author: O’Hara, J.

text:
    New York Coal Co. v. The New Pittsburgh Coal Co.

      Coal mining lease — Lessee to exhaust the mine — Lessee to pay lessor specified ton royalty — On minimum number of tons annually— Whether coal actually mined or not — Contract stipulation that in case of impossibility of mining — From causes beyond control of lessee — Minimum restrictions as to mining, not to apply— Mine operated certain number of years and contract transferred by lessee to assignee — Assignee claimed inability to fulfill contract terms — Because of physical condition of mine, etc. —Burden of proof on defendant assignee — Contract construed by rule ejusdem generis — Retention of possession of property by defendant assignee — Liability of defendant for minimum royalty.

    By a coal mining lease, the lessee was granted the right to search and explore for coal upon lands in Hocking county, Ohio, and to mine and remove the same, until all the coal, including pillars, supports and stumps, should be taken out and removed.
    The lease provided that the lessee should pay the lessor a royalty of ten cents per ton upon all the coal mined and removed, but the lessee also agreed to mine and remove not less than thirty thousand tons of lump coal the first year, and. sixty thousand tons annually thereafter.
    It was further stipulated that should the lessee neglect or fail 'from any cause, except as thereinafter provided, to mine and remove the specified minimum tonnage, he should, at the end of each year, account for and pay to the lessor the unpaid portion of the royalty that would have then been due had said minimum been actually mined and removed.
    This stipulation was modified by a saving clause, “that in case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.”
    The mine was operated by the lessee and his company for six years, and then assigned to the defendant, with the consent, of the lessór.
    After about two years of operation under the lease, the defendant made the claim that a certain portion of the mine was dangerous, by reason of its geological formation which caused the roof to fall and imperil the men at work, and that there was no possible way of preventing the same; that it was exceedingly difficult to obtain miners to work in that part of- the mine because of its dangerous condition; and that defendant was therefore unable to produce the required minimum tonnage by the usual and customary method of mining in the Hocking Valley district; wherefore defendant refused to pay the difference between the specified minimum royalty and the royalty at the agreed rate upon the tonnage actually mined.
    The said geological formation and dangerous condition of the roof, however, were apparent and well known for some time prior to the assignment of the lease to defendant.
    The defendant further claimed that subsequently the condition of said roof had become so bad, that it was impossible to produce any coal in that part of the mine by any known process of mining; that the miners refused absolutely to do any work at all therein, and that part of the mine was thereupon closed entirely; and also that practically all the coal had been mined and removed from the remaining portions of the mine. Nevertheless defendant retained possessipn of said mining property and made no surrender thereof, but refused to pay the specified minimum royalty.

      Held:

    1. That the burden rests upon the defendant to show that it was prevented from mining and removing the minimum tonnage by a cause beyond its control, within the meaning of the saving clause in the lease, in order to relieve itself from liability for the specified minimum royalty.

      2. That from the tenor of the lease itself and the circumstances of the case, the rule ejusdem generis is applicable in the construction of said saving clause; that the words “any cause beyond the control of the second party” as therein used, refer to causes of a temporary character, created and arising subsequent to the execution of the lease; and that therefore the unminable condition of a part of the mine as aforesaid, is not such a cause, within the meaning of the saving clause, as will relieve defendant from the production of the required minimum tonnage or payment of the agreed royalty therefor.
    3. That the reduction of the coal deposits in the mine so that the required minimum tonnage could not be produced by the usual and customary method of mining in the district, as claimed by defendant, was not a cause within the terms of the saving clause which would relieve defendant from payment of the specified minimum royalty.
    4. That tlie refusal of the miners to work in the dangerous and unminable part of the mine, they being continually at work in the other parts, was not a “strike” within the meaning of said saving clause.
    5. That the retention of possession of the demised property by defendant .and its failure to surrender the same, notwithstanding the unminable condition of part of the mine and the practical exhaustion of coal in the remainder, are sufficient, under the circumstances of the case, to render it liable for the minimum royalty.
    No. 12408
    Decided June 5, 1912.
    Error to the Circuit Court of Franklin county.
    On the 26th day of May, 1894, The New York & Western Coal Co. executed a lease to one Robert Stalter of certain property in Hocking county, Ohio, granting to him “the right and privilege to enter upon and by proper methods search and explore for coal that may be contained in, upon or under said land and to dig, mine and remove the same from said land, and for that purpose to construct, maintain, use and operate all such mines, hoppers, machinery, structures, instrumentalities and appliances as may be necessary and proper therefor.”
    The lessee was to have and to hold said rights and privileges unto himself, his executors, administrators, successors and assigns, from the date of the execution of the lease until all the coal should be removed from the property, as therein provided.
    The lease then contained the following stipulation on the part of the lessee:
    “That he will within thirty days from the day of the execution hereof begin operations for the mining and removing of the coal aforesaid, and he will build and construct all necessary hoppers, trestles and other structures and appliances . for mining and removing said coal as herein provided, and that between the first day of July, eighteen hundred and ninety-four, and the first day of July, eighteen hundred and ninety-five, he will mine, properly screen with screens of the kind in general use at the mines in the Hocking Valley, Ohio, and remove from said lands not less than thirty thousand (30,000) tons of lump coal of two thousand pounds, and between July 1, eighteen hundred and ninety-five, and July 1, eighteen hundred and ninety-six, and during each and every period of twelve months thereafter he will mine, properly screen with screens of the kind in general use at the mines in the Hocking Valley, Ohio, and remove from said land not less .than sixty thousand tons (60,000) of lump coal of two thousand pounds, until all the coal in, upon or under said land has been fully and entirely removed therefrom, including all pillars, supports and stumps which shall be all withdrawn and taken out; the said work and all of it to be done in a careful, economical and workmanlike manner, in all respects so as to save and put out the greatest practicable amount of lump coal contained in said property, said sixty thousand (60,000) tons to be mined and removed during the twelve months ending July 1, 1896, and each succeeding period of twelve months, to be distributed over the year in such way, that in no month shall less than thirty-five hundred (3,500) tons be so mined and removed.”
    A royalty of ten cents per ton was then fixed for the first five years of the lease, with a provision for an increase at every five-year period thereafter, according to the then current rate in the Hocking Valley, but in no event to be less than ten cents per ton at any time. No change appears to have ever been made in the above rate, however. The said royalty was to be paid not later than the twentieth day of each month for all coal mined and removed during the preceding month.
    The lease then contains the following clauses, known as the minimum roj^alty clause, and the exception thereto, or saving clause, viz:
    “And if said second party shall neglect or fail from any cause except as hereinafter provided, to-so mine and remove the said minimum of thirty thousand (30,000) tons between July 1, 1894, and said July 1, 1895, or said minimum of sixty thousand (60,000) tons during each and every year thereafter, or said minimum of thirty-five hundred (3,500) tons during any month thereafter, he shall at the end of such year or month account for and pay to the first party such portion of the royalty per ton aforesaid that would then be due if said number of tons had been actually so mined and removed.
    “It is hereby understood and agreed by and between the parties hereto, that in case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.”
    Certain rights to use the timber upon the land for mining purposes were also granted to the lessee, as well as an option upon adjoining property of the lessor, under the same terms and conditions as those in the present lease, and in addition the lease contains the usual covenants for the protection of both parties.
    On the 25th day of June, 1895, said Robert Stalter assigned and transferred to The Stalter Coal Co. all his right, title and interest in and to said lease and the premises covered thereby, with all the fixtures and improvements thereon, subject to the terms and conditions of said lease; and on the 15th day of May, 1900, said The Stalter Coal Co. made a similar assignment and transfer to The New Pittsburgh Coal Co., the defendant in error herein. Both said assignments were made with the consent and approval of The New York & Western Coal Co., lessor, and were in writing, duly signed and acknowledged by all the parties in interest.
    On the 2nd day of February, 1903, said New York & Western Coal Co. sold, assigned and transferred to the New York Coal Co., plaintiff in error herein, its successors and assigns, the said premises and lease, and all its rights, remedies and interests in and under the same, together with all royalties reserved, and rents, income and money due or to grow due thereunder, with interest.
    The original lessee, and his successors in interest as above set out, entered upon said property, and began and carried on mining operations thereon, under and in accordance with the provisions of said lease and the several assignments thereof.
    The terms of said lease were duly fulfilled and all rentals paid by the lessee and his successors, until about the year 1903, when the present controversy arose. The New Pittsburgh Coal Co. did not mine and remove from the premises the minimum amount of sixty thousand tons of lump coal per annum, provided for in the lease, but fell considerably short of that amount, and refused to pay for the difference at the agreed rate.
    In November, 1905, suit was brought against it, in the common pleas court of Franklin cóunty, by the New York Coal Co., and, as set out in the amended petition, defendant onlv mined and removed 32.987 tons for the year ending June 30, 1903; 20.783 tons for the year ending June 30, 1904; 16.153 tons for the year endine Tune 30, 1905; 1,475 tons for the month of July, 1905; 1,857 tons for the month of August, 1905; and 751 tons for the month of September, 1905. These amounts are admitted by defendant in its answer, and both parties agree that the royalty of ten cents per ton was paid on the same; but plaintiff claimed the additional royalty upon 116,494 tons of lump coal that defendant should have mined and removed during s,aid periods, as required by the minimum royalty clause hereinbefore set out, and defendant denied any liability therefor. A statement of the defenses set up in the answer, and of the questions raised and decided, will appear in the opinion.
    The court of common pleas directed the jury to bring in a verdict in favor of the plaintiff for the amount claimed with interest, and entered its judgment accordingly. This judgment was reversed by the circuit court on error, and these proceedings are brought to reverse the judgment of the circuit court.

