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BORON v. SMITH. (01/04/55)

January 4, 1955

BORON, APPELLANT,
v.
SMITH.



Appeal, No. 337, Jan. T., 1954, from decree of Court of Common Pleas of Clearfield County, April T., 1953, in Equity, No. 1, in case of Joseph M. Boron, trading as Boron Brothers Coal Company v. Ralph A. Smith et al. Decree affirmed.

COUNSEL

Sebastian C. Pugliese, with him Walter M. Swoope, F. Cortez Bell, Sr., F. Cortez Bell, Jr., and Bell, Silberblatt & Swoope, for appellant.

Joseph S. Ammerman, with him John M. Urey, Donald R. Mikesell and Urey, Ammerman & Mikesell, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 380 Pa. Page 100]

OPINION BY MR. JUSTICE JONES

The questions of law raised on this appeal are both procedural and substantive. Logically, we shall treat first with the matter of procedure. However, a recital of material facts is essential to an understanding of all of the problems presented.

Joseph M. Boron, the plaintiff, became the lessee of certain coal lands of the defendants under written lease executed on January 7, 1942, for a term of ten years. The lease conferred on the lessee the right to mine and remove the coal at either of two fixed royalty prices (depending upon whether the coal was mined by the stripping method or by the drift method) with a prescribed annual minimum royalty payable in monthly installments. The lease also conferred on the lessee "the right and privilege ... to renew the same for a further term of ten (10) years at the expiration of the ten year term herein provided for. Providing [the lessee] ... shall give the lessors, or their agent, Alta L. Smith, six (6) months' written notice prior to the expiration of the term herein provided for of his desire and intention to renew this lease."

The term of the lease having expired without written notice being given the lessors of the lessee's desire and intention to renew the lease for another ten-year term, the lessors repossessed themselves of the coal property and made a lease thereof to other persons. More than a year after the expiration date of the

[ 380 Pa. Page 101]

    lease, Boron instituted the present suit in equity. He sought thereby to enjoin the defendants from interfering with his alleged rights under the lease of January 7, 1942, and demanded damages and an accounting. In his bill of complaint, he averred that the lease of January 7, 1942, had been renewed for another ten-year term in the following manner: "That before said time set forth in said lease for renewal of said lease the question of renewal was discussed with Lewis Smith, one of the lessors. Lewis Smith stated to the plaintiff that the other lessors would consent to a renewal and there would be no need to give a formal written notice of the renewal." He further averred that he had paid by check to Alta Smith, the lessors' agent, the minimum monthly royalty of $50 for the first month, viz., January 7, 1952, to February 7, 1952, of the allegedly renewed term of ten years. Notably, the plaintiff failed to aver any authority in Lewis Smith from his co-lessors to change the requirement of a written renewal. And, nowhere did he aver that he had served on the lessors a written notice of his desire and intention to renew the lease of January 7, 1942, as required by the lease.

The defendants filed preliminary objections to the complaint, principally on the grounds that the plaintiff did not plead a written notice for the alleged renewal of the lease of January 7, 1942, or authority from the lessors to anyone to renew the lease by parol and that the check for $50 which the defendants' agent received from the plaintiff in January, 1952, was actually in payment of the minimum royalty due for December, 1951, the last month of the expired lease, as shown by the plaintiff's own letter of transmittal. The court overruled the ...


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