C. L. Cole, of Atlantic City, for appellants. | the defendant the interest of the deceased Bourgeois & Coulomb, of Atlantic City, for partner in the business for the sum of $185,respondents. 000. The bill is brought to set aside such sale and conveyance.

(Supreme Court of New Hampshire, Hills- quacy of the consideration paid by the de

By reason of the fiduciary relation existing between the surviving partner and the rep-dismissing the bill, the plaintiffs excepted. resentatives of the deceased partner, when his contract of purchase of decedent's interest is assailed, he must show the transaction was fair and reasonable in every respect.

Exceptions from Superior Court, Hills- tion of the surviving partner, when such a borough County; Marble, Judge.

(115 A.)

Atl. 225, 64 L. R. A. 811, would not aid the defendant. The legal situation is clearly stated in an opinion from which quotation has already been made.

sum as would, with the amount already paid, equal the fair value of the property conveyed without rescinding the sale and requiring an accounting for profits.

Whether such a decree will do justice here will be determined upon all the facts when found. The vital question is yet undeter

[4] At the close of his oral argument counsel for the defendant called attention to section 8, c. 121, Pub. St., under which the executrix acted in making the settlement and conveyance attacked. The section reads as follows:

"Upon the death of a member of a partnership, the entire legal title to all the partnership property passes to the surviving partner, and he becomes invested with the exclusive mined. Did $185,000, under all the circumright to its possession, control, and disposition, stances, including the wish of the plaintiffs but for certain purposes. His obligations with to close the transaction, fairly represent the respect thereto are threefold: (1) To convert value obtained by the defendant? the same into money; (2) to pay the debts of the partnership; and (3) to distribute the surplus between himself and the estate of the deceased partner. In the discharge of these obligations, the decided cases and the text-writers generally maintain that, while he is not a trustee properly so called, he is nevertheless a trustee in a certain sense, and is subject to the rules and principles of equity which pertain to persons who sustain a fiduciary relation; that the creditors and the representative of the deceased partner have the right to go into a court of equity and ask for the proper fulfillment of these obligations; and that while the surviving partner and the representative of the deceased partner are not interdicted from contracting with each other with respect to the partnership estate, yet their contracts-and especially the purchase by the surviving partner of the interest of the deceased partner, on account of generally 'dangerous inequality of knowledge with respect to the subject-matter of the sale' -are regarded with suspicion, will be jealously scrutinized, and will only be allowed to stand, if assailed, where they appear to have been reasonable, fair, and just." Tennant v. Dunlop, 97 Va. 234, 241, 243, 33 S. E. 620, 622.

[3] It is unnecessary to again go over the evidence which has been fully discussed. It seems sufficient to say that, upon a careful re-examination of the question before presented and the authorities upon which the result then reached was based, the conclusion then announced is reaffirmed. The or

der of dismissal is erroneous because the de fendant had not sustained the burden of establishing that the transaction attacked was "fair and reasonable in every respect." It is difficult to understand how such a conclusion can be reached without ascertaining whether a fair price was paid. Moreover,

the executrix was herself a trustee. Her fraud or negligence in the sale might make her personally liable, but would not free the defendant from the obligations of the fiduciary position which he occupied with reference to all owners of the deceased partner's interest. There should be an investigation of the question whether the price paid was fair and reasonable under all the circumstances. Evidentiary findings are reported which tend to some extent to establish that it was, but the fact is not found. In Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620, and Welbourn v. Kleinle, 92 Md. 114, 48 Atl. 81, the consideration for such a sale having been found inadequate, it was held justice would

"Executors and administrators shall have power at any time, the assent of the judge of probate in writing first having been obtained, to adjust, by arbitration or compromise, the affairs of such partnership, with the surviving partner or partners, and to convey to the surviving partner or partners the interest of the deceased in the property of the partnership, and fully discharge him or them from all liabilities in respect to the same."

Under this section the probate court made a decree authorizing the sale. The sale therefore cannot be set aside because of lack of authority in the executrix to make it. She had power to act as she would have had under a license to sell real or personal estate. P. S. c. 169, §§ 5, 15. But adjudication of power to contract is not an adjudication as to the manner in which the power was exer

cised. If it be assumed the details of the proposed transaction were laid before the probate court and considered in making the decree, such decree is not a judgment binding as between the executrix and surviving partner as to the validity of the contract. The finality of a judgment rests upon the proposi

tion:

"That a matter once litigated and determined before a court of competent jurisdiction shall not be again litigated before any court." MacDonald v. Railway, 71 N. H. 448, 452, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550; Van Fleet, Coll. Att. § 17.

