Opinion by
Beaver, J.,
A careful analysis of the facts of this case, which are not sufficiently stated by the appellants in their history to give a complete understanding of it, will make easy the application of the few simple legal principles involved.
The action is ejectment for “ the coal known as the ‘ Great Bend coal seam or vein ’ in and under ” two pieces or parcels of land purchased, on December 5,1894, at sheriff’s sale by the Hon. Martin Bell, the surface of which was conveyed by the said Bell to Frederick Bland on May 25, 1899. The coal described in the deed to him as “ all that certain vein or seam of coal formerly worked by the Great Bend Coal Co.,” was conveyed, February 19, 1902, by the said Bell to S. D. McCartney, one of the plaintiffs, who sold the one-half part thereof, by articles of agreement, to Gearhart, the other plaintiff.
Prior to any of these conveyances, however, Bell had agreed with G. B. Kuhn and Grant Kuhn, by articles of agreement dated November 18, 1896, to “ sell any coal which may remain in the vein formerly mined by the Great Bend Coal Company under ” the two tracts of land above mentioned. In the said agreement, after providing for the - manner in which payment should be made, it is agreed: “ Should default be made in such payments, or should said party of second part, in the opinion of said Bell, fail to use due diligence in mining said coal, then, at the option of said Bell, this agreement to be null, void and at an end.” The interest of the Kuhns under this agreement became, by sundry assignments, vested in the defendants.
The question, therefore, in the case was whether the plaintiffs acquired title to the coal in controversy under their deed, or whether the defendants, under the agreement with the Kuhns, had title thereto.
It appears from the testimony that, after the Kuhns had commenced operations under the lease with Bell, it was discovered that their opening was on the land claimed by one Edmiston. After this discovery, the fact was communicated to Bell by his lessees, who directed them, in case their operations were interfered with by -the sheriff, to cease, and that he would satisfy the docket.
[574]*574The summons in an action of trespass, brought by Edmiston against Kuhn and other defendants, was served January 27, 1897. The case, as appears by the “ paper of settlement ” in evidence, was settled December 13, 1897.
On January 6, 1898, as appears by the testimony, Bell mailed to G. B. Kuhn a letter, dated January 5, 1898, addressed to Mountaindale, his regular post office, in which Kuhn was notified that Bell would exercise his authority to terminate the written lease to mine the coal under the property of the Great Bend Coal Co., which he had purchased at sheriff’s sale.
No effort seems to have been made by the Kuhns, or their assignees, to resume the mining of coal upon the said premises until in the latter part of 1902 (about six months after the sale to McCartney), when Gwinn, the assignee of the Kuhns, having purchased a lot of ground adjoining the property purchased by Bell, made an entry on it from which the coal in the leased property could be reached.
In the notice of January 5,1898, sent by Bell to G. B. Kuhn, after referring to the fact that he will not be able to get over to Mountaindale before the middle of February, he says: “ In the meantime, you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me the authority to terminate the contract at my option and now I terminate it. It may be, when I see you, that we can come to satisfactory arrangements for the future, but, under the present circumstances and conditions, I desire the contract to be at an end.”
In reference to this notice, G. B. Kuhn, to whom it was addressed, in answer to this question, “ Will you please state whether you received a letter from Judge Bell, bearing date January 5, 1898, or any other date, giving you notice that he terminated the contract of November 18, 1896, said: A. I do not ever remember of getting any letter. It may have been given, but I never got it. Q. During that month of January, 1898, how much of the time were you at home? A. I was at home about every Saturday night during that time. Q. When would you return to your work ? A. On Monday morning; sometimes Sunday afternoon or Sunday [575]*575evening. Q. I show you a letter which Judge Bell says is a copy of the letter which he mailed to you on the 6th day of January (letter bearing date January 5, 1898); look at that letter, read it. A. I never got the letter.” On cross-examination, the witness said: “ Q. Did you read this (referring to the copy)? A. Yes, sir. Q. Who is it addressed to? A. G. B. Kuhn. Q. By whom ? A. By Martin Bell. Q. And you think it is your recollection that you did not receive the letter? A. That is my recollection, that I never received it.” Later, on re-examination, the witness said: “ I can make a positive statement, I never received any such letter as that.”
