sideration inducing the lessors to "demise, der consideration in Lehigh & Wilkes-Barre lease and to mine let" their land was the following covenant: "The lessee will pay to said lessors in monthly installments for so much coal as they may mine during the year 1898 at the rates hereinafter named$3,000.00 for the balance of 1898; $6,000.00 for the year 1899; $6,000.00 for each and every year thereafter until all the coal is exhausted, or this lease is determined in monthly installments payable on the 15th day of each month for the proportion of mine rent due for the preceding month. And in consideration of the payment of said mine rent the said lessee shall be entitled to mine and move each year from the demised premises so many tons of coal of 2,240 lbs. each as multiplied by twenty-five cents per ton will be the equivalent of mine rent for such year; and for all coal mined in any year in excess hereof the said lessee shall pay at the rate of twenty-five cents per ton of 2,240 lbs. each in monthly installments as aforesaid." There is not another line in the lease upon the subject of how much the lessee is to pay, how or when he is to pay, how much coal he is to mine, or when he is to mine it, and no other clause is therefore to be read in determining whether he must pay the minimum royaity provided for in the lease for 1898 and 1899 without regard to what he may have paid for excess coal mined in subsequent years. In construing the lease as to this we are confined to the portion above quoted. Though the court below spoke of its construction of the whole lease, there is nothing to be found in the remainder of it relating to the question before us. The lessee agreed unconditionally to pay in monthly installments, on the 15th of each month, $3,000 for the remaining portion of the year 1898, $6,000 for 1899, and the same sum for each succeeding year. This is an agreement to pay a fixed sum at a fixed time, during a fixed period, for a certain privilege. That privilege is to occupy the land of the lessors and mine and remove therefrom, during each year of the fixed period, a certain amount of coal-12,000 tons of 2,240 lbs. during the remaining portion of the year 1898, and 24,000 tons during each of the remaining years of the lease. For all coal mined in 1898 in excess of 12,000 tons, and for all mined in any subsequent year in excess of 24,000 tons, the lessee is to pay 25 cents per ton. Whether the privilege to mine a certain amount of coal, in consideration of the payment of an annual royalty or rent, is exercised or not, the covenant of the lessee is to pay a fixed sum for the privilege. If the amount of coal which the lessee is permitted to mine in each year is not mined, there is no stipulation for a proportionate abatement of the annual royalty, nor is a privilege given to him to recoup himself, after having paid such royalty, by mining the deficiency in a subsequent year without paying there Coal Company v. Wright, 177 Pa. 387, 35 Atl. 919, Lehigh Valley Coal Company v. Everhart, 206 Pa. 118, 55 Atl. 864, and Pennsylvania Coal & Coke Company v. Witherow, 215 Pa. 327, 64 Atl. 535, but the express covenant of the present lessee is that for each year, and in each year, he will pay a fixed sum, and in addition thereto 25 cents for every ton of coal mined in excess of what he is permitted to mine in consideration of the payment of the fixed sum. The payment of the royalty or rental for each year is independent of the payment in any other year, and the mining of the coal each year is independent of the mining in any other year. With the intention of the parties thus clearly expressed, it is impossible to attribute a different one to them and sustain the court below without reading into the lease a clause providing that the lessee may apply to the deficiency on the mine rent or royalty due for 1898 and 1899 the payments made in subsequent years for coal mined in excess of 24,000 tons. Counsel for appellee does not point to any clause in the lease sustaining his contention, but we are told that "this claim of the plaintiff is unconscionable." This is by no means to be couceded. The provision as to the payment of the annual royalty was inserted to insure to the lessors prompt mining by the lessee, and prompt payment for his occupation and use of the land. If by his delay in mining he is allowed to appropriate to the payment of the royalty for 1898 the royalties paid for excessive mining five years thereafter, he is depriving the lessors of the use of their money for that length of time. This he may not do in the face of his express agreement to the contrary, and we may appropriately repeat what we said in Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387, 35 