Watson against O'Hern, 6 Watts 362

The opinion of the Court was delivered by Sergeant, J. It is contended that by this instrument of writing the plaintiff granted and the defendants obtained nothing more than a privilege to take stone from the quarry, which they might or might not avail themselves of at pleasure, and that they were not bound to take out any stone except what the plaintiff should contract for, agreeably to the stipulation in his favour.

I am disposed to think, however, that something more passed to the defendants than such a right, and that the defendants obtained, under this instrument, the exclusive right to the use, occupation and enjoyment of the demised premises during the term. The plaintiff certainly could not afterwards have granted to other persons a privilege, as it is termed, or right to enter and quarry the stone. The defendants might well have complained of such an attempt, and might have sustained trespass against any person exercising the right thus claimed.

If the right of the defendants were not exclusive, it might be rendered, in a great measure, valueless by the plaintiff’s acts. It appears to me to be exclusive, conferring on the defendants the sole right, making them owners during the term, constituting, in legal contemplation, a lease to them of the demised premises, with the relations and liabilities between the parties, of landlord and tenant. In the instrument itself different words are used to express the nature of the contract. In one part, the premises, it is said, are to be for the sole use and under the control of the defendants during the term.

If they fulfil the conditions, they are to have “ a new lease of the quarry, in preference to any new applicant.” Walker’s

part is in one place termed a privilege, and yet it is scrupulously excepted. In another

part it is called his bargain in the quarry, and also his contract. It is an established rule of law, that, whatever words are sufficient to explain the intent of the parties, that the one should divest himself of the property and the other come into it for a determinate time, whether they run in the form of a license, covenant or agreement, will, in construction of law, amount to a lease as effectually as if the most proper and pertinent words were made use of for that purpose. 4 Bac. Abr. 161, tit. Leases, K. A license to inhabit amounts to a lease. Ibid.; 11 Mod. 42; 1 Ld. Raym. 404.

A license to enjoy a house or land from such a time to such a time, is a lease, and ought to be pleaded as such, though it may be pleaded as a license. Ibid.; 2 Salk. 223. Words in an agreement that A shall hold and enjoy, if not accompanied by restraining words, operate as words of present demise. 5 Term, Rep. 163; Cro. Jac. 172; 2 Mod. 80. If a grant be made of a boilery of salt, the land passes; for that is the whole profit. Co. Lit. 46; Woodf. Land. & Ten. 5,7,8.

The whole profit of a quarry consists in the right of taking out the stone, and by a grant of all that right or privilege the land passes, in the same maimer as land passes by a grant of all the rents and profits. Then it is clear the parties contemplated that the quarry should be worked by the defendants to some extent, and not lie idle and unproductive to the landlord: and that extent is declared to be so much stone as the defendants should be able to find use for.

They are described as stonecutters, and in the course of their trade the .parties must have presumed they would find occasion for a supply of more or less of the stone. The exact amount they would be able to dispose of could not be ascertained beforehand, because it must depend on the growth of the city and neighbourhood and the consequent demand for the material. But that there would be no demand at all was not to be supposed, nor did the defendants attempt to show that to be the case.

They were, therefore, free from any obligation to quarry stone from the premises, except so much as they should be able to use, or, in other words, find demand for in their business. It would surely be a violation of the meaning and design of the lease, if they should leave the quarry entirely idle, either to work some other quarry, or for any reason short of what would legally excuse them. There is abundant evidence in the language of the lease to show that the parties contemplated the quarry should be worked. The exception of the

part leased to Walker; the adjustment of the rent according to the measure of the stone taken out; the clause relating to the place of deposit of the stripping; the agreement to furnish orders on the proprietors of buildings for the plaintiff’s proportion within fifteen days; the restriction of injury to the plaintiff’s pasture and fences, all contemplate a working of the quarry. The exact extent is ascertained only in one event, and that was,-if the defendants required Walker’s part, and then they bind themselves to keep four teams constantly at work during nine months of the year.

The clause by which the defendants covenant to fulfil contracts to be made by the plaintiff, seems to be only an additional obligation on the defendants, and not to comprehend all that they were bound to' do. Such a construction is irreconcilable with the tenor of the agreement, especially with- the clause by which the defendants stipulate to furnish to the plaintiff orders on the proprietors of buildings for his amount of claim on each contract, which evidently refers to contracts made by the defendants.

If the defendants had any excuse, legal or equitable, from the responsibility thus assumed by their agreement, it lay upon them to show it. The plaintiff’ was not bound to prove the extent of their, capacity to fulfil the contract. The lease presupposes they would work the quarry, and gives them the entire control over the premises; and being themselves acquainted with their own business and concerns, they were best able to show the extent to which they were able to work it; or if not worked at all, the reasons for their inability.

Not having done so, it was for the jury to give such damages as they might deem a compensation for the loss of rent. There is, therefore, no error in the charge of the court on this subject. Nor is the third error sustained. This action is for damages for nonpayment of rent, and a former recovery for one part of the term does not preclude a suit for other damages sustained by the lessee’s nonpayment of rent during another period of the term for which he was liable. Though the instrument sued on is the same, the causes of action are different. Judgment affirmed.