Opinion by
Porter, J.,By the document upon which this suit is founded the lessor agrees “ to lease and demise unto the said lessee, his heirs and assigns all of the merchantable coal contained in that certain seam known and called the Soult or cannel seam of coal on, under or upon ” the tract of land described. The lessee covenanted to pay an advance on royalties of $500 within four months after the execution of the document, and to pay yearly, after June 1,1890, $250 within sixty days after the expiration of any year until-the year 1895. The $500 payment was made. This suit is brought for the yearly payments falling due in 1890, 1891 and 1892.
The agreement also provides that “ should seam of coal prove faulty in strata or unmerchantable in its quality, so rendering it impracticable to mine or dispose of the same in reasonable quantity, the said lessee shall have the right to abandon the same, with the right to remove all the improvements by said *245lessee, erected on or under said premises, but all advances of royalty paid for coal not mined shall be forfeited to said lessor.”
When this case came before the Supreme Court on appeal from a refusal to take off a nonsuit, 161 Pa. 499, Mr. Justice McCollum said: “ It may be that a condition such as is described in this clause would constitute a defense to an action for the rent, but the burden of showing that it exists lies on the defendant company. It has the right to mine and dispose of the coal in the Soult seam. In' the exercise of this right it may develop a condition which will relieve it from further liability under the lease, but the lessor having parted with his right to mine the leased coal, is not in a position to acquire by his own efforts further information respecting the quality and quantity of it.” The defendants in the trial now under review were required to assume the burden thus held to be upon them.
The construction placed upon the agreement by the court below was the correct one. The defendants were obliged under the lease to pay the agreed rental only in case the Soult seam was found upon the premises with the coal in the cannelized condition which gave the coal of the Soult seam its peculiar value. They submitted testimony to show that while the strata continued on to the property leased, yet the particular kind or quality of coal peculiar to the Soult seam, was absent. On this testimony they went to the jury claiming that they were unable to find upon the property, and had therefore not received, that for which they had agreed to pay. The court below instructed the jury that this was a good defense under the terms of the lease. There was no error in this. A further error assigned by the plaintiff is that the charge of the court was inadequate. We can find no fault in the general charge. The question was largely one of fact, and the testimony was fairly discussed and submitted to the jury.
The answers to certain points of charge are also assigned for error. T^e have examined the evidence, and have scrutinized the points with the answers thereto, with care. The points are ably drawn. The learned trial judge has steered his course among the difficulties presented to him with skill. We cannot find any error that he has committed which would warrant the reversal of the judgment.
Complaint is made that there was not sufficient proof of *246abandonment. Tbe testimony of two witnesses for the defendants was to the effect that abandonment was determined upon and that notice thereof was given in a conversation with Isaac Wilson; that Wilson assented, and that papers were to be drawn. This testimony is met by a contradiction on the part of Wilson, but the verdict must be assumed to have determined that the testimony for the defendant was the more credible, and that there was in fact a notice of abandonment under the lease.
We are of opinion that the court below has not been shown to have committed error. The assignments are therefore dismissed and the judgment affirmed.