Bannister v. Victoria Coal & Coke Co

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation61 S.E. 338,63 W.Va. 502
Decision Date11 February 1908
PartiesBANNISTER. v. VICTORIA COAL & COKE CO.

63 W.Va. 502
61 S.E. 338

BANNISTER.
v.
VICTORIA COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

Feb. 11, 1908.


Rehearing Denied May 1, 1908.

1. Assumpsit, Action of — Declaration — Promise.

A declaration in assumpsit which alleges that the plaintiff agreed to do certain things under the contract, and that the defendant in consideration thereof agreed to pay the plaintiff therefor the price stipulated in the contract, sufficiently alleges the promise of the defendant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Assumpsit, Action of, §§ 81-86.]

2. Same—Implied Assumpsit.

An implied promise must be as distinctly alleged in a declaration as an express one.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Assumpsit, Action of, §§ 81-86.]

3. Contracts — Breach—Action—Declaration.

In a declaration upon a contract for mining coal by plaintiff, the charge, by way of assigning a breach thereof by the defendant, that the "defendant would not permit the plaintiff to go on with the work and performance of said contract, but so conducted itself in and about the operation of said contract as to stop the plaintiff from doing said work, and compelled the plaintiff to cease work on said contract and leave said premises, " is not sufficient to apprise the defendant of the particular matter or matters relied on as constituting such alleged breach, and renders the declaration demurrable in that particular.

4. Pleading—Demurrer—Grounds of.

Although a special count in a declaration may show that the contract sued upon continues executory, and recovery may not be had upon the common counts, demurrer to the common counts will not be sustained for this reason; such matter of defense properly arising on the trial.

5. Same — Defects and Objections — Aider by Verdict.

In an action of assumpsit, a plea of "not guilty" presents a substantial issue, and such mispleading and misjoinder of issue thereon will, after verdict, be cured by our statute.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1478-1480.]

6. Same—Repleader.

Where such mispleading is due to the fault of the defendant, the plea tendered presenting a substantial issue, he will not, after verdict, be allowed the benefit of his own mistake and awarded a repleader.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 851, 852.]

7. Contracts—Performance or Breach—Renunciation.

Renunciation by one party to a contract which will excuse performance by the other must be unequivocal and absolute, and deal with the entire performance to which the contract binds the promisor.

8. Same.

Where one of the parties to a contract reduced to writing, after partial performance by him, claims there was a subsequent oral modification thereof, denied by the other party, such denial will not amount to a renunciation of the actual contract, and excuse performance on the part of the other party, so as to give immediate cause of action as for a breach of the contract.

(Syllabus by the Court.)

Error from Circuit Court, Fayette County.

Action by Thomas Bannister against the Victoria Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

Dillon & Nuckolls and Walker & Summer-field, for plaintiff in error.

Payne & Hamilton and J. F. Bouchelle, for defendant in error.

MILLER, J. Plaintiff and defendant. June 1, 1901, entered into an executory contract whereby the plaintiff bound himself to mine and deliver all coal in a certain area of land containing about 40 acres for 68 cents per ton, said area to be worked and laid off according to plans outlined by the superintendent and engineer of the defendant. By the contract it was understood and agreed that, as the property was then undeveloped, all developments prospective should be done at the expense of the plaintiff, said 68 cents to include all costs of whatever kind, with the exception of props, ties, and other supplies, such as the use of live stock and mine cars for delivery of coal. Said contract contained other provisions not necessary to mention. It is admitted by both parties that this contract, which was reduced to writing, but not signed (for one reason given by the plaintiff and another by the defendant), contained the agreement as made. But it is claimed by the plaintiff, and denied by the defendant, that on August 1, 1901, a modification of this contract was made, to the effect that, "in addition to the matters and things agreed to be done and performed in the above contract by the parties thereto, the defendant would pay to the plaintiff the sum of $1.50 per lineal yard for entry work, and 60 cents per lineal yard for breakthrough or lateral entry work." After work in execution of the contract was begun and continued for some time by the plaintiff he stopped work, and on March 24, 1904, instituted this suit. Besides the general common counts in assumpsit, there is a quantum meruit count for work and services alleged to have been done by the plaintiff about the business of the defendant for which it promised to pay him so much money as he reasonably deserved to have, and also a quantum valebant count charging that the plaintiff had sold and delivered to the defendant certain timber, steel rails, etc., for which it promised to pay him on request so much money as the same were worth. There is also a special count on said contract setting forth the mutual promises substantially in