      Messrs. Addison, Sinks & Babcock and Messrs. Booth, Keating, Peters & Pomerene, for plaintiff in error.
    As long as defendant continues to hold and operate the mine, it cannot set up the defense that coal cannot be mined in sufficient quantity to pay the minimum royalty. Gay v. Davey, 47 Ohio St., 396; Hillard v. Gas Coal Co., 41 Ohio St., 662; Linn v. Ross & Co., 10 Ohio, 412; Berwind-White Coal Mining Co. v. Martin, 124 Fed. Rep., 313; Beatie v. Coal Co., 56 Mo., 221; Lehigh Zinc & Iron Co. v. Bamford, 150 U. S., 665; Central Appalachian Co. v. Buchanan et al., 73 Fed. Rep., 1006; Tod v. Stambaugh, 37 Ohio St., 469; Bainbridge on Mines & Minerals, 210; Morris v. Smith, 3 Doug., 279; 2 Snyder on Mines, Sec. 1207; White on Mines & Mining Remedies, 352; Timlin v. Brown, 158 Pa. St., 606; Clifton v. Montague, 40 W. Va., 207, 52 Am. St., 872; Wharton v. Stoutenburgh, 46 N. J. L., 151.
    We are not aware of any authority that holds that “impossible” in a contract to mine coal has any other interpretation than that used in any other contract, and if we are to resort to the interpretation of this word by business men and introduce customs and vague opinions and constructions, what becomes of the declaration of the parties in their deliberate written contracts? It would sweep away and destroy the benefits of all contracts to resort to such an interpretation. In other words, it means if the parties could make money they were to keep their contract, and if they could not they were at liberty to break it. This would not only induce and incite a great amount of litigation and confusion as to written contracts, but it would inaugurate a state of anarchy, and the law protecting the sacred right to contract and enforce the same, which is guaranteed by the constitutions of the state of Ohio and the United States, would be swept away. 9 Cyc., 625; Board of Education v. Townsend, 63 Ohio St., 514; Reid v. Alaska Packing Assn., 43 Ore., 429; Klauber v. San Diego Street-Car Co., 95 Cal., 353; Dermott v. Jones, 2 Wall., 1.
    The following authorities shed more or less light upon this subject, and' we shall cite them without comment: Summers v. Hibbard & Co., 153 Ill., 102; Middlesex Water Co. v. Knappmann, Whiting Co., 64 N. J. L., 240; Rosenbaum v. U. S. Credit System Co., 64 N. J. L., 34; Chicago & Milwaukee Rd. Co. v. Hoyt, 149 U. S., 1; Dist. Tp. of Union v. Smith, 39 Ia.,9; The Harriman, 9 Wall., 161; Wilmington Transportation Co. v. O’Neil, 98 Cal., 1; Gaines v. Coal Co., 124 Ala., 394; Sun Printing & Pub. Assn. v. Moore, 183 U. S., 642; Connersville Wagon Co. v. McFarlan Carriage Co., 166 Ind., 123, 76 N. E. Rep., 294; Troxell v. Anderson Coal Mining Co., 213 Pa. St., 475; State v. Executors, 7 Ohio, 171; Felix v. Griffiths, 56 Ohio St., 39; Lima Locomotive & Mach. Co. v. National Steel C. Co., 155 Fed. Rep., 77; Charlesworth v. Watson, 75 L. J. K. B., 137; Macfarland v. Barber Asphalt P. Co., 29 App. D. C., 506; Ptacek v. Pisa, 231 Ill., 522, 83 N. E. Rep., 221; Marsh v. Johnston, 109 N. Y. Supp., 1106.
    No defense against which the parties could have provided in their contract can be set up as' an excuse for its non-performance. United States v. Gleason, 175 U. S., 588; Walker v. Tucker, 70 Ill., 527; Vale v. Suiter et al., 58 W. Va., 353; Beebe v. Johnson, 19 Wend., 500; Bates Machine Co. v. Iron Works, 113 Ky., 372; Bryan v. Spurgin, 5 Sneed, 681; Stees v. Leonard, 20 Minri., 494; Anderson v. May, 50 Minn., 280; Cornell v. Rodabaugh, 117 la., 287; 3 Page on Contracts, Sec. 1375; 9 Cyc., 627; 7 Am. & Eng. Ency. Law (2 ed.), 149; Dolan v. Rodgers, 149 N. Y., 489; Van Meter v. Coal Mining Co., 88 la., 92; Sylvester v. Hall, 47 Ill. App., 304; Leavitt v. Dover, 67 N. H, 94.

      The supreme courts of nearly every state in which coal is mined, have held that coal companies in making leases of land from owners are presumed to be familiar with the risks that attend this kind of business, and to protect themselves must insert in their leases language which clearly exempts them from liability. In other words, the rule caveat emptor applies to the lessee in such cases, and if he does not protect himself by such contract he must be held absolutely liable. Consolidated Coal Co. v. Peers, 150 Ill., 344; Swan v. Brown, 8 Kans. App., 505; Gibson v. Oliver, 158 Pa. St., 277; Walker v. Tucker, 70 Ill., 527; Ridgway v. Sneyd, Kay’s Rep., 627; Gowan v. Christie, 8 Mining Rep., 688.
    Even the act of God will not excuse the performance of a duty created by contract. 1 Am. & Eng. Ency. Law (2 ed.), 588, 590; School Dist. No. I v. Dauchy, 25 Conn., 530; Steele v. Buck, 61 Ill, 343; Paradine v. Jane, Aleyn, 26.
    There is no implied covenant in a lease of coal or other minerals that the property is fit or suitable for the purpose for which it was leased. Bar-ringer & Adams on Mines & Mining, 88; Harlan v. Lehigh Coal & Nav. Co., 35 Pa. St., 287; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. St, 429; Marquis v. Thompson, 13 M. & W., 487; Skitten v. Logan, 21 Pa. Sup. Ct. Rep., 106; 20 Am. & Eng. Ency. Law (2 ed.), 784.
    Courts must enforce contracts as the parties make them. It is true the defendant claims that this contract is a great hardship upon it and that it will cost it more than the coal is worth to take it out of this hill, but in law that is no excuse or defense, although in fact that is its real and only-excuse for not taking the coal out. Shinkle, Wilson & Kreis Co. v. Birney & Seymour, 68 Ohio St, 328; Wonsetler v. Andrews, 58 Ohio St, 551; City v. Gas Co., 76 Ohio St., 309; Jefferys v. Fairs, L. R., 4 Ch. Div., 448; Springer v. Natural Gas Co., 145 Pa. St., 430; Coal Creek, etc., Co. v. Tennessee, Coal, etc., Co,., 106 Tenn., 563; Griffin v. Coal Co., 59 W. Va., 480; Crane’s, etc., Coke Co. v. Virginia Coal Co., 105 Va., 785; Lawson v. Williamson Coal Co., 61 Va., 669.
    The following authorities contain the opinions of the supreme courts of the various states and the opinions of the highest courts of England upon the construction and interpretation of coal leases similar to the one now under consideration. They all clearly point out that each lease or contract must be construed with reference to its own terms, and that the parties are bound by the express terms of their contract. Lehigh Valley Coal Co. v. Everhart, 206 Pa. St., 118; McDowell v. Hendrix, 67 Ind., 513; Phillips v. Jones, 9 Sim., 519; Pierce v. Tidwell, 81 Ala., 299, 2 So. Rep,., 15; Anspach v. Bast, 52 Pa. St., 356; Kingsley v. Coal & Iron Co., 144 Pa. St., 613; Gibson v. Oliver, 158 Pa. St., 277; Cochran v. Pew et al, 159 Pa. St, 184; Lehigh Coal Co. v. Wright, 177 Pa. St., 387; Sylvester v. Hall, 47 Ill. App., 304; Hoyt v. Kingston Coal Co., 212 Pa. St., 205.
    Custom cannot contradict or vary the terms of a written contract. , The defendant agreed to take out the coal in question and to furnish the machinery and appliances with which to do it, and it cannot contradict this absolute agreement by any custom. Moore v. United States, 196 U. S., 157; C. & H. C. & I. Co. v. Tucker, 48 Ohio St., 41; Nicola Bros. Co. v. Box Co., 1 N. P., N. S., 63, 13 O. D., N. P., 753; Baker v. Jordan, 3 Ohio St., 438; Shute v. Bills, 191 Mass., 433; Boruszewski v. Assurance Co., 186 Mass., 589; Menage v. Rosenthal, 175 Mass., 358; Benson v. Gray, 154 Mass., 391; Hedden v. Roberts, 134 Mass., 38; Commonwealth v. Cooper, 130 Mass., 285; Wiggin v. Federal Stock & Grain Co., 77 Conn., 507; Delaware & Hudson Canal Co. v. Mitchell, 133 Ill. App., 430, 211 Ill., 379; Denton Bros. v. Gill & Fisher, 102 Md., 386; Lillard v. Kentucky Distilleries & Warehouse Co., 134 Fed. Rep., 168; Schlitz Brewing Co. v. Grimmon, 28 Nev.,.235; Torpey y. Murray, 93 Minn., 482; 12 Cyc., 1091; Wilson v. Smith, 111 Ala., 170; Ah Tong v. Earl Fruit Co., 112 Cal., 679; L. S. & M. S. Rd. Co. v. Richards, 126 Ill., 448; Mowatt v. Wilkinson, 110 Wis., 176; Meloche v. Chicago, M. & St. P. Ry. Co., 116 Mich., 69; Wolff v. Campbell, 110 Mo., 114; Beer v. Insurance Co., 39 Ohio St., 110; Ohio Oil Co. v. McCrory, 14 C. C., 304; Tillyer et al. v. Van Cleve Glass Co., 13 C. C., 99; Foster et al. v. Robinson, 6 Ohio St., 90; Insurance Co. v. Harmer, 2 Ohio St., 452; Chase v. Washburn, 1 Ohio St., 244; Chicago, M. & St. P. Ry. Co. v. Lindeman, 143 Fed. Rep., 946; C. C. C. & St. L. Rd. Co. v. Jenkins, 174 Ill., 407; Strange v. Carrington, Patton & Co., 116 Ill. App., 410; Citizens State Bank v. Chambers, 129 la., 414; Oriental

      Lumber Co. v. Blades Lumber. Co., 103 Va., 730; Penland v. Ingle, 138 N. Car., 456; Cappel v. Weir, 90 N. Y. Supp., 394; Hopper v. Sage, 112 N Y., 530; Hutson Coal Co. v. Hughes et al., 29 C. C., 139; Thomas v. Guarantee Title & Trust Co., 81 Ohio St., 432.
    As to the rule ejusdem generis. It seems idle to contend that the defendant may excuse itself from mining the minimum because of a bad roof, which was apparent to it at the time its obligations arose. The mine, say defendant’s counsel, was opened in 1891 and continuously operated thereafter. The condition of the roof existed and was manifest before the defendant took over the property. At the trial, its own counsel offered the proof to the effect that the miners refused to work in the east hill since 1899, at which time the chief mine inspector (a state officer) directed that that part of the work be closed; and the defendant took the property in 1900.
    The distinction between a cause and condition in this connection must be manifest. The lease did not hold it an excuse on account of existing conditions, but for causes that might arise, or come in, as it were, after its execution.
    As to the doctrine under discussion, it is defined in 3 Words & Phrases, 2328; Shultz v. Cambridge, 38 Ohio St., 659; State v. Johnson, 64 Ohio St, 271.
    In the case at bar the rule is particularly applicable, quite as applicable as in the last case cited.
    Counsel say that it is not a hard contract defendant seeks to avoid, but a harsh construction of it. We submit that no more unconscionable construction of this contract could be imagined than that which the defendant seeks to impose upon the plaintiff, to the effect that it has a right to hold the premises at all events and mine only when profitable for it to do so.'

