Ashland Coal & Coke Co. v. Hull Coal & Coke Corporation

• Decision Date: 10 May 1910
• Citation: 68 S.E. 124,67 W.Va. 503
• Parties: ASHLAND COAL & COKE CO. v. HULL COAL & COKE CORPORATION.
• Court: West Virginia Supreme Court

68 S.E. 124

67 W.Va. 503

ASHLAND COAL & COKE CO. v. HULL COAL & COKE CORPORATION.

Supreme Court of Appeals of West Virginia.

May 10, 1910

Syllabus by the Court.

Although a condition precedent in a contract must be fully performed in order to bind the opposite party to performance of his reciprocal obligation, acceptance of performance of only a substantial part thereof precludes reliance upon the breach as matter justifying renunciation or discharge of the contract.

Partial interruption, for a time, of a continuous duty, imposed by a contract, amounting to a breach of a condition precedent, is unavailing as ground of repudiation, if such partial performance has been accepted until the period of interruption has ceased.

Under such circumstances, waiver of the breach, to the extent aforesaid, follows as matter of law, and is not a mere question of intent for jury determination.

A clause in a contract between a coke producing company and its sales agent, providing that, for certain specified causes deliveries thereunder may be suspended or partially suspended, or, at the option of the party not in default, may be immediately canceled, during the period of such interruption, by immediate notice to that effect contemplates partial performance, under such circumstances in the absence of cancellation, and imposes upon the party not in default the duty of election between cancellation and acceptance of partial performance, on the happening of the contingency or as soon thereafter as may be practicable.

Such clause does not authorize cancellation for all time, but only during the period of interruption.

Failure of full performance, due to causes other than those specified in such clause, amounts to a breach, but, if the opposite party induced or caused such breach by its own default, it can take no advantage of it.

A claim for unliquidated damages is not available as a set-off.

Such a claim may be proved in reduction or bar of the plaintiff's demand, if it grows out of the contract on which the plaintiff sues, but no recovery over in favor of the defendant can be had thereon.

Additional Syllabus by Editorial Staff.

The assumption of an admitted fact in an instruction is permissible.

A set-off is a "debt" due defendant from plaintiff.

Error to Circuit Court, McDowell County.

Action by the Ashland Coal & Coke Company against the Hull Coal & Coke Corporation. Judgment for plaintiff and defendant brings error. Reversed and remanded.

A. W. Reynolds and Lucien H. Cooke, for plaintiff in error.

Anderson, Strother & Hughes, for defendant in error.

POFFENBARGER J.

The refusal of certain instructions, asked for by the defendant, and the giving of an instruction, prepared and given by the court, in lieu of those requested, constitute the grounds of complaint on this writ of error.

The Ashland Coal & Coke Company sued the Hull Coal & Coke Corporation, in assumpsit, for about $2,800, the price of coke sold to the latter in the months of June and July, 1906. The defendant claimed, by way of set-off, $4,362.34, as commission on certain other coal, and, by way of recoupment, $2,575.37, both of which cross-claims grew out of an alleged breach of contract on the part of the plaintiff. The jury disallowed both, and rendered a verdict for the full amount of the claim of the plaintiff.

The contract involved was made about the 1st of February, 1906, and is evidenced by two letters, one written by Frank A. Hill, president of the Hull Coal & Coke Corporation, dated February 3, 1906, proposing, on behalf of said corporation, to act as sales agent for the coke manufactured by the AshLand Coal & Coke Company from February 1, 1906, until October 1, 1906, and to take and dispose of the entire output of said company's plant on a commission of 8 per cent. on the selling price of the coke on board the cars at the ovens, guaranteed to be not less than $1.85 per ton of 2,000 pounds, and to guarantee all accounts and remit in cash on the 25th of each month for all coke passing over the scales during the previous month; and the other, dated March 5, 1906, accepting said proposal. Said first letter contained the following additional provision: "Our usual strike, accident and transportation clause which reads as follows to mutually govern: 'In case of strike, accident, deficient transportation or other cause, unavoidably causing stoppage or partial stoppage of the work of the manufacturer of this coke, or of its shipment, or in case of accidents unavoidably causing stoppage or partial stoppage of the works of the buyer, deliveries herein contracted for may be suspended or partially suspended, as the case may be, or, at the option of the party not in default, may be immediately canceled during the continuance of such interruption by immediate notice to that effect given to the other party."' Whether technically the defendant was a sales agent or a purchaser of the coke is an immaterial question, since it does not deny its liability for the price of the coke sued for. Its answer to the demand of the plaintiff is a claim of recoupment, founded upon the alleged breach of the contract.