Atl. 919: "The owners' enjoyment of the value of their property would largely depend on receiving that value soon. If the payments, by reason of slow mining, were stretched into the future, they would receive far less than if made within a period of 2, 3 or even 5 years, and all this coal could easily be mined within that time. Both parties assumed the value of the coal in place to be 25 cents per ton, and this value defendants would have proximately got if it had been mined diligently; but if, on account of conditions of market, charges for transportation, or price of labor, it paid plaintiff better to mine very slowly, defendants would not receive nearly that value. For example, take the $4,000 paid for the 16,000 tons mined the ninth year. If the 16,000 tons were worth 25 cents per ton at date of contract, then defendants had lost 9 years' interest, or $2,160. Deducting this from the $4,000 left only $1,840, equal only to 112 cents per ton by reason of the longdeferred payment. The hardship of the bargain by the happening of this very contingency the owners sought to guard against by by a subtenant was entitled to the possession of A mortgagee in a chattel mortgage given the chattels on the leased premises. The subtenant abandoned the premises, and delivered the keys to the tenant. The mortgagee demandtels, but the tenant refused to deliver and the ed the keys of the tenant so as to get the chatgoods were subsequently distrained by the landlord. Held to show such a demand by the mortgagee as to sustain trover against the tenant. ing price; one, 25 cents per ton, to be paid | 5. TROVER AND CONVERSION (§ 9*) — SUFFIas mined, and this is all plaintiff would have CIENCY OF DEMAND. paid if it had mined with diligence, but there was another method. If for any reason, it chose to retain possession, and not mine diligently, then defendants had provided for this by exacting a fixed annual income of $4,000." When the appellee declares the claim of the appellant to be unconscionable, he forgets that it is based upon a contract entered into by himself, in terms so clear that but one meaning can be given to them, and as he intelligently contracted, he is bound. If he made what he now regards as a hard bargain, he cannot, in the absence of fraud, accident, or mistake in making it, ask to be relieved from it, and if he was foolish in making it, neither the legal nor chancery side of the court will shield him from the consequences of his folly. Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, 55 Atl. 864. SWARTZ v. GOTTLIEB-BAUERN- (Court of Appeals of Maryland. Jan. 12, 1909.) The allowance of an amendment of the declaration will not be considered where no exception was taken thereto. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1490; Dec. Dig. § 255.*] 2. LANDLORD AND TENANT (§ 269*)-DISTRESS -PROPERTY SUBJECT TO DISTRESS. A landlord may distrain on the goods of the tenant or subtenant, though subject to a mortgage, and he may distrain on the goods of a stranger on the premises except such as are exempt by statute. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1084-1093; Dec. Dig. 8 269.*] 3. LANDLORD AND TENANT (§ 272*) — LIABILITY OF TENANT TO THIRD PERSON WHOSE GOODS ARE DISTRAINed. A stranger whose goods are distrained by a landlord may redeem them, and sue the tenant for reimbursement, or, if the goods are sold, for their value. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 1145; Dec. Dig. § 272.*] 4. CHATTEL MORTGAGES (§ 162*)-POSSESSION BY MORTGAGEE. A subtenant, not accepted by the landlord, executed a note to a third person, payable on demand, and secured it by a chattel mortgage covering property on the leased premises, which provided that the mortgagee might take possession whenever he deemed himself insecure. The subtenant, while in default, abandoned the premises, and, pursuant to the direction of the mortgagee, delivered the keys to the premises to the tenant. Held that, as between the subtenant and the mortgagee, the latter had the right to immediate possession of the mortgaged chattels. [Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 162.*] [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 58-83; Dec. Dig. § 9.*] 6. CHATTEL MORTGAGES (§ 170*)-ACTS CONSTITUTING CONVERSION-EVIDENCE. cated on the leased premises being entitled to A mortgagee of a subtenant's chattels lopossession on account of default, the subtenant abandoned the premises and the mortgagee demanded the keys of the tenant in order to get the chattels, but the tenant refused, and the goods were subsequently distrained by the landlord. The tenant had taken possession of the premises, and knew there would be a distress proceeding. Held to show a conversion of the that any wrongful interference with the owner's mortgage chattels by the tenant under the rule possession or right of possession may be a conversion. [Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 170.