      'Messrs. Arnold, Morton & Irvine; Mr. Q. R. Lane and Mr. R. J. O’Dell, for defendant in error.
    When an express agreement contains other and different terms and confers other rights and imposes duties and obligations other than those which the law itself would imply in the absence of such express agreement, the action must be maintained upon the express agreement.
    In the case at bar the express agreement to pay the minimum royalty on unmined coal is qualified and modified, and is altogether different from what the law would imply from simply the obligation to mine and remove a certain minimum quantity of coal. In certain events, according to the express agreement, there is no obligation to pay a minimum royalty at all. The obligation to pay such minimum is qualified and not absolute and is accordingly different in legal effect from the obligation implied in its absence. 27 Cyc., 712; Consolidated Coal Co. v. Peers, 150 Ill., 344; Powell v. Burroughs, 54 Pa. St., 329; Martin v. Coal Mining Co., 114 Fed. Rep., 553; Lowry v. Barrelli, 21 Ohio St, 324; Jackson v. Hunt, 76 Vt., 284, 56 Atl. Rep., 1010.
    The obligation of defendant to pay a minimum royalty is not absolute, but is expressly qualified, and plaintiff was bound to allege in its amended petition that defendant was not prevented during the period in controversy from mining the minimum quantity of coal required by the lease because of strikes, lockouts, fires, floods or any other cause beyond its control, excepting lack of transportation facilities.
    It is a well-settled rule of pleading that where the exceptions which relieve defendant from liability are contained in the clause of the contract upon which the plaintiff bases his right of recovery, or are incorporated therein by apt words of reference, the petition must plead the exceptions and' negative their existence. Newman on Pleading & Practice (2 ed.), Secs. 316&, 341, 402; 4 Ency. PI. & Pr, 921; Bliss on Code Pleadings (3 ed.), Sec. 202; Chitty on Pleading (1876 ed.), Secs. 246, 317, 318; Jones v. Axen, 1 Ld. Raymond, 119; Latham v. Rutley, 2 Barn. & Cress, 20; Vavasour v. Ormrod, 6 Barn. & Cress, 430; L. & N. Rd. Co. v. Belcher, 89 Ky, 193; Rowell v. Janvrin, 151 N. Y, 60; Commonwealth v. Hart, 11 Cush, 130; Sohier v. Insurance Co., 11 Allen, 336; Bush v. Wathen, 104 Ky, 548; State v. VanVliet, 92 la, 476; Cheadle v. State, 4 Ohio St, 477; Him v. State, 1 Ohio St, 15; United States v. Cook, 17 Wall, 168; Maxwell Land Grant Co. v. Dawson, 151 U. S, 586, 38 L. Ed, 279; Harris v. White, 81 N. Y, 532; Stanglein v. State, 17 Ohio St, 453; New Lexington v. Hughes, 56 Ohio St, 771; Becker v. State, 8 Ohio St, 391; Billigheimer v. State, 32 Ohio St., 435; State v. Beneke, 9 la, 203; Perkins v. Milling Co., 88 Miss, 804, 40 So. Rep., 993; State v. Bloodworth, 94 N. Car., 918; State v. O’Donnell, 10 R. I., 472; State v. Barker, 18 Vt, 195; Trustees v. Railroad Co., 6 Barb., 313; State v. Lanier, 88 N. Car., 658; Smith v. Moore, 6 Me., 274; Carson v. State, 69 Ala., 235; Lequat v. People, 11 Ill., 330; Beasley v. People, 89 Ill., 571; People v. Telford, 56 Mich., 541; Kline v. State, 44 Miss., 317; Brecheisen v. Coffey, 15 Mo. App., 80; Clough v. Shepherd, 31 N. H., 490; McGlone v. Prosser, 21 Wis., 273; Jensen v. State, 60 Wis., 577; King v. Pratten, 6 T. R. (D. & E.), 559; Steel v. Smith, 1 B. & Aid., 94.
    General rules of construction and interpretation governing leases:

