Thomas v. Harbison-Walker Refractories Co.
Thomas v. Harbison-Walker Refractories Co.
Opinion of the Court
Opinion by
This is a controversy between the assignee of the lessor and
In 1891 Bliss, the then owner of certain tracts of land involved in this suit, entered into an agreement of lease with a predecessor in title of appellant here granting the privilege of mining and removing the fire clay under the same for and in consideration of fifteen cents per gross ton to be paid the lessor. In 1897 the terms of the lease were modified by an instrument in writing so that the royalty was reduced from fifteen to seven and one-half cents per gross ton. In 1899, Bliss still being the owner of the land, executed a new lease to another predecessor in title of appellant, which lease included all of the tracts described in the original lease of 1891 as well as several other tracts not included in the former lease. This suit was brought to recover the amount of unpaid royalties upon the basis of ten cents per gross ton as stipulated in the lease of 1899. The appellee has succeeded to all the rights of the original lessor-and the appellant has succeeded to all the rights of the original lessee. If the lease of 1899 covers all the lands described therein and supersedes the former leases the right of the appellee to recover on the basis of ten cents per ton cannot be doubted. The fire clay was mined from these properties, and there is no dispute as to the number of tons removed. The lease in terms provides that the lessee shall have “the right and privilege to explore, convey, mine, dig and carry away all the fire clay in and upon those certain tracts of land” described therein. Ten different tracts, aggregating several thousand acres with the names of the respective warrantees, dates of the original surveys and the number of acres contained in each tract, are separately described in the lease. It is further provided therein that “the said parties of the second part covenant, promise and agree for themselves, their heirs and assigns, to pay said party of the first part the price or royalty of ten (10) cents per ton of twenty-two hundred and forty pounds for each and every ton of fire clay mined and used, or shipped from said land.” The right to mine the fire clay was to continue and be in force for a term
Assignments of error overruled and judgment affirmed.
Reference
- Full Case Name
- Thomas v. Harbison-Walker Refractories Company
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Lease — Rentals—Course of dealing — Notice. 1. Where a lease of fire clay provides for a payment of ten cents per ton royalty on all clay taken from ten different tracts of land, all separately and particularly described in the lease, an assignee of the lessee cannot sustain a claim that he was liable for only seven and one-half cents per ton as to certain of the lands included in the lease, by proving a course of dealing between the original lessor and the former lessee as to the payment of such royalties, where there is no evidence whatever that the present owner, the successor in title to the former owner and original lessor, had any knowledge whatever of such a course of dealing. 2. An understanding or course of dealing when set up in face of a written agreement otherwise providing, must be established by full, clear and satisfactory evidence even as between the parties alleged to have assented to such a course of dealing. As against a subsequent grantee, or assignee, without knowledge, a course of dealing between prior owners cannot be set up at all to affect the rights of the parties under the written instrument. 3. Where a lease provides for a royalty of fifteen cents per ton and subsequently by an instrument in writing the royalty is reduced to seven and one-half cents per ton, and thereafter a new lease is executed covering the tracts mentioned in the old lease and including a number of new tracts all specifically described, at a royalty of ten cents per ton, and in the new lease there is no exception or reservation, and no mention of former leases or different royalties, and no ambiguity of language, the court will hold that the two prior leases were merged in the new lease. Interest — Tender—Royalties. 4. Where a lessee tenders to the lessor a less amount of royalties than that claimed by the lessor and which so called tenders are by checks with vouchers, and the latter succeeds in establishing at law his right to the full amount claimed, he is entitled to interest on the whole amount of the royalties due.