essentially different and more extensive than that set out in the contract of sale.-STOCKTON, J.

'TILEY V. MOYERS.

(43 Pennsylvania State, 404. Supreme Court, 1862.)

Eviction of lessee-Rent-Recoupment. An eviction such as will suspend rent is an actual expulsion of the lessee out of all or some part of the demised premises; the rent already accrued and overdue is not forfeited by the eviction, but in an action for such rent, the tenant may defalk the damages caused by it.

Lease of coal-bank equivalent to sale of coal. A demise of a coal-bank for a term of years, in which the rent reserved is a fixed price per bushel for the coal to be taken from the bank, amounts to a sale of so many bushels as the tenant shall take during the term, for the price fixed in the lease.

2 Latent ambiguity solved by jury. Where the lease described what was let by the lessors as their "coal-bank and the appurtenances thereunto belonging," and did not otherwise describe the premises leased, nor the boundaries, in an action for the rent reserved, in which eviction is set up as a defense, it is for the jury and not for the court to say what was the extent of the demise, it being rather a latent ambiguity to be· solved, than an instrument of writing to be construed.

Lease-Implied covenant for quiet possession-Rent not suspended by eviction. Where it was a disputed point as to how much was leased, the demise being of a "coal-bank and the appurtenances thereunto belonging," and the lessor had had undisputed possession of one coal opening, if one only had been leased, the entry of the lessors, or others under them, upon other parts of the tract, would not be an eviction, and the lessee would be bound to pay for the coal taken by him from that opening. But if the grant was co-extensive with the coal veins of the whole tract, and the lessors, without interrupting the lessees' actual mining operations, entered and took coal from the tract demised, they were guilty of a breach of the implied covenant for quiet possession, and the lessee could set off the damages resulting therefrom against the claim for rent accrued under the lease. Such an eviction, however, would not suspend the rent, where it has not been reserved as an equivalent for the possession of the tract, but for the coal actually taken therefrom.

Recoupment by lessees for ejectment and estrepement. Where eject

ment had been brought by the lessors to try the question of forfeiture, under a provision of the lease which forbade the tenant to let the mine stand idle for a year, in which they failed, damages therefor could not See Moyers v. Tiley, 32 Pa. St. 267; Post LEASE. 2 Compare Kamphouse v. Gaffner, 2 M. R. 258.

be allowed by the jury in an action for the rent, but for the estrepement brought by them, which interrupted mining operations, damages were properly allowed and assessed by the jury under the charge of the court. Cross-examination. Where, upon the trial, the commissioner appointed by agreement to report the quantity of coal mined by the defendant, had prcduced and identified his report, having been called for that purpose only, he could have been cross-examined by the defendant as to its identity, but not as to the basis on which it was made; to obtain evidence of the contents of the paper, the defendant should have called the witness in chief.

Error to the Common Pleas of Cambria County.

These were actions of covenant, five in number, brought in the court below to March, June, September and December terms, by Michael Moyers and Elizabeth Moyers for use, etc., against William Tiley, Sr.

The articles of agreement on which suit was brought, contained among others the following covenant:

"The said Moyers, of the first part, doth agree to grant, lease and demise unto the said Tiley their coal-bank and the appurtenances thereunto belonging, together with the privi lege of timber for use of coal-bank for and during the term and space of ten years from the 1st day of March, 1852, and to continue until fully complete and ended. In consideration. of which, the said William Tiley, Sr., doth bind himself well and truly to put the said coal-bank in good working order for the rent of the first year, and to pay for the second and third year one quarter of a cent per bushel for each and every bushel of coal taken from the said bank, and for the remaining seven years one half cent per bushel for each and every bushel of coal; payment to be made quarterly."

Some time after the date of the agreement, Tiley commenced taking coal from the bank leased, and except when he was interrupted in his operations by certain writs of estrepement issued in ejectments brought by the lessors, continued to do so, and these actions were brought to recover for the coal taken by the defendant under the agreement, and at the stipulated rate or price during the periods covered by the declarations filed in the several suits.

The first action claimed for the amount of coal taken between the 1st of March, 1853 (the date at which the defend

ant was to begin to count), until the 1st of December, 1858, five years and nine months.

The second action claimed for the coal taken from the 1st December, 1858, until 1st March, 1859, three months.

The third action claimed for the coal taken from the 1st March, 1859, until 1st June, 1859, three months.

The fourth action claimed for the coal taken from the 1st June, 1859, until the 1st September, 1859.

And the fifth section claimed for the coal mined and taken from the 1st September, 1859, until the 1st December, 1859.

By agreement of the parties the issues in all cases were tried together, and the evidence applicable to each and all of them heard together; and it was also agreed that any amount ascertained to be due to the plaintiffs, should be found in the last action, and the costs of the other actions should follow the judgment in that one.

