
    Brick Company v. Pond.
    A., by an agreement in writing, “leased ” to B., “ all tbe clay that is good No. 1 fire clay, on bis land ” described, for a term of three years, subject to tbe conditions that B. “ shall mine, or cause to be mined, or pwy for, not less than 2,000 tons of clay every year, and shall pay therefor, twenty-five cents per ton for every ton of clay monthly, as it is taken away.” Held:
    
    1. That this was a contract, which gave B. the exclusive right to mine and remove all the good No. 1 fire clay that was on the land, and not a lease of the land itself.
    
      2. If clay of that quality, and in quantity sufficient to justify its being mined, existed, B., on failure to mine at least 2,000 tons per year-, each year while the contract was in force, was bound to pay for that amount, at the agreed price per ton.
    3. But if, in fact, clay of that quality, and in quantity sufficient to justify its being mined could not, by the use of due diligence, be found on the land, then there was no obligation to pay the amount agreed on, in case of failure to mine. Goolc v. Andreios, 36 Ohio St. 178, followed and approved.
    4. Where it is an open question whether such clay was to be found on the land, and the exclusive possession of the clay lands was vested in the lessee or purchaser of the clay, for the purpose of ascertaining the fact, the burden is upon him, in order to defeat a recovery for the annual sums to be paid in case of a failure to mine and remove the same, to prove that such clay as is contemplated in the contract did not exisj in minable quantity. Cook v. Andrews, supra.
    
    Error to the District Court of Scioto County.
    The defendant in error brought an action to recover $2,000, less certain credits, under a contract of which the following is a copy:
    “ This agreement, entered into this 25th day of February, A. D. 1873, between Erastus Pond, of Portsmouth, Ohio, of the first part, and the Scioto Fire Brick Company, of Sciotoville, Ohio, of the second part, witnesseth, that the said party of the first part hereby leases all the clay that is good No. 1 fire clay, on his land, situate in Clay township, Scioto county, Ohio, for the term of three years from and after this date, subject to the following conditions, that is to say: providing said parties of the second part shall mine, or cause to be mined, or pay for not less than two thousand tons of clay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly, as it is taken away. The party of the first part reserves the right, in case he should sell or dispose of said property on which the clay above leased is found, to cancel this lease any time after the first year shall have expired ; but, in case the land is not sold, then, and in that case, this lease is to remain in force for the three years. The party of the first part, should he conclude to sell or dispose of the property, to allow tbe parties of the second part to purchase it, providing they will pay as much for it as any other good and responsible parties. The party of the first part agrees to give the right of way for any roads necessary to get clay away.”
    