The facts in regard to the sending and the failure to receive this letter play an important part in the case and the testimony relating thereto has, therefore, been very fully set forth.
Three of the assignments of error relate to the agreement of Bell with the Kuhns for the lease of the coal and the notice based thereon above referred to, which raise two questions: first, whether or not Judge Bell had the power, under the lease, to terminate the rights of the lessees thereunder, and, second, whether or not the notice was an actual determination of the lease.
In view of the fact that the suit with Edmiston was settled December 18, 1897, and that no effort had been made by the Kuhns during the pendency of the suit and after its settlement, up to the date of the notice — January 5, 1898 — to attempt to mine the coal, there can be no doubt, it seems to us, of the right of Judge Bell to terminate the contract under the option which he reserved therein.
Was the notice which he sent by mail sufficient in itself to terminate the contract? The court left it to the jury to say whether or not the notice actually had that effect, because, although it stated in positive terms, “In the meantime,you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me authority to terminate the contract at my option and I now terminate it,” it ended by saying, “ I desire the contract to be at an end.” The court left it for the jury to say whether or not he did actually annul the contract by this notice, because of the use of the [576]*576word “ desire.” Taking the notice as a whole, there can be no question as to the effect of it, and the court, the paper being in writing, should have construed it and given positive instruction to the jury as to its meaning, as to which there is no doubt.
The notice was positive in its language and as to the intention of the lessor, and the phrase “ I desire the contract to be at an end ” does not in any way qualify the positive language previously used; indeed, if there had been no other language used except this latter sentence, it would have been completely effective. In a somewhat similar case: Dick v. Ireland, 130 Pa.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Beaver, J.,
A careful analysis of the facts of this case, which are not sufficiently stated by the appellants in their history to give a complete understanding of it, will make easy the application of the few simple legal principles involved.
The action is ejectment for “ the coal known as the ‘ Great Bend coal seam or vein ’ in and under ” two pieces or parcels of land purchased, on December 5,1894, at sheriff’s sale by the Hon. Martin Bell, the surface of which was conveyed by the said Bell to Frederick Bland on May 25, 1899. The coal described in the deed to him as “ all that certain vein or seam of coal formerly worked by the Great Bend Coal Co.,” was conveyed, February 19, 1902, by the said Bell to S. D. McCartney, one of the plaintiffs, who sold the one-half part thereof, by articles of agreement, to Gearhart, the other plaintiff.
Prior to any of these conveyances, however, Bell had agreed with G. B. Kuhn and Grant Kuhn, by articles of agreement dated November 18, 1896, to “ sell any coal which may remain in the vein formerly mined by the Great Bend Coal Company under ” the two tracts of land above mentioned. In the said agreement, after providing for the - manner in which payment should be made, it is agreed: “ Should default be made in such payments, or should said party of second part, in the opinion of said Bell, fail to use due diligence in mining said coal, then, at the option of said Bell, this agreement to be null, void and at an end.” The interest of the Kuhns under this agreement became, by sundry assignments, vested in the defendants.
The question, therefore, in the case was whether the plaintiffs acquired title to the coal in controversy under their deed, or whether the defendants, under the agreement with the Kuhns, had title thereto.
It appears from the testimony that, after the Kuhns had commenced operations under the lease with Bell, it was discovered that their opening was on the land claimed by one Edmiston. After this discovery, the fact was communicated to Bell by his lessees, who directed them, in case their operations were interfered with by -the sheriff, to cease, and that he would satisfy the docket.
[574]*574The summons in an action of trespass, brought by Edmiston against Kuhn and other defendants, was served January 27, 1897. The case, as appears by the “ paper of settlement ” in evidence, was settled December 13, 1897.
On January 6, 1898, as appears by the testimony, Bell mailed to G. B. Kuhn a letter, dated January 5, 1898, addressed to Mountaindale, his regular post office, in which Kuhn was notified that Bell would exercise his authority to terminate the written lease to mine the coal under the property of the Great Bend Coal Co., which he had purchased at sheriff’s sale.