The matter in issue which is determined by a judgment is understood to be that matter upon which the plaintiff proceeds by his action and the defendant controverts by his pleadings. King v. Chase, 15 N. H. 9, 41 Am. Dec. 675. If it be assumed that the executrix and the surviving partner, having agreed upon the terms of settlement and conveyance between them, presented them to the probate court for approval, whatever the issue might be between them and other parties who might have appeared to object and did not (notice having been given if required [P. S. c. 185, § 3]), there was no issue as to the fairness of the transaction for trial between the parties.

fairness. There were not and could not be ed, evidence held sufficient for an instruction litigants on this question. Both necessarily that defendant remained in possession negliwere on the same side. As this issue has not gently after the alleged termination of the lease. been litigated between these parties, it is now open.

The order dismissing the bill is set aside.
According to the provisions of the transfer
the case is remanded for further hearing.
All concurred.

6. Mines and minerals 50-Defendant holding over after notice of termination of lease held evidence of negligence by remaining in possession.

In action for ejectment and damages for mining coal after notice of covenant breached, the withholding of the leased property from the lessor after the alleged termination of the fendant remained in possession negligently.

STRATHMORE COAL MINING CO. v. BAY- lease was evidence tending to show that de

ARD COAL & COKE CO.
(No. 81.)

(Court of Appeals of Maryland. June 29, 1921.
Order of Court Modifying Opinion
Dec. 2, 1921.)

Appeal from Circuit, Court, Garrett County; Frank G. Wagaman, Judge.

Ejectment by the Bayard Coal & Coke 1. Mines and minerals 50-Evidence of de- Company against the Strathmore Coal Minfault in lease sufficient for jury. ing Company and others. From a judgment for plaintiff, the named defendant appeals. Reversed, and new trial awarded.

In action for ejectment, evidence of defendant's default in the terms of the lease of a coal mine held sufficient for jury. 2. Mines and minerals

50-Measure of damages for mining coal after notice of covenant of lease breached stated.

The damages recoverable by Code Pub. Gen. Laws, art. 75, § 71, providing that plaintiff in ejectment cases shall recover the mesne profits and damages sustained by him and caused by the ejectment and detention, are coextensive with the right to recover in trespass, and hence in a suit in ejectment and for damages after notice of the breach of a covenant of the lease of a coal mine, which is based on the taking of coal as the result of negligence, so the rule as to damages in absence of negligence in section 92 did not apply, plaintiff was entitled to recover such sum per ton as the jury found the coal was worth when first severed and before it was put on mine cars, without deducting the expense of severing.

3. Mines and minerals 50-Burden on lessor

suing in ejectment and for damages to prove value of coal at place of severance.

In an action by lessor for ejectment and damages for mining coal after notice of covenant breached, the burden was on plaintiff to prove the value of the coal at the place of sever

ance.

4. Mines and minerals 50-Evidence of price of coal at surface held too indefinite to establish value from which cost of removal to sur-. face is deducted.

In an action by lessor for ejectment and damages for mining coal after notice of covenant breached, in which the measure of damages was the value of the coal when first severed, evidence held too indefinite to establish the value at the surface, from which the cost of removal from the place of severance is to be deducted in ascertaining its value at the point of sever

ance.

5. Mines and minerals 50-Evidence sufficient for instruction that defendant remained in possession negligently after termination of lease.

In an action in ejectment and for damages for mining coal after notice of covenant breach

Argued before BOYD, C. J., and THOMAS, PATTISON, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Ernest Ray Jones, of Oakland, and Albert A. Doub, of Cumberland (Edward H. Sincell, of Oakland, on the brief), for appellant.

Wm. Henry White, of Washington, D. C., and George Henderson, of Cumberland (Asa T. Matthews, of Oakland, on the brief), for appellee.

PATTISON, J. The appeal in this case is from a judgment recovered by the appellee, the Bayard Coal & Coke Company, a corporation, against the appellant, the Strathmore Coal Mining Company, likewise a

corporation, in an action of ejectment brought by the former against the latter. On the 9th day of December, 1915, the Bayard Coal & Coke Company leased and demised unto John W. Galloway and William A. Price, "their successors and assigns, all the merchantable coal in and upon all that certain piece, parcel, or tract of land, situate, lying, and being in district No. 8, in Garrett county, Md.," consisting of a number of lots, therein fully described and particularly designated by numbers, "for the term of 20 years," commencing with the date of the execution of said lease, "with the privilege of renewal for a similar additional period, unless all the merchantable coal in the said tracts of land above described shall sooner be exhausted or taken therefrom," in which event the lease was to terminate.

