Skillen v. Logan

Opinion by Orlady, J., This action of assumpsit was brought to recover rent or royalty, alleged to be due according to the terms of an article of agreement or lease, entered into between the parties, under which the plaintiff leased a quarry, located on the line of the Pittsburg & Lake Erie Railroad, for the purpose of mining and removing stone therefrom. The quarry had been opened [111] and operated for some time, and in the lease it was stipulated as follows : “ Said lessee shall have the rightto use the switch now located and constructed along said lease, and shall also have the right to construct another switch from the main track of the Beaver & Elwood Railway through and on to said leased premises. ... It is agreed, if the charge for switching cars to and from the Beaver & Elwood Railway shall exceed the sum of twenty-five cents per car, such excess shall stand as a credit on the royalty herein reserved and stipulated, when paid by said second party.” It appears that the Beaver & Elwood Railway Company in securing their right of way had entered into an agreement with Matthew Skillen, (now deceased) the husband of the plaintiff, to put in switch connections with this quarry, and not to charge more than twenty-five cents freight per car to the connecting main line. The defense to the plaintiff’s claim was that the railroad company refused to extend the switch already in at the request of the defendant, or to furnish cars to be operated over the siding, unless he could secure a cancelation of the contract between the Beaver & Elwood Railway Com-pan j' and Matthew Skillen, and would pay at the rate of seventy-five cents per car. The plaintiff refused to cancel the agreement, and the defendant did not do anything further toward operating the quarry. The agreement provided that $500 “ shall be the minimum amount of royalty which said lessee shall pay to the lessor by virtue of the within lease annually,” and this action was brought at the expiration of the first year. The ease was submitted to the jury in affirmance of the plaintiff’s first point, as follows : “ If the jury find that the quarry can be operated with the switch now on said leased premises, which the defendant has the use of, by the terms of the lease, your verdict should be for the plaintiff ; ” and, in the charge, the jury were instructed: “ If, however, the Pittsburg & Lake Erie Railroad Company placed this condition upon the erection of a switch there, and it was impossible for the defendant to operate the quarry without this additional switch, then *he would be relieved from the payment of this money, as it would be no fault on his part, if he made an honest effort to meet the requirements of the Pittsburg & Lake Erie Railroad Company, and they refused to put the switch in unless the other contract held' [112] by Mrs. Skillen was released, thereby rendering it impossible for him to operate the quarry.” The parties reduced their contract to writing after a full understanding of the situation. While the defendant alleges that he had not seen the contract between Matthew Skillen and the Beaver & Elwood Railway Company, he admits that he knew of its existence, and his allegation that the railroad company refused to furnish cars for operation of the quarry on the siding as it existed at that time is not supported by the evidence. The railroad company required a cancelation of the contract before they would extend the switch that was in or 'put in a new one, and that they should be released from the provisions of the Skillen contract so far as its application to this new part was concerned. The cars were refused when requested for the reason that at that time they were short of cars and could not supply them, but the railroad’s representative denied that they refused generally to put in cars on this siding. The principal defense was that with the switch as it was when the lease was signed the quarry could not be operated in the manner the defendant desired. It was also shown that the quarry and siding had been operated successfully prior to the making of the contract between these parties so as to give the plaintiff a net royalty of $167 during twenty-one days’ operation of the quarry. There is nothing in the agreement to warrant the contention that the plaintiff was to surrender any special contract that she had with the railroad company, nor that she was to be in any way responsible for the railway company’s refusal to deliver the cars at the request of her lessee. Whether or not the defendant wilfully refused to fulfil his contract was purely a question of fact, and this was fairly submitted to the jury, and the extenuating circumstances which he alleged in support of his defense were not of a character to relieve him of his duty to perform his contract to the extent of his ability. His contract was an absolute and unqualified covenant to operate the quarry as it then existed, and his refusal for a whole year to operate it was provided for in a clause in the agreement, which stated that he should pay $500 as a minimum annual royalty,’ and it cannot be evaded by showing that the performance of the act would, not benefit the defendant. The idle quarry was of no benefit to Mrs. Skillen, and [113] the refusal of the defendant to cancel the contract at her request evidenced a disposition on his part to force conclusions with her, so that he might buy the property at one half the price she stated she had been offered for it. It is enough for us to say that the parties contracted for the thing to be done and the damages for not doing it, and it is never open to the covenantor to say that the thing he obligated himself to do would not be as profitable to him as he expected it would be when he made his contract: Springer v. Citizens’ Natural Gas Co., 145 Pa. 430; Gibson v. Oliver, 158 Pa. 278; Cochran v. Pew, 159 Pa. 184. The assignments of error are overruled and the judgment is affirmed.