YOUMANS
District Judge.
This
was a suit by defendant in error against the plaintiff in
error for damages for failure to purchase coal, the output of
a mine belonging to defendant in error, according to the
terms of a contract entered into between the parties, which
contract reads as follows:
'This
agreement, made and entered into this 12th day of August,
A.D. 1914, by and between the Consolidated Coal & Coke
Company, a corporation organized and existing under and by
virtue of the laws of the state of Colorado, of the first
part, and hereinafter designated the Consolidated Company,
and the Rocky Mountain Fuel Company, a corporation
organized and existing under and by virtue of the laws of
the state of Wyoming, and duly authorized to do business in
the state of Colorado, of the second part, and hereinafter
designated the Fuel Company, Witnesseth that
'Whereas,
the Consolidated Company is now operating and will continue
during the term hereof to operate the certain coal mine,
known as and called the Baum mine, in the county of Weld
and state of Colorado, and is desirous of selling the
output of said mine; and
'Whereas,
the Fuel Company is engaged in the business of selling coal
in the state of Colorado and elsewhere, and is desirous of
purchasing the output of said Baum mine:
'Now,
therefore, this agreement, and in consideration of the
payments, covenants, and agreements to be made, kept, and
performed by the respective parties hereto as herein
provided, and in consideration of the sum of one dollar
($1.00) in hand paid by the Fuel Company to the
Consolidated Company, the receipt whereof is hereby
acknowledged, the Consolidated Company covenants and
agrees to sell and deliver to the Fuel Company, free on
board the railroad cars at said Baum mine, and the Fuel
Company covenants and agrees to buy from the Consolidated
Company, all of the coal (except as hereinafter provided)
produced from the said Baum mine during the period of
five (5) years from and after the 15th day of August,
A.D. 1914, and to and until the expiration of the 15th
day of August, A.D. 1919, upon and subject to the
following terms, conditions, covenants, and agreements,
to wit:
'1.
Of the coal mined and produced from said Baum mine
during the term hereof, the Consolidated Company
covenants and agrees to sell and deliver all thereof to
the Fuel Company, at the prices herein specified,
except as follows, to wit:
'(A)
Such of said coal as said Consolidated Company may
use for steam purposes at said Baum mine, and such
thereof as it may sell to its employes only at said
mine; and
'(B)
Such of said coal as said Consolidated Company may be
required to deliver to the Post Printing & Publishing
Company, under its existing contract to deliver to said
Publishing Company such coal as it may require for its
trade, which contract, it is understood and agreed,
will expire on September 8, A.D. 1914, and for the
performance of which contract the Fuel Company shall in
no wise be responsible; and
'(C)
Such of said coal as said Consolidated Company may be
required to deliver to the Denver Gas & Electric Light
Company, under its existing contract to deliver to said
the Denver Gas & Electric Light Company slack and run
of mine coal for its needs, which said contract will
expire May 15, A.D.
1916,
and for the performance of which contract it is agreed the
Fuel Company shall in no wise be responsible. But it is
expressly agreed that, if the Fuel Company shall so elect,
and if the consent of the Denver Gas & Electric Light
Company can be obtained thereto, said Consolidated Company
will, upon demand, assign and transfer said contract to the
Fuel Company, in which event the said tonnage shall not be
excepted from the contract.
'2.
The Consolidated Company shall, at all times during the
term hereof, operate said Baum mine and produce coal
therefrom to the capacity of said mine, to wit, one hundred
and twenty-five thousand tons of coal, including slack,
lump, and run of mine coal, during each and every current
year of the term hereof.
'3.
