Matoaka Coal Corp. v. Clinch Valley Mining Corp.

Kelly, J., delivered the opinion of the court. — 533 — This is an action of ejectment brought by the Clinch Valley Mining Corporation against the Matoaka Coal Corporation to enforce the forfeiture of a lease of coal land and regain possession of the leased premises. These corporations will hereinafter, for convenience and brevity, be designated as plaintiff and defendant. There was a verdict and judgment for the plaintiff, and the defendant brings the case here upon a writ of error. The plaintiff is the owner of a tract of coal land in Tazewell county, which, in July, 1913, it leased in writing to one Thomas P. Boswell for a period of thirty years. The particular provisions of this lease, so far as material, will hereinafter appear. Boswell assigned the lease at once to a corporation called the Pocahontas” Mining Company, and this „ company shortly thereafter entered into possession of the leased premises, installed a coal mining plant thereon and continued to operate the same until the fall of 1914, when it became a bankrupt, and its affairs were taken in charge by the United States District Court for the Eastern District of Virginia, sitting as a court of bankruptcy. In due course of the proceedings in that court, the lease was sold on March 6, 1915, at public auction, and was bid in by C. M. Kaylor for the benefit of himself and certain associates. The plaintiff, the Clinch Valley Mining Corporation, was a creditor of the bankrupt corporation and knew and approved of the sale to Kaylor. At the latter’s request, the trustee in bankruptcy, with the approval of the court, made a deed, dated March 22, 1915, to the defendant, Matoaka Coal Corporation, which almost immediately assumed the possession and operation of the property and plant and continued the same with results most unsatisfactory and disappointing to itself and to the lessor until shortly before this action was instituted. — 534 — The record contains in great detail the history of this coal lease, with all of its vicissitudes and the many negotiations between the lessor and the lessee looking to its continued operation. This history and these negotiations, however, are hot material at the present stage of the case, except as they bear upon the correctness of certain rulings of the court at the trial; and in so far as thus material they will sufficiently appear in connection with a discussion of the various assignments of error which we shall now proceed to consider. The first error assigned, and one which is very seriously relied upon, is that the court improperly refused a continuance upon the motion of the defendant. The motion was based upon the absence of one J. R. Chamberlain, whom the defendant wished to use as a witness. This party resided in North Carolina, was largely interested in the defendant company, and had not been summoned as a witness. It is contended and may be conceded that the case was called for trial, and a trial ordered by the court, earlier in the term than counsel for defendant anticipated; but upon their own showing they had no reason to suppose that a trial would not be had during the term, and no steps had been taken to have the witness in readiness to attend. The motion was for a continuance, not for a mere postponement to a later day in the term; but the defendant was not in a position to ask for either a continuance or postponement, because when the case was first called Mr. Chamberlain was out of reach, having started from his home in North Carolina on a trip to Florida for a period of rest, and to recuperate his health, apparently leaving no information by which he could be located. The condition of his health was not such as to have prevented his attendance as a witness; for counsel stated to the circuit court, and they reiterate in their brief, that there would have — 535 — been “no trouble in getting him” if they could have located him after finding that they would have to go to trial. The plaintiff and its counsel had done nothing to lead the opposite side to suppose that a trial would not be demanded, and the nature and spirit of the controversy was such as to specially charge them with notice that any effort to continue the case would be resisted. Moreover, so far as the record discloses, the testimony of this,witness>would have been largely if not wholly cumulative and quite unlikely to have affected the result. “A motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case, and although an appellate court will review the action of the trial court, it will not reverse its judgment upon such motion unless plainly erroneous.” (Payne v. Zell, 98 Va. 294, 295, 36 S. E. 379.) This familiar and well settled rule is not controverted by counsel for defendant, but they maintain that the instant case does not fall within its influence. We are of a contrary opinion. In our view of the evidence upon the question, the trial court did not abuse its discretion in refusing the continuance. The second assignment of error involves the action of the court upon the instructions to the jury. In approaching the discussion of this branch of the case, it becomes necessary to set out in full section twelve of the lease, that section being the one upon which the controversy seems to have mainly turned. The section is as follows: “If at any time during the existence of this lease the lessee, his assigns or successors, shall cease for the period of three months to operate the mines in the manner usual and herein contemplated, then such failure shall ipso facto work a forfeiture of this lease, and thereupon all improvements placed upon said property shall become the property of the lessor unless the delay is unavoidable and caused by circumstances beyond the control of the lessee.” — 536 — The instructions given and refused are reported in full with this opinion. Plaintiff’s instruction No. 1 told the jury