[61 S.E. 339]

the terms of the contract, including the promise of the defendant to pay the plaintiff 68 cents per ton as provided therein. With respect to the alleged modification of the contract it is alleged that on the 1st day of August, 1901, the parties further agreed that, "in addition to the matters and things agreed to be done and performed in the above contract by the parties thereto, the defendant "would pay the plaintiff the sum of $1.50 per lineal yard for entry work and 60 cents per lineal yard for breakthrough or lateral entry work"; and by way of assigning a breach of the contract it is averred "that after the agreements above set forth were made and entered into by the plaintiff and defendant the plaintiff in consideration thereof entered upon said work and built two drift mouths and drove entries and breakthroughs and mined a small part of the coal from the said area as provided in the agreement between the plaintiff and the defendant, and expended large sums of money, to wit, $5,000, in preparing said mines to get out the coal therefrom according to said contract, and was able to carry out said contract on his part, and would have done so but for the interference of the said defendant, and that while the plaintiff was engaged in performing the said contract, to wit, on the——day of December, 1901, the defendant refused to furnish any yardage where the coal from said mines could be hauled and received by the defendant, and the defendant would not permit the plaintiff to go on with the work and performance of said contract, but so conducted itself in and about the operation of the said mines as to stop the plaintiff from doing said work, and compelled the plaintiff to cease work on said contract and leave the said premises, whereby the plaintiff hath lost and been deprived of divers gains and profits which might and otherwise would have arisen and accrued to him...

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24 practice notes
  • Wright v. Standard Ultramarine & Color Co., No. CC820
    • United States
    • Supreme Court of West Virginia
    • 6 Diciembre 1955
    ...73 W.Va. 39, 79 S.E. 1009; Union Stopper Company v. McGara, 66 W.Va. 403, 66 S.E. 698; Bannister v. Victoria Coal and Coke Company, 63 W.Va. 502, 61 S.E. 338; Wheeling Mold and Foundry Company v. Wheeling Steel and [141 W.Va. 376] Iron Company, 62 W.Va. 288, 57 S.E. 826; Waid v. Dixon, 55 W......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Marzo 1913
    ...petition is insufficient to authorize a recovery. (2 Ency. Pl. & Pr. 1010; 6 id. 643; 15 Ency. Law, 1007; Bannister v. Coal & Coke Co., 61 S.E. 338; Bushnell v. Cogshall, 62 P. 1101.) It should have alleged that the defendant had accepted the work as done and promised to pay for it. The wor......
  • Marshall v. Elmo Greer & Sons, Inc., No. 22300
    • United States
    • Supreme Court of West Virginia
    • 24 Marzo 1995
    ...implied promise must be as distinctly alleged in a declaration as an express one." Syl. pt. 2, Bannister v. Victoria Coal & Coke Co., 63 W.Va. 502, 61 S.E. 338 (1908). "An implied contract arises from the principle of equity that one person may not enrich himself unjustly at the expense of ......
  • Kimel v. Missouri State Life Ins. Co., No. 987.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Junio 1934
    ...745, 747, L. R. A. 1918D, 580; Indiana Life Endowment Co. v. Reed, 54 Ind. App. 450, 103 N. E. 77, 81; Bannister v. Victoria C. & C. Co., 63 W. Va. 502, 61 S. E. 338; Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895. See, also, United State Potash Co. v. McNutt (C. C. A. 10) 70 F.(2d) 126. 3 M......
  • Request a trial to view additional results
24 cases
  • Wright v. Standard Ultramarine & Color Co., No. CC820
    • United States
    • Supreme Court of West Virginia
    • 6 Diciembre 1955
    ...73 W.Va. 39, 79 S.E. 1009; Union Stopper Company v. McGara, 66 W.Va. 403, 66 S.E. 698; Bannister v. Victoria Coal and Coke Company, 63 W.Va. 502, 61 S.E. 338; Wheeling Mold and Foundry Company v. Wheeling Steel and [141 W.Va. 376] Iron Company, 62 W.Va. 288, 57 S.E. 826; Waid v. Dixon, 55 W......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Marzo 1913
    ...petition is insufficient to authorize a recovery. (2 Ency. Pl. & Pr. 1010; 6 id. 643; 15 Ency. Law, 1007; Bannister v. Coal & Coke Co., 61 S.E. 338; Bushnell v. Cogshall, 62 P. 1101.) It should have alleged that the defendant had accepted the work as done and promised to pay for it. The wor......
  • Marshall v. Elmo Greer & Sons, Inc., No. 22300
    • United States
    • Supreme Court of West Virginia
    • 24 Marzo 1995
    ...implied promise must be as distinctly alleged in a declaration as an express one." Syl. pt. 2, Bannister v. Victoria Coal & Coke Co., 63 W.Va. 502, 61 S.E. 338 (1908). "An implied contract arises from the principle of equity that one person may not enrich himself unjustly at the expense of ......
  • Kimel v. Missouri State Life Ins. Co., No. 987.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Junio 1934
    ...745, 747, L. R. A. 1918D, 580; Indiana Life Endowment Co. v. Reed, 54 Ind. App. 450, 103 N. E. 77, 81; Bannister v. Victoria C. & C. Co., 63 W. Va. 502, 61 S. E. 338; Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895. See, also, United State Potash Co. v. McNutt (C. C. A. 10) 70 F.(2d) 126. 3 M......
  • Request a trial to view additional results

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