and subsequent agreements. In the other opinion we spoke of a sublease by Fidelity Fuel Company to its miners at mine No. 10, which was assented to by the plaintiff. In the petition therein set out it is claimed that the assent to such sublease was given on the understanding that John Mayer and the Mayer Coal Company would
guarantee to plaintiff the full performance of the original lease, and subsequent agreement reducing the minimum quarterly rents of royalties. Learned counsel for appellant in this appeal in their statement say:
"This is an action to recover rentals (sometimes called minimum royalties) and taxes due the plaintiff company under the terms of a written lease originally made between the plaintiff's predecessors in interest and defendant the Fidelity Fuel Company. The defendants John Mayer and Mayer Coal Company were joined because, being interested in the Fidelity Fuel Company, they secured the plaintiff's written consent (as required by the lease R. 19) to an assignment of the lease to a certain organization of miners who were working for them. This assignment was only consented to and granted by the plaintiff company upon the understanding that John. Mayer and the Mayer Coal Company should be responsible to the plaintiff for the faithful performance of the lease, which understanding we contend was covered by certain correspondence passing between the parties and offered in evidence.
"Under the pleadings, as they stood at the time the case was tried, and the evidence, the plaintiff was entitled to and did have judgment against the Fidelity Fuel Company. John Mayer and the Mayer Coal Company contended that any agreement on their part to pay the rentals and taxes was within the statute of frauds, and that there was no written note or memorandum such as was required to satisfy the statute. The trial court entered judgment in favor of John Mayer and the Mayer Coal Company, and it is from this judgment that the plaintiff has appealed. The Fidelity Fuel Company appealed from the judgment against it."
In the answer to John Mayer, it is admitted that he had acquired a majority of the stock of the Fidelity Fuel Company, and his answer was adopted by the Mayer Coal Company. This was before the letters upon which plaintiff relies to hold John Mayer and Mayer Coal Company. The oral testimony sheds no light upon the alleged guaranty. If there was such, it must appear from the written correspondence. We shall set out the letters in regular order. The first letter is of date August 9, 1915, and appears to be in confirmance of a talk had with Mr. A. W. Lefeber, who had control of the coal matters (so far as the lease was concerned) of the Sebastian County Coal & Mining Company. This letter reads:
"Kansas City, Mo., August 9, 1915.
"Leasing of Fidelity Mine of Fidelity, Ark.
"A. W. Lefeber, V. P. & T. M. Midland Valley Ry. Co., Muskogee, Oklahoma—Dear Sir: Confirming verbal conversation with you at Muskogee, wish to say that we desired to lease the above property to the men working for us at Fidelity—the lease to be under our supervision, protecting in every way the interests of the Cherokee Construction Company and the Midland Valley Railroad Company. The following Tuesday I met your Mr. Gallager, and showed him a copy of the lease that we had prepared, which met the approval of the man, and to which lease he found no objection. I promised to confirm my conversation with you by letter, but was detained at the mines working out the details of the arrangements; hence, delay
"Trusting this meets your approval, I am
"John Mayer."
To this letter there was a reply, which reads:
"Muskogee, Oklahoma, August 12, 1915
"File 312-7
"Mr. John Mayer, 323 Sheidley Bldg., Kansas City, Missouri—Dear Sir: I acknowledge receipt of yours of August 9, in reference to you or the Mayer Coal Company making a working contract with the miners at your Fidelity mine, and asking our approval thereof, all as provided for in the lease between Fidelity Fuel Company and Cherokee Construction Company of date January 1, 1909. In reply thereto, I wish to say it is agreeable to the Sebastian County Coal & Mining Company and the Midland Valley Railroad Company for you to make such working contract as mentioned, you and the Mayer Coal Company being responsible to the Sebastian County Coal & Mining Company and the Midland Valley Railroad Company for the faithful performance of the original contract above referred to; but we would like to ask, as personally stated, that copy of such contract be sent to us to be attached to original lease. If this is not the understanding, please advise. Not hearing from you, this correspondence will be attached to and as a part of contract first above referred to.
"Yours truly, A. W. Lefeber."
To this letter was sent the following answer:
"Kansas City, Mo., August 16, 1915
"Leasing of Fidelity Mine No. 10 to the Men.
"A. W. Lefeber, V. P. & T. M., Midland Valley Railroad Company, Muskogee, Oklahoma— Dear Sir: Answering your favor of August 12, 1915, your file 312-7, herewith we hand you copy of a lease that we made with these people, together with their committee's acceptance of same. This is complete except signature and exhibit—being copy of your lease which we did not think it was necessary to make, as it is a complete copy of your lease with the Fidelity Fuel Company. This should be attached to your original lease, which would make it complete.
"You will note this lease calls for a royalty basis, which our attorneys advise us is the way to draw this. We have another sale contract of the entire coal to the Mayer Coal Company, which is separate and distinct from this lease, in order that it will not get them tangled up legally and complicate matters. This sale contract is just for the sale of the output of coal after they have paid the royalty under lease. Our attorneys went into this quite carefully, and advised that this was the proper way to do to protect ourselves and the Midland Valley lease from any legal technicalities that might be raised at any time.
"The men are now operating the property, and it looks as though they are going to get along in good shape,. and that we will be able
to do something with it, which we were not heretofore able to do.
"Yours truly
"The Mayer Coal Company
"John Mayer."
On September 7, 1915, we have the following letter:
"Mr. John Mayer, 323 Sheidley Building, Kansas City, Missouri—Dear Sir: I have yours of August 16th in reference to operation of the property heretofore leased to the Fidelity Fuel Company, and understand therefrom the terms stated in our letter of August 12 are accepted; and these three letters have been attached to as modifying and making a part of the original lease between the Fidelity Fuel Company and the Cherokee Construction Company, dated January 1, 1909.
"Yours truly, A. W. Lefeber."
The foregoing outlines in a general way this case. Details are left to the opinion.
I. The record before us does not show the direct relationship between John Mayer and the Mayer Coal Company. The letterheads upon which John Mayer wrote have the following heading:
"Address all Communications to the Company.
"The Mayer Coal Company, Coal Operator.
"General Offices: 323-324 Sheidley Building, Cor. 9th & Main. Local and Long Distance Phones Main 3092.
"Producers of the famous `Mayer-Fidelity' Coal. Our specialty `Katy Cherokee' and `Greenwood Semianthracite.'
"Mines in Southern Kansas and Arkansas.
"Shipments via all roads.
"Wholesalers: Anthracite semianthracite smithing shock coals Cherokee. All grades of domestic and steam coals. Mine weights govern all shipments.
"All sales subject to conditions of acceptance of order."
This was the letter paper upon which John Mayer wrote the letter of August 9, 1915, and all subsequent letters. All letters from the other side were addressed to...
