New Pittsburg Coal Co. v. New York Coal Co.

Citations

• 21 Ohio C.C. Dec. 458

Syllabus

<p>CONTRACTS — MINES AND MINING.</p> <p>1. Construction of Terms of Mining Contract.</p> <p>A coal mining contract, after providing that the second party should mine and remove a specified annual minimum quantity of lump coal and pay a royalty thereon to the first party at the rate of ten cents per ton, also provided that in. case the second party shall neglect or fail from any cause, except as thereinafter provided, to mine and remove the specified minimum he should, at the end of each year, account for and pay to the first party such portion of the royalty per ton that would then be due had the specified minimum tonnage been actually mined and removed. These provisions of the contract were followed by the following exceptions: “In case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.” Held:</p> <p>(a) The covenants to mine and remove a minimum tonnage and to pay a minimum royalty, were not absolute;</p> <p>(b) The clause, “or any other cause beyond the control of the second party,” should not be limited by the rules noscitur a sociis or ejusilem generis to either temporary causes and disturbances interfering with the mining and removal of the coal, or to causes kindred to or of the same class as those specifically enumerated, but should be construed in its popular acceptation so as to embrace any other cause beyond the control of the second party not attributable to its fault.</p> <p>(c) The word “impossible,” as used in said contract, does not mean absolute impossibility, but should be construed in a business sense; and the mining and removing of the minimum tonnage is “impossible” when it appears that on account of causes and natural disturbances not attributable to the fault of the second party, it cannot be mined and removed without resorting to unreasonable or