Zelleken v. Lynch

• Decision Date: 09 October 1909
• Docket Number: 16,157
• Citation: 104 P. 563,80 Kan. 746
• Parties: ED ZELLEKEN et al., as Partners, etc., v. S. L. LYNCH et al., as Partners, etc
• Court: Kansas Supreme Court

104 P. 563

80 Kan. 746

ED ZELLEKEN et al., as Partners, etc., v. S. L. LYNCH et al., as Partners, etc

No. 16,157

Supreme Court of Kansas

October 9, 1909

Decided July, 1909.

Error from Cherokee district court; S. C. WESTCOTT, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINERAL LEASES--Covenant to Work and Mine "Continuously." In the absence of provisions indicating a contrary intention a covenant in a mining lease that the lessee shall work and mine the property continuously means continuously to the end of the term.

2. MINERAL LEASES--Oral Agreement--Specific Performance--Mutuality of Obligation and Remedy. The owner of mining lots made an oral agreement to lease them for a long term of years, the lessee to work and mine the lots continuously, in good faith and in a miner-like manner. The lessee was put in possession and for three years carried out in good faith the terms of the contract. Meantime the lessee installed machinery, erected improvements, sunk shafts, ran drifts and otherwise developed the property until it became very valuable, and in so doing expended the sum of $ 30,000. After repeated demands the lessor refused to execute a lease for the agreed period. Held, that as against a claim of want of mutuality in the obligation and remedy of the parties specific performance of the oral agreement should be decreed.

William F. Sapp, and Andrew S. Wilson, for the plaintiffs in error.

Edward E. Sapp, and S. E. Cheeseman, for the defendants in error.

OPINION

BURCH, J.:

The plaintiffs, Lynch & Co., brought an action against the defendants, the Dillon company, to compel the performance of an oral agreement to make a lease of mineral land for mining purposes, and was successful. A demurrer to the petition was overruled, and it is claimed here that the petition states no cause of action for specific performance because of a lack of mutuality in the obligation and remedy of the parties.

The petition charges that in consideration of the payment of a certain royalty on the ore to be mined the defendants agreed to make a lease of the land in controversy for a term of years ending in January, 1914, the plaintiffs to work and mine the lots continuously, in good faith and in a miner-like manner; that the plaintiffs went into immediate possession of the lots and have occupied them continuously for a period of more than three years--to the time of filing the petition; that ever since taking possession the plaintiffs have mined the lots and in all other respects carried out in good faith the terms of the contract; that the plaintiffs have installed machinery, erected improvements, sunk shafts, run drifts and otherwise developed the property until it has become very valuable, and in so doing have expended the sum of $ 30,000; that the defendants dispute the terms of the agreement and refuse, after repeated demands, to execute a lease for longer than one year; and that the plaintiffs have no adequate remedy at law and will suffer irreparable injury unless the oral agreement be specifically enforced.

The defendants say the contract pleaded does not bind the plaintiffs to mine the property to the end of the term that the plaintiffs are at liberty to discontinue operations and abandon the lease at any time; and that a court of equity will not compel specific performance in a case where, because of a want of mutuality in obligation, the party seeking the relief may render the decree nugatory by the exercise of a discretion which he rightfully possesses. The principle invoked is one of extensive application, but the defendants misinterpret the contract. It is well understood that whatever is necessarily implied by the words used in a contract is as much a part of the contract as if it had been expressed in elaborate terms. The covenant to mine the lots continuously can have but one rational meaning, and that is: continuously to the end of the term. The implication is as clear and certain as if the expanding phrase had been expressly inserted. Besides this, correlative obligation sufficient to sustain specific performance may be implied from the situation of the parties and the circumstances surrounding the execution of the contract. (Wilbourn v. Bishop, 62 Miss. 341.) The judgment which has been rendered requires the written lease to provide in terms that the plaintiff shall work and mine the lots continuously during the life of the lease. Supported as it is by both the language employed and the evidence produced at the trial this interpretation of the contract is manifestly the true one, and no prejudice resulted to the defendants by founding judgment upon it.

The defendants say the remedies of the parties were not, when the oral agreement was made, and are not now, mutual, and hence that specific performance could not rightfully be decreed. Formerly it was said that mutuality of obligation and of remedy must have existed at the time the agreement was concluded to make specific performance available, and some courts still adhere inflexibly to that rule. Many courts however, have recognized the injustice of denying specific performance if the situation of the parties be such that reciprocity exists at the time the remedy is invoked, and exceptions have been made until the exceptional doctrine has largely superseded the rule. Also, it was formerly said, and in some quarters is still maintained, that mutuality requires identity of remedy, and that both parties must be entitled to specific performance before a court of equity will proceed at the suit of either, but so many modifications of this rule have been found to be necessary to meet the demands of practical justice that it has gone the way of its companion. In a...