The opinion of the court was delivered, by
Thompson, J.No argument has been submitted in support of the first three assignments of error,, for the reason, as we learn from the defendant in error, and not denied, that the testimony of which they were predicated was eventually received; we must, therefore, treat them as abandoned. The matter constituting the 4th assignment, in which it is alleged the learned judge erred in not affirming, is insensible as it stands on the paper-book, and need not be noticed. Possibly some mistake may have occurred in framing this assignment.
The plaintiffs declared for a breach of the covenants in the lease of the Burroughs coal vein in their lands, dated the 20th of March 1862, and to continue to the 1st of June 1865. The principal breach was for the non-payment of rent, resulting from the failure to mine or raise the stipulated number of tons of coal each and every year during the continuance of the lease. To the counts containing the breaches, the defendant pleaded specially eleven distinct pleas, but on the trial withdrew five of them. The matters put in issue by the remaining pleas were,
1st. That owing to the default of the railroad company in not providing sufficient cars the defendant could not get out the stipulated number of tons.
2d. That there being two mines leased by the plaintiffs to the defendants, all the cars that could be obtained for both were used in one, by which a greater rent accrued to the plaintiffs than could have done if both had been worked.
3d. That defendant was only bound to mine so much coal as he could ship by the cars furnished, using due diligence and not incurring unusual expense, and that he did use such diligence, but for want of cars could not ship except at an unusual expense.
4th. That the coal remaining unmined at the end of the term, increased the value of the land beyond the amount demanded for rent.
5th. That the defendant was the plaintiffs’ tenant of an adjoining mine yielding a better rent and which could furnish more coal than the cars to he had could carry; that he was not bound to mine coal excepting such as could be transported, and that by reason of insufficiency of cars, all the miners that could be employed in both mines were- used in one, and if they or any of them had been employed in the other the production and rents would have been diminished; and that he used all efforts to obtain cars.
6th. An additional plea (the 12th), embodying in substance in-one plea the whole of the foregoing and nothing else.
These pleas were all found against the defendant; and we are *334now to determine how far the answers of the judge to the points of the defendant were applicable to the pleas, and whether they were rightly answered when applicable.
The 5th assignment is, that the learned judge refused to charge that a settlement for the rent of the past year, without exacting rent for coal not mined according to the terms of the lease, was a discharge from liability on the covenant to mine a certain number of tons per annum, or in default to mine to pay the rent as if mined. In other words that it was a release pro tanto. The learned judge refused to respond as requested, and we agree he was entirely right in doing so. It was quite too much to affirm as a conclusion of law, that settlements for coal taken out were a discharge of all liability for a breach of the contract to take out a defined number of tons. The covenant to pay rent for the coal mined and taken away, was distinct from the covenant to mine a certain number of tons. Receiving a stipulated sum for the one was not necessarily a release of the other. The 6th assignment of error is in the same category with the error just noticed. What is complained of in these errors was in fact not applicable to either of the pleas.
The 7th assignment is to the refusal of the learned judge to charge as requested in the defendants’ 5th point, which was in substance, that if both the mines leased by the defendant from the plaintiffs were counted in the distribution of cars as one, and there was an insufficiency of cars to convey away the coal from both, and all the coal was mined from one that could be got away by the cars furnished by the railroad company, the defendant was not liable for any rent upon coal not taken out. The argument of the counsel for the plaintiff in error admits that the learned judge did instruct the jury, that if after proper exertions used to obtain cars were made by the defendant, and he failed, he would be excused. But the alleged error in the instruction was that the judge was of opinion, and told the jury, that the defendant had failed in his proof, because more men were not put to work in the Burroughs vein, so as to entitle it to its proportion as an1 independent mine, which it seemed to him it was. The accumulation of men in the one mine did not enlarge the proportion of cars of that mine. Whereas if the other had been actively worked it would have had its proportion of cars without regard to the proportions of the first. This, we understand, was substantially the instruction given, and as the bill of exception shows that the pleas were read to the jury with a reference of the facts applicable to them, we see no error in this treatment of such as were applicable to the 6th plea. The error of the argument is in confining the operations under these distinct leases as if there were but one lease and one coal-mine. Whereas the mines were distinct, although on the same land; and the leases were as distinct as if in different ownerships, having *335different openings, gangways, car-stands and machinery, rendering different amounts of rent and under different covenants in one or more particulars. The learned judge held the defendant hound to make his exertions with reference to the- covenants in the lease of the Burroughs vein, and it was referred to the jury to say whether he did or not. The whole effort of the defendant was to show that he could not get cars enough to carry all the coal from the Barnet mine. It is manifest he could not increase its proportion. His fault lay in not working the Burroughs vein so as to entitle him to its proportion according to the number of miners employed. As the leases were distinct, the lessee was bound to treat his covenants as distinct. He had no right to set up his own judgment and decide that it was better for the plaintiffs that all his forces should be applied to the Barnet mine, because it afforded the greatest facility for taking out coal. That was not his covenant and not a matter for him to determine, and the learned judge, we think, was right in keeping the covenants and performance under these leases entirely separate. These remarks are equally applicable to the 8th and 9th assignments of error.