      (a) The rules and principles of law relating to the construction of contracts in general apply with equal force to the construction of leases. 18 Am. & Eng. Ency. Law (2 ed.), 617.
    (b) Leases are to be construed as a whole, and full force and effect must be given each and every word, phrase and clause. Bishop on Contracts, Sec. 384; 1 Beach on Contracts, Sec. 711; 2 Page on Contracts, Secs. 1112, 1114; 9 Cyc., 579; German Fire Ins. Co. v. Roost, 55 Ohio St., 581; Goosey v. Goosey, 48 Miss., 210; Salmon Falls Mfg. Co. v. Hale, 46 N. H., 249; Merrill v. Gore, 29 Me., 346; Chase v. Bradley, 26 Me., 531.
    (c) A reasonable and equitable construction and one which leads to fairness and justice between the parties, and does not place one party at the mercy of the other should be given to every lease. Mississippi Home Ins. Co. v. Adams & Boyle, 84 Ark., 431, 106 S. W. Rep., 210; 1 Beach on Contracts, Sec. 708; 9 Cyc., 587; Coghlan v. Stetson, 19 Fed. Rep., 727; Kinney v. Commissioners, 8 C. C., 433; Christian v. First Nat. Bank, 155 Fed. Rep., 705; Russell v. Allerton, 108 N. Y., 288; Little v. Banks, 77 Hun, 511.
    (d) In construing leases the language employed should be construed in the light of circumstances surrounding the contracting parties at the time of the execution of the lease. Mosier v. Parry, 60 Ohio St., 388; Cambria Iron Co. v. Keynes, 56 Ohio St., 501; Hildebrand v. Fogle, 20 Ohio, 147; Guaranty Savings & Loan Assn. v. Rutan, 6 Ind. App., 83; Kauffman v. Raeder, 108 Fed. Rep., 171; 2 Page on Contracts, Sec. 1123.
    (c) The practical construction placed upon the terms of a lease by the parties thereto is of great weight in determining- its proper construction and is ordinarily controlling, and where the lease is in fact understood by one of the parties thereto in a certain sense, and the other party knows that it is so understood, then the lease is to be construed according to such understanding; and where, in accordance with the provisions of a coal mining lease, the workings of the mine must meet with and conform to the approval of engineers chosen by the lessor, and the lessor, its agents, engineers and representatives, throughout a long period of time have access to the mine and have -frequently examined and inspected the same and are furnished with maps from time to time showing the workings of the mine, it is estopped from claiming that other and different methods of mining should have been adopted. 2 Page on Contracts, Sec. 1126; McKeever v. Coal Co., 219 Pa. St, 234, 68 Atl. Rep., 670; Cincinnati v. Gaslight & Coke Co., 53 Ohio St., 278; Church v. Water Co., 20 C. C, 578; Proctor & Gamble v. Snodgrass, 5 C. C, 547; Reissner v. Oxley, 80 Ind., 580; Insurance Co. v. Butcher, 95 U. S., 269; Pratt v. Prouty, 104 la., 419; Helme v. Strater, 52 N. J. Eq., 591; Woodward v. Edmunds, 20 Utah, 118; Schroeder v. Nielson, 39 Neb., 335.
    The plaintiff, by its long acquiescence in and approval of the method adopted in the' mining and removing of coal in the west hill and that portion of the east hill lying east of the big clay vein, has lulled defendant into a. sense of security, and it would be unconscionable and inequitable to permit plaintiff now to insist that extraordinary and unusual methods should be adopted in mining and removing coal from the unmined territory of the east hill. The parties by their conduct have placed a practical construction upon the provisions of the lease with reference to the method and system to be adopted in mining the coal, and this practical construction is now controlling and must be adopted by the court in measuring and determining the rights and duties of the parties with reference to the obligations of the lease. Steiner v. Marks, 172 Pa. St, 400, 33 Atl. Rep., 695; Hukill v. Myers, 36 W. Va., 639, 15 S. E. Rep., 151; Dickerson v. Colegrove, 100 U. S., 578; Bigelow on Estoppel (5 ed.), 660; Duffield v. Hue, 129 Pa. St, 94, 18 Atl. Rep., 566; Lynch v. Gas Co., 165 Pa. St., 518; Smith v. Corn, 23 N. Y. Supp., 326; Daniels v. Edwards & Dukes, 72 Ga., 196; Manganese Co. v. Manganese Co., 91 Va., 272.
    (/) Leases of every description shall be most strongly construed against the lessor and in favor of the lessee, and if susceptible to two constructions, either of which is reasonable, the one most favorable to the lessee shall be adopted. 24 Cyc., 915; 18 Am. & Eng. Ency. Law (2 ed.), 617; Schmohl v. Fiddick, 34 Ill. App., 190; Hotel Co. v. Hawk, 49 How. Pr., 257; Loeser v. Liebmann, 39 N. Y., 12.
    In accordance with the well-settled rules of construction, the lease should be construed most strongly against the lessor, because of the fact that its officers, agents and counsel prepared the instrument. Railway Co. v. Reiss, 183 U. S., 621.
    The lease does not expressly require any particular method to be adopted by the lessee in •mining and removing coal, and accordingly it is presumed that the usual, ordinary and customary methods of mining in vogue in the Hocking Valley were to be adopted, and all the customs and usages of the coal mining business in the Hocking Valley should be looked to by the court in determining the proper construction to be placed upon the lease in the case at bar, even though such customs may apparently contradict and vary the terms of the lease itself. Auginbaugh v. Coppenheffer, 55 Pa. St., 347; Robinson v. United States, 13 Wall., 363; Railroad Co. v. Johnston, 75 Ala., 596, 51 Am. Rep., 489; McKeefrey v. Coal & Iron Co., 56 Fed. Rep., 212; Lovering v. Coal Co., 54 Pa. St., 291; Lowe v. Lehman, 15 Ohio St., 179;
      Chase v. Washburn, 1 Ohio St., 244; Steamboat v. Wayne, 16 Ohio, 513; Insurance Co. v. Insurance Co., 107 Cal., 327, 48 Am. St., 140; Horan v. Strachan, 86 Ga., 408, 22 Am. St., 471; Austrian & Co. v. Springer, 94 Mich., 343, 34 Am. St, 350; Bank y. Fiske, 133 Pa. St., 241, 19 Am. St., 635; Coal Co. v. Hughes, 29 C. C, 139; 2 Snyder on Mines, Sec. 1269; Hoyt v. Coal Co., 212 Pa. St., 205; Foster v. Robinson, 6 Ohio St., 90; Steel Works v. Dewey, 37 Ohio St., 242; Cox v. O’Riley, 4 Ind., 368, 58 Am. Dec., 633; Sampson v. Gazzam, 6 Porter (Ala.), 123, 30 Am. Dec., 578; Barber v. Brace, 3 Conn., 9, 8 Am. Dec., 149; Cotton Press Co. v. Stanard, 44 Mo., 71, 100 Am. Dec., 255; Wayne v. Steamboat, 16 Ohio, 422; Tillyer v. Glass Co., 13 C. C, 99; McCarthy v. McArthur, 69 Ark., 313, 63 S. W. Rep.,. 56; Insurance Co. v. Peaslee-Gaulbert Co., 27 Ky. L. Rep., 1155, 87 S. W. Rep., 1115; Insurance Co. v. Dobbins, 114 Tenn., 227, 86 S. W. Rep., 383; Dwyer v. Brenham, 70 Tex., 30; Hip-ton v. Nichols, 28 Ind. App., 539; Smith & Co. v. Lumber Co., 82 Conn., 116, 72 Atl. Rep., 577; Fatman v. Thompson, 2 Dis., 482; Hostetter & Smith v. Gray, 11 Fed. Rep., 179, 137 U. S., 30; Andrews v. Roach & Coffey, 3 Ala., 590, 37 Am. Dec., 718; Blevin v. Screw Co., 64 U. S., 420; Mooney v. Insurance Co., 138 Mass., 375, 52 Am. Rep., 277; Lillard v. Warehouse Co., 134 Fed. Rep., 168; Renner v. Bank, 9 Wheat., 581; Whit-marsh v. Insurance Co., 16 Gray, 359, 77 Am. Dec., 414; Gordon v. Little, 8 Serg. & R., 533, 11 Am; Dec., 632; Loveland v. Burke, 120 Mass., 139, 21 Am. Rep., 507; Kilgore v. Bulkley, 14 Conn., 362; Soutier v. Kellerman, 18 Mo., 509; Frasier v. Warfield, 13 Md., 279; Dunham v. Haggerty, 110 Pa. St., 560; Carter v. Adams, Wright, 471; Lewis v. Fothergill, L. R., 5 Ch. App., 103; Whitney v. Mfg. Co., 2 N. Y. Supp., 438; Williams v. Summers, 45 Ind., 532; Insurance Co. v. Shillito, 15 Ohio St., 559; I sham y. Fox, 7 Ohio St., 317; Ellis v. Trust Co., 4 Ohio St., 628; Inglebright v. Hammond, 19 Ohio, 337; Babcock v. May, 4 Ohio, 334; Smith y. Wilson, 3 B. & Ad., 728; Grant v. Maddox, 16 L. J. Exch., 227; Cochran v. Retberg, 3 Esp., 121; Coquard v. Bank, 12 Mo. App., 261; Humfrey v. Dale, 7 El. & Bl., 265; Brown v. Byrne, 3 El. & Bl., 703.
    The lease at bar does not require the literal removing of all of the coal in, upon or under the leased, premises, but its obligations are satisfied by the removal of all the coal which is capable of being mined by the exercise of reasonable skill and effort, and by the reasonable expenditure of money and labor in accordance with the methods approved among practical coal miners in the Hocking Valley. Drew v. Goodhue, 74 Vt., 436, 52 Atl. Rep., 971; Iron Co. v. Stephens, 5 Lea, 468; Craig v. Weitner, 33 Neb., 484; Ross v. Sheldon, 119 S. W. Rep., 225; Wilson v. Coal Co., 134 la., 594, 112 N. W. Rep., 89; Wilson v. Coal Co., 142 la., 521, 119 N. W. Rep., 604.
    The lease in question only requires defendant to resort to the usual, customary and ordinary methods of mining in an effort to mine and remove the minimum tonnage of coal prescribed by the lease and defendant, being excused from mining said minimum when prevented by causes beyond its control, was ’ not required to resort to unusual and extraordinary methods or systems of mining or incur unusual, exorbitant and extraordinary expense' in an effort to mine the same. Railroad Co. v Bowns, 58 N. Y., 573; Kemp v. Ice Co., 69 N. Y., 45; Robinson v. Kistler, 62 W. Va., 489, 59 S. E. Rep., 505; Givens’ Exrs. v. Coal Co,, 22 Ky. L. Rep., 1217, 60 S. W. Rep., 304.
    The existence of a strike among the miners employed by defendant and their refusal to work or mine coal upon the Stalter lease, which either directly or indirectly affected the capacity of said mine and the ability of said lessee to mine and remove said minimum quantity of coal provided for in said lease, is a sufficient excuse for its failure to mine and remove said minimum under the terms of said lease so long as it was acting in good faith. Davis v. Columbia Coal Mining Co., 170 Mass., 391, 49 N. E. Rep., 629; Smokeless Fuel Co. v. Seaton, 105 Va., 170; Milliken v. Keppler, 4 App. Div., 42.
    That clause of the Stalter lease which excuses the lessee from mining and removing the minimum quantity of coal and from paying the minimum royalty thereon as provided in the lease, in case and so long as it shall be impossible to mine and remove said minimum by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the lessee, lack of transportation facilities excepted, should be given a liberal construction and should not be limited in its operation by the rule of noscitur a sociis or ejusdem generis. Hat-Held v. Iron Co., 208 Pa. St., 478; Woodworth v. State, 26 Ohio St., 196; Nephi Plaster Mfg. Co. v. Juab County, 33 Utah, 114, 93 Pac. Rep., 53; LeLoach & Co. v. Insurance Co., 4 Ga. App., 746, 62 S. E. Rep., 473; State v. Johnson, 64 Ohio St, 270; Doggett v. Cattern, 17 C. B., N. S., 669; Regina v. Payne, L. R., 1 C. C., 27; State v. Woodman, 26 Mont., 348; In re La Societe Francaise, 123 Cal., 525; State v. Corkins, 123 Mo., 56; People v. Bealoba, 17 Cal., 389; Lewis Sutherland Stat. Const., Secs. 437, 438.
    The word “impossible” in the lease is used in a business sense and means impracticable, and a thing is impracticable when it can only be done at excessive and unreasonable cost, and is such as reasonable men in the situation of the parties would treat as impossible. Wald’s Pollock on Contracts, 520-521; Moss v. Smith, 9 Man. Gr. & S., 93; Peabody Ins. Co. v. Packet Co., 5 Dec. R., 417; Cooper v. Wooley, L. R., 2 Exch., 88; Shepherd v. Kottgen, L. R., 2 C. P. Div., 585; Assicurazioni Generali v. S. S. Bessie Morris Co., 2 Q. B. (1892), 652.
    The words “or any other cause beyond the control of thé second party,” as used in the Stalter lease, must be given a reasonable construction, and relate only to the personal or immediate control of the lessee, and include all causes for which it is not to blame or which occur or exist without fault on its part.
    The retention of the possession- of the leased premises by the lessee, whéfo prevented by causes beyond its control from mining and removing the minimum, does not render it liable for the minimum royalty.
    The fact that the minable coal in the Stalter lease was so far exhausted as to make it impossible for the lessee to mine and remove the minimum, is a complete defense to an action for the minimum royalty, and under such circumstances the lessee is only required to pay a royalty upon the coal actually mined and removed. Bannan v. Graeff, 186 Pa. St., 648; Hewitt Iron Min. Co. v. Dessau, 129 Mich., 590.
    The evidence tendered by defendant should have been admitted and the whole case should have been submitted to the jury, under proper instructions from the trial court, to determine from the evidence whether or not it. was impossible for defendant, during the period in controversy, to mine and remove the required minimum tonnage of lump coal, by reason of strikes, lockouts, fires, floods and any other cause beyond the control of the lessee, lack of transportation facilities alone excepted. Cottrell & Son v. Smokeless Fuel Co., 148 Fed. Rep., 594.
   O’Hara, J.

There being no substantial dispute as to the allegations of the amended petition, the real questions in the case arose upon the offer of its proof by the defendant in the court, of common pleas.

