PHILLIP GARMAN V. JOSEPH D. POTTS. (135 Pennsylvania State, 506; 19 Atl. Rep. 1071. Supreme Court, 1890.) 'Advantageously mined. When a mine is let at a royalty, a certain number of tons to be got annually "provided the ore can be advantageously mined," the lessee is not obliged to get such product when the ore at the pit's mouth is worth less than the cost of winning it. Such clause is for the protection of the lessee and means "beneficially to him." 2 Evidence on such clause. In an action for rent under such lease, the lessee may prove that the ore could not be mined advantageously, why it could not be done, the cost of mining and putting the ore on the bank, and that when so placed it was not merchantable. Receipts affecting terms of contract. Under a lease providing for the winning of a minimum number of tons per annum under certain conditions, lessee for several years paid royalty to the amount of such minimum but in excess of the ore actually won, taking receipts that such excess should be credited on future settlements. Such receipts on suit for ore taken in later years were admissible as credits and were not to be excluded on pretense that they were explained to lessor "as simple receipts" without any intimation "that they changed the lease." Appeal from Court of Common Pleas, Lancaster County. J. B LIVINGSTON, J. Assumpsit by Philip Garman against Joseph D. Potts. On September 25, 1872, plaintiff leased to Levi B. Smith & Co. the right to mine iron ore on his farm for a period of twenty-one years upon the following conditions, viz.: "The party of the second part, for themselves, their heirs and assigns, agree to pay to the said party of the first part, his heirs or assigns, forty cents per gross ton on all iron ore by them mined and carried away from the said premises. The parties of the second part also agree to mine the iron ore at the rate of fifteen hundred tons per annum on an average, provided the iron ore can be advantageously mined, and as much more as they may see fit to mine; and any excess of fifteen hundred tons of iron ore mined and carried away from the said premises in any one year, and paid for, shall go as a credit on the iron ore to be mined in future years. 1Krum v. Mersher, 9 Atl. 334; Muhlenberg v. Henning, Id. 144. ? Jenkins v. Clyde C. Co., 48 N. W. 970; Washington Co. v. Johnson, 16 Atl. 799; 16 M. R.— All settlements for iron ore mined and carried away from the within mentioned premises shall be made annually, and paid for in full on or before the first day of April each and every year." Levi B. Smith & Co. took possession under this lease, and held the same until March 20, 1880, when they sold it to defendant. During the entire time the Smiths held the lease, including April 1, 1880, they paid the minimum rental on 1,500 tons at 40 cents per ton, or $600 per annum, regularly on the 1st day of April in each year. Defendant took possession April 1, 1880, and paid the same minimum rental regularly on the 1st day of April, 1881, 1882, and 1883. This action was brought to recover the rent for the time from April 1, 1883, to April 1, 1888. Defendant obtained judg ment. Plaintiff appeals, and assigns the following specifications of error: * "(1) The court erred in allowing Joseph D. Potts to testify: Question. Then you did not use much of it? Answer. Not to any extent until after we stopped mining. We tried to sell it, but we could not use it. * * Q. I wish you would state why it can not be advantageously mined. (Objected to by the plaintiff unless the witness confine his answer to physical difficulties or obstacles presenting themselves as a hindrance to advantageous mining. Allowed and plaintiff excepts.) (2) The court erred in allowing Joseph D. Potts to testify as to the cost of mining ore, and in not confining him to 'whether it cost more now than when he commenced mining,' viz.: 'Q. What will it cost per ton to take this iron ore out, and put it on the bank at the Philip Garman mines? (Objected to by counsel for the plaintiff. By the court: As they are going to explain by this witness whether or not this ore could be advantageously mined without stating what it cost to mine it, they can ask him now, if they wish, whether it costs more now than it did when he commenced mining. I think this question would be a proper one. Question admitted. Plaintiff excepts.) Q. Be kind enough to tell us how much money it cost to take the ore out and put it on the bank at the Philip Garman mines? A. Between $2.80 and $2.90 is the cost to take it out and put it on the bank.' (3) The court erred in allowing Joseph D. Potts to testify: 'Q. How far is your furnace from the mines? (Objected to by Mr. Beyer, counsel for plaintiff. There is nothing in the lease that says where it is, or that the ore mined is to be hauled there. Question allowed. Plaintiff excepts.) Q. How far is it from the Philip Garman mines to your furnace? A. It is something like eight miles by ordinary road.' (4) The court erred in allowing Horace L. Haldeman to testify as to quality of the ore now