Opinion
October 3, 1962.
November 13, 1962.
Appeals — Review — Court below — Fact findings — Assumpsit — Coal lease.
In this action of assumpsit by the lessee for the alleged breach of a coal lease which provided "The Lessors agree that they will lease to the Lessee additional Sewickley or Mapletown vein of coal underlying the Keener tract provided that the coal hereinbefore leased shall be removed by the Lessee within a reasonable time and by workmanlike and approved mining practices so as to recover the greatest amount of coal possible and further provided that consent thereto is given by the said Lessors"; and it appeared that the Lessors did authorize the Lessee to enter into and mine additional coal under the Keener tract but did not guarantee any fixed amount of coal; and the agreement further provided that "The Lessee agrees to pay to [Lessor] for his services and expenses in securing a market for coal and for his advice and help in opening and mining said coal a commission of five cents per ton for all coal mined by lessee and shipped by him from whatever source"; and lessee contended that lessor breached this provision by failing to inform or wrongfully informing lessee as to the opening, mining and removal of the additional coal, but the court below found the facts contrary to plaintiff's contention and held that there was no proof of breach of contract, it was Held that the court below properly entered judgment for the defendants.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and KEIM, JJ.
Appeal, No. 280, March T., 1962, from judgment of Court of Common Pleas of Greene County, Dec. T., 1960, No. 141, in case of Don V. Rozell, also known as Dom V. Rozell, doing business as Whiteley Mining Company v. Martha Principini and Ettore Principini. Judgment affirmed.
Assumpsit. Before HOOK, P. J., without a jury.
Adjudication filed finding for defendant, plaintiff's exceptions to adjudication dismissed and judgment entered. Plaintiff appealed.
Robert Milford Keener, with him Sayers, King Keener, for appellant.
John E. Baily, with him Thompson and Baily, for appellees.
Judgment affirmed on opinion of President Judge J. I. HOOK.