      “ To the true performance of the foregoing agreements, we, the parties, affix our signatures, the day and date first above written.”
    [Signed] “Erastus Pond,
    “ Scioto Fire Briok Company,
    “ Per W. Q. Adams, President.”
    The petition, as amended, alleged :
    1. The defendant is a corporation duly organized under the laws of this state, and carrying on business at the said county.
    2. The plaintiff, on the 25th day of February, A. d. 1873, was, and has since been thp owner of a tract of land situate in Clay township, in said county, containing about one hundred and seventy acres, and upon which were large deposits of fire clay, viz.: Over six thouscmd tons of good No. 1 fire cla/y, amd over six thouscmd tons of other good fire day. (The last clause being the amendment made necessary by the ruling of the court on a demurrer to the petition for want of such allegation.)
    3. That defendant, desiring to secure to itself the sole privilege of mining fire clay for a term of years on said land, entered into said contract.
    4. That defendant took possession of said land and mined and took away large quantities of fire clay, but not to exceed six thousand tons.
    The prayer is for a judgment for $1,347.72, with interest from February 25, 1876, that amount being the difference between $1,500, which was three years’ rent for said land, in case of failure to mine, and $152.28, payments received on the amount due on said contract.
    Three defenses are pleaded.
    1. It is denied that there was any good No. 1 fire clay on said land, or that defendant received or took away any such, or any other clay that it was required to take and pay for.
    2. It admits that shortly after the making of said agreement, the defendant entered upon said tract of land of the plaintiff for the purpose of mining and taking away the good No. 1 fire clay thereon, and proceeded to open the strata of fire clay on said premises, in order to mine and take away there- ; from whatever good No. 1 fire clay could be found, or was thereon. In opening said fire clay banks, it was ascertained that the fire clay was not good No. 1 fire clay, but with the expectation that the quality would improve as said banks were more fully opened and developed, a small quantity of the fire clay mined on said premises was taken away and hauled to the works of defendant for the purpose of testing the same. The whole quantity so taken away from said premises was 4563s tons. It avers further, that upon testing said fire clay so taken from said premises, it was ascertained that the same was almost worthless; and for the purpose of making fire brick was, in fact, entirely worthless. Defendant avers that said fire clay so received and taken away from said premises was not good No. 1 fire clay ; nor was the same received or taken by defendants as such; nor was the said fire clay so taken of any value.
    3. Is a counter-claim to recover back the above payments acknowledged in the petition, on the ground that the clay taken and paid for was worthless. As no question is here' made on the action of the court below on this counter-claim a further statement of it is unnecessary.
    On the issues joined, evidence was offered on each side, the tendency of which is disclosed in the bill of exceptions. The jury found for the plaintiff for the full amount claimed.
    The bill of exceptions does not purport to set out all the evidence, but only what it tends to prove. Certain charges and refusals to charge are stated, which are assigned as grounds for reversing the judgment.
    Upon the issue made by the denial that there was any good No. 1 fire clay on the land, the court charged, that the burden of proof was on the defendant below; and, if the jury found from the evidence that there was good No. 1 fire clay on the lands, in such quantities as would warrant its being taken out, having regard to the expense ordinarily incurred in mining fire clay, they need inquire no further, the verdict umst be for the plaintiff.
    The court further instructed the jury: “ That if they found from the evidence, that there was no good No. 1 fire clay on the said lands of plaintiff,' it did not follow that they must find the issues for defendant; they must inquire further.” And to guide the jury in their further inquiries in such an event, at the request of the attorney for plaintiff, the court gave to the jury the following instructions, to wit:
    1. “ Under the written contract it was the duty of the defendant to examine and determine, within a reasonable time, whether or not there was such clay on the land as it was willing to accept and pay for under the agreement.”
    2. “If defendant did not, within one year from the date of the contract, examine and test the clay sufficiently to determine its quality and quantity, and continued mining and taking away clay the second year, under the lease, then it became liable to pay to plaintiff at the end of the year for two thousand tons of clay at the contract price, whether it received that amount or not.”
    3. “ If defendant, dining the second year, mined and took away clay under the lease, and did not abandon the lease before the commencement of the third year, and so notify plaintiff, it is liable to pay for 2,000 tons for that year, whether it took away that quantity or not.”
    4. “ A simple verbal notice by the defendant, or its attorney, to the plaintiff, that it should not take any more clay under the lease, is not sufficient; before defendant could release itself from its liability under the written lease, it was required to tender to the plaintiff a written release in writing, executed by the defendant, unless there was a waiver upon the part of the plaintiff of the execution of a written release.”
    Exception was taken to these charges, and then, at the request of the defendant, the court gave the following instructions, to wit:
    1. “ Before the plaintiff can recover in this case the jury must be satisfied, by a preponderance of evidence, that there was upon the said lands of the plaintiff good No. 1 fire clay in quantities that could, and would, by the use of such usual and ordinary means as are ordinarily adopted by careful and prudent men in that business, have been taken out.”
    2. The following instruction was asked by defendant to be given, to wit:
    “ If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an expense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to pay for the same, if he should refuse to taire it.”
    But the court refused to give the same without omitting the words, “ nor is he required to pay for the same if he should refuse to take it,” and gave said instruction, omitting said words.
    To which ruling of the court, in refusing to give said instruction as asked, and except by omitting said words, and also in giving the same with said words omitted, defendant, by its counsel, excepted.
    The defendant asked the court to give the following instruction, to wit:
    3. “If, during the first year, the defendant made a reasonable examination of the land, and was unable to find a good No. 1 fire clay on the same, and so imported to plaintiff, and the plaintiff thereupon requested the defendant to made a further examination of the land the next year, and at his request defendant made a further examination of the land the next year and could not, after a full and reasonable examination of the same, find any good No. 1 fire clay on the tract, and the jury shall also find from the evidence, that there was no good No. 1 fire clay upon the tract, the verdict must be for defendant.”
    . Which instruction the court refused to give, and for so refusing, defendant, by its counsel, excepted.
    
