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Ellis v. McCormack

March 4, 1949

ELLIS
v.
MCCORMACK



Clay

CLAY, Commissioner. This action was brought by appellee to recover from appellant the value of coal slack which the latter allegedly converted to his own use and sold. The case was tried before a jury which returned a $750.00 verdict for appellee, half the amount claimed.

In October 1935 appellee's assignor leased from appellant's brother a 25 acre tract of land for the purpose of mining coal thereunder. The lease provided a royalty for all 'lump and nut coal' mined on the premises. Its term was five years, with the right to extend it for the same additional period. The lessee was to operate the mine continuously, or as nearly so as practicable. The lessee was given the right, at the expiration of the lease, to remove steel railings, cars and buildings; and all other equipment was to revert to the lessor. The lease was assigned to appellee, and coal was mined from this property until October 1939. On October 25 appellee sold practically all of his equipment to appellant, reserving in a written memorandum the steel and cars 'unless sold to (appellant) long as he wants to move his stuff'.

There was a slack pile at the opening of the first mine operated by appellee. It remained there until December 1946. At that time appellant sold it for $1500.00, which he states he paid directly to his brother, the owner of the land. It appears that shortly before this sale appellee had tried to persuade appellant to go in partnership with him and dispose of it on an equal shares basis.

On this appeal appellant argues a number of propositions, but we deem it only necessary to consider his right to a peremptory instruction.

As noted, in October 1939 appellee sold to appellant his equipment except the steel in mine No. 2 and his cars. According to the memorandum he also expected to sell these latter items to him. He ceased mining under the lease. He effectively terminated it. No mention was made of the slack pile. His contention that he assigned the lease to appellant is not ...


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