
    GODDARD AND DRAPER’S APPEAL.
    An injunction will not be granted to prevent the landlords in a ooal lease entering an amicable judgment in ejectment for the premises for non payment of the rent.
    But suoh judgment is like a conditional verdict in ejeotment, and the amount of rent due must be fixed and a reasonable time allowed for its payment before a writ of habere facias can issue.
    Where a lease provided that the tenant should pay rent for 40,000 tons of coal each year ; a sub-tenant who took possession in April (no coal having been mined o* paid for during the first three months) under and subject to the original lease was bound to pay rent for the whole 40,000 tons during the first year of his tenanoy.
    Appeal from Common Pleas of Schuylkill County. In equity. No. 180, January Term, 1870. The Locust Mountain Coal Company leased certain premises to the Mammoth Vein Coal Company on October 3,1866, which lease afterwards became vested in Goddard & Draper. The lease contained a clause that if lessees did not mine out 40,000 tons in any one year from January 1st to December 31st, they should nevertheless pay rent as if they had mined out that amount; unless lessees are prevented by accidents or faults beyond their control, which facts must be certified to by an agent of the company. On April 1,1868, Goddard and Draper sublet to Murray, Winlack & Randall, who bound themselves to perform the covenants in the original lea'se as far as the same were binding on Goddard and Draper. The present case arose on the filing oí a bill in equity by Murray, Winlack & Randall against Goddard and Draper, to restrain them from forfeiting the sublease and entering the amicable action of ejectment attached to the lease. The other facts of the case are given in the opinion of the Court below on Nov. 8, 1869, by
    Ryon, P. J.:
    The case as exhibited by the bill answer affidavits and exhibits is this: the plaintiffs became the lessees of the defendants on or about April 1,1868, of a certain colliery situate in Columbia county, under a contract with the defendants, giving them the right to purchase. The plaintiffs obtained the possession on the 15th day of April, 1868. The defendants held this colliery under a lease from the Locust Mountain Coal and Iron Company to the Mammoth Vein Consolidated Coal Company, lessees. In this latter lease there is a clause obliging the tenant to ship 40,000 tons per yfear, or pay rent upon that amount, whether shipped or not, provided that amount of coal, could have been taken out, between January 1st and December 31st, by the most diligent and skillful mining. In the lease from the defendants to the plaintiffs, the plaintiffs are bound to keep and perform all the covenants, conditions, stipulations and agreements contained in the lease from the Locust Mountain Coal and Iron Company to the Mammoth Vein Company. The plaintiffs took possession in April, and from that time to the 31st ot December, 1868, the mining was carried on by the plaintiffs with diligence, and they shipped and paid rent on 24,939.02 tons, except from the 4th of July to the 22nd of August, 1868, when the mines were compelled to stand idle on account of a general strike in the region.
    The defendants had to pay to the Locust Mountain Company a large sum ($3,654.42) under section 10 of the lease referred to, to make up for the deficiency of coal mined ; or in other words, the 40,000 tons were not mined within 15,000 tons or over. The defendants mined no coal from January 1st up to the time plaintiffs took possession, in April. The defendants allege that the plain.tiffs are bound to pay this $3,654.42, and threaten-to forfeit the plaintiffs lease and enter judgment in an amicable action in ejectment, in Columbia county, against the plaintiffs, and remove them from the possession of the colliery.
    Since the filing of the original bill, an amended bill was filed, alleging the payment and reception of rent by the defendants after December 31,1868.
    The complainants in the bill accepted a lease from the defendants, with full knowledge that they had covenanted to ■ pay, whether mined or not, and agreed to be bound by the covenants in the lease to the Mammoth Vein Company, and to keep and fulfill them. This rent (on 40,000 tons) was to be paid, if not before due, when the payment for the month of December in each year was made. The rent was not apportioned among the several months of the year, but the tenants paid monthly for what they did mine; and, if they did not mine .the 40,000 tons during the period specified — from the 1st of January to the 31st of December of each year — the lessees were to pay a sum equal to the rent, which would have been payable had the whole amount of 40,000 tons been mined and shipped during said period, as and for a liquidated rent, &c.
