The learned court below sustained the plain- no provision concerning it. The second tiffs' contentions, and held that the word clause is the only one requiring the payment "rents" "so clearly refers to the different sums fixed to be paid for the various sizes of coal that it affords no ground for the claim of ambiguity." We agree with the learned court's conclusion. The terms of the lease relating to the minimum monthly royalty provide that the lessee shall mine and ship from the demised premises at least 8,333 tons of coal monthly. The lease was made by an administrator with the will annexed, and recites that he was empowered by the testator and was authorized and requested by the beneficiaries to enter into it. The written authorization to the administrator by the beneficiaries discloses that the terms proposed by the lessee and accepted by the beneficiaries were certain stipulated rentals for the various sizes of coal mined and shipped from the leased premises and a right of way charge of five cents per ton for coal mined on adjoining lands and carried through the demised premises, and that, after a certain date, the lessee should "mine, prepare, and ship at least 100,000 tons of coal annually, or pay rent for that number of tons." The right of way charge is not referred to as rent in this authorization, which, we think, requires the lessee to pay the charge in addition to the royalty on the minimum quantity of coal which the lessee was to "mine, prepare, and ship." * of the right of way charge, and it provides that the charge shall "be paid monthly, at the same time and in the same manner as herein provided for the payment of rents on coal mined from the demised premises." This provision clearly refers to the third clause of the lease, as the latter clause is the only provision in the lease fixing the place and time of payment of such rents, and shows that clause 3 was dealing with "rents on coal mined from the demised premises." As pointed out by the appellees, the plural word "rents" is used in clause 2 to describe solely "rents on coal mined," which indicates that it was so used in other parts of the lease, and did not include the "rent or right of way" for transportation of coal from other lands. That the word "rents" in clause 3 does not include the right of way charge is further clearly indicated. If so construed, the provision in clause 2 that the right of way charge shall be paid "at the same time and in the same manner as herein provided for the payment of rents on coal mined from the demised premises" would be surplusage, and this cannot be assumed. Again, the "rents" required by clause 3 to be paid monthly are "for all coal mined and shipped from the demised premises during the preceding month," and the "rents accrued," referred to in clause 5, are for coal "mined and shipped," and clearly do not include "a rent or right of way" on coal mined from other adjoining lands and carried through the said demised premises. The words "mined and shipped" are used in the first, third, and fifth clauses of the lease in the same sense, and clearly refer to coal which is mined on the leased premises. It is a rule of construction that an interpretation will not be given one part of a contract which will annul another part of it or produce absurd results. This would obviously occur, as pointed out in the argument, if the appellant's contention be sus Eliminating, however, the beneficiaries' authorization from the case, the terms of the lease itself leave no doubt as to its proper construction. The primary purpose of the lease, as its terms disclose, was mining the coal on the demised premises and the revenue to be derived therefrom by the beneficiaries. The seventh paragraph requires the lessee "to work the veins of coal hereby demised, simultaneously and continuously, * to their full capacity." The right or permission of the leseee to use the premises for carrying coal from other lands was of minor importance. The clause requiring the minimum payment of rentals was insert-tained, and the phrase "mined and shipped ed in the lease to prevent delay in the development of the coal, and not as a spur to the lessee to carry more coal through the leased premises. The fifth clause deals with the minimum royalties, and requires the lessee to "mine and ship from the demised premises" the minimum tonnage of 8,333 tons, and, if the lessee does not mine and ship that quantity, it is to pay in cash "as a liquidated rent for the said demised premises during said month such a sum of money as, when added to the rents accrued during said month, shall be equal to the sum of $2,917," and later, $3,500. The "rents accrued during said month" manifestly refer to the royalty on the coal mined and shipped." and not "mined or shipped," from the demised premises. This clause does not deal with, or from the demised premises" be construed as including coal mined on adjoining lands and carried through the leased premises, as it would practically nullify the minimum royalty provision. The minimum tonnage required to be mined is 8,333 tons per month, but the provision would not apply if the aggregate tonnage mined and shipped from the demised premises and the aggregate tonnage carried through the premises equaled the minimum tonnage of 8,333 tons. In fact, under