expressing the same intent, would have an equivalent effect, and if subscribed to by the lessee or licensee, the courts would regard such a promise as a valid subsisting contract, and one necessary for the protection of the lessor or licensor.1 Under such a contract if the lessee should fail to prosecute his work as provided for, the lessor could maintain an action of damages for the breach,2 and recover the amount which he should have received, if the lessee had prosecuted the business with due diligence, less the cost of operating the mine and whatever ore or royalty the lessor may have actually received;3 and to such an action it is not a valid defense that ore could not be profitably worked, unless the contract stipulated that the mine should be worked only when profitable. But where the lessee only agrees to

Green v. Sparrow, 3 Swanst.

the interposition of a court of chancery." 408; M. M. D. 191. "But a covenant in a lease of a colliery to work continuously, where not expressed, will not be implied." Jegon v. Vivian, L. R. 6 Ch. App. 742; M. M. D. 194. A covenant to commence by a day certain is of the essence of the contract. Barker v. Dale, 3 I'gh. 190. "Where there is a contract for work partially executed, recovery for the actual work can be had under a quantum meruit, if the failure to complete the work is not the fault of the plaintiff." Barrett v. Raleigh Coal & Coke Co., 41 S. E. 220.

1 Walker v. Tucker, 70 Ill. 527. But such a contract cannot be specifically enforced by the courts. Fry Spec. Per. of Con., p. 65; Flint v. Brandon, 8 Ves. 159; Wheatley v. Westminster Coal Co., 9 Law Rep. Eq. 538: B. & W. L. C., p. 431.

2 Smith v. Darby, L. R. 7 Q. B. 716. But see, where mines were not worked at all, Quarrington v. Arthur, 10 M. & W. 335; Jegon v. Vivian, L. R. 6 Ch. App. 742; and Lewis v. Fothergill, supra, where defendant was held to have operated in "a workmanlike manner."

3 Wheatly o. Westminster Brymbo Co., L. R. 9 Eq. 538; Fisher v. Milliken, 8 Pa. St. 111; Edwards v. Rees, 7 Carr. & P. 340; Granby M. & S. Co. v. Turley, 61 Mo. 375; Likens Valley C. Co. v. Dock, 62 Pa. St. 232. And see as to recoupment of damages, Williams v. Schmidt, 54 Ill. 206.

4 See, for a full exposition of the law on this branch of the law of mining contracts and the consequence of their breach, Blanchard & Weeks

continue work and pay the stipulated royalty, in case he can find a paying vein of ore, the lessor could not recover, on a breach of the contract, for a failure of the lessee to mine and pay the stipulated royalty,1 for his liability under the contract did not exist until the mineral had been found.2 And nothing but nominal damages could be recovered, in case the lessee, under such a contract, should fail entirely to prospect for mineral,3 for his liability does not accrue until the mineral is found, and while its existence is un

Leading Cases, where the authors among other things say: "To state the rule in another form, in view of the many vicissitudes to which mines are subject, the mere fact of unworkability to profit' affords no ground whatever for reducing or throwing up a lease of minerals. There is in such case no legal warranty implied on which the lessee can rely." For interesting discussions by the other judges, see pp. 120 to 124. Gowan v. Christie, 5 Moak Eng. R. 114; Law Rep. 2 Scotch Ap. 273.) B. & W. L. C., p. 430. But see Murdock v. Fullerton (cited in 5 Moak's Eng. R. 118, where a mere thin seam was held a failure of the landlord's warranty that the land contained "workable coal." An unexpected inferiority of a coal vein, by which it is rendered more expensive to mine than it will bring upon the market, held to excuse lessee from covenant to mine a given quantity. Givens v. Providence Coal Co. (Ky. 1901), 60 S. W. 304. But where lease provides for fixed rent for use of coal shaft and after exhaustion of the coal in the mine, lessee continues to use shaft to hoist coal from other mine, he is liable for the fixed rent, as though he still mined the ore and raised it from the shaft. Lennox v. Vandalia Coal Co. (Mo.), 59 S. W. 242.

