Lehigh Zinc Iron Company v. Bamford

At law. Action by Charles Bamford and Edwin Bamford against the Lehigh Zine & Iron Company to recover rents. There was verdict and judgment for plaintiff, and a motion for a new trial was denied. 33 Fed. 677. Defendant brings error. Affirmed.

Statement by Mr. Justice HARLAN: This action was brought to recover certain rents alleged to be due under a written lease of May 2, 1883, between Charles and Edwin Bamford, of England, and the Lehigh Zinc & Iron Company, Limited, of Pennsylvania. The company acquired, by the terms of the agreement, the exclusive right for 10 years to mine, dig, raise, crush, concentrate, roast, use, and remove, sell, and dispose of all metals or minerals found or to be found upon the leased premises.

The lease contained, among other provisions, the following:

'Second. That the party of the second part, for and in consideration of the rights and privileges thus granted, hereto covenant and agree to pay to the said parties of the first part the following rents, profits, and tonnage due, to wit: Upon all concentrated ores removed from or used upon the premises, the same having been obtained by crushing, sizing, washing, jigging, or separating ores mined upon said premises, a royalty of one dollar and fifty cents per ton of two thousand pounds, (2,000 lbs.;) upon all concentrated ores which may be obtained by crushing, sizing, washing, jigging, or separating ores or minerals hauled and brought to the said premises from other estates and mines, a royalty for the use of the soil, buildings, machinery, and fixtures hereby leased shall be paid to the parties of the first part as follows, viz. during two days of each week a royalty of fifty cents per ton of two thousand pounds of such ore so concentrated when removed from or used upon the premises aforesaid, and during the remaining five days of each week a royalty of one dollar for each ton of two thousand pounds so concentrated when removed from the premises.

'Third. Upon all ores mined upon and removed from the premises, other than those above mentioned, a royalty of one dollar and fifty cents a ton shall be paid to the parties of the first part; and it is also covenanted and agreed that the said party of the second part shall put all the engines, boilers, and machinery which it shall use in good and substantial repair, and keep and leave them in the same good order, ordinary wear and tear excepted.'

'Fifth. That the party of the second part shall pay or cause to be paid to the parties of the first part or their duly-authorized agent or attorney at New York city, on the twentieth day of January, April, July, and October of each year, all sums of money found to be due by said party of the second part for ores removed during the three full calendar months next preceding, and shall accompany each remittance with a detailed statement of weights and amounts so accruing, specifying also whence such ores were originally obtained.

'Sixth. In case the royalty due and payable to the parties of the first part according to the above rates shall in any year fall below the sum of one thousand dollars, then the party of the second part shall pay to the parties of the first part such additional sum of money as shall make the royalty for such year amount to the sum of one thousand dollars, which sum shall be held and taken to be the royalty of that year: provided, always, that if sufficient ores cannot be found to yield said minimum payment, and said party of the second part shall in consequence thereof fail to pay said minimum sum of one thousand dollars yearly, then said party of the second part shall, if required by said parties of the first part, relinquish this lease, and the privileges hereby granted, and the same shall cease thereupon.'

The company acquired by the agreement the exclusive right to purchase the leased estate, mining rights, etc., at the price of $125,000, payable according to certain named terms.

The complaint alleged that the company entered upon the leased premises, and dug and carried away ores, but only in such quantities that at the agreed rates the royalties fell below $1,000 in each of the years ending May 2, 1884, and May 2, 1885. Judgment was asked for $1,000 for each of those years, less the sum of $59.49, leaving a balance of $1,940.51, with interest from May 2, 1884, on $940.51, and from May 2, 1885, on $1,000.

The company denied all indebtedness to the plaintiffs, and asserted a counterclaim for the sum of $8,000. The answer alleged that Charles Bamford, for himself and Edwin Bamford, in order to induce the company to lease the property, represented the mine to be a valuable ore-producing one; that, properly worked, it would yield, and had yielded, a large amount of zinc and other metals; that it was still a valuable mine for such purposes, and would be a source of profitable investment to the company; that when those statements and representations were made the mine was flooded to the extent of nearly 100 feet, so that it was impossible for the company's officers, agents, and servants to make actual examination of it; that, relying upon and believing such statements and representations to be true, the defendant entered into the contract; that immediately after the execution of the lease the company, in consequence of the above representations and statements, purchased from the Bamfords a large quantity of tools, wagons, material, and personal property, to be used in developing the mine, paying therefor the sum of $883.74; and that the articles so purchased were of no use or value except for the purpose for which they were so purchased. The answer further alleged that in developing the mine the company expended, in addition to moneys for materials and for cleaning the mine, nearly $4,000, the aggregate of all expenditures by it in that way being between $5,500 and $6,000; that its officers devoted their personal attention and labor to the business, the value of such services being at least $2,500; that these expenditures were made in good faith, and in penditures were made in good faith, and in the character of the mine; and that these representations, so made to induce, and which did induce, the company to enter into the lease, were entirely false, whereby it had sustained a loss of at least $8,000.

By stipulation between the parties the plaintiffs had leave to amend and did amend the complaint, claiming judgment for the sum of $1,000, with interest from May 1, 1886, for an additional installment of minimum rent due May 1, 1886.

At the trial the plaintiffs read in evidence the written contract of lease, and rested their case. The company then moved to dismiss the complaint upon grounds set forth in writing. The court denied the motion, and to that ruling the defendants excepted.

The company introduced evidence tending to show that Charles Bamford, prior to the execution of the lease, made the representations stated in the answer and counterclaim. The bill of exceptions states that the defendants in the latter part of 1883 ceased to work the mine, and never resumed, and subsequently claimed that it was valueless for producing ores. The plaintiffs introduced evidence tending to show that the statements alleged to be made by Charles Bamford were in fact true; that the mine, properly worked, would be a valuable oreproducing one; that plaintiffs made no statements about it; and that the company was acquainted with its character, and relied upon their own knowledge, and not upon any statements by the plaintiffs. It appeared in evidence that the company entered into possession and used for several months the mines, buildings, machinery, and fixtures described in the schedule of the lease, which buildings and fixtures cost upwards of $60,000. It did not appear that any complaint of misrepresentation, failure, mistake, or disappointment was made until the answer was filed in this action about August, 1885.

There was a verdict in favor of the plaintiffs for $3,201.58, for which sum judgment was rendered.

Sidney Ward, for plaintiff in error.

[Argument of Counsel from pages 669-671 intentionally omitted]

L. A. Fuller and M. L. Towns, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.