the appellant's construction, if the lessee company mined no coal on the leased tract, but carried through the tract at least 8,333 tons in any month, which at five cents per ton would amount to $416.65, it would comply with the minimum royalty clause of the lease, and that sum would be the total Instead of $2,917, or $3,500, as the case might *be. Again, under the proviso to the fifth clause, if the lessee mined no coal during a * particular month, but carried a tonnage of coal across the premises, which at five cents per ton equaled the minimum rental, and paid it, the lessee would be entitled in any succeeding month to mine from the leased premises a tonnage the royalties on which would equal the amount thus paid, without making any payment therefor. The defendant, notwithstanding its present contention, always paid the minimum royalty in each month when it mined less than 8,333 tons, although the aggregate of the coal mined and carried through the premises exceeded that tonnage. We are of opinion that, under the terms of the lease, the lessee was required to pay the right of way charge in addition to the minimum monthly royalty, and that, when it failed to mine 8,333 tons in any month, it was required to pay the difference between the royalties on the coal actually mined and the minimum, and also to pay the right of way charge of five cents per ton on all coal carried through the leased premises from the adjoining tracts. [2] When the terms of a contract are doubtful, or capable of two different interpretations, the meaning put on the instrument by the parties themselves may be shown and will be enforced by the courts. Their interpretation of the instrument is strong evidence of being the correct one, and is expressive of the intention of the parties when they executed the contract. Where, however, the contract is not ambiguous or uncertain in its terms, and the intention of the parties, as disclosed by its provisions, is not doubtful, the construction acted upon by the parties is not controlling, and will not be enforced by the courts. This is the settled rule of the decisions and of the text-books. Mr. Page (2 Page on Contracts, § 1126) says: "If a contract is ambiguous in meaning, the practical construction put upon it by the parties thereto is of great weight, even though the contract is in writing, and, ordinarily, is controlling. The practical interpretation of the parties is to be regarded, however, only when the contract is ambiguous. If clear and free from ambiguity, the intention shown upon its face, if written, must be followed, though contrary to the practical interpretation of the r-arties, and even if such practical construction has been acquiesced in for a long period of time." conclusion can be drawn from the terms and the manifest purpose of the lease, and hence, in the language of the trial court: "In such a condition of affairs, there is no question of construction by the parties." [3-5] We agree with the learned court below that the plaintiffs are not estopped from maintaining this action. In discharging the rule for a new trial and denying the motion for judgment non obstante veredicto, the court says: "These plaintiffs were in the hands of a trustee, who collected for them less than they were entitled to receive. There is no evidence at all that they were in possession of the knowledge that would be necessary to an understanding of the situation, and in addition to that their failure to demand, at the time it was due, all that was due, worked no harm to the defendant." The facts of the case do not disclose the elements of an estoppel. An estoppel can be claimed only by one who has acted in ignorance of the true state of facts (Hill v. Epley, 31 Pa. 331; Woods v. Wilson, 37 Pa. 379), and who was without suitable means of informing himself of their existence (Cuttle v. Brockway, 32 Pa. 45). If he had notice of the facts, and was not misled to his disadvantage, there can be no estoppel. Duquesne Bank's Appeal, 74 Pa. 426; Wright's Appeal, 99 Pa. 425. Silence becomes a fraud, and works an estoppel, only when a party withholds information which the other party does not have, or does not possess the means of obtaining, and which he should have to protect his rights. Where both parties know the facts, or have equal means of knowledge of the facts, the silence of either in regard to them is not a fraud upon the other party. Rhawn v. Edge Hill Furnace Co., 201 Pa. 637, 51 Atl. 360. There is no evidence in the case that the defendant was prejudiced or misled to its injury by the conduct of, or alleged interpretation of the lease by, Mr. Wolverton or the beneficially interested parties. The lessee acted with a full knowledge of all the facts. The vouchers, accompanied by a statement or memorandum of the tonnage mined on the leased premises and the tonnage carried through the premises, were sent to the administrator. The vouchers received by the administrator and returned to the company stated, with very few exceptions, that the sum remitted to him was in payment of "rent This is the doctrine of this court as an- on coal mined from the Wm. Green tract," nounced in the recent case of Sternbergh v. or of the "minimum rental on coal mined Brook, 225 Pa. 279, 74 Atl. 166, 24 L. R. A. from the Wm. Green tract," and