The answer of defendant denied that there was anything whatever due the plaintiff as royalty. It was drawn carefully and with much detail, but in substance alleged that the lease contemplated .that the coal should be mined and removed by the customary methods and in the manner usually employed in the Hocking Valley district; that those methods were employed and that manner followed by the defendant, and it had accordingly mined and removed all the coal that could possibly be mined and removed under such conditions; and that it had fully paid plaintiff for all the coal so mined and removed. It further alleged that the roof or top above the coal vein in said premises is of such peculiar character and formation that it falls as soon as the coal is removed, and that it is impossible to support or hold it up by any known means, whereby it is dangerous for miners, and therefore none can be obtained to work in the mine. It further alleged that because of such dangerous condition of the mine, the miners refused to work therein, before, during and since the period mentioned in the amended petition, and that during such period the miners struck and thereafter continued to strike against working in such dangerous territory. And the defendant finally alleged that the causes and conditions aforesaid, which prevented it from mining and removing from said premises the minimum tonnage provided for in said lease and rendered the same impossible, were beyond its control, and came within the meaning and terms of the saving clause hereinbefore referred to, which reads as follows: “It is hereby understood and agreed by and between the parties hereto, that in case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.”

At the close of plaintiff’s evidence, the common pleas court held that the burden of proof was upon the defendant to show that it was prevented from mining and removing- the minimum tonnage by causes beyond its control as aforesaid, and we agree with the court in-that regard.

The defendant then undertook to offer evidence in support of the allegations in its answer, tending to show the tonnage capacity and physical condition of the different parts of the mine in question; the unmined areas in certain portions of the property; the objection and refusal of the miners to work in a certain part of the mine and the reasons for such refusal; the inability of defendant to mine coal from that part of the mine because of its physical condition; and the means employed and expense incurred by defendant in an effort to explore and mine the coal and to produce the minimum tonnage.

The court refused to allow the introduction of any of this evidence, on the ground that it did not' tend to prove any cause beyond the control of the defendant, within the meaning of the saving clause, which would relieve it from liability to pay for the agreed minimum tonnage.

The defendant saved its rights by making numerous offers of proof in the above particulars, and the correctness of the rulings in those regards is thus presented for review. As there was no material evidence on behalf of defendant left for submission to the jury, the court directed a verdict for plaintiff, upon which it subsequently entered judgment.

In support of its contention that the foregoing evidence was admissible, and tended to relieve it from liability for the unmined and unpaid balance of the required minimum tonnage, the defendant urged the following propositions, viz: that the covenant to mine and remove the minimum tonnage was not absolute; that the clause “or any other cause beyond the control” of the second party, should not be limited by the rules noscitur a sociis and ejusdem generis to either temporary causes interfering with the mining and removal of the coal, or to causes kindred to or of the same class as those specifically enumerated, but should be construed in its popular acceptation so as to embrace any other cause beyond the control of the second party, not attributable to its fault; that the word “impossible” as used in said contract does not mean absolute impossibility, but should be construed in a business sense; that accordingly the mining and removing of the minimum tonnage is “impossible,” when it appears that on account of causes and natural disturbances or conditions not attributable to the fault of the second party, it cannot be mined and removed without resorting to unreasonable or extraordinary expense, or the employment of unusual or extraordinary means; and that the retention of possession by defendant under the above Conditions, without mining and removing the minimum tonnage, was not sufficient to render it liable for the minimum royalty.

On proceedings in error, the circuit court sustained the claims made by the defendant as above set out, and held that the evidence offered should have been admitted, and that the question of the impossibility of mining and removing the minimum tonnage under the saving clause of the lease as presented by such evidence, was one of fact that should have been submitted to the jury. Accordingly the judgment of the common pleas court was reversed and the cause remanded for a new trial, and this action of the circuit court is the ground of complaint here.

The lease under consideration was entered into between parties engaged in the coalmining business, and covered property in an established and well-known mining district. At the time of its original execution, there had not been any development of the particular property covered by the lease, but the lessee was satisfied to accept the right and privilege to enter upon and search and explore for coal, and to dig, mine and remove the same, for which he agreed to pay a minimum royalty of three thousand dollars for the first year, and an annual royalty of not less than six thousand dollars thereafter until all the coal should be removed.

The lease is drawn with great care and particularity, and it is evident that the parties intended everything to be clear and plain, and to leave little or nothing to inference or conjecture. This is apparent from the clauses as to royalty and tonnage; the'particular requirement that the lease was to continue “until all the coal in, upon or under said lands has been fully and entirely removed therefrom, including all pillars, supports and stumps, which shall be all withdrawn and taken out;” the detailed provisions as to the ownership and care of the improvements upon the property made by the lessee; and various other provisions preserving the rights of both parties.

That the original lessee was justified in accepting this lease, with all its requirements, is shown by the fact that he and the company which succeeded him entered upon the property and conducted mining operations so successfully and with such good results, that the defendant, The New Pittsburgh Coal Co., was willing to accept an assignment of the lease, with all its terms and conditions and without any modification, six years after it had been executed and the mines had been in •operation.

This fact, taken in connection with the fact that the defendant is a corporation formed for the purpose of and engaged in the business of mining for coal, and therefore presumably familiar with mining property and leases and well advised in that regard, is important when we come to consider the claims made and defenses set up by it against the enforcement of the terms of the lease. Especially is this true, when we remember that it operated under the lease for a period of more than two years, before any question .was raised or default occurred in the payment of royalty. ,

When sifted down, all the claims and defenses made by the defendant are founded upon the physical condition or’ geological formation of a portion of the mine in controversy.

The property under lease consists of about two hundred and forty acres in the form of an L, and the coal is divided and located in two well-defined hills, separated by a ravine running north and south, throwing the long side of the L upon the west side of the ravine and forming what is known as the “west hill.” The “east hill” is divided into two parts by a large' clay vein, which cuts through the coal in the hill at a sharp angle, and these are known as the “east part of the east hill,” which is a relatively small part of the mine, and the “west part of the east hill,” which is considerably larger.

The geological formation in the “west hill” and the “east part of the east hill” are favorable for mining, and, as admitted by defendant, practically all the coal has been mined and removed from these two parts of the mine.

But it is claimed that the coal in the “west part of the east hill” is unminable, owing to the dangerous and abnormal condition of the roof or top covering the coal. This roof is said to be neither a regular shale, nor what miners call soapstone, but simply a great mass of mud or clay, of undetermined thickness, and not cemented together, as in the case of shales. Although the roof appears strong enough when the coal is in position, nevertheless by reason of its condition as above described, and its being further weakened by numerous cracks, joints, seams and slickensides existing in every part, whenever the coal has been mined out the roof will fall in pieces of irregular shape, varying in weight from a few pounds to several tons.

By reason of the foregoing, the defendant claimed and offered to prove that the mining of coal in that part of the mine was so dangerous to life and limb, that for a long while it was difficult to obtain miners who were willing to undertake to mine and remove the coal; and finally that it was considered not only dangerous and impracticable, but actually became impossible to remove the coal in the west part of'the east hill by any known system of mining.

Notwithstanding the unminable condition of the coal in this part of the mine, and the fact that the defendant claimed to have removed practically all the coal from the other parts, it maintained its right to retain possession of the demised premises,, without paying the minimum tonnage royalty reserved in the lease, but paying a royalty only upon the nominal tonnage that it might be able to mine and remove from time to time.

As already indicated, the defendant based this contention upon its construction of the saving clause in the lease, viz, that the conditions above set out rendered it impossible to mine and remove the required tonnage by reason of “causes beyond its control,” and therefore the minimum royalty did not apply.

In order to arrive at the proper construction of this clause, the learned counsel for both parties have exhibited great industry and research, and have gathered and submitted a vast number of authorities bearing upon the questions involved.

It would extend this opinion to an unreasonable length, however, to undertake to analyze or even briefly refer to them, and as they will be found in the Reporter’s note, it would serve no good purpose to discuss them here.

It appears to be well settled that where a minimum royalty, sometimes called dead rent, is reserved without exception, and the lessee continues to hold possession of the demised property, he is bound to pay the same. Whether the defendant might have abandoned the premises when the coal was so far removed as to be incapable of further practical operation, and whether this would have relieved it of obligation to pay the minimum royalty, are questions that do not arise in this case.

We therefore now come to a consideration of the claim that the condition of the roof of the mine in the west part of the east hill made it impossible to mine and remove the minimum tonnage, and that this was a cause beyond the control of the defendant within the meaning of the saving clause in the lease.

It clearly appears in the record from the proof offered by the defendant, that this condition of the roof in that part of the mine was well known very early in the history of this lease, and some time before defendant took its assignment thereof.

The miners would frequently refuse to work there from the very earliest days, and the lessee was continually putting new men into the mine, who remained hardly long enough to become acquainted with each other, so that the miners named that part the “Strangers’ Home.” It was also known among the miners as “Bad Lands,” because of the great and unusual dangers encountered in mining and removing the coal. In the year 1899, at one time, the chief inspector of the state mining department ordered the work stopped in that part of the mine because of its dangerous condition, and in 1905 the state mining department requested the defendant not to put men at work there. Finally the miners refused to do any work at all in that part of the mine, and it was closed entirely and has remained closed ever since.

Nevertheless considerable work had been done in the east hill, and in the particular territory of which defendant now complains, and a very substantial quantity of coal had been mined and removed therefrom prior to the assignment of the lease to defendant. This more particularly appears from a map offered in evidence by the defendant, showing the property and the mining operations that had been conducted thereon, with the progress made from time to time. The physical conditions were therefore open to inspection, and apparent to any person interested, especially to one familiar with mines and mining operations.

We thus see that when defendant obtained its assignment of the lease in May, 1900, it found the very condition in existence which it undertook to set up some years later as a “cause beyond its control,” within the meaning of the saving clause.

This brings us to a consideration of that clause, and of the meaning of the phrase “or any other cause beyond the control of the second party,” as therein used.

We have already indicated the contention of defendant that this clause should not be limited to temporary causes or those similar to the ones specifically mentioned, by the rules noscitur a sociis and ejusdem generis, but that it includes a condition of affairs such as defendant claims to have existed and to now exist.