*] 7. ACTION (§ 37*) - INSTRUCTIONS - ERRONEOUS REQUESTS RIGHT OF RECOVERY. When prayers do not refer to the pleadings, the right to recover depends not on the form of the action nor the state of the pleadings, but solely on the case made by the proof. [Ed. Note.-For other cases, see Action, Dec. Dig. § 37.*] 8. TROVER AND CONVERSION (§ 44*)—MEASURE OF DAMAGES. The measure of damages in trover is the value of the chattels at the time of conversion with legal interest thereon up to the date of the verdict. Conversion, Cent. Dig. § 260; Dec. Dig. § 44.*] [Ed. Note.-For other cases, see Trover and - EVI In trover evidence of the amount the goods converted brought at an auction sale in distress proceedings is as against defendant evidence of value, in the absence of any showing that the sale brought unusual prices. Conversion, Cent. Dig. § 231; Dec. Dig. § 39.*] [Ed. Note.-For other cases, see Trover and Appeal from Baltimore City Court; Alfred S. Niles, Judge. Action by the Gottlieb-BauernschmidtStraus Brewing Company against Manuel Swartz. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, THOMAS, and WORTHINGTON, JJ. William S. Bayless and J. Marsh Matthews, for appellant. Albert E. Donaldson, for appellee. BOYD, C. J. The appellee sued the appellant in assumpsit upon six common counts, and filed therewith an account which read: "To rent of said Manuel Swartz due and ow ing for use and occupation of premises No. 137 was paid to the landlady on account of 8 E. German Street, Baltimore City, paid by rent due her. On February 17, 1906, Boldistraint on the goods and chattels of giano had purchased from Swartz for $500 in said Gottlieb-Bauernschmidt-Straus Brewing cash and $150 by note the stock, license, furCompany-$360.00." The defendant filed the niture, ornaments, glassware, and other general issue pleas. The plaintiff asked utensils then in the saloon. At the time the leave to amend the declaration by striking plaintiff owned certain other property which out the six counts, to add an additional was on the premises. On March 7, 1906, Bolcount, and to withdraw the account and af- giano gave a chattel mortgage to the plaintiff fidavit filed with the original declaration. on all the property on the premises which it The court granted leave to amend, and an did not own to secure a loan of $350. The amended declaration in trover was filed. property on account of which this suit was The defendant filed the general issue plea, a brought included that which the plaintiff jury was sworn, issue joined, and the case owned, and that which was embraced in its proceeded to trial, which resulted in a verdict mortgage from Bolgiano, and was the propfor the plaintiff for $389.93 damages. From erty levied on and sold under the distress prothe judgment entered on that verdict, this ceedings. Bolgiano owed Swartz between appeal was taken. $300 and $400 rent, besides the $150 note, on October 13th or 14th (the witness was not certain as to the exact date), and he left the place before the distraint was levied. He went to the brewery, said he was sick and not able to manage the business, and offered the keys to Mr. Hamburger, who represented the plaintiff. Mr. Hamburger told him to give the keys to Swartz, and Bolgiano sent them to him. Bolgiano testified he was a monthly tenant under Swartz. He paid Swartz the $350 which he had borrowed on the mortgage from the plaintiff. Hamburger said he demanded the keys from Swartz on several occasions after they were sent to him, so they could get in and get the goods; that Swartz promised him the keys several times, but never gave them to him; that Swartz told him on several occasions he had a prospective buyer for the place, and the last time he said he wanted to hold the keys until the following morning, as he expected to have a customer then, but Hamburger said: "The next morning when I went there to see what was going on I found the constable in charge." He said he could not state the exact date when Bolgiano offered him the keys, but it was about the middle of October; that he went to Swartz to get the keys, "I guess probably about a week or four days or something like that" after he told Bolgiano to take the keys to Swartz. He said he told Swartz he wanted the keys to get the goods out; that he could not say exactly when he called on Swartz for the keys, but said "shortly after Mr. Bolgiano gave up the place I went to see Mr. Swartz about getting the key of the place, and I made five or six requests of Mr. Swartz for that