the amount (N. S.) 1078. We do not think the rule of was the minimum sum payable for the month. contemporaneous construction can be invok- The receipt on the voucher distinctly stated ed in the present case. As suggested above, that the sum was "received in full for above there is no ambiguity in the terms of the account." It is clear, therefore, as observed lease, and the manifest intention of the par- by the learned court below, that, whatever ties, as disclosed by their contract, was that the memorandum or statement accompanythe right of way charge should be paid ing the voucher may have disclosed, "what monthly in addition to the minimum royalty was paid was the 'minimum rental for coal payable on the coal mined from the demised mined.'" Mr. Wolverton so construed the mittance to them he states in his letter that it "is for coal mined during the month" named in the letter. These vouchers and receipts were prepared by and signed on the request of the defendant company, which had full knowledge of their contents and the purpose for which the money was paid and received. The statements or memoranda ac'companying the vouchers will therefore not estop the plaintiffs here from maintaining the present action. Moreover, the receipts given by Mr. Wolverton to the defendant, purporting to be in full of the amount due, would not be conclusive on the present plaintiffs, if, as it now appears, the sum paid was only a partial payment of the total amount due each month for the coal mined and the coal carried through the premises. Dunham v. Haggerty, 110 Pa. 560, 1 Atl. 667; Commonwealth v. Cummins, 155 Pa. 30, 25 Atl. 996; Hillside Coal & Iron Co. v. Sterrick Creek Coal Co., 239 Pa. 359, 86 Atl. 865. [6] If it be conceded that Mr. Wolverton intended by his receipts to acknowledge satisfaction in full of the claims presented in the statements, it would not avail the defendant in this action, as clearly, under the circumstances, the administrator would have no authority to waive the rights of the beneficiaries to the unpaid portions of the claim. Commonwealth v. Hantz, 2 Pen. & W. 333; Guillou v. Peterson, 89 Pa. 163; Clemens v. Heckscher, 185 Pa. 476, 40 Atl. 80. It is clear, we think, that the beneficiaries are not estopped from maintaining this suit by anything contained in the receipts given to them by Mr. Wolverton as they were not given to the defendant. Loughery's Appeal, 37 Leg. Int. 341; Megargel's Adm'r v. Megargel, 105 Pa. 475. There is nothing to support the contention that the defendant was injured by relying upon the acquiescence of the administrator and the heirs in the method of accounting, in that the lessee would have mined more coal upon the leased premises, had it understood that the right of way charge was to be paid in addition to the minimum royalty. This contention is fully met and refuted by the fact that it paid the royalty on a large quantity of coal which it could have mined, but did not mine and ship, from the premises. In the absence of evidence to support its contention, there is nothing in the case to warrant the conclusion that the defendant was misled or injured by the acquiescence of the administrator and the Bellas heirs in the method of accounting. We find nothing in the case that shows the defendant was not fully aware of all the facts when it made the monthly payments, or that the defendant was misled in any way to its injury by the administrator or the Bellas heirs. The defense of estoppel cannot be sustained. The contention of the appellant that the whole sum claimed by the plaintiff's was paid in full is not tenable. This action is brought, not for the right of way charge, as the defendant seems to think, but for the difference between the total amount paid by the defendant and the total amount due under the lease. The right of way charge, as will be observed, was to be paid monthly, at the same time and in the same manner as the royalty on the coal mined. The sum remitted should therefore have included the total amount of minimum royalty on coal mined and the amount due for coal carried through the premises, and the defendant having failed to remit the aggregate sum, this suit was brought to recover the balance due. [7, 8] The amount received by Mr. Wolverton was a part of the larger sum due under the terms of the lease, and was not an accord and satisfaction. Commonwealth v. Cummins, 155 Pa. 30, 25 Atl. 996; Amsler v. McClure, 238 Pa. 409, 86 Atl. 294. The statements or memoranda, if considered as accounts stated, were not conclusive, so as to bar the present action. Jones v. Dunn, 3 Watts & S. 109; Vantries v. Richey, 8 Watts & S. 87; Allegheny County Light Co. v. Thomas, 31 Pa. Super. Ct. 102. We have discussed and determined the controlling questions in the case without special reference to the assignments of error. Without further discussion, and thereby unduly extending this opinion, it is sufficient to say that a careful examination of the appellant's elaborate brief and the authorities cited therein has not convinced us of any reversible error in the record. We are all of the opinion that the judgment of the court below should be affirmed, and it is so ordered. MESSLER v. WILLIAMSBURG CITY FIRE (Supreme Court of Rhode Island. Nov. 10, INSURANCE 612-CONDITION TO ACTIONAPPRAISEMENT-DISINTERESTED APPRAISERS. That the appraiser appointed by the insurer had previously frequently been selected as such by it and other insurers does not amount to bad faith or misconduct by it, or justify a finding that he was not a disinterested appraiser, as regards right of insured to sue without an award by appraisers, by the policy made a condition to action. [Ed. Note.