In the months of February, March, and April, 1906, the contract was observed and complied with by both parties; but, in May of that year, the defendant was unable to handle the entire output of the plaintiff's plant. This disability continued through the month of June. As to whether it was able to take all the coke contracted for in July is a controverted matter, and constitutes the crucial question in the case. About May 1st the defendant lost a large contract with the Algoma Steel Company at Sault Ste. Marie. Some time after that, an accident happened to the plant of another customer at Roanoke, Va. These adversities seem not to have been reported to the plaintiff at once, but the requisitions for coke from its plant fell off greatly, with the result that many of its ovens had to be put out and its force of laborers greatly reduced. However, it continued to deliver such quantities of coke as the defendant called for, and never ceased to do so until about July 24th. In February the defendant took 190 cars, in March 261, in April 218, in May 60, and in June 104. The plaintiff had, at its two plants, Ashland and Monitor, 410 ovens, of which the largest number in operation at any time was 260. These were reduced from time to time until the number in blast fell to 64. This is said to have been attended by a loss of from $5,000 to $10,000 a month. No notice of any intention to cancel or repudiate the contract was given, however, and the plaintiff continued to take the benefit of it, as has been stated. It was advised of the embarrassment under which the agent company was laboring. On May 7th, it addressed an inquiry to the agent company as to why it was not receiving orders for its output of coke, saying "we are burning only 175 ovens at present, but you are furnishing us with orders for only 50." This letter was replied to on May 10th, and the loss of the Algoma contract reported, with the additional information that another company had defeated the Hull Corporation by cutting the price 10 to 15 cents, and representing superiority of their coke. The following further statement in this connection was made: "It is not hard for them to convince the Soo people of this fact, as when we made claim for our coke being of as high quality as the other people they showed us continuous analyses of coke from two of our plants which we had been shipping them there, the ash for days ran as high as 15 per cent. This has temporarily reduced our coke shipment. We, however, expect to close a business tomorrow of equal volume to that which we have lost, and, should we be successful in this, we will at once advise you, and it will not be necessary to put out any more ovens; in fact it would almost be necessary to put in some additional ovens to obtain the output." On June 13, 1906, the Hull Corporation reported the accident to the Roanoke furnace, and then said: "Our sales for shipment after July 1st, as of to-day, would indicate an output from your oven of five to seven cars daily unless we should be able to increase our sales between now and July 1st. This, of course, we expect to do. Until July 1st, the indications are that we will have to live from hand to mouth and the tonnage we can take from will be very uncertain." They also sent the result of an analysis of coke shipped in April, made by the Algoma Steel Company people, showing 17.17% ash, an amount considerably in excess of that allowed in Standard Pocahontas coke which the plaintiff had agreed to furnish. The record discloses no intimation of intention on the part of the plaintiff to cancel or repudiate the contract on account of the breach thereof by the defendant, after the receipt of this information, until July 25th. As we have stated, it furnished 104 cars in June, and from July 1st until July 24th, when it ceased to make deliveries, it furnished 61 cars, but there is evidence tending to show more were demanded of it in July.

In the meantime, without the knowledge of the Hull Corporation, the plaintiff entered into negotiations with the Norton Iron Works, of Ashland, Ky. through an agent, for the sale of its coke to that company, which culminated in a contract for the entire output of the plant, bearing date June 20, 1906, but it is admitted that it was not actually signed until August 1, 1906. W. A. Phillips, president of the Ashland Coal & Coke Company, said in his testimony: "I think the contract had been entered into on July 20th, but had not been signed until Aug. 1st. The mistake was made in placing June instead of July, the earlier date." Said company, on July 25 1906, formally notified the defendant...