To sustain the issues on their part the plaintiffs gave in evidence the agreement, and then showed by several witnesses that Tiley commenced mining upon the premises embraced in the lease shortly after its date, and continued mining there since. They followed this with the evidence from the books of the defendant (ascertained and reported by John S. Rhey, Esq., a commissioner appointed by agreement for that purpose), that he shipped and sold between the 1st of March, 1853, and the 1st of September, 1859 (the period covered by the claims in all the actions), coal, 76,940 bushels; coke, 42,271 bushels.

The plaintiffs following this with the testimony of James Farron and John A. Lemon, that the average yield of coal in coke is "bushel for bushel," claimed for this amount at the rate stipulated in the agreement, with interest.

The defense to the claim was twofold: first, that the defendant was evicted from the premises leased, during the term which, it is alleged, suspended the rent and precluded any recovery after that time; and, secondly, that if this were not so, it was shown in point of fact that a large portion of the coal claimed for was not taken from the Moyers land, and further, that the defendant, if his legal defense should be overruled, was, in any event, entitled to a deduction as compensation in damages

for omissions and failures of the plaintiffs to perform their

Covenant.

The eviction was alleged to have occurred in two ways: first, by Michael Moyers himself, and afterward by John A. Lemon under his authority, entering upon the Moyers land to mine coal, and mining coal upon it during the term; and secondly, by bringing ejectments and issuing estrepements, and thus interfering with him injuriously in the enjoyment of his rights under the lease. It was claimed that these acts amounted to evictions which suspended the rent.

As to the entry of Moyers and John A. Lemon to mine, there was a disputed question of fact, whether it was upon that part of the Moyers land contemplated by the parties to the lease and embraced in it.

On the trial the plaintiffs called John S. Rhey, who had been appointed by agreement of parties to ascertain the amount of coal shipped by William Tiley from March 12, 1853, to December, 1858, and offered his report in evidence.

This was objected to by defendant because it did not show from what bank or banks the coal was taken; and he asked permission to cross-examine the witness as to how the report was made up. The court below admitted the report in evidence and refused to allow the cross-examination as to the manner of making it up.

The court below (TAYLOR, P. J.), after stating the material facts of the case, and the points on which the defense rested, charged the jury as follows:

"As to the entry of Moyers and John A. Lemon to mine, there is a disputed question of fact whether it was upon that part of the Moyers land contemplated by the parties to the lease, and embraced in it. In view, however, of the peculiar terms of this agreement, and the evidence of what was done under it, we are of opinion that this entry, assuming it to have been on that part of the Moyers land in contemplation of the parties at the execution of the agreement, did not amount to an eviction such as would take away the right of the plaintiffs to claim for coal actually taken by the defendant, most of it subsequently, at a stipulated rate per bushel. It is our opinion, as the result of the hasty examination we have been compelled to give this point, that the reason of the rule

that the entry of the landlord upon any part of the demised premises during the term suspends the rent entirely, and precludes the right of recovery altogether, does not here apply; and that, assuming the question of fact to be with the defendant, this case is to be viewed and treated as falling in with the exceptions to the rule."

In commenting upon the legal effects of the writs of estrepement issued by the lessors, the learned judge said, "But for all the coal actually mined and taken by the defendant before the estrepements issued, or after they had been dissolved. or while and after Moyers and Lemon were operating on another part of the Moyers land, the plaintiffs have a right to claim, subject to a deduction in favor of the defendant, as compensation for any loss or damage sustained by him in consequence of any violations or non-performance of the covenants of the plaintiffs contained in the lease. We so instruct you, as the result of the best examination we have been able to give to the question; and in thus instructing you, we feel that we are submitting the case upon its substantial merits; for why should not Mr. Tiley pay for the coal which he actually got, if, on the other hand he is fully and fairly compensated for any loss or injury which the evidence shows him to have sustained by reason of the improper interference of the plaintiffs with his operations, or their failure to comply with their covenants?

Under the head of the inquiry as to what deduction the defendant would be entitled to from the amount claimed by the plaintiffs upon their evidence, after instructing them to deduct the $780, recovered by Jeremiah McGonigle for coal taken out of what was called the "eleven acres," the court added, "You will deduct further from that amount such sum as will fully and fairly compensate the defendant for the interruptions interposed by the estrepements issued by the plaintiffs. We believe it is not alleged that the entry and operations of Michael Moyers and John A. Lemon resulted in any actual damage. The estrepements issued in the ejectments, however, did; to what extent and what the injury was to the defendant, and what sum will compensate him therefor, you will determine from all the evidence." "The defendant has also given evidence to show the expenses, etc., to