Thomas v. Harbison-Walker Refractories Co.

Citations

• 226 Pa. 136
• 75 A. 199
• 1910 Pa. LEXIS 727

Syllabus

<p>Lease — Rentals—Course of dealing — Notice.</p> <p>1. Where a lease of fire clay provides for a payment of ten cents per ton royalty on all clay taken from ten different tracts of land, all separately and particularly described in the lease, an assignee of the lessee cannot sustain a claim that he was liable for only seven and one-half cents per ton as to certain of the lands included in the lease, by proving a course of dealing between the original lessor and the former lessee as to the payment of such royalties, where there is no evidence whatever that the present owner, the successor in title to the former owner and original lessor, had any knowledge whatever of such a course of dealing.</p> <p>2. An understanding or course of dealing when set up in face of a written agreement otherwise providing, must be established by full, clear and satisfactory evidence even as between the parties alleged to have assented to such a course of dealing. As against a subsequent grantee, or assignee, without knowledge, a course of dealing between prior owners cannot be set up at all to affect the rights of the parties under the written instrument.</p> <p>3. Where a lease provides for a royalty of fifteen cents per ton and subsequently by an instrument in writing the royalty is reduced to seven and one-half cents per ton, and thereafter a new lease is executed covering the tracts mentioned in the old lease and including a number of new tracts all specifically described, at a royalty of ten cents per ton, and in the new lease there is no exception or reservation, and no mention of former leases or different royalties, and no ambiguity of language, the court will hold that the two prior leases were merged in the new lease.</p> <p>Interest — Tender—Royalties.</p> <p>4. Where a lessee tenders to the lessor a less amount of royalties than that claimed by the lessor and which so called tenders are by checks with vouchers, and the latter succeeds in establishing at law his right to the