key between the time that Mr. Bolgiano closed the place up and the place was put in the hands of the bailiff." The auctioneer identified a statement, dated the 25th day of October, 1906, which he had made of the sales to the plaintiff. A bookkeeper of the plaintiff testified that he knew of the distress proceedings by seeing a notice in the papers that the goods were to be sold at public auction; that he then went to Mr. Stewart's office, and asked if he would be allowed to take out the goods; The defendant objected to the amendment of the declaration, but, as there was no exception taken to that action, it is unnecessary to discuss it, although we might call attention to the fact that in Bonaparte v. Clagett, 78 Md. 87, 27 Atl. 619, this court recognized the right of the plaintiff, who had sued in assumpsit upon the six common counts, to amend the form of action to trover, and decided that bringing the action in assumpsit did not constitute a ratification of the contract of sale which would prevent an action of trover for the value of the goods, where before judgment the plaintiff discovered that he had misconceived his remedy, and, upon an amendment allowed, changed the form of action to trover. The only exceptions in the record are to the granting of the plaintiff's second prayer, as modified, and the court's own instruction, and to the rejection of the defendant's first, second, third, fourth, sixth, and seventh prayers, and overruling the special exception to the plaintiff's second. A somewhat full statement of the facts will be desirable in order that our conclusions on the rulings on the prayers may be properly understood. The defendant (appellant) rented from Mrs. O'Brien No. 8 East German street under two written leases. The first was for three years from November 1, 1905, and included the property known as No. 8 East German street, in the Phoenix Building, and the room under it, known as 7 Phoenix Building. The other was for three years from January 1, 1905, and included rooms 3, 5, 7, and 9, which are in the basement of the Phoenix Building, and are the rooms in which the property in question was distrained on. Swartz assigned his lease to those basement rooms to William G. Bolgiano for the remainder of the term, but the landlady, while permitting the assignment, refused to accept Bolgiano as tenant or to release Swartz from liability under his lease. On October 18, 1906, Swartz was in arrears for his rent to Mrs. O'Brien in the sum of $400, and on that day a distress was levied on property found on the premises. The property so found was sold by the bailiff for Mr. Swartz, and he made an appointment to | by the mortgage was payable on demand; but see Mr. Stewart later, when Mr. Swartz was there was a provision in the mortgage that present. He said that was before the sale. He "if the mortgagee shall at any time feel intold Swartz he wanted to remove the prop-secure, or shall desire to take possession of erty belonging to the plaintiff and that cov- the same, then the whole indebtedness shall ered by the chattel mortgage, and he replied at once become due and the said mortgagee, Mr. Stewart had charge of the affair. He its successors and assigns, agents or attorsaid: "He declined to allow me to act and neys, shall have the right to take immediate to act himself, and referred me to Mr. Stew-possession of said property," etc. Bolgiano art. This was all in Mr. Stewart's office. testified that some time in the month of OctoThat the property of the plaintiff was not ber he went to the brewing company "when gotten out before the sale, but was sold. he was in default of the payment on his chatWitness told Mr. Swartz at the same time tel mortgage, and the witness was about to that he thought the easiest means would be leave the premises." He abandoned the place, the best, and that, if he would not permit and told Mr. Hamburger "he was sick and us to take our stuff out of there, there was suffering from nervousness, and was not able only one thing for us to do, and that would to manage the place, and it was no use for be to bring action for the damage we sus-him holding on any longer, and here were the tained by the loss in having our property keys to the premises." Hamburger directed sold to pay the rent, and the property was him to take the keys to Swartz, as he testisold." The witness also testified that the fied, "because in the first place he had no plaintiff paid the auctioneer $244.50 for pur- right to it, because he was not the owner of chases made by it, and said there was a cash the property, and, knowing at the time that register mentioned in the mortgage. He ask- Swartz had a lease on the property, he was ed Mr. Stewart at the sale why that was