The clause itself, however, clearly shows that temporary conditions only were in the minds of the parties, as indicated by the use of the words "in case and so long as it shall be impossible to mine and remove,” etc. Then follow certain specified causes which shall suspend the operation of the minimum royalty, viz, strikes, lockouts, fires and floods, none of which can be fairly said to have been considered by the parties as permanent obstacles to the operation of the mine. This would seem to be emphasized by the exception to “other causes beyond the control of the second party,” viz, “lack of transportation facilities,” which would not relieve the lessee, and could hardly have been considered by the parties as a matter of permanent disability.

The rule ejusdem generis is a well known rule of construction, and has been frequently recognized and applied in this state and elsewhere. While not conclusive under all circumstances, nor applied when it would violate the clear intention of parties as expressed in their written agreements, nevertheless it is of value whenever tnere would be no such violation, and this is a case where the rule seems to be plainly applicable.

Furthermore, the conditions which the parties; evidently had in mind that would excuse the lessee from the payment of the minimum royalty, were undoubtedly such as might arise in the future, and render it impossible for him to carry out his agreement. The very nature and character of those enumerated would seem to make that plain and negative the idea that the physical condition or geological formation of the property, which was necessarily in existence at the date of the lease and would of course be permanent, was also to be included among these temporary suspensions c.: the lessee’s liability.

Should the contention of the defendant be adopted, it will practically have an unlimited lease, and be able to keep plaintiff out of the property as long as it pleases, without plaintiff receiving any compensation. As the lease provides that lessee shall have the premises “until all the coal has been removed,” and there is admittedly coal in the east hill, practically all the coal having been mined and removed from the other parts, the defendant would be able to hold the property indefinitely without payment of rent, by reason of its claim that the remaining coal cannot be mined and removed through causes beyond its control. Such a condition of affairs was certainly not within the contemplation of the parties, and should not receive the sanction or approval of any court.

The position taken by defendant and sustained by the circuit court, would also be contrary to the plain intention of the parties to the lease to avoid all ground or opportunity of dispute. If the payment of the minimum royalty should be made to depend upon the various standards of what would be reasonable effort on the part of lessee to mine the coal, or unreasonable expense in that regard, or whether or not it was following the usual and customary method of mining in vogue in the Hocking Valley, or other similar debatable' conditions, it would open the door to frequent and expensive controversies. This otherwise plain and simple provision would then amount to nothing, but would become a source of endless trouble and litigation.

It is quite usual to expressly provide in mining leases that the lessee shall not be required to pay the minimum royalty, where the physical condition of the mine or the reduction in the coal deposits would prevent mining the required tonnage; that certain allowances should be made if the mining became .too expensive; that excess payments under minimum royalty clauses should be applied towards surplus of coal thereafter mined; and for other similar contingencies. But it has been heretofore held by this court, that the failure to include such provisions in a contract was clear • indication that a different purpose was intended, and that such .material stipulations should not be supplied by construction and a new contract thus made for the parties.

The specified causes in the clause in question, viz, strikes, lockouts, fires, floods and lack of transportation facilities, are well understood and have well-defined meanings. So that if the lessee desired to include other matters, particularly such as are contended for here, he should have taken the precaution to have them particularly mentioned in the contract, otherwise he will be held to have waived them.

It might also fairly be said that to allow the claim of defendant as to the construction of this lease, would lead to the result that the lessee was bound to operate the mine according to the terms of the lease only so long as it was profitable to do so; or in other words, that he was at liberty to select that part of his contract or perform that part of the work which was profitable, and refuse to abide by the other parts of the contract or perform other parts of the work whenever the same might become unprofitable. This is clearly against all principles of reason and law, and the well-settled rules governing the construction of contracts.

The considerations already expressed apply with equal force to the construction of the word “impossible,” as claimed by defendant and heretofore indicated, and which met with the approval of the circuit court.

Besides, the occasion for such' construction could only arise in connection with some cause included within the meaning of the saving clause. As the defendant has not presented any such cause, the question becomes an abstract one, and does not require further attention.

The same answer may well be made to the claim of defendant, so strongly urged, that mining operations under the lease were to be carried on according to the usual and customary method of mining in the Hocking Valley district, and that so long as defendant pursued such method, it would be relieved from the obligations of the minimum royalty clause if less than the required tonnage of coal were produced-in that way.

If, as set out in its answer and claimed in argument, both parties were familiar with such custom and must have had it in mind when they made the lease, nevertheless in the face of that knowledge, the lessee saw fit to clearly and distinctly bind himself to mine and remove or pay for not less than a certain tonnage of coal, one of two situations confronts us. The lessee either intended and agreed to produce or pay for such tonnage by the use of the customary method, or by his neglect to protect himself by a proper provision in the contract in a matter of such importance, he must be deemed in the eyes of the law to have waived it, under the principles heretofore discussed. In view of all the circumstances, and taking into consideration the provisions and tenor of the lease itself, it would seem more natural and probable, however, that such provision was deliberately omitted, and that the minimum tonnage was intended and agreed to be produced by the use of the customary method.

The defendant also sets up the defense of a strike on the part of the miners employed in the mine, which it claimed made it impossible to mine and remove the minimum tonnage. Of course, such a cause clearly comes within the terms of the saving clause and would constitute a good defense, if supported by the evidence.

But the record plainly shows that the only general strike as to the entire mine occurred on May 16, 1905, and that it lasted but one day. What the defendant really relies upon to sustain this defense, is the refusal of the miners to work in the west part of the east mine, where the defendant claims it is too dangerous to do any work, and where the coal cannot now be removed by any known process of mining. During the entire period in controversy covered by this action, however, the defendant was admittedly carrying on its mining operations in the other parts of the mine continuously, and removing substantial quantities of coal therefrom. We do not, therefore, consider this refusal of the miners to work, which was confined to the dangerous part of the mine only, as a “strike” within the meaning of the saving clause of the lease, nor do we think that it serves to relieve the defendant from its obligation to pay the minimum royalty.

It has been expressly brought to our attention by the defendant, that this case is of great importance to the parties, because other suits are now pending between them involving the same questions of law and fact which are involved here, and that no doubt additional cases will be brought from time to time for the recovery of the minimum royalty under the lease in controversy.

We mention this as one reason for the rather full statement of facts and the length of this opinion, but we also feel that it emphasizes the conclusion arrived at with reference to the result that would obtain, should the contention of defendant be upheld. Notwithstanding the admitted fact, that practically all the coal had been mined and removed from the west hill and the east part of the east hill at the time of the trial in the common pleas court, and that the remaining coal in the west part of the east hill was then and now is absolutely - unminable by any known method of mining, thus covering the entire property in question, nevertheless it appears that the defendant still retains possession of the premises, and refuses not only to pay the minimum royalty, but will necessarily refuse to pay any royalty at all. This must be so, because it claims that it is only bound to pay for coal actually mined, and as there is no coal that can be mined, of course there will be no royalty.

We are thus confirmed in the views already expressed, and it would clearly seem that such a contention need only be stated -to be denied.

It follows from the foregoing considerations that the defendant did not set up a good defense to the claim of plaintiff for the balance of the royalty, and that the common pleas court was right in rejecting the evidence offered by the defendant and directing a verdict in favor of the plaintiff.

This requires a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas, and it will be so ordered.

Reversed.

Davis, C. J., Johnson and Donahue, JJ., concur. Si-iauck, J., not participating.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Robbins v. Hennessey et al.

      Laws governing insurance — Section 289, Revised Statutes — Constitutional exercise of power of General Assembly — Part of contract of insurance — Assignment of contract providing for burial expenses- — Violative of statute, and void, when.

    1. Section 289, Revised Statutes, as amended April 9, 1908, is a constitutional exercise of the right of the General Assembly of Ohio to control the business of insurance, and the provisions of this section become a part of the contract of insurance and equally binding on all parties to the contract.
    2. An assignment of a contract of insurance issued by a company, corporation or association engaged in the business of providing for the payment of funeral, burial, or other expenses of deceased members, or certificate holders therein, or engaged in the business of providing any other kind of insurance, to any designated undertaker, or undertaking concern, or to any particular tradesman, or business man, is in violation of the provisions of said section and void.
    No. 12827
    Decided June 5, 1912.
    Error *to the Circuit Court of Miami county.
    The original action was brought by William Hennessey to recover on a policy of insurance issued by the defendant in error, The Ohio Burial Insurance Company, on the 9th day of March, 1909, to William Hennessey on the life of his wife, Mary Hennessey. The petition avers the corporate character of the insurance company, the issuing of the policy, the payment of weekly premiums thereon from the date of its issuance until the death of the wife, which occurred April 27, 1909, about one month and a half after the policy was issued, notice of her death to the company, and a prayer for judgment for $100. The policy provided for the payment of $34.00 if she died within six months after the issuing of the policy, and $68.00 if she died after six months from the date of the policy. The wife having died within the six months, judgment was given for $34.00. The Ohio Burial Insurance Company filed an affidavit averring that E. S. Robbins, who is now the plaintiff in error in this suit, made a claim to the subject of the action, and asking that it be permitted to pay said sum of $34 into court; that E. S. Robbins be made a party plaintiff and that the plaintiff and Robbins litigate their respective right to the fund. Such order was made, and Robbins accordingly filed an answer and cross-petition. The issue in this case, arises on the cross-petition. The cross-petition admits the issuing of the policy to William Hennessey upon the .life of Mary Hennessey, his wife. It averred that at the time the policy was issued, William Hennessey was a member of The Miami County Benefit Association, and by virtue of such membership was entitled to receive from said association upon the death of Mary Hennessey certain funeral and funeral outfit and furnishings for the use and benefit of Mary Hennessey; that William Hennessey was about to withdraw from said benefit association at the time of the issuing of this policy by the defendant company; that he entered into a contract with Robbins that in consideration of the assignment to him by William Hennessey of the policy in The Ohio Burial Insurance Company, and of the moneys to be paid thereunder at the death of Mary Hennessey, Robbins would furnish to and for the use of Mary Hennessey the benefits of funeral and funeral outfit and furnishings to which William Hennessey was entitled as a me'mber of The Miami County Benefit Association; that William Hennessey did then and there execute and deliver to Robbins an assignment of the policy issued to him by The Ohio Burial Insurance Company, the contract in that behalf being' as follows:

      “Know all Men by these Presents: That we, E. S. Robbins in consideration of Policy No. 4806 in The Ohio Burial Insurance Company to be paid to us, at the time of the death of Mary Hennessey, do hereby agree to furnish to, and for the said Mary Hennessey the benefits specified in Policy No. 4251 issued by The Miami County Benefit Association.