-For other cases, see Insurance; Cent. Dig. §§ 1520-1528; Dec. Dig. 612.] On rehearing. Denied. For former opinion, see 94 Atl. 875. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff. Mumford, Huddy & Emerson, of Providence (Charles C. Mumford and E. Butler Moulton, both of Providence, of counsel), for defendant. PER CURIAM. The plaintiff has filed a motion for reargument, wherein he states no matter which was not thoroughly considered by the court before handing down the rescript overruling plaintiff's exceptions. In said motion the plaintiff particularly urges that certain allegations of the third additional count of his declaration state a cause of action and a reason why an appraisement and award in accordance with the provisions of the policy have become unnecessary and impossible. The allegation upon which the plaintiff lays stress is that the defendant knowingly selected as an appraiser a person who previously had frequently been selected as such by the defendant and other insurance companies in proceedings to ascertain the amounts of loss under policies of insurance issued by it and said other insurance companies. That fact, if established, would not, as a matter of law, amount to bad faith or misconduct on the part of the insurer. From that fact alone a jury would not be justified in finding that such a person was not a disinterested appraiser. We have considered the cases from other jurisdictions cited by the plaintiff in his motion, and in our opinion they do not support his contention. In each of said cases there appeared some other fact tending to show either fraud on the part of the insurer or bias on the part of the appraiser. Pierce v. Sun Insurance Office, 86 Misc. Rep. 1, 147 N. Y. Supp. 947, especially relied upon by the plaintiff, as we understand the facts stated in the opinion, presents a case of the selection by an insurer of a person for appraiser who not only had so acted frequently upon the appointment of the defendant and other insurance companies, but who had for about 20 years spent the larger part of his time in the employ of the defendant and other insurance companies as a general contractor. We are of the opinion that neither in law nor in fact should a person be held to be interested, and hence disqualified to act as an appraiser, simply because the party naming him has had such faith in his good judgment that such party and others have previously selected him on a number of other occasions. The plaintiff's motion for reargument is denied. (38 R. I. 316) JOHNSON v. LEE, City Treasurer. (No. 4854.) (Supreme Court of Rhode Island. Nov. 10, 1915.) FOR BRIDGES 37 - DEFECTS — LIABILITY PERSONAL INJURIES-STATE SUPERVISION. Where the state board of public roads had Laws 1912, c. 846, § 1, section 6 providing supervision of a bridge within a city under that all bridges so constructed or repaired, shall, upon the completion of such construction or repair, become a part of the state highway system, and shall be repaired and maintained by the state under the supervision of the state board of public roads, a city within the territorial limits of which the bridge was situated is not liable for personal injuries resulting from a defect therein. [Ed. Note.-For other cases, see Bridges, Cent. Dig. 88 96, 103-105, 109; Dec. Dig. 37; Highways, Cent. Dig. § 480.] dence and Bristol Counties; John Doran, William M. Lee, Treasurer of the City of Alberic A. Archambault and Raoul Archambault, both of Providence, for plaintiff. Frank H. Wildes, City Sol., of Cranston, for defendant. VINCENT, J. This is an action brought against William M. Lee, as treasurer of the city of Cranston, to recover damages for personal injuries received by the plaintiff, caused by an alleged defect in that portion of the highway system in said city commonly known as the "Silver Hook Bridge." The plaintiff claims that on June 17, 1913, at the hour of about 7 o'clock in the evening, while passing over said bridge, and being upon a portion thereof lying within the city of Cranston intended for the use of foot passengers, and being unaware that the bridge was in a dangerous condition, a plank gave way under her weight, allowing her leg to pass through to a point above her knee, causing her to fall and to sustain painful and serious injuries. The case was tried to a jury in the superior court, and a verdict was rendered in favor of the plaintiff in the sum of $1,500. A motion for a new trial was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes filed by the defendant and was denied, whereupon the defendant filed his bill of exceptions. These exceptions are to the refusal of the trial court to direct a verdict for the defendant, to various rulings of the court in admitting or rejecting testimony at the trial, and to the decision of the trial judge denying to the defendant a new trial. The defendant claims in and by his ninth exception that the trial court erred in refusing to grant