not entitled to the key, and did not know how offered, and he said he had given Mr. Swartz Mr. Bolgiano stood as to his rent with Mr. permission to take it from the premises, but Swartz, and thought it was no more than he would speak to Swartz about it. Mr. due to Mr. Swartz to see that he got the Swartz called to see him about it, but he de- key, and, if any arrangement satisfactory bemanded it of him, and he produced it; that tween himself and Mr. Bolgiano could be the plaintiff still has it, awaiting the result made, he would give him a chance." There of this case. The distress proceedings were was, therefore, a surrender of the premises taken out by Mr. Stewart, agent for the by Bolgiano to somebody, and under the mortlandlady. The defendant denied any knowl-gage, as between Bolgiano and the plaintiff, edge of the distress proceedings until his the latter undoubtedly had the right of imwife saw a notice of the sale in the papers, mediate possession of the property included and Mr. Stewart testified that it was not in it. As to the other property of the plainmade in collusion with Swartz. There is no tiff, there could be no question about its right question in this state about the right of the of possession. landlord to distrain on the goods of a stranger on the premises, excepting such as are exempt by statute. That includes the right to distrain on the goods of a subtenant, and on those of the tenant or subtenant, although subject to a mortgage. But it is also well settled that a stranger whose goods are seized is entitled to redeem them and to be reimbursed by the lessee, or, if they are sold, he can recover the value from the lessee. Edmunds v. Wallingford, 14 Q. B. Div. 814; Exall v. Partridge, 8 T. R. 308; O'Donnel v. Seybert, 13 Serg. & R. (Pa.) 54; 9 Am. & Eng. Enc. of Law, 639. "A stranger whose property is sold under a distress may buy it in and recover the amount paid in an action against the tenant." Id. note 2, citing Wells v. Porter, 7 Wend. (N. Y.) 119; Gear on Landlord and Tenant, 151. That there was some evidence of demand being made before the distress is equally free from doubt. The testimony of Hamburger, as shown above, was that he demanded the keys of Swartz five or six times between the time Bolgiano closed the place up and it was put in the hands of the bailiff. Again, he said that he told Swartz he wanted the key, so as to take the goods out if no buyer could be found, "and Mr. Swartz told me that he had a prospective buyer that he would have there at the place the next morning following. That was the last time." He demanded the key in order to get the goods out, and it is useless to argue that there was a demand for the keys, but not for the goods. There was also some evidence of conversion by Swartz. He not only did not give up the keys, but, if Hamburger is correct in his statement, the A great deal of the brief of the appellant jury could very properly have inferred that is devoted to a discussion of the question he was keeping them so the property would whether there could be a recovery in an ac- be there to be levied on. When Hamburger tion of trover. There can be no doubt there went there the next morning, the place was was ample evidence to show that the plain- in the charge of the bailiff. The evidence tiff had the right of immediate possession at does not show where the bailiff got the keys the time of the distress and sale. Most of to get in the premises, but, as Swartz had the property in controversy belonged to the them, he must either have gotten them from plaintiff, and the rest was included in its him or through him, as it will not be pre be said to be sufficient to call the court's attention to the pleadings. When prayers do not refer to the pleadings, "the right to recover depends, not upon the form of the action or the state of the pleadings, but solely upon the case made by the proof," as was said in W. Va. C. R. Co. v. Fuller, 96 Md. 652, 54 Atl. 669, 61 L. R. A. 574, and other cases. What we have said is sufficient to show that in our judgment there was no error in rejecting the defendant's first prayer, which sought to take the case from the jury on the ground that there was no legally sufficient the property. Swartz said that. when Mr. | of the property "mentioned in the declaraHamburger's son went for the keys, he told tion," but those prayers were defective for him he had sent them over to Mr. Stewart, reasons we will state presently, even if they and added, "That was after the distraint." Whether he meant to say he sent the keys, or what he told Mr. Hamburger's son was after the distraint, is not clear; but the jury was not obliged to accept his statement if he meant the former. He said in chief that he