The lessees, under the term of said lease, were to pay to the lessor, on or before the 25th of each month, "the rent or royalty of 5 cents for each and every ton of coal of 2,240 pounds weight mined, dug, and carried away from said tracts of land above described, or consumed thereon, or manufactured thereon, in the other products." In addi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(115 A.)

tion thereto, the lessees were to pay to the lessor "one-half of the taxes, national, state, and local," which might "be laid, levied, or assessed upon the tracts of land" described in said lease after January 1, 1916, and all the taxes upon the personal property, "when and as soon as the same shall become due and payable," and the lessees were to exhibit receipts therefor on the 1st day of January each and every year during the continuance of the lease.

Price and the Strathmore Coal Mining Company, for the reason that they had defaulted in the terms of the lease dated December 9, 1915, and that the said D. A. Arnold and George S. Rees are further authorized to enter suit or take such proceedings as they may deem necessary to again obtain possession of the property covered by, said lease."

Upon the authority of such resolution the following notice, dated as of August 31, 1918, addressed to John W. Galloway, William A. Price, and the Strathmore Coal Mining Company, was prepared and signed by the Bayard Coal & Coke Company, through its vice president, D. A. Arnold:

The lease further provided that"The said rents or royalty shall be ascertained as follows: On or before the 25th day of each month the said lessees shall exhibit to the said lessor a copy of the statement from the agent "Gentlemen: Pursuant to a resolution passed or agents of the railroad company transporting the coal, a statement showing the number by the board of directors of the Bayard Coal & of pounds of coal shipped by said lessees during the laws of the state of West Virginia, at a Coke Company, a corporation organized under the preceding month and taken from said lands above described, and if any of the said coal regularly called meeting held at the office of the taken from the said lands is stored, sold, or dis- company, at Keyser, West Virginia, on the posed of by the lessees at the mines, plant, tip- 6th day of June, 1918, at which the entire memple, or any other part or portion of the les-bers of the board were present, the undersigned sees' operation or elsewhere, and it is not ship-directed to give you the following notice. was unanimously authorized, empowered, and ped away by the lessees, or is consumed or manufactured on the said lands in the other products, or it is so that a record of the amount of coal mined by the lessees cannot be secured by the railroad company, then in each and every ment of the coal so mined, giving the lessor complete information as to the quantity of coal so mined from the said lands during the pre

case the lessees shall furnish the lessor a state

vious month."

The lease contains the further provision that should the lessees or their assigns default in the performance of any of the stipulations, covenants, or agreements therein, that were to be performed by them or their assigns, and such default continued for a period of three months

"the lessor, its successors or assigns (having given 30 days' notice of its intention to do so, by a writing signed by the lessor and directed to the lessees, or their assigns), may, at its option, declare this lease or agreement terminated or ended, and the rights or privileges of the said lessees, or their assigns, hereunder shall be forfeited, and this lease or agreement, so far as it gives such rights or privileges to said lessor, shall become null and void, and the lessor, or its assigns, may enter and take possession of the demised premises and all the improvements thereon, and remove the lessees and all persons, firms, and corporations claiming under them."

The lessees took possession of the property rights acquired by them under the lease, but in about three months thereafter assigned the lease to the appellant corporation.

On the 6th day of June, 1918, the Bayard Coal & Coke Company passed the following resolution:

"Resolved: That D. A. Arnold, the vice president of the company, be, and he is hereby, authorized to serve a new legal notice to quit upon Messrs. John W. Galloway and William A.

"On behalf of the said Bayard Coal & Coke Company, I hereby give you thirty (30) days' notice, expiring thirty days from the date of the the possession of the property conveyed to John receipt of this notice, to quit and deliver up W. Galloway and William A. Price under a certain lease, dated the 9th day of December, 1915, of certain lands in Garrett county, state of Maryland, in district No. 8, being more particularly described in said lease. You are also given a similar notice to deliver up all of the personal property now upon the premises.

"This notice to quit is given under the terms of the lease contained in the tenth and eleventh paragraphs thereon, for the reason that there has been default on the part of the lessees and their assigns in the performance of the stipulations, covenants, and agreements contained in paragraphs four (4), five (5), six (6), seven (7), eight (8), ten (10), and twelve (12) of said lease.

"A certified copy of the resolution of the board of directors is attached hereto and marked Exhibit A and asked to be made a part hereof. Bayard Coal & Coke Company, [Signed] D. A. Arnold, Vice President."