    “I, Wm. Hennessey, hereby agree that there shall be paid to said E. S. Robbins upon the completion of the foregoing covenant on said E. S. Robbins’ part to be performed, the amount of The Ohio Burial Insurance Company’s Policy No. 4806, and to secure the payment of said amount I, Wm. Hennessey, do hereby assign to said E. S. Robbins, all of my right, title and interest in, under, and to Policy No. 4806 in The Ohio Burial Insurance Company of Cincinnati, Ohio, and hereby deliver the same to said E. S. Robbins.
    “Signed and executed in duplicate, this 9th day of March, 1909.
    “Signed, Wm. Hennessey, “E. S. Robbins.”
    “In presence of “Wm. Potts.”

      The cross-petition further averred that William Hennessey performed all the conditions on his part to be performed; that Mary Hennessey died as stated in the petition; that proofs were properly made and accepted by the company; that upon the death of Mary Hennessey, the cross-petitioner, E. S. Robbins, tendered and offered to William Elennessey to furnish to him for the use and benefit of Mary Hennessey all the. benefits that William Hennessey was entitled to receive as a member of The Miami County Benefit Association and the funeral and funeral outfit and furnishings that William Hennessey was entitled to receive for Mary Hennessey, then deceased, but that William Hennessey, without lawful reason or excuse therefor, refused and declined to accept from this defendant the benefits aforesaid, or the funeral or funeral outfit and furnishings for Mary Hennessey; that the cross-petitioner was ready, anxious' and willing, and is now ready, anxious and willing to furnish to William Hennessey and does in open court tender to Wm. Hennessey the benefits and funeral and funeral outfit and furnishings for Mary Hennessey, deceased.
    To this cross-petition William Hennessey filed a general demurrer, which was ■ sustained by the common pleas court of Miami county, and plaintiff in error not desiring to plead further judgment was entered awarding the money in dispute to William Hennessey. A motion for new trial was overruled, error prosecuted in the circuit court of Miami county, which court affirmed the judgment of the common pleas, and this proceeding in error is prosecuted in this court to reverse the judgment of the comriion pleas court and the judgment of the circuit court affirming the same.

      Messrs. Dempsey & Nieberding; Mr. Jacob A. Davy and Mr. Alonso G. Duerr, for plaintiff in error.
    The inhibitory provisions of Section 289, as so amended, do not operate upon either the insured or the beneficiary in a policy. The section operates only upon the insurer.
    If the section, as amended, did, even expressly, forbid such assignment or transfer as is contended for, it.would be unconstitutional and void, as infringing the constitutional rights, not only of the person insured, and of the beneficiary, but also of the undertaker, or designated tradesman, to whom the policy had been assigned.
    Section 1, Article I, Constitution of 1851, guarantees to every citizen of Ohio the right to acquire, possess and protect property.
    The right to contract and the right to labor are property, and, in this view, the right to carry on any kind of business, or engage in any occupation, is property. 1 Lewis on Eminent Domain, Sec. 245.
    It will not be assumed that these outside undertakers, or any of them, would give the deceased a more decent burial than the assignee of the policy, or that the employment of said assignee would result in any inconvenience to the family. For this reason this statute cannot be sustained as an exercise of the police power. The statute is sought to be supported on a false basis. Ex parte Drexel,
      147 Cal., 763; State v. Ramseyer, 73 N. H., 31; Palmer v. Tingle, 55 Ohio St., 423; In re Preston, 63 Ohio St, 428; State v. Robins, 71 Ohio St., 273; Miller v. Crawford, 70 Ohio St., 207; Niagara Fire Ins. Co. v. Cornell, 110 Fed. Rep., 816.
    The assignment of the policy by the insured, or beneficiary, even if consented to by the insurance company, does not constitute a promise by the company to pay, or a contract to pay, the assignee.
    Nor is a payment by the insurance company under an assignment, such a payment as contravenes said Section 269, as amended. Bispham’s Equity, Sec. 165; 2 Am. & Eng. Ency. Law (2 ed.), 1095, 1098; Sullivan v. Visconti, 68 N. J. L., 543; Parkhurst v. Dickerson, 21 Pick., 307; Dubois v. Doubleday, 9 Wend., 318; lessel v. Insurance Co., 3 Hill, 88; McKinney v. Alvis, 14 Ill., 33.
    What insurable interest must Robbins- have to warrant an assignment to him, outside of Section 289?
    So far as the facts disclose, we submit that Robbins may take this assignment without having any insurable interest whatever, and cite Eckel v. Renner, 41 Ohio St., 232; Ryan v. Rothweiler, 50 Ohio St., 595; Clark, Admr., v. Allen, 11 R. I., 439.
    But the contract between Hennessey and Robbins in relation to furnishing funeral and supplies and outfit, for Mrs. Hennessey, created an insurable interest in Robbins, as between him and Hennessey. Coshocton Glass Co. v. N. W. Mutl. Life Ins. Co., 13 C. C, N. S„ 240.
    A life policy, valid in its inception, may be assigned to one having no insurable interest in the life insured, if the assignment is bona ñde, and not a mere device to evade the law, or cover a gambling transaction.
    Mutuality of obligation is undoubtedly necessary to every contract where the promises are executory on both sides; but to show mutuality the obligation may be implied as well as express. Although on its face and by its express terms the contract is obligatory on one party only, yet if the intention of the parties, and the consideration on which the obligation is assumed, is that there shall be a correlative obligation on the other side, the law will imply it. 9 Cyc., 333; Lewis v. Atlas Mut. Ins. Co., 61 Mo., 534; Minneapolis Mill Co. v. Goodnow, 40 Minn., 497; Bangor Furnace Co. v. Magill, 108 Ill., 656; Black v. Woodrow, 39 Md., 194; Railroad Co. v. Brown, 26 Ohio St., 223; Canton Co. v. Railroad Co., 79 Md., 424; Spear v. Orendorf, 26 Md., 37.

      Mr. A. B. Campbell; Mr. Edward I. Dempsey; Mr. T. H. Hennessey; Messrs. Southard & Southard; Mr. Wm. C. Rowe and Mr. Charles I. Pretzman, for defendants in error.
    As we view this case there are two other questions involved. The first is: Can a person, who is not related to the insured, have a policy issued in his favor, or can he have an assignment of the policy from the beneficiary, when he is not related? And second: Is there any consideration passing in the assignment of this policy?
    As to the first proposition, it is not contended, and it is not a fact that E. S. Robbins was related to the insured. He, therefore, could not have a policy issued directly in his favor, under the laws of Ohio. Evans v. Moore, 7 C. C, N. S., 123; Russell v. Grigsby, 168 Fed. Rep., 577; Warnock v. Davis, 104 U. S., 775; Ryan v. Rothweiler, 50 Ohio St., 601; Newmore v. Western & So. Life Ins. Co., 8 C. C, N. S., 308.
    It is unlawful for The Ohio Burial Insurance Co. fo agree to pay or to pay this insurance to E. S. Robbins. State, ex rel., v. Ackerman et al., 51 Ohio St., 163; John Hancock Life Ins. Co. v. Warren, 59 Ohio St., 53; 22 Cyc., 1387.
    The cross-petitioner sues for the total proceeds of the policy when he is not entitled to anything except damages even if the undertaker’s contract of March 9, 1909, were not contrary to law. Doolittle & Chamberlain v. McCullough, 12 Ohio St, 360; Welision Coal Co. v. The Franklin Paper Co., 57 Ohio St., 182.
    E. S. Robbins had no insurable interest in the life of Mary Hennessey, and the contract between him and William Hennessey is a wager contract and illegal and void. State v. Willett, 171 Ind., 296, 23 L. R. A., N. S., 197; Insurance Co. v. Schott & Sons Co., 11 C. C., N. S., 401, 83 Ohio St, 507.
   Donahue, J.

It is difficult for this court to determine just what importance should be attached to the averments of the cross-petition that William Hennessey was a member of The Miami County Benefit Association, a corporation of Miami county, and that at and about the time he undertook to assign this policy issued by The Ohio Burial Insurance Company to E. S. Robbins he was about to withdraw from this benefit association, and that the contract of assignment provided that Robbins should furnish the benefits specified in Policy No. 4251 issued by The Miami 'County Beneñt Association.

Counsel inform us in their briefs that prior to April 9, 1908, there was in this state a form of mutual benefit corporation known as burial associations. The purpose of these associations was to provide at their death a funeral and proper burial for the members, and these associations were organized on the mutual benefit plan, the members contributing a stipulated sum weekly, in consideration of which the association contracted to give on a particular member’s death a proper funeral with certain stipulated funeral furnishings and outfit, which were to be furnished by and through a designated undertaker known as the association undertaker or official undertaker, and we take it that Policy No. 4251, issued by The Miami County Benefit Association, and referred to in the contract of assignment of the policy herein sued upon, was in the nature of these contracts. On April 9, 1908, the legislature of this state passed an act entitled: “An act to amend Section 289 of the Revised Statutes of Ohio, making it unlawful to engage in the insurance business in Ohio unless the same is expressly authorized by the laws of this state.” This act reads as follows:

“Sec. 289. The provisions of this chapter shall apply to individuals and parties, and to all companies and associations, whether incorporated or not, now or hereafter engaged in the business of insurance; and it is unlawful for any company, corporation or association, whether organized in this state or elsewhere, either directly or indirectly, to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, or to engage in the business of guaranteeing against liability, loss or damage, or for any company, corporation or association, engaged in the business of providing for the payment of the funeral, burial or other expenses of deceased members or certificate holders therein, or engagéd in the business of providing any other kind of insurance, to contract to pay or to pay the same, or its benefits or any part of either, to any official undertaker, or to any designated undertaker or undertaking concern, or to any particular tradesman or business man, so as to deprive the representative or family of the deceased from, or in any way to control them, in procuring and purchasing said supplies and services in the open market with the advantage of competition, unless the same is expressly authorized by the statutes of this state, and such statutes and all laws regulating the same and applicable thereto have been complied with, provided that nothing in this chapter nor in any other statute of the state of Ohio, pertaining to insurance shall so operate or be construed as to apply to the establishment and maintenance by individuals, associations or corporations, of sanitoriums or hospitals for the reception and care of patients for the medical, surgical or hygienic treatment of any and all diseases, or for the instruction of nurses in the care and treatment of diseases and in hygiene, or for any and all said purposes, nor to the furnishing of any and all of said services, care or instruction in or in connection with any such institution under or by virtue of any contract made for such purposes,- with residents of the county in which such sanitorium or hospital is located.”