1 Clifford v. Watts, L. R. 5 C. P. 577; distinguishing Marquis of Bute v. Thompson, 13 M. & W. 187; s. c. 14 L. J. Ex. Ch. 95. "Where the agreement was to work a coal mine as long as it was fairly workable, and there were coals in the mine, but of such a kind that it did not pay to work it— the court said the lessees were not obliged to go on working so long as there was any coal to be found, and that, under the words fairly workable,' they were not obliged to work at a dead loss." Jones v. Shears, 7 C. & P. 346; B. & W. L. C. 430 et sub. See McCahan v. Wharton, 121 Pa. 424; 46 Phila. Leg. Int. 169; 22 W. N. C. 491; 15 Atl. 615.

2 Ante, idem. Quarrington v. Arthur, 10 M & W. 335.

3 Foley v. Adderbrook, 13 M. & W. 173; Bell v. Truitt, 9 Bush (Ky.), 257; Smith . Darby, L. R. 7 Q. B. 716.

known, the value of the mineral could but be a mere matter of conjecture.1

§ 264. Contract for sale of ore. When minerals have once been severed from the soil they are considered personal property, and the same rules prevail in regard to them, as obtain in regard to other species of personalty.2 In a sale, or contract for the sale of mineral, if of sufficient value to bring the agreement within the statute of frauds, the contract to be binding must be in writing, or something in earnest given to bind the bargain.3 Where a person agrees to sell ore prospectively to be taken from the

1 Quarrington v. Arthur, supra. Covenant to mine given quantity enforced in following cases: Clifford v Watts, L. R. 5 C. P. 577; Price v. Nicholas (U. S.), 4 Hughes, 616; Watson Coal Co. v. Casteel, 73 Ind. 296; VanMeter v. Chicago Co., 88 Iowa, 92; Plummer v. Hillside Co., 160 Pa. St. 483; Railbeck v. Anthony, 73 Wis. 572; 20 Am. & Eng. Enc. Law (2 Ed.), 779. "A coal mine lease provided that the lessee should pay a fixed sum for every ton of clean, merchantable coal, exclusive of culm or mine waste which would pass through a half-inch mesh: Held, that though the lessee was not bound, under the contract, to pay for the culm or mine waste, if it did in fact take it it could raise no question of its merchantability, but must pay for it at the same rate agreed to be for the clean, merchantable coal." Genet v. President &c. of Delaware & H. Canal Co., 75 N. Y. S. 553; N. Y. Sup. 1902. "Where a coal mine leased by defendant had been worked for some time prior to the lease, and defendant sent an expert to examine it, so that both parties were in possession of facts as to the nature and character and probable output of the mine, and the contract fixed a minimum amount which defendant was required to mine or to pay royalty on, and the testimony showed that defendant worked several mines where the output was greater than the minimum fixed in the contract, the royalty was liquidated damages, and not a penalty." Coal Creek M. & M. Co. v. Tenn. C. & I. Co. (Tenn ), 62 S. W. Rep. 162 (1901).

2 Knowlton v. Culver, 1 Chand. (Wis.) 214; Green v. Ashland Iron Co., 62 Pa. St. 97.

3 See as to construction of 17 Sec. and Amer. Cases, Benj. on Sales, pp. 119-120; Pattison's App., 61 Pa. St. 294; White v. Foster, 102 Mass.

ground, if the contract specifies a certain grade of ore or a fixed amount to be delivered at some stated time, the seller will be held to a strict compliance with the conditions imposed by the contract, and if he violates any of the conditions of the contract he cannot afterward claim that he is released from the agreement because the purchaser failed to pay the stipulated price for the ore delivered,2 for the purchaser is entitled to rely upon the performance of the contract by the seller, and he could not be made to pay the full contract price for ore that was inferior in quantity or quality to that contracted for. But the seller cannot be held to conditions that are not imposed by the contract, and except as regards his right or title to the ore sold, there can be no implied warranty imposed