that if they believed from' the evidence that the defendant company ceased to mine and ship coal from the leased premises from the 11th of August, 1916, to or after the 12th of November, 1916, they should find for the plaintiff, unless they should believe “that, the plaintiff waived this cause of forfeiture.” The objection urged to this instruction is that it disregarded that portion of clause twelve of the lease providing against forfeiture for “delay which was unavoidable and caused by circumstances beyond the control of the lessee.” This objection, in substance, is urged in connection with several of the instructions, and may be disposed of here once for all. The “circumstances beyond the control of the lessee” relied upon by the defendant to excuse it from the operation of the property during the period in question are an alleged general strike at the mines and an alleged mountain slide covering the tracks over which the coal had to be shipped. A careful consideration of the record fully satisfies us that unless we return to the scintilla doctrine and hold that an instruction must be given where the evidence in support of it is insufficient to sustain a verdict, the defendant was not entitled to have any instructions regarding these alleged excuses. The defendant was practically bankrupt, its plant was in poor condition, its miners had become restless and uneasy, and the very few laborers who were there when the mines closed quit work because of unsatisfactory conditions, due primarily to defendant’s lack of funds. The slide referred to is shown to have been of trifling consequence. When steps were finally taken to move cars over the tracks, the so-called slide proved to be a very slight obstruction, and was cleared up in a few days. Upon no reasonable view of the case could it be held that — 537 — there was either a strike or a slide of such character as to excuse the lessee from the operation of the mines according to contract. Plaintiff’s instruction No. 2, after quoting in full section twelve of the lease, told the jury that if the defendant ceased to operate the mines for want of funds, this could not be considered a delay that was unavoidable, or caused by circumstances beyond its control; that the plaintiff had the right to stand on the letter of its lease and to refuse the defendant further indulgence for breaches of the same; and that if the jury found that “oil October 7th the plaintiff told the defendant that in the future it would stand on the strict letter of its lease and that future indulgence would not be granted, and that defendant did not. operate the mines on plaintiff’s property from August 11th to November 12th,” they should return a verdict for the plaintiff. It is urged that this instruction was wrong because it told the jury, in effect, that on October 7th, after a considerable portion of the three months had expired, the plaintiff could then recall a previous waiver of the twelfth clause of the contract and, by a sort of retrospective action on its part, claim a forfeiture under a three months’ period beginning August 11th, although, in the meantime, it might have led the defendant to believe that it would not rely upon such ground of forfeiture. Every instruction must be interpreted in the light of the facts of the particular case. The objection made to this one upon its face would appear to have some merit, but it has none when it is recalled that shortly prior to August 11th the defendant had been notified that it would not be further indulged and would be expected to thereafter meet the requirements of the lease, and that between August 11th and October 7th the plaintiff company does not appear to have had any knowledge of the fact that the mines were not being operated. On or about that date the representatives of the — 538 — company did come into possession of this knowledge, and, while there was no obligation upon them to do so in view of the previous notice, they did call it sharply to the attention of the defendant at that time that a forfeiture would be enforced if the lease was not complied with. In view of the actual facts of the case the instruction would not have been bad if the court had not referred at all to the notice given to the defendant on October 7th, and the mention of it in the instruction amounted to nothing more than saying to the jury that if they believed that the plaintiff, after learning that the mines were not being operated, did nothing to mislead the defendant with reference to its attitude, they should find for the plaintiff. There is another objection urged to this instruction No. 2 which is based upon an interpretation sought to be placed by the defendant upon section twenty-three of the lease. That section provided, among other things, that “any failure on the part of the lessee to keep and perform any of the terms, conditions, covenants and agreements herein contained, on the part of the lessee to be kept, performed and fulfilled, which shall continue for a period of thirty days, shall be deemed, at the option of the lessor, ipso facto to work a forfeiture of this lease.” The contention of the defendant in this connection is that the effect of this clause was to give the defendant the benefit of an additional thirty days before the forfeiture provided for in clause twelve should become effective. We cannot accept this view. Under familiar rules of construction, the lease must be interpreted as a whole and in such a way, if possible, as to give effect to all of its provisions. There were many “covenants and agreements” by the lessee, and section twenty-three was a general forfeiture clause, while section twelve is a specific provision covering specific situations not embraced within the terms of the — 539 — general section. There is not, in our opinion, any room for doubt or dispute upon this point. Plaintiff’s instruction No. 3 tells the jury that if the defendant