BAMFORD 'V. LlilHIGH Z!NC & IRON CO.
not in harmony with sound principles, nor with the great weight of ad· judged cases on the question here involved, and they cannot, therefore, be recognized and followed. This case has merited and has received at our hands the most careful investigation and consideration, and has been discussed more at large than is usual with the court, because of its importance, not only to the parties directly interested, but also to the public. As the result of that investigation, and the principles herein announced, my conclusion is that so much of the ordinance of 1880 as undertook to confer upon complainant the exclusive use of the streets of Grand Rapids for the period of 15 years, for the purpose oflaying down its wires therein or its poles thereon, etc., was beyond the power and authority of the common council, and therefore void; that complainant cannot, therefore, question the validity of tbeordinance of May 20, 1887, giving to the defendant corporation permission to use the streets of the city for a similar purpose, :Qor has complainant any valid or legal grounds on which to restrain the its works, laying its wires and cables, or placing defendant from its poles and supports for wires and lamps in, upon, and over the streets of said city. I am of the opinion that the preliminary injunction which restrained the defendant temporarily from so doing was improvidently granted, and be dissolved. It is accordingly so ordered, at the costs of the complainant.
'V. LEHIGH ZINC
(OVrcuit Court, 8. D. New York. September 80, 1887.) 1.
MINES AND MINING-LEASE-CONSTRUOTION-ANNUAL RENT.
A lease of a mine and concentrating works was upon a specified royalty per ton for ore mined, and a specified royalty per ton for ore concentrated, payable annually, bilt in case the royalty in anyone year fell below $1,000, then such asum:wa$ to be paid aeto make the annual rent of that year amount to $1,000·. !lela, that the lease intended that payment of the minimum rent 01 $1,000 sh\}uld be made annually, and should not be postponed to the end ot the term. Defendant took a lease of disused concentrating works, and of a disused mine, the history of which was well known to the metallurgists of the vicinity, and to defendant. Defendant was to search for, dig, mine, and carry away ores, and was to pay a royalty per ton for ores mined upon the premises, and a royalty per ton for concentrating the same, and a different royalty for concentrating ores mined elsewhere; but in case the royalty fell below $1,000 in any year, such a sum was to be paid liS to make the rent for that year $1,000. Held, that the case showed that defendant was to pay for the specified term at least $1,000 per annum for the privilege of taking the property and experimenting with it, and that, in an action for rent, a refusal to charge that from the almost entire absence of ore in the mine the consideration of the agreement failed, and plaintiff could not recover, was not error.
FOR OF CONSIDERATION,
SAME-F*LBEREPRESENTATIONS-SILENCE OF COMPLAINING PARTY-PRESUMPTioN.
. In an action for rent upon a lease of a mine, in which defendant set up false representations as to the value of the mine, and of the exi ltence of ore
charge thatdlJfendant's silence in regard to the alleged fraud for a long period before the commencement the action was'evidencetbat. the . fraud had not been oommitted, or that it was fiLr less violent and important than it is represented to be when silence is broken, is not error. '
'In an action for rimtupon a lease of a mine and co.ncentrating works, the exclusion of testimony as' to tbe condition of the works at the date of the lease andithe amount of· monoy pa'td to put them in repair, offered for tbe purpose sh,pwjng d.efendant's .dam,ages ,arising from alleged , regard to mme. IS uDlmportant where the Jury tind that·thete were n<n:lllsrepresentatlOns. An.objection to all ofa,specitied portion of a deposition, on the ground that it is e'ntirelyhearsay, is proyerlyoverruled portion is not derived from hearsay, but from persona knowledge.
At Law. :Motion for a new trial in an action upon a lease for rent. Theplaintifls, Charles Bamford and another, leased to the defendant, by written lease executed by both parties, for a term of 10 years, a dis. usedzinomine and concentrating works, which the plaintifls owned and had wOllked, upon a specified royalty, per ton for ore mined, and a specifiedroyaltyper ton for ore concentrated, payable annually, but, in case the royaltyiri any year fellbelciw $1,000, then such a sum was to be paid as to make the annual rent for that amount to $1,000. The defendant, after pumping out the. water: in the mine, expended considerable money in further fruitless exploration, concluded that the mine was substantially destitute of ore, abandoned work, and did not pay the annual rent. In a suit by the lessors for three years' rent, the defense was their material false representations, made prior to the execution of the lease, as to the value of the mine and the existence of ore therein, upon which representations the lessees relied. This question of fact turned upon the point whether the statements, if any were, made, were representations of existing faots,or were expressions of opinion and belief in regard to a disused mine, the history of which was well known to the defendant, and whether it took the lease as an experiment, the result of which wa known l to be doubtfl,ll. The defEllldant al.so·claimed, as matter of law, that the suit was prematurely brought, and that no action could be maintained, under the lease, for the minimum rent until the end of the term, and that, the cousiderationfor the contract having failed, the plaintiffs could not recover. The jury found for plaintiffs,and defendant moves fora new trial. L. fQr plaintiffs. Sidney Ward,for defendant.