Whatever may have been the abuses against which the provisions of this act were directed, it clearly appears from the act itself that the general assembly of Ohio considered these contracts to be in restraint of trade, and therefore against public policy, and sought to prevent the making of all such contracts, except as they might be expressly authorized by statute.

It is averred in this cross-petition that at the time the policy in suit was issued to William Hennessey that “Hennessey was a member of The Miami County Benefit Association, a corporation •of Miami county, and was entitled to receive from said association in case of the death of Mary Hennessey certain funeral and funeral outfit and furnishings for the use and benefit of Mary Hennessey.” There is no averment as to the time that William Hennessey became a member of The Miami County Benefit Association. The averment is that he was,' at the time this policy in suit was issued to him, to-wit, March 9, 1909, a member, and that he was then and there entitled as such member to certain funeral and funeral outfit and furnishings for the use and benefit of Mary Hennessey. E. S. Robbins did not agree to furnish to William Hennessey anything of value in addition to what he was then entitled to receive under Policy No. 4251, issued by The Miami County Benefit Association* From the averments of this cross-petition it is difficult to get a correct notion of the real relation of the parties to each other, or the motives that induced William Hennessey to assign to E. S. Robbins a policy of insurance for a sum certain on the life of his wife, Mary Hennessey, for no other or further consideration except that which he was then entitled to receive from an entirely different and distinct corporation, to-wit, The Miami County Benefit Association. So far as the averments of this cross-petition are concerned this contract of assignment of this policy is without any consideration whatever moving to William Hennessey, nor does it disclose a loss on the part of the promisee. Section 289, Revised Statutes, as amended April 9, 1908, absolutely prohibited this association from designating in its contract, or policy, E. S. Robbins, or any one else to "perform for it, and on its part, the covenants and agreements by it to be performed. If it could not do this directly, it follows that it could not evade the terms of the statute by any subterfuge so as to accomplish indirectly the very thing that the statute was designed to prevent. This court cannot travel outside the pleadings ox speculate upon what may or may not have been the purpose of this arrangement. As the pleading stands, William Hennessey was entitled to receive from The Miami County Benefit Association all these things that Robbins undertook to furnish, and it is not important whether The Miami County Benefit Association undertook to pay Robbins directly therefor, or for the purpose of evading the statute called to its aid this defendant company to reimburse or compensate Robbins for the performance of its part of its contract with William Hennessey. In either event the cross-petitioner must fail.

If this defendant company sustained any relation whatever to The Miami County Benefit Association, by which it undertook to do for this asso'ciation that which it could not do for itself, then it is a clear attempt to evade the statute, and comes within the .meaning and intention of the prohibition thereof.

If, on the other hand, it be conceded that notwithstanding the averments of this cross-petition that The Miami County Benefit Association has nothing to do with this case, that all that part of the cross-petition in reference to that association and the rights and benefits accruing to William Hennessey by reason of his certificate of membership therein is mere surplusage, and that this cause must be determined the same- as if there had been no such organization as The Miami County Benefit Association, or William Hennessey was never a member thereof, the result must necessarily be the same. While Section 289, as amended, was undoubtedly intended to correct abuses that had flourished under existing burial associations that designated directly in their contracts the undertaker or undertaking concern that should furnish the funeral and funeral outfit for the insured, yet in doing this the legislature sought to make certain that the objects of the statute should not be defeated by any subterfuge or evasion. The statute provides not only that companies and corporations or associations engaged in the business of providing for the payment of funeral, burial or other expenses of deceased members, or certificate holders therein, should not contract to pay, but also that they should not pay the same to any official undertaker, or to any designated undertaker or undertaking concern, or to any particular tradesman or business man. It is further provided that the same restrictions and limitations of contract should apply to all insurance companies writing any other kind of insurance. If this provision of the statute is to obtain, then The Ohio Burial Insurance Company comes as fully within the purview of this section as The Miami County Benefit Association, notwithstanding that the policy issued by the former company provides for the payment of a sum certain upon the death of the insured. This statute prohibits not only a contract on the part of an insurance company to pay, but it also provides that such company “shall not pay the same or its benefits or any part of either to any official undertaker, or to any designated undertaker or undertaking concern.” Any attempted assignment of this policy to any person or company included in the prohibited classes is in direct violation, not only of the letter, but the spirit of the law, and such attempted assignment cannot confer a legal right upon an assignee coming within either of the prohibited classes, to compel payment, nor can such assignment relieve the insurance company from the positive terms of the statute and authorize it to pay the benefits secured by the policy to any one to whom such payment would be otherwise unlawful. In other words, the law is supreme, and no contract between individuals can make it lawful to do that which the statute positively commands shall not be done. This attempted assignment is in direct violation of the terms of the statute, and purports to authorize the insurance company to pay the benefits of this policy to a designated undertaker, the very thing that the statute says shall not be done. So that if this statute is constitutional it is the end of the case.

It is not contended that the statute is unconstitutional in so far’ as it relates to the insurance company. It seems to be conceded, and certainly it is the law, that the insurance company having been granted the right and the franchise of writing contracts of insurance in this state, is subject to the control of the state, not only as to the nature of the business it may do, but also as to the form of contract it may make. In other words, it cannot avail itself of the benefits of this legislation and challenge the constitutionality of the statute as to its. burdens. The real contention on the part of the plaintiff in error is, that this statute, if it does prevent the assignment of this policy of insurance after the same has been issued, to anyone to whom the insured or the beneficiary desires to assign the same, that in that respect it is an unreasonable interference with the right of private contract, and, therefore, unconstitutional. It would be sufficient perhaps to say in answer to this contention that if the statute is constitutional in so far as it seeks to control and regulate insurance companies, that it is also a constitutional enactment with reference to those who deal with the company with knowledge of the law, and thereafter seek by private contract to defeat the provisions of the law. When William Hennessey secured this contract of insurance from the defendant company he knew the limitations and the rights and powers of that company, the character of the contract it could write and the persons to whom it could make payment of the benefits, and he took under this policy just such rights and benefits as the insurance company could grant to him and no more. It was his privilege to accept or reject that contract. He voluntarily accepted it and his payments of premium were made with the knowledge of the limitations of his rights thereunder. If such rights and benefits were limited, it is proper to presume that the premihm was fixed with reference to such limitations. After securing the contract he sought to enlarge his rights' under the same by assigning it .to an individual of a prohibited class. The individual accepting the assignment knew that he was prohibited by the statute from receiving payment of the benefits of that policy. Now, seemingly forgetful of the fact that when William Hennessey received the policy of insurance it had impressed upon its terms by the force and effect of the language of this statute these limitations as .to who might rightfully claim payment thereunder, it is insisted that this policy holder and this assignee have such natural right of private contract that by such contract they can enlarge the operation of the policy of insurance, and thereby set at naught the prohibitions of the statute under which the contract of insurance was issued and accepted. This statute was a part of the contract just as much as if it had been written into the same, and by accepting it William Hennessey became bound by the terms of the statute equally with the insurance company. It follows, therefore, that the statute does not interfere with the right of private contract, but leaves to William Hennessey every right, privilege and authority to deal with this policy of insurance according to the terms and conditions of the policy itself, just as it was when it was handed to him by the insurance company. If there is any limitation on his right to assign the same, that limitation is in the original contract of insurance read in the light of the statute authorizing its issue, and having accepted it subject to such limitations, there is no theory upon which he can now claim further right or privilege than such contract purported to grant him under the terms and provisions of the law controlling the other contracting party. The right of the state to control the insurance business is so well settled that citations of authority are unnecessary. Insurance has grown to be an important factor in our business life, and of such vast proportion that it affects all classes of people and property, and, therefore, it can no longer be doubted but that it is the duty as well as the right of the state to protect not only the private citizen dealing in insurance, but also the companies, corporations or individuals engaged in the business of insurance along legitimate lines, otherwise in the very nature of things such abuses would arise as would destroy the benefits of the business to insurer and insured. Nor is it now important how the law originally regarded these contracts. The statutes of the state now require compliance with certain conditions designed for the security and protection of the public, and, therefore, the right to transact this business is no longer a private right, but a franchise. This question was so fully-considered in the case of State, ex rel., v. Ackerman, 51 Ohio St., 163, that it would be a waste of time and space to review the subject further. In that case this court held that the right to carry on the business of insurance was a privilege or franchise and no longer a matter of natural right. The state is authorized to grant or withhold a franchise, and where it grants the same it has the right to impose terms and conditions that shall control in the exercise of the right so granted. The business transacted in the exercise of such franchise is subject to all the limitations, terms an I conditions imposed by the state, whether such provisions are written into the contract or not, and every individual purchasing insurance is as fully bound by these limitations, terms and conditions as the company issuing the policy. In other words, he can receive no further rights, no further privileges, no further immunities, no further benefits than the insurance company in the exercise of its franchise is authorized to grant.

The provisions and prohibitions of Section 289, Revised Statutes, as amended April 9, 1908, are constitutional and binding alike on insurer and insured. It is, therefore, unnecessary to consider any of the further questions raised in the briefs of defendants in error.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Davis, C. J., Shauck, Johnson and O’Hara, JJ-, concur.