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ECKEL v. EISWERTH (11/10/52)

November 10, 1952

ECKEL
v.
EISWERTH, APPELLANT



Appeal, No. 182, March T., 1952, from decree of Court of Common Pleas of Clarion County, Nov. T., 1951, No. 2, in case of Philip Eckel, John J. Schmader and Daniel J. Schmader v. Hilder J. Eiswerth, also known as Mrs. J. F. Eiswerth, Admrx., Estate of J. F. Eiswerth, deceased. Decree affirmed.

COUNSEL

John K. Myers, with him W. P. Geary, for appellant.

H. Ray Pope, Jr., for appellees.

Before Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 371 Pa. Page 491]

OPINION BY MR. JUSTICE CHIDSEY

Plaintiffs filed a bill in equity to enjoin the defendant, individually and as administratrix of her husband's estate, from entering on and removing clay from land belonging to the plaintiff Eckel and leased by him to the other plaintiffs. Defendant claimed the right to mine and remove clay under an earlier lease of the property made by Eckel to defendant's husband. The chancellor found the earlier lease had been terminated by abandonment and that plaintiffs were entitled to the relief prayed for. This appeal is from a final decree dismissing exceptions to the chancellor's adjudication.

By stipulation of the parties, the case was heard as of final hearing upon a written agreed statement of facts. From the latter it appeared that the plaintiff Eckel on November 25, 1943 entered into a lease with defendant's husband, J. F. Eiswerth, providing for the mining and removal of clay from the property in question in consideration of the payment of a royalty of 10› per ton for all clay mined and shipped from the premises, settlements and payments to be made on or

[ 371 Pa. Page 492]

    before the 20th day of each month for all clay mined, removed and shipped the previous month, with a minimum annual royalty of $240, payable quarterly in advance. With respect to the latter, the lease provided that "... any and all deficiencies in any one year or years between the tons of clay actually mined and removed and the royalty paid may be mined and removed by party of the second part during any succeeding year or years during the term of this lease, and on such deficiencies no further royalty shall be paid."

The lease was for no definite term but contained the following provision: "It is further agreed, that the exhaustion of clay or the failure to pay royalty for all clay mined and removed when said royalty becomes due at any time during the continuance of this lease shall terminate the same and from thenceforth both parties shall be released from any liability hereunder, except the liability of second party for unpaid royalty at the time of forfeiture."

On or about December 2, 1948 the minimum royalty was reduced to $180. The lessee Eiswerth died on December 8, 1949 and devised and bequeathed his entire estate to his wife, the defendant Hilder J. Eiswerth. Eiswerth did not operate the lease after the fall of 1944, but during his lifetime paid the minimum royalty in advance until the early part of 1948. The chancellor found that a payment of $180 made on December 2, 1948 evidently provided for arrearages of payments in advance due May 25th, August 25th and November 25, 1948, and that a payment made by Eiswerth on February 25, 1949 paid royalty in advance to November 25, 1949 in the reduced minimum royalty of $180. There is nothing in the agreed statement of ...


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