Of the said one hundred and twenty-five thousand (125,000)
tons of coal to be by said Consolidated Company produced
from said Baum mine during each current year of the term
hereof, the Fuel Company shall purchase all thereof, except
as provided in paragraph 1 hereof, and shall pay therefor
to the Consolidated Company the following prices, to wit:
'(A)
Sixty cents (60¢) for each and every ton of 2,000 pounds of
slack coal sold and delivered unto it free on board the
railroad cars at said Baum mine by said Consolidated
Company during the term hereof;
'(B)
One dollar and sixty-two and three-fourths cents ($1.6275)
for each and every ton of 2,000 pounds of run of mine coal,
and two dollars and seventeen and one-half cents ($2.175)
for each and every ton of 2,000 pounds of lump coal, sold
and delivered unto it free on board the railroad cars at
said Baum mine by said Consolidated Company during the
period from and after the date hereof and to and until the
15th day of May, A.D. 1916; and
'(C)
One dollar and sixty-four and one-half cents ($1.645) for
each and every ton of run of mine coal, and two dollars and
twenty cents ($2.20) for each and every ton of lump coal,
sold and delivered unto it free on board the railroad cars
at said Baum mine by said Consolidated Company during the
period from and after the 15th day of May, A.D. 1916, and
to and until the expiration of the 15th day of August, A.D.
1919.
'In
the event, however, that said Consolidated Company shall
mine and produce from said Baum mine more than said 125,000
tons of coal, including slack, lump, and run of mine,
during any current year of the term hereof, it shall, if
said Fuel Company shall have a market therefor and shall
order the same, sell and deliver to the Fuel Company such
additional tonnage, at the respective prices above
mentioned; but if said Fuel Company shall not order the
same, as hereinafter more particularly provided, said
Consolidated Company shall then sell and deliver said
additional tonnage to the Fuel Company, and said Fuel
Company shall purchase the same from said Consolidated
Company, at the following prices per ton of 2,000 pounds
for slack, lump, and run of mine coal, to wit:
'Thirty
cents (30¢) for slack, one dollar and ten cents (1.10)
for lump, and eighty-five cents (85¢) for run of mine.
'It
is expressly agreed, however, that in the event the cost
of producing coal in the Northern Colorado coal fields be
either increased or decreased by reason of an increase or
a decrease in the scale of wages now paid at the mines,
made by and affecting both the Fuel Company and the
Consolidated Company at their mines in the Northern
Colorado coal fields and . . ., then and in any such an
event, the respective prices to be paid by the Fuel
Company to the Consolidated Company for coal as above
provided shall either be increased or decreased, as the
case may be, according as such increase or decrease in
the scale of wages shall, by computations arrived at as
nearly as may be possible, either increase or decrease
the cost per ton of producing coal in the said Northern
Colorado coal fields.
'And
it is also stipulated and agreed that the Consolidated
Company shall not be required hereunder to deliver to the
Fuel Company any run of mine coal until after June 1,
A.D. 1916, unless it shall elect, upon the order of the
Fuel Company, so to do.
'4.
Of the said 125,000 tons of coal, including slack, lump,
and run of mine, to be by the said Consolidated Company
mined and produced from said
Baum mine during each and every current year of the term
hereof, and all of which, except as provided in paragraph 1
hereof, said Consolidated Company shall sell and deliver to
the Fuel Company as herein provided, the Fuel Company shall
not be required hereunder to receive and purchase more
thereof during any current month of the term hereof than as
follows, to wit:
During
August of any year not more than ...... 4,500 ton
During
September of any year not more than ... 9,500 "
During
October of any year not more than .... 16,000 "
During
November of any year not more than ... 18,000 "
During
December of any year not more than ... 17,000 "
During
January of any year not more than .... 17,500 "
During
February of any year not more than ... 13,500 "
During
March of any year not more than ...... 13,500 "
During
April of any year not more than ....... 6,250 "
During
May of any year not more than ......... 4,000 "
During
June of any year not more than ........ 2,500 "
During
July of any year not more than ........ 2,750 "
'5.
The coal to be purchased hereunder by the Fuel Company from
the Consolidated Company shall be loaded, shipped, and
consigned by the Consolidated Company only upon the order of
the Fuel Company and in the manner as by it directed, but the
Fuel Company agrees that it will, as nearly as possible
purchase coal each calendar month as above specified, and
will use its best endeavors to order coal, in a sufficient
amount every day (except Sundays and holidays) of each
current month, so as, as nearly as possible, to permit said
Consolidated...
