Swan v. Brewer

• Decision Date: 01 February 1899
• Docket Number: 347
• Court: Kansas Court of Appeals
• Parties: W. A. SWAN v. ANDREW BROWN AND J. W. BREWER, Partners as Brown & Brewer, AND SAMUEL BARRETT

56 P. 141

8 Kan.App. 505

W. A. SWAN v. ANDREW BROWN AND J. W. BREWER, Partners as Brown & Brewer, AND SAMUEL BARRETT

No. 347

Court of Appeals of Kansas, Southern Department

February 1, 1899

Opinion Filed February 18, 1899.

Error from Crawford district court; J. S. WEST, judge. Reversed.

Judgment reversed and cause remanded.

B. F Pursel, for plaintiff in error.

Fuller & Randolph, for defendants in error.

OPINION

MILTON, J.:

This action was brought by the plaintiff in error against the defendants in error to recover the sum of $ 1250, claimed to be due under the terms of a lease of certain land for coal-mining purposes, for the year beginning August 1, 1893. The defendants were the assignees of the lease. It was executed on the 20th day of June, 1893, and the assignment thereof was made in February, 1894. By the terms of the lease, the lessees agreed that at their own expense they would sink all necessary shafts, put in all requisite machinery and hoisting apparatus, construct suitable railway-tracks and switches, and erect and maintain all equipments necessary to successful operation of the mine, and that they would put the mine in a first-class condition and would employ experienced miners to operate the same. They agreed to pay as royalty one-half cent per bushel of eighty pounds for all "lump" and "mine-run" coal taken from the mine, and to pay the amount due for royalty for each month on or before the 1st day of the following month. The lease further provided as follows:

"Said parties of the second part further agree to commence work at once and vigorously prosecute the same, so as to have said mine in working order at the earliest possible time. Said mine shall have a capacity of not less than two cars per day of royalty coal, in the absence of 'horsebacks' and other faults in the coal stratum.

"Said parties of the second part agree to operate said mine continuously, unless prevented by strikes or other unforeseen or unavoidable causes, until June 20, 1895, or until all coal underlying said tract of land (except as hereinafter provided) which can be practicably mined shall have been taken out. The annual output of said mine, dating from August 1, 1893, shall not be less than 500 cars of 500 bushels each of royalty coal.

"This lease and contract shall continue and be in force for a period of two years, unless all the minable coal underlying said land be removed under this contract before the expiration of two years."

It was also stipulated in the lease that all the machinery and other property owned...