    When the plaintiffs took tbeir lease in April, 1868, the covenant in regard to rent had not been broken by their lessors. We will assume for the purposes of this case — and we wish it to be understood as expressing' no opinion to bind us in the future should the question come before us in another form — that the plaintiffs are bound by the covenants in section 10, and that they covenanted to keep and fulfill it. Two important questions arise: First, was the possession given to the plaintiffs so late in the season that it was physically impossible for them to comply with the covenant to ship 40,000 tons ? The bill alleges all possible diligence, and that, had it not been for the long suspension, which was not under the control of the plaintiffs, they would have shipped over the minimum amount. The réport of Mr. Stockett, agent, appointed under this section 10 to ascertain whether It had been complied with, allows the time the strike occupied, and, also, for shelly coal, which reduced the shipments from causes which he explains; but it does not say, specifically, whether the plaintiffs could have complied or not, but takes the whole twelve months in arriving at his estimate. He shows further that no work was done in these mines from early in December, 1867, to April, 1868, nor coal shipped during that time; that the preparatory work necessary to make shipments according to the capacity of the mines was neglected in the fore part of the year, which, if it had been done, would have increased the production 5,000 tons. But Mr. Stockett does take the shipments made by the plaintiffs while they worked the colliery, each month as the basis of his estimates, which is a fact weighing upon this question, and the whole circumstances seem to make it apparent that the plaintiffs shipped all the coal it was possible for them to do during the period it was worked by them in 1868. If the defendants held the colliery idle until it was too late in the season to comply with the covenant, we think the plaintiffs would not be held liable for not performing what was physically impossible to perform.
    But the second and most important consideration is, whether the cause of forfeiture, if any existed, has not been waived by the reception of the rents by the defendants. This is the vital question here. It is conceded that the plaintiffs have paid their rents monthly up to the date of thé filing of this bill. Was the demand made on the day when the rent became payable, on the premises, and of the precise sum due ? McCormick vs. Connell, 6 S. & R. 151; 2 Stephens, N. P. 1377.
    The rent became due on the tenth of each month succeeding the month in which the coal was shipped. No bill was presented for this sum until letter of April 30, 1869, with bill enclosed, dated April 1, 1869. And the first letter of January 19,1869, does not give the amount nor present a claim, unless the bill rendered to defendants by the Locust Mountain Company shall be found correct. Hence, it is evident no steps were taken to forfeit the leaBe in time to make it effective. But this covenant section 10 is between other parties. The plaintiffs agree to keep and fulfill this covenant, but are strangers to the Locust Mountain Company. The threatened forfeiture is for not complying with this covenant by paying rent to this company, defendants’ lessors. The original landlords do not propose to forfeit. It seems to us that the nonpayment of rent under this covenant is such as equity ought to relieve against upon the landlords being secured from loss. Compensation was the object of introducing the clause of forfeiture in the lease.
    We have ordered security, which is approved for double the amount in controversy. Upon the whole case we think the injunction should issue, until the rights of the parties can be determined at law.
    Goddard and Draper then appealed and F. B. Gowen, Esq., for them argued, that the Locust Mountain Company had nothing to do with the forfeiture, there being no privity of contractor estate. Taylor on Landlord and Tenant, Sect. 448. Goddard and Draper were liable to the Locust Mountain Company and then Murray, Winlack & Randall were liable to them whether they had been previously called- on or not. Jackson vs. Port, 17 John, spn’s Reports 497. Murray et al. covenanted to mine out 40,000 tons. To make a covenant nugatory the impossibility must exist at the time of its creation. Platt on Covenants, 569.
    , The complainants were not entitled to equitable relief because it was a doubtful case. 1 Hilliard on Injunctions, p. 10; Grey vs. Ohio,-1 Grant 412 ; Miller vs. Gorman, 2 Wright 312.
    