SHIPMAN" J. This is a motion for a new trial in an action at law'llpon a writtelliease to recover rent. 1 will state, with great brevity only, my reasons for a denial ofthe motion. 1. Thellctibn was prematurely brought, because the lease evidently intended that paymeatof the minimum rent of $1,000 should be made annually, and should not be postponed to the end of the term. 2. The question of .the prqpriety of the exclusion of the testimony in regard t6 of the concentrating works at the date of the lense,
LEHIGH ZINC & IRON CO.
and in regard to the amount of money paid to put theni in repair, is unimportant, because the testimony was offered for the purpose of showing the amount of the defendlUlt's damages arising from the alleged misrepresentations of the plaintiffs in regard to the mine, and the jury found that there were no misrepresentations upon which the defendant relied. 3. The defendant objected to all the portion ofthe deposition of Charles Bamford "which related to the condition of the mine," upon the ground that it was entirely hearsay. The objection was.properly overruled, because a portion of the testimony was not derived from hearsay,but from personal knowledge. 4. The charge of the court, respecting inferences from the silence of a defendant, in regard to an alleged fraud, for along period before the commencement of a suit, did not say that such silencedwas a concession or an admission that misrepresentations had not been made" but that it was evidence-that is, some evidence-that the fraud had not been committed. or that it was far less violent and important than it is represented to be when silence is broken. In view of the strong probabilities that, when a lessee is conscious of having been defraUded, he will mention to the lessor the fact, and the injurious consequences which have resulted, if he proposes to resist payment of rent upon that account, the charge was not unjust to the defendant. 5. The requests of the defendant to charge that it was immaterial whether the owner of the mine· knew the incorrectness of his alleged misrepresentations, were complied with. 6. The court properly did not complywith the defendant's requests to in that, from the. absence of, or the almost entire absence of, ore in the mine, the consideration upon which its agreement was based had failed, and the plaintiffs could not recover. There is no implied contract in a lease ofland that it is fitfor the purposes for which it is let, neither is there any implied warranty in a lease of a mine that it contains the mineral which iS$upposedto be in it. In the absence of a special contract, or of IhisrepresentatioJ;lor fraud, or of the injurious and wrongful acts or omissions of the landlord, a tenant of land or unfurnished buildings cannot properly refuse to pay rent on the ground that the land was, or became, unfit for the purposes for which it was taken, or the buildings became untenantable. Sutton v. Temple, 12 Mees. & W. 52·; Hart v. Windsor, Id. 68; Foster v. Peyser, 9 Cush. 242; Dutton v. Gerrish, Id. 89; Olevesv. WiUoughby, 7 Hill, 83; Harlanv. Lehigh OJ., 35 Pa. St. 287; Minor v. Sharon, 112 Mass. 477. These being principles. the defendant does not place its defense exactly. upon the grounds that it had no beneficial occupation of the premises) but it says that the consideration for its agreement has entirely failed. I shall not go into the question whether there is any real difference between these modes of expression, because, from the whole testimony, and from the lease, it appears that the consideration for its agreement did not fail. It took a lease of disused concentrating works, which had cost a large amount of money, and of an old well-known, formerly worked, and then disused. zinc flooded with water, the gen-
-eralhistory of which was well known to the metallurgists of that viciriity. and to the defendant. It was to search for, dig, mine, and carry away -oreSj and was to pay a royalty per ton for concentrating ores mined upon the premises, a ,different royalty for concentrating ores brought from other -estates, and a royalty of $1.50,per ton upon ores mined upon the premises; .but, in case the royalty according to the rates fell below $1,000 in any year, then such a sum should be paid as to make the rent for the year aIDount to $1,000. The whole CaS! shows that it was to pay for the ,specified term at' least $1,000 per annum for the rights or privileges of taking this abandoned mine or property and making a new experiment with it. The motiveforthe contract was the hope of benefit which might arise to the defendant from the vehture. The consideration for the ondertakingto pay at leastthesutn of $1,000 annually, was the use of a mining property and works of large cost and of doubtful value, but which lUightbecome of profit, and it received what it contracted for. ,,7. ;The jury, by their verdict; correotly construed the nature of the representations which Mr. Bamford made. '.The motion for a new trial is denied.
CONSTiTUTIONAL LAW-LAWS REGULATING VESSELs-MARYL,\ND LAW REGULATING O'iBTER TRADE. .
.The Maryland act of 1884; c. '018, prohibits any person from using a vessel for buying, carrying. or o,fllters over the navigable waters of .C:hesf!.peake bay unless he first obtam a llCens.e from the state therefor, condItIOned· upon a ptevious 12'months residence hi the state. and·the payment of a tonn.age tax·. 'Held unconstitution.aI, in so far fiS i.ti.nter.fe.res with the. right. to carryon such business in licensed and enrolledvesse\s of the United States, and because it requires'a payment of tonnage tax without the consent of congressl ' . .
On Petition for Writ of Haheaa The state of Maryla'nd,' by its act of 1884, c. 518, prohibited any person from using a vessel for carrying, buying, or selling oysters over the navigable waters oUhe Chesapeake bay without first having obtained a license so to do, and further prohibited any person from obtaining such license unless he had. been a resident and oitizen of the state for 12 Mnsecutivemonths preceding his application for such license, and also until he paid into the state treasury the sum of three dollars per ton for every ton such vessel might measure. Under the provisions of this law the petitionel', George H. Insley, was arrested on the. navigable waters of, the Chesapeake bay, within the state· of Maryland; .by the officers of the state fishery police force, on the charge of carrying, buying, and selling oysters on the navigable. waters of the Chesapeake bay without first having obtained a license so to do, as required by saidstatutei and was commit-