Appeal, No. 128, March T., 1953, from order of Court of Common Pleas of Greene County, Sept. T., 1947, No. 42, in case of Gussie V. Herod et al. v. Albert Luxner. Order affirmed; reargument refused January 13, 1954.
Hugh G. Montgomery, with him Thompson & Baily, W. Robert Thompson, J. B. F. Rinehart and Montgomery & Montgomery, for appellants.
John I. Hook, Jr., with him Scott & Hook, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from an order awarding a new trial in an action of assumpsit. The plaintiffs, as the lessors in a written lease for the strip-mining of a certain vein of coal underlying two tracts of land in Greene County, sued to recover royalties allegedly owing by the lessee under the terms of the lease.
The question of law which the appellants raise depends for its answer on the construction to be placed upon the lease with particular reference to a monthly minimum tonnage clause whereby the lessee obligated himself "to mine and pay for a minimum tonnage of five thousand tons in each calendar month for first cut [i.e., a stripping swath along a dimension of the operation], three thousand tons for the second cut [adjacent to the first cut], and all remaining cuts [thereafter], payable monthly,... any coal mined in any month, in excess of said amount" to be credited in favor of the lessee on the next succeeding month or months. The lessee agreed to pay to the lessors as royalty 25 for each net ton of 2000 pounds of marketable coal mined and removed from the leased premises during the term of the lease which ran for a fixed period of eighteen months. In connection with the royalty so fixed, the lease further provided that,
in the event the current market price of coal of the kind and quality mined from the premises should exceed three dollars per ton, the lessors should receive, in addition to the 25 per ton royalty, an additional royalty equivalent to ten per cent of the excess price over three dollars a ton at which the coal was marketed.
Upon the execution and delivery of the lease, the lessee at once entered upon the tract which the lease required him to strip-mine first, but, after four months operation, he abandoned the project and removed his equipment, claiming that it was impractical to stripmine the coal on account of the rock formation, which condition, if present, exonerated him, according to the lease, from his obligation to mine the coal. Shortly thereafter the plaintiffs instituted the action here involved and claimed, as royalties owing by the lessee, the sum of $11,935.49, with interest, upon the allegation that the defendant was obligated to mine a minimum of 58,000 tons of coal during the term of the lease.
A few months later, but still within the term of the lease, the plaintiffs, in order to mitigate the damages (see Taber v. Porter-Gildersleeve Co., Inc., 271 Pa. 245, 247, 114 A. 773; and Auer v. Penn, 99 Pa. 370, 375-376), orally re-let to another strip-mining operator at a royalty of 27 1/2 per ton the tract which the defendant was not to strip-mine until the designated first tract had been stripped. When the successor operator had finished stripping the "second" tract, he orally agreed with the plaintiffs to strip-mine the balance of the "first" tract, upon which the defendant had worked, for a royalty of 15 a ton ...