company failed to pay the royalties when due, and such failure continued for a period of more than thirty days prior to the institution of the suit, they should find for the plaintiff, unless they believed “that the same was waived by the plaintiff.” The objection made to this instruction is that it is ambiguous and was liable to lead the jury to believe that it had reference to a waiver of the royalties themselves instead of a waiver of the forfeiture. We do not think there was any reasonable probability that the jury could have taken this view of the instruction. There had been a good deal of evidence in the case with reference to a remission of certain of the royalties, hut, taken as a whole, and in view of the character of the controversy which was being waged before the jury, we think it practically certain that men of intelligence, as the jury must be presumed to have been, could not have misunderstood the meaning of the court, and we would be altogether unwarranted in reversing the judgment upon this objection to the instruction. A second and equally untenable objection to this instruction is that it ignores the terms of section 2796 of the Code, requiring, in actions of ejectment based upon a right of re-entry for non-payment of rents, proof that there was no sufficient distress upon the premises. The amount of the rent exceeded the value of all the personal property on the premises, and the failure of the instruction to refer to the remedy by distress was therefore immaterial. The third assignment of error calls in question the refusal of certain instructions asked for by the defendant. The criticism of the action of the court in this respect is based mainly upon reasons which have already been dis — 540 — posed of in the previous part of this opinion. Only two of the instructions refused seem to us to call for any .special notice. The first of these is defendant’s instruction No. 4, in which the court was asked to tell the jury that “if the plaintiff declared a forfeiture on one ground, with knowledge of other grounds of forfeiture, it must stand or fall upon the ground declared.” There was no error in refusing this instruction. When Mr. Scott, a representative of the plaintiff, went to the mines after they had been idle for over three months, he told a representative of the defendant that he was there to declare a forfeiture under section twelve of the lease. When this action was tried, however, the plaintiff was required, upon the defendant’s motion, to file a bill of particulars of its claim, and in doing so it set out a large number of additional grounds, including the failure to pay royalties, all of which were negatived in a statement of the grounds of defense. The case was tried upon the issue as thus defined. The contention upon which the defendant’s proffered instruction No. 4 rests was not indicated in the grounds of defense, but upon the contrary one of those grounds was that “the plaintiff failed to give the defendant notice of any ground of forfeiture prior to the institution of this suit.” The defendant cannot now be heard to say that the plaintiff did give notice of one distinct ground of forfeiture to the exclusion- of all-others. There being nothing in this particular contention, the question of serving notice of the grounds of' forfeiture is immaterial. No such notice was requisite. The defendant knew the terms of its contract. The institution of the suit was sufficient notice in advance of the trial; and the bill of particulars fully apprized it of the exact claims made by the plaintiff. The real controversy seems to have centered around the alleged failure to operate the mines and to pay the rents. If what transpired when Scott de — 541 — dared a forfeiture at the mines was relied upon as a waiver of a forfeiture for non-payment of rents, that question was submitted to the jury in plaintiff’s instruction 3 and under defendant’s instruction 9, and was by them found against the defendant. The other instruction, defendant’s No. 18, which was refused by the court and calls for some discussion, was to the effect that the plaintiff could' not recover unless the Matoaka Coal Corporation was actually occupying the 'premises when the action was instituted. This instruction presents the same question which is involved in defendant’s fourth assignment of error, the latter challenging the action of the court in excluding from the jury a certain letter from one D. H. Barger to the attorney for the defendant, containing the terms - of a certain contract between Barger and the defendant, whereby Barger agreed to assume possession of and operate the mines. It appears from the testimony of Barger and from the letter in question, that on December 4, 1316, (without the plaintiff’s consent or knowledge, and after it had signified its purpose to enforce the forfeiture) the defendant entered into a contract' with Barger by virtue of which he took possession of the mines and mining plant and began to operate the same. This was a few days before the present action was brought, and the contention of the plaintiff is that the action could not be maintained without making Barger, as the party actually occupying the premises, a party defendant. In our view of the whole of the evidence bearing on this question, including the contract which was excluded from the jury but which the trial court saw and certified here as part of the record, we do not think that Barger can be regarded as the party in actual possession of the premises within the meaning of the statute, Code, section 2726, re — 542 — lied upon by defendant. He was operating the mines under a contract which gave him exclusive possession thereof for the time being, but that possession was not exclusive of and was subordinate to the possession of the entire 1,200-acre boundary by the defendant, as to which no change was made or intended to be made by the contract with