The 10th and 11th assignments may be considered together. The one is an amplification of the other; or rather the latter is an explanation of the former, and is, “ that if the jury believe that the coal in the mine was worth a greater rent at the termination of the defendant’s lease than the defendant stipulated to pay, then there can be no recovery beyond nominal damages.”
Had this instruction been granted it would have directly sustained the defendant’s 10th plea. We are therefore to determine whether it was error to refuse it or not.
It can hardly be said that this plea was -a ground of defence at law for a breach of the covenants sued on. It does not aver performance in any shape, nor does it show that it was contrary to law that it should be performed. If it be a plea at all, it is an equitable plea or defence. It says to the plaintiff, true it is I entered into the covenants for the breach of which I am sued, and did commit the breaches charged, but it was better for you that I did. You now get more for your coal than I agreed to give you. You are therefore entitled to nominal damages only. Such equity, it is apparent, rests not on any merit in the party claiming it, but arises exclusively in his bad faith in not regarding his covenants. There is no such principle in equity as this. If sanctioned it would be a panacea to hea-1 every broken covenant where performance was stipulated for. The defendant had three alternatives, either of two of which would have relieved him from all damages: namely, the performance of his covenants as they were written, or showing that they were dispensed with by some inability to perform provided against in the lease ; the third to terminate the lease at the end of any year, on giving the notice required, *336and this would have released him from liability for any breach but for the past year. He chose to do neither, and now claims to show that he has done better for the plaintiffs by keeping their coal in place for a higher price. This policy, if taken in time and extended, might have covered the entire coal region, and but a single mine might have been worked. Competition thus set at defiance would undoubtedly be profitable to such a lessee, if, when called on to answer in damages to other lessors for broken covenants, he might successfully defend himself by showing that there were parties who had given, or were willing to give, higher prices for the unmined coal than he had contracted to give. If he could do this he might be fairly entitled to stand acquitted of damages and to have the credit of a discovery !
The defendant covenanted to take out of the Burroughs mine, leased in 1862, without any reference to any other mine or lease, so many tons per year, while the term lasted; and on failure to take them out, to pay for the stipulated number taken or not taken. The number of tons to be taken or paid for was the moving consideration for the lease, and must be so regarded. It was, therefore, a clear case of stipulated damages in case of non-performance or non-performance pro tanto. The parties fixed it as the true measure of damages in case of failure, “ without reference to the extent of the injury that might ensue by non-performance,” and, so far as the covenant is concerned, are bound by it. The uncertainty as to the extent of the injury which may ensue is a criterion by which to determine whether it is a case of liquidated damages or a penalty: Chitty on Oont. 763, 766.
Pearson v. Williams, 26 Wend., is a case somewhat in point. A purchaser of certain city lots, in consideration of a conveyance of them for a certain sum of money, covenanted that he would, by a certain time mentioned, erect thereon two brick houses of specified dimensions, or in default pay on demand to the grantor $4000. It was held that this was a case of liquidated damages, it being evident that the covenant to erect the houses was part consideration for the sale. See also Daken v. Williams, 17 Wend. 447 ; and the same case 22 Id. 201. Perhaps more directly in point with the case before us is Young v. White, 5 Watts 460. There it was a contract to have a canal-boat built and ready for the spring trade — 1st of March — or on a failure to pay $10 a day to the other party. This sum was held to be liquidated damages. The number of days during which there might be a failure was uncertain, hence the parties agreed on damages for each day. So here the number of tons which might be short of the number agreed to be taken out was also uncertain, and like the case of the boats the damages were fixed to meet the deficiency at so much per ton. These cases are hardly distinguishable in principle. But we forbear to enlarge; we are of opinion that the defendant was *337bound by his covenant to pay for the coal not mined so far as he was not -released from the same. Seeing nothing to correct, the judgment is affirmed.