      The grounds relied on for a reversal are: that the court erred in its charge, and in its refusal to charge as requested.
    
      Moore c& Newman and J. W. Bcmnon, for plaintiff in error:
    The existence of sufficient minable clay to enable the plaintiff in error to comply with the contract was essential to the right of defendant in error to recover. Cook v. Andrews, 36 Ohio St. 178.
    
      W. A.Sutchms, for defendant in error:
    „I. The burden of proving that there was not sufficient clay of the kind called for by the contract to enable the plaintiff in error to mine the amount specified was upon the plaintiff in error. Cook v. Andrews, 36 Ohio St. 178.
    II. But the defendant in error was entitled to recover whether or not there was No. 1 fire clay on the land. Pollock’s Principles of'Contract, 1 Am. ed. 356 ; Atkinson v. Ritchie, 10 East, 530; 1 Addison on Cont. § 327; 2 Id. § 949; Hills v. Sughrue, 15 M. & W. 253; Baily v. DeCrespigny, L. R., 4 Q. B. 185; Benjamin on Sales, 3 Am. ed. 556; see also Bank v. Burt, 5 Allen, 113; Eddy v. Clement, 38 Vt. 486; Wells v. Calnan, 107 Mass. 514; Buck v. Coal Co., 54 Penn. St. 291.
   Johnson, J.

The agreement, which is the foundation of the action, is, we think, properly pleaded, as a contract, securing to the plaintiff in error “ the sole privilege of mining fire clay ” on the land for a term of three years.

The agreement itself, is not a lease of the land, but of “ all the clay that is good No. 1 fire clay,” on the land.. If that kind of clay was on the land, the plaintiff in error was bound to mine not less than 2,000 tons each year, the same to be paid for monthly as it was taken away. The exclusive right to possession of the land so far as was necessary to mine and remove such clay was granted. This was not an exclusive possession of the whole tract, but only for • mining purposes. The ownership of the land, with the right to the possession of the same, subject only to the right of possession for the purpose of mining and removing the clay, was in the owner. This was, therefore, a contract for the privilege of mining and removing the kind of fire clay specified, as distinguished from a lease of the land.

This right or privilege commenced February 25, 1873, and unless sooner terminated, ended February 25, 1876.

The action is for three years’ rent, or compensation to be paid on failure to mine, and not for so much clay actually mined. It is founded on that clause of the agreement which provides, that the plaintiff in error, ‘ ‘ shall mine or cause .to be mined, or pa/y for, not less them two thousand tons of c],ay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly as it is taken away.”

The petition does not aver, that any particular quantity of clay was taken away.

It is alleged that possession of “ said clay lands,” was taken, and “ large quantities of fire clay mined and taken away, but not to exceed 6,000 tons.

As this was not a lease of the land at an agreed rent per annum, but a contract, for the exclusive privilege of mining and removing during the term, “all the clay that is good No. 1 fire clay,” it follows, we think, that unless there was such clay on the land, nothing was payable under the contract.

The clause of the contract, termed therein a condition, which binds the party of the second part, to mine or cause to be mined or pay for, not less than 2,000 tons of clay every year, is not an obligation to mine or pay for any. other clay, than that leased to the party. The word “ clay ” in this clause means the kind of clay contracted for, viz., “ good No. 1 fire clay.”

The defendant bound itself, in consideration of the privilege granted, to mine and pay for this kind of clay, at the rate spe-cified, payable monthly as it is taken away. It was to mine, or pay for, at least 2,000 per year.

It could not monopolize this clay for three years, without compensation, nor take a less amount than two thousand tons per year, but was to mine at least that amount. If it did not, it was to pay for that amount each year. If it failed to mine this quantity each year, it obligated itself to pay for that amount, To'hold, that the plaintiff below was entitled to an annual rent of $500 per year, if there was no clay of the quality, or in quantity sufficient, that was minable, would do violence to the terms of the agreement and to principles of justice. It would be paying for a worthless privilege.