No effort seems to have been made by the Kuhns, or their assignees, to resume the mining of coal upon the said premises until in the latter part of 1902 (about six months after the sale to McCartney), when Gwinn, the assignee of the Kuhns, having purchased a lot of ground adjoining the property purchased by Bell, made an entry on it from which the coal in the leased property could be reached.
In the notice of January 5,1898, sent by Bell to G. B. Kuhn, after referring to the fact that he will not be able to get over to Mountaindale before the middle of February, he says: “ In the meantime, you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me the authority to terminate the contract at my option and now I terminate it. It may be, when I see you, that we can come to satisfactory arrangements for the future, but, under the present circumstances and conditions, I desire the contract to be at an end.”
In reference to this notice, G. B. Kuhn, to whom it was addressed, in answer to this question, “ Will you please state whether you received a letter from Judge Bell, bearing date January 5, 1898, or any other date, giving you notice that he terminated the contract of November 18, 1896, said: A. I do not ever remember of getting any letter. It may have been given, but I never got it. Q. During that month of January, 1898, how much of the time were you at home? A. I was at home about every Saturday night during that time. Q. When would you return to your work ? A. On Monday morning; sometimes Sunday afternoon or Sunday [575]*575evening. Q. I show you a letter which Judge Bell says is a copy of the letter which he mailed to you on the 6th day of January (letter bearing date January 5, 1898); look at that letter, read it. A. I never got the letter.” On cross-examination, the witness said: “ Q. Did you read this (referring to the copy)? A. Yes, sir. Q. Who is it addressed to? A. G. B. Kuhn. Q. By whom ? A. By Martin Bell. Q. And you think it is your recollection that you did not receive the letter? A. That is my recollection, that I never received it.” Later, on re-examination, the witness said: “ I can make a positive statement, I never received any such letter as that.”
The facts in regard to the sending and the failure to receive this letter play an important part in the case and the testimony relating thereto has, therefore, been very fully set forth.
Three of the assignments of error relate to the agreement of Bell with the Kuhns for the lease of the coal and the notice based thereon above referred to, which raise two questions: first, whether or not Judge Bell had the power, under the lease, to terminate the rights of the lessees thereunder, and, second, whether or not the notice was an actual determination of the lease.
In view of the fact that the suit with Edmiston was settled December 18, 1897, and that no effort had been made by the Kuhns during the pendency of the suit and after its settlement, up to the date of the notice — January 5, 1898 — to attempt to mine the coal, there can be no doubt, it seems to us, of the right of Judge Bell to terminate the contract under the option which he reserved therein.
Was the notice which he sent by mail sufficient in itself to terminate the contract? The court left it to the jury to say whether or not the notice actually had that effect, because, although it stated in positive terms, “In the meantime,you will do nothing further in the coal matter. I refer to the written license I gave you to mine certain coal under land bought by me at sheriff’s sale as the land of the Great Bend Coal Company. The written license in question gave me authority to terminate the contract at my option and I now terminate it,” it ended by saying, “ I desire the contract to be at an end.” The court left it for the jury to say whether or not he did actually annul the contract by this notice, because of the use of the [576]*576word “ desire.” Taking the notice as a whole, there can be no question as to the effect of it, and the court, the paper being in writing, should have construed it and given positive instruction to the jury as to its meaning, as to which there is no doubt.
The notice was positive in its language and as to the intention of the lessor, and the phrase “ I desire the contract to be at an end ” does not in any way qualify the positive language previously used; indeed, if there had been no other language used except this latter sentence, it would have been completely effective. In a somewhat similar case: Dick v. Ireland, 130 Pa. 299, in which the opinion was written by the present chief justice, it is said: “‘We wish to cancel’ imports nothing in the nature of a request for consent, or deference to the views of the other party. It announces, though in civil phrase, the intention of the writer to exercise his right reserved to him, ‘ as per contract,’ and it does so with a certain appropriateness of language, as, under the agreement, the rescission is not immediate, but is to take effect at the expiration of thirty days. Again, the subsequent phrase, ‘You will please return our bond,’ is not a request, as the master views it. ‘ You will return our bond,’ would certainly be an order, not a request, and there is no difference between the two, except in politeness of phraseology. It is entirely clear that this letter was an absolute and complete rescission of the agreement.” So here, there is no difference between the phrase, “ I desire the contract to be at an end,” and the more formal and decided phrase previously contained in the notice, “The written license in question gave me the authority to terminate the contract at my option, and I now terminate it.” Politeness of phrase, the meaning being clear, should not militate against the party using it.
