Opinion,
Me. Justice Mitchell.The lease between the parties contains the following clauses:
“ The said parties of the second part.....covenant to pay to the said Hannah Hoeh.....for every ton of clay or ochre taken,.....twenty-five cents.....payable quarterly.....The said party of the second part..... agree to take away, each and every year,.....not less than five hundred tons of said clay or ochre, or pay for the same at the end of each and every year, in default of which the above lease is to be null and void. It is to be understood that if the said parties of the second part,.....during any previous year or years, have taken away more than five hundred tons of said clay or ochre, they shall not pay more tons of clay or ochre than they have taken away during any year, unless the aggregate number of tons amounts to less than five hundred tons per year.
“It is further agreed, that if any of the covenants above mentioned should not be complied with for the term of three *19months, then the above lease is to be null and void, and the said parties of the second part,.....shall have the right of taking down and removing from said premises, any buildings and machinery by them erected and remaining on said premises at the end of said term, providing they do so within three months alter the expiration of said term.”
The principal question in the case is whether the stipulation for termination of the lease for non-payment of the royalty “ at the end of the year,” is a separate agreement which stands by itself, or whether it is included in the general stipulation, in the next clause, for termination of the lease if “ any of the covenants above mentioned should not be complied with for the term of three months.”
The learned judge below held, and rightly, that the two must be read together, and the first included in the second.
The language of the first covenant — “ pay for the same at the end of each and every year, in default of which the above lease is to be null and void ” — taken literally, and by itself, might be construed to impose the forfeiture for failure to pay on the day named, but the context makes it quite clear that such was not the intention of the parties. An examination of the whole clause shows that the amount of rent payable at any particular day is not fixed or ascertainable beforehand. It is to be computed at the rate of twenty-five cents a ton on all the clay mined, btit without any stipulation that any mining shall be done in any particular quarter. The whole five hundred tons might be mined in the first quarter, and the year’s rent would then be dire on the first quarter day. If no more should be mined during the next three quarters, there would be no rent due at the end of the year. On the other hand, if more were mined, the additional royalty would be due therefor, and this could not be determined until the end of the day itself. But this is not all. The stipulation is to pay for five hundred tons each year, whether mined or not, but if a thousand tons should have been mined and paid for last year and none at all this year, still no rent would be due this year, nor until the aggregate should be less than five hundred tons per year for the whole time.
It is thus clear that the rent was not a sum certain, due on the days stated, but varied from time to time, and required a computation, if not a settlement of accounts, not only from *20quarter day to quarter day, but even from year to year. That the parties meant to'impose a forfeiture sharply for failure to pay on the very day a fluctuating sum thus incapable of ascertainment until the day itself, would be sufficiently improbable, even if this clause stood alone. But taken in connection with the very next following clause, which in express terms applies to all the covenants of the lease, including the payment of the rent, it is entirely clear that a margin is intended to be allowed for accidents and delays, and forfeiture is not to be imposed until a default or breach for three months. The two clauses can stand quite harmoniously together with this reading. The first is intended to declare in express terms that payment of the minimum annual rent is a necessary condition to the continuance of the lease, and the second to fix the duration of the breach which shall incur the forfeiture. The learned judge below went a step too far in saying that the rent was not due when the bill was filed. It was due and demandable, and could have been sued for, at the end of the -year, but the forfeiture did not arise until it had been thus due and unpaid for three months.
As this view of the covenants in the lease sustains the judgment upon substantially the same grounds as those taken by the learned judge below, it is not necessary to discuss the other questions, whether this was a case in which a bill would lie, or whether the remedy at law by ejectment was not adequate, and whether a demand for the rent was a prerequisite to complainant’s enforcement of the forfeiture.
Judgment affirmed.