I. Did the court err in its charge, as to the burden of proof %

The original petition did not allege that there was any good No. 1 fire clay on the land. For want of such an averment, a demurrer was sustained, and an amendment was made, containing this allegation. It was put in issue by the first defense. The issue thus tendered naturally cast the burden on plaintiff, if determined by the form of the pleadings merely.

On the trial the general charge was that the burden on this issue was on defendant, but theffirst request of defendant was given, which was to the effect that the plaintiff must satisfy the jury, by a preponderance of proof, that such clay was on the land in minable quantity.

Without attempting to harmonize these different rulings, let us assume, that the plaintiff in error is correct in saying the effect of the charge was to east the burden on defendant.

Upon general principles applicable to cases of this kind, and in accordance with the opinion in Cook v. Andrews, 36 Ohio St. 178, we think the burden was properly on defendant.

It is admitted in the pleadings, that possession of these clay lands was taken by defendant under the contract. This was an exclusive possession for all purposes embraced in the contract, and included the right to test the lands for such clay, if such test was necessary.

From the bill of exceptions, it appears to have been an open question, whether there was such clay to be found. It was the duty of defendant to mine and remove the same, if found, or pay the amount stipulated per year.

The exclusive right to test these lands being in the defendant, the burden is on him to prove the non-existence of such clay in minable quality and quantity. Cook v. Andrews, supra.

II. The court charged, that if there was good No. 1 fire clay on the land in such quantities as would justify mining -it, the jury need not inquire further, but must find for the plaintiff. That is, if the clay was there, of the quality and quantity that should have been mined and taken away, the defendant must pay for at least 6,000 tons, whether mined and removed or not. In this we think there was no error. They were, however, further charged, that if such clay was not on the land, it did not follow that the issues should be found for the defendant, but the jury must inquire further. '

In this further inquiry, they were instructed: 1st. That it was the duty of defendant, to test the land in a reasonable time for such clay. 2d. If it did not do so in one year, sufficiently to determine its quantity and quality, and continued mining and taking away clay,” during the second year, then it became liable at the end of the ypr for 2,000 tons, whether it received that amount of clay or not; and, 3d. If, during the second year, it mined and took away “ clay ” under the lease, and did not abandon the lease before the commencement of the third year, it was liable to pay for 2,000 tons for that year, whether it t§ok away that quantity or not.

The plain import of these instructions were, that although there was no such clay on the land as defendant had contracted for, yet if the defendant failed to make a test during the first year and held over into the second year, mining and taking away clay (whether of the quality contracted for is not stated), the defendant was liable to pay for 2,000 tons for that year, whether there was any good No. 1 jure clay there or not, and the same rule was given to guide the jury for the second and third years.

Notwithstanding this, the court, at the request of defendant, charged, that before the plaintiff could recover, the jury must be satisfied by a preponderance of evidence, that there was upon said lands, good No. 1 fire clay, in such quantities as would justify its being taken out; but at the same time and in the same connection, refused to give the following charge, without omitting therefrom the words, “ nor is he required to pay for the same if he should refuse to take it,” and gave said instruction omitting said words:

“ If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an expense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to y>a/y for the same, if he should refuse to take it.”

That is, if- there was no No. 1 fire clay of sufficient quantity, that could be taken out and made fit for use, except at such great expense as would not justify a man of ordinary care and prudence in that business in doing it, the defendant, though not required to mine it, is yet bound to pay for it, if taken out, though not of the quality contracted for.

This modification of the request is irreconcilable with the prior request of the defendant, which was given, but is in harmony with the main charge of the court, which we have found to be erroneous, in holding defendant liable, during his possession, and while searching for the kind of clay he had contracted for, although none was on the land. In view of the fact that the jury rendered a verdict for the full quantity of the kind of clay that defendant was bound to take out, if there in minable quantity, for the whole term, and of the fact that the evidence put in issue the existence of such clay, we think this judgment should be reversed. It was likely to confuse and mislead the jury upon the most important issue in the case. Eor this reason alone the judgment should be reversed. Wash. Ins. Co. v. Mer. & Man. Ins. Co., 5 Ohio St. 450.

By the charge of the court, and by the modification of the second request of defendant, this issue became immaterial, if there was any quantity of the required kind of the clay, however small, on the land, or indeed, if none at all.

Judgment r&oersed a/nd ccmse remanded.  