his motion to direct a verdict, such motion being based upon the ground that at the time of the accident to the plaintiff the bridge upon which such accident occurred was under the control and supervision of the state board of public roads and that, being thus subject to the administration of the state, the city of Cranston was absolved from any responsibility for its defective condition, if any such condition should be found to exist. If this claim of the defendant is good it is decisive of the case, and may therefore be properly considered in the first instance. In taking up this question it is necessary to examine the provisions of chapter 846 of the Public Laws and especially the portions of that chapter embraced in sections 1 and 6, which are as follows: "Section 1. All bridges lying in any highway or highways which have been constructed by or upon which work has been done by the state under the supervision of the state board of public roads shall hereafter come under the supervision of the state board of public roads." "Sec. 6. All bridges so repaired, constructed or reconstructed pursuant to the provisions hereinbefore set forth shall upon the completion of such construction, reparation or reconstruction be and become a part of the state highway system, and shall henceforth be repaired, maintained and reconstructed by the state under the supervision of the state board of public roads. Except where any of said bridges are used by any public utility, then the said public utility shall pay in the manner provided by section 3 of this act toward the maintenance, reparation and reconstruction of said bridge." any evidence of an intention on the part of the General Assembly to empower the state board of public roads to do anything whatever with regard to bridges, stating reasons for its conclusion which need not be repeated here. It was therefore unquestionably the intention of the General Assembly, by its act of May 3, 1912, chapter 846 of the Public Laws, to place all bridges lying between portions of any highway which had been constructed by or upon which work had been done by the state through its board of public roads under the supervision of said board, from and after the passage of the act, to the same extent and with the same powers to reconstruct and repair which had theretofore been given to such board in the matter of highways, and such intention to do so is clearly apparent from the language of section 1 of the act. It does not appear to be disputed that the highway upon either side of the Silver Hook Bridge was, at the time of the accident to the plaintiff, under the supervision and control of the state board of public roads. The bridge also came under the control of the same board upon the passage of the act on May 3, 1912, and thereafter the state, through its board, was the only party invested with the power and authority to reconstruct or repair it. The city of Cranston had become divested of any power to repair or to do anything in or about the maintenance of this bridge, the supervision of which had been given to the state board by the act. The only thing remaining for the city of Cranston to do after the passage of the act was to provide for and pay its proportion of the expense of reconstruction or repair, when the same should be ascertained in the manner which the act specified. the act. By section 6 all bridges constructed, reconstructed, or repaired under the preceding sections of the act, upon completion, become The act was approved May 3, 1912, more a part of the state highway system therethan a year prior to the accident to the after to be repaired, maintained, and reThis does not plaintiff, and by its terms took effect upon its constructed by the state. passage. The desirability of this enactment in any way detract from the force of section may have been suggested to the General As-1, which imposes upon the board the duty of sembly by the opinion of this court in Mc- immediate supervision upon the passage of Commiskey v. Greene, 32 R. I. 402, 79 Atl. 819. That was a case brought by the plaintiff against the defendant as town treasurer of the town of Coventry to recover damages sustained in crossing over a bridge in said town by reason of the breaking of a defective plank. The defendant there pleaded, in addition to the general issue, by special plea that under Public Laws of Rhode Island, 1902, c. 982, now General Laws of 1909, c. 84, that the bridge in question was part of a state road over which the town of Coventry had no control. To this the plaintiff replied that the bridge was not a part of the state highway, and, issue being joined, the case was certified to this court for decision, We do not see how the city of Cranston can be held responsible for the defective condition of a bridge over which it had no control and no authority to repair, such control and authority being vested by the act in the state board of public roads. We think that the trial court should have directed a verdict for the defendant as requested, and the defendant's exception numbered 9 is therefore sustained. In this view of the case any consideration of the other exceptions becomes unnecessary. The plaintiff may have the opportunity, if she shall see fit, to appear before this court on the 17th day of November, A. D. 1915, |