The only question of fact for the jury in this part of the case was as to the receipt of the notice of the termination of the lease. There may be a question for the jury as to this, under proper instructions, as to the presumptions both of law and fact which arise under all the circumstances attending it. A letter having been shown to be properly mailed, the law presumes its receipt, unless the contrary appears. If it was delivered by the post office authorities to anyone who was in the habit of receiving G. B. Kuhn’s mail, it would be a delivery to [577]*577him, although he may not, as a matter of fact, have read the notice.
Another important circumstance bearing upon the subject was the fact that nothing was done under the lease for more than four years after the date of .the notice. In the meantime, Judge Bell had sold the coal to one of the plaintiffs. In view of the long delay, not to say neglect, of the Kuhns to do anything under the provisions of their lease, did not Bell have the right to assume that his notice had been received and that, in accordance with its terms, the Kuhns had surrendered their rights thereunder and abandoned the property ?
The first three assignments of error, which are more pr less closely connected with each other and with the questions above stated, as to the right of Judge Bell to terminate the lease under the circumstances, and as to the sufficiency of the notice under which he sought to terminate it, are all sustained.
The fourth assignment of error relates to the admission in evidence of a letter written by Judge Bell, October 1, 1902, in which the notice to terminate the contract with the Kuhns is recited. This was offered for the purpose of establishing the fact that notice had been given. It was not competent for that purpose. Judge Bell was on the stand as a witness and had testified as to the facts relating to that notice. The letter was nothing more than a declaration on his part that the notice had been given. It was properly rejected.
The answer of the court to the plaintiffs’ sixth point for charge, complained of in the fifth assignment of error, seems to assume that the notice of forfeiture, heretofore referred to in connection with the first three assignments, was not an unequivocal exercise of Judge Bell’s option to terminate the lease. We think the point should have been affirmed without qualification, as should also the eighth point for charge, the answer to which is complained of in the sixth assignment of error. Whether or not the Kuhns, or those claiming under them, had the means to carry on the operation had nothing whatever to do with the light of Judge Bell to terminate the lease at his option.
As to the seventh and eighth assignments, the money expended by the Kuhns, or those claiming under them, in the development of the mine, does not seem to us relevant to the [578]*578issue. This expenditure was a necessary incident of the lease. Edmiston’s interference with their operations was not a material fact bearing upon the issue, because, as seems to be admitted on all hands, that was amicably arranged. The testimony of G. B. Kuhn, therefore, admitted under objection, should either have been rejected, or, after it was admitted, should have been stricken out, in accordance with the motion made by the plaintiffs. The seventh and eighth assignments are, therefore, also sustained.
We are also of opinion that the testimony of the witness Turley was not competent evidence under the defendants’ offer. The effect of it is to allow the testimony of an expert as to whether or not the mining of the coal, provided for in the lease between Bell and the Kuhns, had been pursued with due diligence. This was not the question in the case, or at least if it entered into the case, the question was to be determined by Judge Bell himself, in pursuance of the right which he had reserved to terminate the lease, whenever, in his opinion, “ the lessees failed to use due diligence in mining said coal.” The admission of the testimony complained of, therefore, in the ninth assignment, in the view which we have taken of the case, was erroneous, and it should have been rejected. This assignment is also sustained.
We think we have sufficiently indicated the lines along which this case should be tried. The original lease between Bell and the Kuhns and the notice mailed to G. B. Kuhn by Bell are both in writing. They are to be construed by the court, and the only question of fact involved, as we view the case, at least upon its presentation before us now, was whether or not the notice mailed by Bell was, or should have been, received by the person to whom it was addressed.
Judgment reversed and a new venire awarded.