Appeal from judgment of Court of Common Pleas of Luzerne County, March T., 1961, No. 135, in case of No. 14 Coal Company v. Pennsylvania Coal Company.
Mitchell Jenkins, with him Matthew D. Mackie, and Rosenn, Jenkins & Greenwald, for appellant.
James P. Harris, Jr., with him Warren, Hill, Henkelman & McMenamin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.
No. 14 Coal Company, the plaintiff in this case, instituted an action of assumpsit against the defendant, the Pennsylvania Coal Company, for the sum of $27,090.96 (later amended to $26,248.74), allegedly being held by the defendant for the plaintiff, lessee of coal lands owned by the Pennsylvania Coal Co.
Through assignment, the No. 14 Coal Company had contracted with the Pennsylvania Coal Company to mine and deliver coal to the defendant at a stipulated sum for each ton of coal delivered, with the proviso that the defendant would withhold from such sums 6 cents per ton as a security or guaranty fund to insure compliance by the plaintiff with the terms of the contract.
The security fund was to be payable to the plaintiff only upon fulfillment of the following conditions: (1) The surrendering of the premises by No. 14 to Pennsylvania; (2) All of No. 14's obligations under the contract to have been discharged; (3) No. 14 to have executed a release to Pennsylvania, absolving it from all claims and demands in any manner arising out of the contract.
The contract provided further that if No. 14 defaulted or breached the terms of the contract, it would forfeit the security fund as liquidated damages. On January 27, 1961, Pennsylvania informed No. 14 by letter that it had terminated the lease on the basis that No. 14 had breached the contract.
No. 14 denied such breach and averred on the contrary that it was evicted, at least partially, from the mine when on January 22, 1959, the Susquehanna River broke through at a certain River Slope area, flooding the adjacent Knox Mine and other workings, including those of the plaintiff. No. 14 contended that the flood damage was caused by Pennsylvania's negligence and that since the plaintiff could not operate the mine as the result of that negligence, the defendant had brought about a partial eviction.
The court below, which heard the case without a jury, found that the plaintiff had not sustained its burden of proving that the acts relied upon as an eviction were ...