Barger. If, however, the contract with Barger be regarded as a’ sub-letting to him whereby he became the under-tenant of the defendant and in full possession of the premises, the result is the same. Section 2726, so far as material here, says: “The person actually occupying the premises and any person claiming title thereto or claiming any interest therein adversely to the plaintiff may also at the discretion of the plaintiff be named defendants in the declaration.” Prior to the amendment of this section by the act of February 26, 1896, (Acts 1895-6, p. 514) it directed that “the person actually occupying the premises shall be named defendant in the declaration.” The purpose of the amendment seems to have been to permit the plaintiff to join with the occupant as defendants any other persons claiming title to the land (Burks Pl. and Pr., sec. 119, p. 200) ; and it may be conceded that the actual occupant is always a necessary party defendant to an action of ejectment in the sense that another defendant may by timely and proper procedure compel the plaintiff to bring the occupant before the court. The presence of the occupant, however, is not essential to the jurisdiction of the court, and if the claimant of the premises who is sued does not appropriately raise the point, and defends the action, upon the merits, he is bound by the judgment. The statute in question expressly makes the defendant in this case a proper party, and it was manifestly the real party in interest. When called upon during the progress of — 543 — the trial, and in answer to its effort to avail itself of the absence of Barger as a party, to say whether it would enter a disclaimer, the emphatic answer was that it would not do so. The defendant contends that it had the right to raise this question under the general issue. We do not think so. Assuming, for the sake of this discussion, that Barger was “the person actually occupying the premises” within the meaning of the statute, the failure to make him a party, if properly availed of, would have been reversible error, but it was a matter in abatement and not in bar and should have been so pleaded. Pleas in abatement for non-joinder of defendants are not common in actions ex delicto, but the reason for this is that in the great majority of tort actions the plaintiff may at his own option, sue one or any or all of those who have participated in the wrong; and in such cases the failure to join any or all participants as defendants is not a valid - objection. Burks Pl. & Pr., 55, 59; Walton, etc., v. Miller, 109 Va. 210, 220, 68 S. E. 458, 132 Am. St. Rep. 908; Va. Ry., etc., Co. v. Hill, 120 Va. 408, 91 S. E. 194. But when the reason ceases the law ceases, and where the plaintiff in actions ex delicto improperly omits parties who ought to be joined as defendants there can be no question that the proper remedy is exactly the same as in actions ex contractu. There is no reason for any distinction in this respect between the two classes of actions, and none is made by the authorities. The regular and well established method of objecting to any action “for too few defendants,” where the ground for the objection does not appear on the face of the declaration, is- by a plea in abatement. The decisive question is whether the objection is good, not whether the action is in contract or in tort. Ordinarily the objection is not good in actions of tort, but wherever it is good, regardless of the form of the action, the only remedy known to our law is a plea in abatement. — 544 — See Graves’ Notes on Pleading, sec. 6; Burks Pl. & Pr., p. 76; National Fire Ins. Co. v. Catlin (Corporation Ct. of Danville), 8 Va. Law Reg. 127, 130; Prunty v. Mitchell, 76 Va. 169; Wilson v. McCormick, 86 Va. 995, 11 S. E. 976; Code, 1904, sec. 3261. In this case the very contention which the defendant presses upon us rests upon the assumption that the statute makes the omitted defendant a necessary party. This being true, the authorities last cited are directly applicable and are conclusive against the defendant’s position. Section 2734 of the Code, restricting defendants in ejectment to the plea of the general issue, refers only to pleas in bar and does not preclude pleas in abatement.-2 Barton’s Law Pr. 1125; Burks Pl. & Pr., p. 202; James River & Kanawha Co. v. Robinson, 16 Gratt. (57 Va.) 434, 438. Having seen that the failure to make Barger a party was not a matter in bar of the action, and could only be pleaded in abatement, it necessarily follows that the point was not made either in due time or in due form, and was irretrievably lost after the defendant had pleaded the general issue, as he had done in this case. If the non-joinder had been properly presented in the form of a plea in abatement, it could not have been received after the defendant had pleaded in bar. Code, sec. 3260. There was no error in excluding the evidence of the contract with Barger and in refusing the instruction No. 18 asked for by the defendant. The instructions, as a whole, presented fully and fairly to the jury every theory which, under the evidence, the defendant had a right to have the jury consider. The remaining assignments of error are that the court erred in not setting aside the verdict as contrary to the law and the evidence, and in overruling the motion of the defendant in arrest of judgment. We have already seen that — 545 — the evidence was entirely sufficient to warrant the verdict. With reference to the motion in arrest of judgment, it is only necessary to say that, as shown above, there was no error in refusing the eighteenth instruction asked for by the defendant, and it was, therefore, manifestly proper for the court to overrule the motion in arrest, the instruction and the motion being based upon identically the same contention. Upon the whole case, we are of opinion that there was no error in the judgment complained of, and it must be affirmed. Affirmed.