      
      John W. Ryon and Hughes and Farquhar, for appellees
    argued that the contract to mine 40,000 tons was an entire one, and could not be divided. That as they did not have possession the whole year, they were not liable to the 40,000 tons clause until 1869. That if any forfeiture accrued it must have accrued in January. 1869, and Goddard and Draper were bound to declare a.forfeiture immediately if at all, and the acknowledgment of the relationship of landlord and tenant by receiving rent thereafter accruing, was a waiver of any forfeiture. Taylor on Landlord and Tenant, 361; Newman vs. Rutter, 8 Watts 55.
   On May 5, 1870, the Supreme Court reversed the decree of the Court below in the following opinion by

Thompson, C. J.:

We are ol opinion that no such case was disclosed by the bill, exhibits and affidavits, as required the equitable intervention of the Court below by injunction. Fraud or circumvention is not charged against the defendants in making the lease to the complainants or in introducing any of the covenants contained in it. Nor is mistake in reference to its terms insinuated. We must regard it therefore, as having been plainly before their eyes and as well understood by them as it was by the defendants.

The substance of their complaint seems to be that they came into possession of the mine as lessees under the defendants about the middle of April, 186H, and ought not to be bound to deliver the stipulated amount of coal agreed by them to be delivered equal to the amount agreed to be paid for by their lessees to their paramount landlords of the mine, viz.: 40,000 tons with an addition of a certain percentage over and above to their lessees within the year. The only answer that is needed to this is that they accepted their lease in the middle of April, containing covenants to do' this unless prevented by faults and unavoidable accident occurring in the mine which after the most diligent eftort would prevent the raising the stipulated amount. Without this, they engaged to raise or pay rent on 40,000 tons whether raised or not, together with the per cent, referred to monthly on every ton raised. The referee appointed under the terms of the lease to determine whether a case had arisen to dispense with raising the stipulated amount of coal reported against the complainants on that point and his report was final by the terms of the lease. His report shows also that the delivery of the whole amount was easily practicable between April 15th and December 31st, 1868; that the capacity of the mine and machinery were quite equal to this. The complainants delivered only 24,939 or less, leaving a deficit of over 15,000, the rent on which the defendants have paid to the Locust Mountain Coal Company, being $3,654.42, and demand to be paid this sum by the complainants. To restrain the defendants from proceeding to enforce its payment or recover possession of the mine the bill was filed.

The remedies in the lease are twofold. First, by re-entry by the lessors declaring the lease forfeited and putting the lessees out; or, second, by entering an amicable ejectment in the Common Pleas of Columbia county for breaches or the non-preformance of the covenants of the lease with confession of judgment by attor ney.

These were the parties’ contract remedies and in this respect was the law of their relation. The injunction sets both aside, and I do not see upon what ground it is to-be sustained. Neither are they contrary to law or equity in themselves, nor has it been alleged that they were agreed to through fraud or mistake ; nor that any use was about to be made of, either, but to enforce the terms of the agreement. • It is not likely that the re-entry would amount to an effectual remedy coupled as it is, with a stipulation for dispossessing the tenants in possession. -This could only be done, it done at all, without violence or breach of the' peace. If ■ made the foundation of process the question of forfeiture would necessarily come within the jurisdiction and control of the courts.

The other remedy, viz.: by ejectment on account of the breaches of the covenants in the lease would be unexceptionable and effectual. But in order to avail themselves of this remedy the lessors would be obliged in their confession of judgment to set forth the breach or breaches complained of. If for non-payment of rent the confession would show the amount in arrear and unpaid like in cases of conditional verdicts in ejectment; which after reasonable notice to.the defendants and remaining unpaid, the plaintiffs could have their writ of habere facias possessionem by leave of Court to recover possession of the premises. This writ- is not of course and is often controlled by equitable considerations. In Shaw vs. Bayard, 4 Barr 257, speaking on the subject Rogers, J., said: “I would wish it, However, to be observed that where in an action of ejectment a conditional verdict is rendered it is not of course as in ordinary cases to issue .a habere facias possessionem. This can only be done by leave of the, Court who will allow the writ only when it appears the terms of the verdict have not been complied with.”

And I would say in a case like this it would be allowed cinly when the notice to pay the money has been reasonable and it remains unpaid. This would be a means which would admit of a speedy and equitable adjustment of the rights of the parties; either by enforcing the payment of the rent,, or a restoration to the lessees to their property. The remedies agreed upon by the parties were both suspended by the writ of injunction issued by the Court in Schuylkill county, and as already intimated we do not see any equitable foundation for it, there being no fraud or mistake in entering into the lease with these stipulations in it, and neither being contra^ to law to enforce.

These views sufficiently indicate oar opinion that the decree of the Court below, restraining the respondents from proceeding to repossess themselves of their mine or to enforce payment of their rent, ought not to have been granted. The decree granting it is therefore reversed and the injunction set aside at the cost of the appellees.  