removed the cash register "when the sale was to take place," and on cross-examination he said he "sent a boy to the premises for the cash register on the same day that the keys were brought up by Mrs. Bolgiano. The key was sent the witness a day or two before the distraint was made-don't think it could have been longer than two days, might have been three." Mr. Stewart said he "asked Mr. Swartz | evidence to entitle the plaintiff to recover. a number of times to pay the rent before distraint was issued. Witness does not think he told Mr. Swartz he was going to distrain, but told him somebody had to pay the rent, as he could not let it run on that way; that he was not going to wait any longer. Will not swear that he did not tell him he was going to distrain. May have told him he was going to distrain if rent is not paid, but does not remember whether he did or not." As Mrs. O'Brien looked to Swartz for the rent, the jury might very properly have inferred that Mr. Stewart did tell him, and under all the circumstances it would be difficult to believe that Swartz did not know that there would be a distraint. The second was also properly rejected. The complaint of the plaintiff is that the defendant owed the landlady rent for which the plaintiff's property was taken under distress proceedings against him. He had not issued a distress warrant against Bolgiano, and, if he had, other questions would have arisensuch as whether he had not accepted a surrender of the premises, etc. The third prayer asked the court to instruct the jury "that there was no privity of contract or estate between the defendant and the plaintiff, and hence no duty or obligation on the part of the defendant to protect the plaintiff's goods from distress while on the premises mentioned in the evidence in the possession of the So, without further referring to the testi- defendant's tenant," etc. Privity of contract mony, there was unquestionably some evi- or estate was not necessary under what we dence tending to show that Swartz had taken have said, and it was the defendant's duty to possession of the premises, that demand was protect the plaintiff's goods from being takmade on him, and that he knew there would en for rent due by him. The defendant's be distress proceedings taken out, as well as fourth prayer was sufficiently covered by the some evidence from which the jury could in- court's instruction, but, at any rate, it was fer that Swartz was holding the keys until misleading with reference to "actual possesthey were, so that the plaintiff's goods would sion," as the jury might have thought he had be seized for his rent. It is said in 1 Poe, § to be actually on the premises at the time of 522, that "any wrongful interference with the the distress. The sixth prayer was also propowner's possession or right of possession is in erly rejected. Without discussing it at length, law either a conversion itself or evidence the concluding part was sufficient to cause it from which a previous or continuing conver- to be rejected-that "the refusal of the desion may be implied"; and again, in the same fendant to deliver said key to the plaintiff, section: "In short, any one who, without au- if they find such refusal, was not a taking thority, interferes with the rightful owner's of possession or conversion." It was evidence absolute dominion over his goods, whether he of conversion under the circumstances of this do it for his own personal advantage or for case as we have shown above. The seventh the advantage of another, or through inad- is clearly not in accord with the authorities vertence, or under a mistake as to his own as to the measure of damages, which in trover legal rights, or otherwise, may be made re-under our rule in this state is the value of sponsible in trover." That is said under the discussion of the form of declaration provided for in the Code, which has materially modified and changed the declaration in trover formerly in use in this state. So, if it was necessary to show that there was evidence sufficient to sustain the action of trover, there is such in this record, but there is no prayer which distinctly raises the question of pleading. None of the prayers refer to the pleadings in any way whatever, excepting the the chattels at the time of conversion, with legal interest thereon up to the date of the verdict. 1 Poe, § 219, and cases cited. It follows from what we have said that the measure of damages as stated in the plaintiff's second prayer was correctly announced. The modification by the court of the prayer as offered was: "And the only evidence in this case as to value is the gross amount which said goods brought at the auction sale mentioned in the evidence." That was suf |