1 Egev Kaufman, 1 Watts & S. 120. See, for construction of contract to supply coal, Wood v. Copper Miners, 7 C. B. 906; Winslow L. & Co. v. Leonard, 24 Pa. St. 14. But a contract to furnish a specified amount of ore is entered into with reference to the capacity of the mine at that time and the purchaser could not demand a greater amount than the contract specified or the mine could produce. Rutland M. Co. v. Ripley, 10 Wall. 339; Pringle v. Taylor, 2 Taunt. 150. In the sale of coal to be found and the payment unconditionally of a specified sum per annum the discovery of coal is not a condition precedent to the maturity of the annual amount to be paid. Jewett v. Spencer, 1 Ex. 647; 17 L. J. Ex. 367; reversing s. c. 15 M. & W. 662. Purchaser cannot refuse to take according to contract. Chapman v. Briggs Iron Co., 6 Gray, 330.

2 Ege v. Kaufman, 1 Watts & S. 120. Where the ore is to be delivered at a certain time the party need not take it if it is not so delivered. Neldon v. Smith, 36 N. J. L. 148. And that there was a shortage in quantity would be a good defense to purchase price. Eckle v. Murphy, 15 Pa. St. 128.

Rutland M. Co. v. Ripley, 10 Wall. 339. And where the ore is to be mined with tools to be furnished by the purchaser, the seller is only bound to furnish such an amount as he can reasonably do with the tools furnished, and he would not be responsible if he used reasonable diligence. Campbell v. Gates, 10 Pa. St. 483.

upon him, concerning the quantity or quality of the mineral.1

§ 265. Lease construed as contract of sale. - It frequently happens that instruments, which on their face purport to be nothing but leases, or ordinary licenses to mine, are construed by the courts as absolute contracts of sale, operating as valid conveyances of the title to the minerals to be mined thereunder. And this, notwithstanding the parties may have contracted as lessor and lessee or licensor and licensee. If the lease or license gives the grantee the exclusive right to take the mineral from the premises, upon payment of a stipulated price, it will operate as an absolute sale of the mineral, and if a license, the privilege to take the mineral could not afterwards be revoked, but the licensee,

3

1 Johnson v. Mendenhall, 9 W. Va. 112. And a mere statement or description of the quality is not a warranty. Carondelet Iron Works v. Moore, 78 Ill. 65. And this rule applies as well to sales of stock as to ore. Renton v. Maryatt, 21 N. J. Ch. 123. But a warranty may be inferred from terms of contract. Warren v. Phila. C. Co., 83 Pa. St. 437. A warranty may arise from the purpose of the purchase. Port Cambon Iron Co. v. Graves, 67 Pa. St. 150. As to warranty by comparison, see Pearson v. Martin, 38 Wis. 265; Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 Fed. Rep. 256 (U. S. C. C. A., W. Va., 1902); Hercules Coal & Min. Co. v. Central Inv. Co., 98 Ill. App. 427; Excelsior Coal Min. Co. v. Virginia Iron & Coal Co., 66 S. W. 373.

2 Kingsley v. Hillsdale Coal & Iron Co., 144 Pa. 613; 1 Pa. Adv. R. 235; 29 W. N. C. 368; 23 Atl. Rep. 250; Hope's App. (Pa.), 29 W. N. C. 365.

3 See Re Lazarus's Estate, 1 Pa. Adv. R. 238; 29 W. N. C. 372; 6 Kulp, 333; 145 Pa. 1; 23 Atl. 372; Kingsley v. Hillsdale Coal & I. Co., 144 Pa. 613; 1 Pa. Adv. R. 235; 29 W. N. C. 368; 23 Atl. 250.

4 Consolidated Coal Co. v. Schmisseur, 135 Ill. 371; 25 N. E. Rep. 795; rev'g 34 Ill. App. 512. A grant of a mine right under which the grantee is authorized to remove and sell for his own benefit all the coal contained in a tract described, is a sale, and not a mere lease of the coal." Kingsley v. Hillsdale Coal & I. Co., 144 Pa. 613; 1 Pa. Adv. R. 235; 29 W. N. C. 368; 23 Atl. 250. "And the exclusive right to mine carries with it the right to the possession, so far as necessary for mining, even as against the owner himself." Benevides v. Hunt, 79 Tex. 383.