Appeal, No. 156, March T., 1951, from decree of Court of Common Pleas of Indiana County, Dec. T., 1945, in Equity, No. 1, in case of L.C.S. Colliery, Inc. v. Globe Coal Company, Pennsylvania Land Company and Jacob Gordon. Decree reversed; reargument refused December 26, 1951.
Sebastian C. Pugliese, with him Thomas S. Barbor, James W. Mack, Jr. and Arnold D. Smorto, for appellant.
Frank P. Barnhart, with him James L. Jack, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
Plaintiff appeals from the decree of the chancellor, confirmed by the court en banc, dismissing its bill for specific performance of an agreement to convey certain real estate.
The facts as found by the chancellor show that on the 19th day of September, 1940, plaintiff's assignors, as lessees, entered into an indenture of lease with the defendant corporations, namely, the Globe Coal Company
and Pennsylvania Land Company, by which indenture the lessees were given the exclusive right to mine the coal in certain land described in said lease. The leased premises included buildings, mines, tipples, machinery and fixtures thereon located.
By the terms of this lease the lessees were to pay lessors as rent or royalty 15 per gross ton removed and sold, to be paid in the following manner: 5 per ton to American Trustee & Transfer Corporation, Trustee; 5 to the lessors, and 5 to the First National Bank in Indiana, Pennsylvania, until certain obligations of the lessors to said bank had been paid. When said bank obligations were paid then that 5 part of the royalty was to be paid to the American Trustee & Transfer Corporation, Trustee, until a $5,000 indebtedness with interest, due by the lessors to said Trustee, had been paid. Thereafter 10 of the royalty was to be paid to the lessors.
Paragraph 13 of Article V of the lease is important. It conferred on the lessee the right to deduct from the rents or royalty payable to the lessors "so much money as the said lessee is required to pay on any debt or obligations of the Globe Coal Company or Pennsylvania Land Company in order to continue the operation of the premises hereby leased." (emphasis supplied)
Also by the lease*fn1 the lessors agreed that when the rentals and royalties paid to the lessors amounted to $32,500.00 the lessors would convey to lessees a portion of the leased property ...