The breaches referred to in said notice were: (1) The failure of the appellant to render monthly statements from the agents of the railroad company showing the number of pounds of coal shipped over its road by the lessees during each preceding month, as provided by section 4; (2) its failure to pay the royalties as and at the times provided in the fifth paragraph; (3) its failure to work the mines as covenanted and stipulated in the sixth paragraph; (4) its failure to comply with the federal and state laws regulating the working of mines and providing for the safety of persons employed therein; (5) its failure to provide maps as required by the eighth paragraph of the lease; (6) those relating to the appellee's right of entry in case of default; (7) the appellant's

failure to insure the property, as provided for in the twelfth paragraph of the lease.

The lessee, it seems, failed and refused to comply with the direction contained in the notice of the lessor to it, but remained in possession of the leased premises, and was in possession of the same at the time this suit was instituted on the 15th day of November, 1919.

It appears from the record that a suit or action similar to the one here brought was instituted by the appellee against the appellant, in the United States District Court for the district of Maryland, to again acquire the property rights leased by it to the assignors of the defendant, and, as we understand, because of the default of the defendant therein, the appellant here, in not The case was tried by the court sitting as performing the stipulations and covenants a jury and its verdict was "for the plain-contained in said lease that were to be pertiff for the coal and mining rights appur- formed by it, as assignee of Price and Gallotenant thereto as in the declaration, and way, under the terms of said lease, and that $10,000 damages against the Strathmore Coal such proceeding terminated adversely to the Mining Company, and for the defendants, appellee here, and it was conceded in the William A Price and John W. Galloway," trial of this case in the court below that by who had been sued with the Strathmore said decision the appellee was estopped in Coal Mining Company. In the trial of the these proceedings from claiming any defaults case four exceptions were taken to the rul- occurring earlier than December, 1917. The ings of the court, one upon the prayers and said notice, as it appears from the record, the others to the court's rulings upon the was served upon or received by the presiadmission of evidence. dent of the Strathmore Coal Mining Company on September 9, 1918.

The plaintiff asked for eight and the defendants for ten instructions. All the plaintiff's prayers as offered were rejected, though its fifth prayer, after modification by the court, was granted; and of the defendants' prayers only their fifth and twelfth were granted; the others were all refused. The court, however, granted an instruction called by it "the court's statement of the law of the case."

There were special exceptions filed to the court's instruction, as well as to the plaintiff's fifth prayer, as modified by the court. A motion was also made by the defendants, at the conclusion of the evidence," to strike from the record the testimony (admitted subject to exceptions) of W. A. Price and Robert Stallings, called as witnesses for the plaintiff, tending to prove the market and government prices of coal during the years 1918, 1919, and 1920.

The court refused to strike out this testimony, but from such ruling no separate exception was taken, which, it seems, to say the least, should have been done, but the same was embraced in the exception to the rulings upon the prayers, in which exception the defendants excepted to the action of the court in granting the plaintiff's fifth prayer and in rejecting the defendants' first, second, third, fourth, sixth, eighth, ninth, tenth, and eleventh prayers, and in overruling defendants' special exceptions to the "court's statement of the law of the case," and to plaintiff's fifth prayer, and in adopting its own instructions.

The defendants' twelfth prayer directed a verdict for the defendants William A. Price and John W. Galloway, and their fifth prayer withdrew from the consideration of the court, sitting as a jury, all alleged breaches of the defendants, or either of them, to furnish maps or plats of the mines, or to pay the taxes on the property covenanted by

[1] The first communication between the parties to this suit, so far as the record discloses, after the decision of the case in the United States District Court, was in the form of a letter dated the 7th day of February, 1918, from Samuel M. Llera, president of the Strathmore Coal Mining Company, to G. S. Rees, treasurer of the Bayard Coal & Coke Company, Washington, D. C., offered through Rees, while upon the stand as a witness for the company. In this letter was inclosed a map of the mine, showing its condition when taken over by the Strathmore Coal Mining Company, and also a survey showing the operation of the mine in 1917, and in this letter the appellee company was asked to send to the appellant the amount of all taxes owing upon the leased property that were payable by it under the terms of the lease. A reply was made to this letter on February 20th, in which Rees asked for a complete map of the mines in accordance with the terms of the lease to Price and Galloway, but nothing was said in reply to Llera's request for information as to the amount of taxes owing by his com

pany.

The next letter was from Llera to Rees, dated February 23d, inclosing check for $57.35 royalty 1,147 tons of coal mined in January. Rees acknowledged the receipt of the check by a letter dated February 28th, in which he said:

"We wish you would look at section 4 of the lease which you claim title, and please send statement as required under the said section."

The statement mentioned in said section, and the one to which the writer referred, was the one from the railroad company showing amount of coal shipped over its road for the time named in appellant's letter.

On February 28th Llera wrote Rees, in