
    Tod v. Stambaugh.
    1. It is orror to reverse or modify a judgment without having the parties before the court, affected by such reversal or modification.
    3. Where several defendants are sought to be charged upon the same demand, and the defense sot up by one operates for the benefit of all, it is error to reverse the judgment as to the answering defendant and leave it standing in full force against the others.
    8. The lessee in a coal lease, by its terms, purchased all the coal on the demised premises, and agreed, with all reasonable dispatch, to mine and remove the coal, and on the first days of January and July of every year to pay a specified sum per ton for all the coal that may have been mined and removed; also, that if coal was found sufficient to render the same practicable, to mine not less than thirteen thousand tons annually, or on default thereof to pay for said quantity. It was further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the “ surplus payments ” were to apply on any future year’s mining that might be in excess of said quantity. Reid: 1. That thej quantity of coal was to be ascertained and paid for in the mode prescribed by the lease. 3. That in an action to recover an annual payment for thirteen thousand tons, an averment in the answer that the “ surplus payments ” made in pursuance of the lease were more than sufficient to pay for the unmined coal remaining on the premises, constitutes no defense.
    Error to tbe District Court of Malioniug County.
    The original action was brought in behalf of the heirs of Jacob Wise, Elizabeth Stambaugh et al., on an agreement described as a lease, entered into between them and David Tod, on October 1, 1861, to collect two installments of rent of $1,625 each, one due on the 1st of January, 1874, and the other, on the 1st of July of the same year.
    By the terms of the lease, the lessors granted, leased and sold to Tod, his heirs and assigns, all the mineral coal in and under a certain tract of land in the lease described, and the right to enter upon the premises to freely mine and remove the same. On the part of Tod the lease contained the following stipulation:
    “ And as a further consideration for said grant, the said Tod agrees to go forward, with all 'reasonable dispatch, to mine and remove said stone coal, and keep an accurate account thereof, and at the end of each six months, to wit, on the 1st days of January and July of every year, to pay to each of the said parties one-thirteenth part of the sum of twenty-five cents per ton, of 2,100 pounds, for all the coal that may have been mined and removed therefrom ; and if found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annually, or, on default thereof, pay for said quantity; in which event the surplus payments are to apply on any future year’s mining that may be in excess of said quantity.”
    This lease was assigned by Tod to the Girard Iron Company, by whom, in September, 1869, it was assigned to Morris, Ward & Brown.
    The said assignees respectively assumed to perform all the terms and agreements of the lease, aiid save their assignors harmless on account thereof.
    Tod’s executors, as well as the said assignees, were made defendants to the petition ; and Tod’s executors, by way of cross-petition, prayed that the said indemnity be enforced against said assignees respectively, and that they be required to discharge his liability to the plaintiffs.
    The answer of Morris, Ward & Brown admits their liability under the lease, but avers payment of all installments due prior to January 1, 1874; and, as to the installments sued for, the answer sets up the following matter .as their defense:
    “ These defendants admit that said two payments of $1,625 each, to recover which this suit has been brought, have not been paid, but they deny that they are due and payable under said lease, or that any sum is or ever can be due plaintiffs from any of the defendants, under said lease, because they say that there has been paid by said Tod, said Girard Iron Company and these defendants, under said lease, about the sum of $15,000 above paying for all coal mined at the rate of twenty-five cents per ton, that there is not sufficient minable coal on said premises to repay these defendants at the price stipulated, said sum which was paid as payment in advance for coal to be mined, and so they aver that they have in fact paid for all coal mined and that can be mined from said premises, and say that their said lessees have the right to continue the proper and diligent mining of what coal remains to be mined, without further payment.”
    To this defense, the plaintiffs and Tod’s executors respecff ively demurred. The demurrer was sustained, and judgment rendered in favor of the plaintiffs, against all of the defendants, which was to be satisfied by execution first against Morris, Ward & Brown, and, on failure to obtain satisfaction from them, by execution against the Girard Iron Company, and, on failure to obtain satisfaction by the execution last named, the executors of Tod were required to pay said judgment from the assets in their hands. In case Tod’s executors should pay the judgment, they were subrogated to the rights of the plaintiffs in the judgment against the other defendants.
    On petition in error, filed in the district court by Morris, Ward & Brown, to which the original plaintiffs alone were made parties defendant, the judgment, as to the said plaintiffs in error, was reversed.
    And, on a subsequent petition in error, filed in the same court by the same plaintiffs in error, to which all the other parties interested were made defendants, a similar judgment of reversal was rendered, the court refusing to reverse said judgment, except as it affected the said plaintiffs in error.
    The present petition in error is prosecuted by Tod’s executors, to which all the other parties in interest are made defendants, to obtain the reversal or modification of the judgment of the district court.
    The errors assigned are in substance that the district court reversed the judgment of the court of common pleas instead of affirming the same ; also that the district court reversed the judgment as to Morris, Ward and Brown, leaving it in force as against Tod’s executors, and the Girard Iron Company.
    
      Geo. M. Tuttle, B. F. Hoffmam, and T. W. Sanderson, for plaintiff in error.
    
      D. M. Wilson, for defendant in error.
   White, J.

The judgment of.- the district court is manifestly erroneous. In the first place, it was error to reverse or modify the judgment of the common pleas without having before the court the parties affected by such reversal or modification. In the next place, after the filing of the second petition in error, and all the parties interested were before the court, it was error to reverse the judgment as to Morris, Ward & Brown, and leave it standing in full force against Tod’s executors, and the Girard Iron Companju

If the answer of Morris, Ward & Brown constituted a defense to the action for them, it operated equally as a defense for their co-defendants.

The cause was in equity, and the same liability was sought to be enforced against all the defendants; but vruter sese, they were chargeable in the inverse order in which they became assignees of tho lease and assumed to perform its stipulations. On the cross-petition of Tod’s executors, and the undisputed facts, Morris, Ward & Brown were bound to fulfill the terms of the lease and save the executors harmless on account thereof. By the judgment of the district court Morris, Ward & Brown were relieved from this liability, and the performance of the terms of lease charged upon Tod’s executors and the Girard Iron Company.

If the court of common pleas was right in sustaining the demurrer to the answer, the judgment of that court ought not to have been disturbed. The only remaining question, therefore, is, whether the answer constituted a defense. We think it did not.

By the terms of the lease the lessee purchased all the coal on the demised premises. The quantity of coal was to be ascertained and paid for in the mode prescribed in the lease. It is stipulated in the lease that Tod is to go forward with all reasonable dispatch, to mine and remove the coal, and on the 1st days of January and July of every year, to pay twenty-five cents per ton for all the coal that may'have been mined and removed; and if found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annually, or on default thereof, pay for said quantity. It is further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the surplus payments ” are to be applied on any future year’s mining that may be in excess of said quantity. By this stipulation the surplus payments are to be applied in payment of the excess of coal mined, annually, over and above the thirteen thousand tons. The claim set up in the answer is that such payments are to be applied to pay for the unmined coal, without reference to when mined, if mined at all. This claim is not in accordance with the agreement, and cannot be supported.

The demurrers to the answer were properly sustained by the court of common pleas, and che district erred in holding otherwise. The judgment of the court last named, is, therefore, reversed, and that of the common pleas affirmed.  