at the mine without reference to, and without knowledge of, its quality at the making of the lease; he never having seen the mine till 1888: 'Q. What do you say as to the quality of the ore? (Mr. Beyer: We object to anything that has to do with the quality of the ore. Question admitted. Plaintiff excepts.) Q. Do you call this good, merchantable iron? A. I do not. (Question and answer objected to by the plaintiff. Allowed, and plaintiff excepts.)' (5) The court erred in its construction of the phrase 'can be advantageously mined,' in saying to the jury: What does it mean? The word "advantageously," lexicographers tell us, means beneficial, profitable, convenient, and gainful, when the word is used in cases like the present. Upon looking at the whole matter carefully, we find the proviso should be so construed as to read, "provided the iron ore can be beneficially, conveniently, profitably, and gainfully mined," making the covenant read as follows: "The parties of the second part also agree to mine the iron ore at the rate of fifteen hundred tons per annum on an average, provided the said ore can be advantageously mined, conveniently, profitably, and gainfully mined, and as much more as they see fit to mine."" (S) The court below erred in its answer to defendant's second point, viz.: Under the terms of the lease given in evidence, the defendant was not liable for any rent or royalty unless the ore would have been worth when mined at least as much as it cost to mine it.' Answer to defendant's second point: 'We affirm this point, for the defendant would not be liable for any royalty under the terms of the ease unless the iron ore could be advantageously mined.' *** (10) The court erred in admitting the parol state ** * ments of March 31, 1880; April 4, 1881; March 29, 1882 and April 2, 1883, so far as they contradict the lease, without proof of consideration. All are in same form, viz.: "Philip Garman, in account with Jos. D. Potts, for settlement of royalty account on the iron-ore lease given by him to Levi B. Smith & Co., subsequently owned by the said Jos. D. Potts: By royalty on 870 1350-2000 tons ore, @ 40 cents, hauled to date..... 348 27 Leaving balance advanced to date.......$3,778 77 "$600. Received April 5th, 1881, six hundred dollars on above account, the same making, with previous advances, a total of three thousand seven hundred and seventy-eight dollars and seventy-seven cents advanced on royalty account to date. This sum is to be applied in further settlement of royalty on ore to be mined and carried away hereafter by the said Jos. D. Potts, according to the terms of the afore mentioned lease. "PHILIP GARMAN."" WM. D. WEAVER and W. F. BEYER, for appellant. JOHN J. PINKERTON and H. M. NORTH, for appellee. The clause in the lease which gives rise to the present contention is as follows: "The parties of the second part agree to mine the iron ore at the rate of fifteen hundred tons per annum on an average, provided the iron ore can be advantageously mined, and as much more as they see fit to mine." As the lease was in writing, its proper construction was for the court. The contention arises upon the words "advantageously mined." This language is peculiar, and was evidently intended for the benefit of the lessees. The plaintiff contends that its only effect is to relieve the lessees from hidden defects in the mine, such as a fault, or some physical difficulty in getting out the ore, not contemplated by the parties, but which is liable to exist in any mine. The court below gave the language in question a broader construction, and held that it meant that the defendant was not liable under the lease unless the ore could be "advantageously-that is, beneficially, conveniently, profitably, and gainfully-mined" (see fifth assignment); and further instructed the jury that "under the terms of the lease given in evidence, the defendant was not liable for any rent or royalty unless the ore would have been worth when mined as much as it cost to mine it" (see eighth assignment). We are unable to see any error in this instruction. The court below gave to the word "advantageously" its common and popular meaning. It is not a technical word or term of art, and the parties must be presumed to have used it in its known sense. As before observed, it was for the relief of the lessees. Hence, if the mining was no longer advantageous to them, they had a right to cease their operations. After defining, as we think properly, the meaning of the word, the court submitted to the jury the question whether the defendant could further work the mine to advantage, and they found specially that he could not. This settles the question of fact adversely to the plaintiff. It is to be observed that the cost of getting the ore to the market was not allowed to enter into the case. It was only the cost of the ore at the mouth of the mine that went to the jury. Surely, if it was not worth as much there as it cost to mine it, the defendant could not mine it advantageously to himself, however beneficial it might be |