Oates v. GROVES & SONS COMPANY
| Decision Date | 26 October 1957 |
| Docket Number | No. 13068.,13068. |
| Citation | 248 F.2d 388 |
| Parties | Omer J. OATES and W. H. Gossett, Appellants, v. S. J. GROVES & SONS COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas E. Sandidge, Owensboro, Ky. (Carroll Franklin, Madisonville, Ky., on the brief), for appellants.
Morton Holbrook, Owensboro, Ky. (Marvin Borman, Minneapolis, Minn., Robert L. Sloss, Gordon B. Davidson, Louisville, Ky., on the brief), for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
Appellants transferred and assigned to appellee certain leases of coal acreage, which gave the lessee for a period of five years the right to strip-mine and remove coal from the lands involved with payment of a stipulated royalty on each ton of coal mined. Appellee covenanted to perform all obligations imposed upon the lessee therein, including that of continuously strip-mining said coal, and to pay monthly to appellants an overriding royalty on the coal mined and marketed under the leases. Operations were commenced by appellee, but were continued less than a month, at which time appellee removed its equipment and personnel, discontinued paying the royalties and abandoned the premises.
Appellants instituted this action for breach of the assignment contract and to recover damages in the amount of $202,700 as the amount of the overriding royalty on the coal tonnage that could and should have been produced through reasonable operation from the acreage involved.
Appellee by its answer stated that it had diligently mined in an efficient and workmanlike manner extensive portions of the leased lands, but the coal produced therefrom was of such grade and quality as to be unmarketable at a price at which it could realize a profit therefrom. Under the applicable Kentucky law, such facts, if established by the evidence, would be a valid defense to the action. Winco Block Coal Co. v. Evans, 256 Ky. 487, 76 S.W.2d 241; Auxier Coal Co. v. Big Sandy & Millers Creek Coal Co., 194 Ky. 14, 238 S.W. 189.
The District Judge, hearing the case without a jury, found for the appellee on this factual issue and dismissed the complaint.
The evidence for the respective parties was in sharp conflict. Credibility of the witnesses was a matter for the District Judge. We are of the opinion that the finding was not clearly erroneous and that it must be accepted on this review.
Appellants complain of the alleged error on the part of the District Judge in reading during a recess in the trial...
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Alston v. Blue Ridge Transfer Co.
...parties." It has been held this notice of filing requirement is waived in the absence of a motion to suppress. Oates v. S.J. Groves & Sons Co., 248 F.2d 388 (6th Cir.1957). We hold under the circumstances of this case the trial court did not err in considering the depositions. Having conclu......
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Piper v. Miller
...before the trial although the notice of the filing was not served on such party. It was also held in the case of Oates v. S. J. Groves & Sons Company, 5 Cir., 248 F.2d 388, that the failure to give notice of the filing where the party learned about the deposition during the trial in time to......
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EQUAL EMP. OP. COM'N v. UNITED A. OF J. & A. OF PL., LU NO. 189
...testimony obtained by means of an irregular deposition has been expressly recognized by the Sixth Circuit. See Oates v. S. J. Groves & Sons Company, 248 F.2d 388 (6th Cir. 1957). The respondent union contends that the rules relating to the taking of depositions are not applicable to the ins......