Bare v. Victoria Coal & Coke Co

• Decision Date: 03 February 1914
• Citation: 80 S.E. 941,73 W.Va. 632
• Court: West Virginia Supreme Court
• Parties: BARE v. VICTORIA COAL & COKE CO.

80 S.E. 941

73 W.Va. 632

BARE

v.VICTORIA COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1914.

(Syllabus by the Court.)

1. Mines and Minerals (§ 109*)—Breach of Contract to Mine Coal—Declaration— Sufficiency on Demurrer.

In an action by a contractor against the owner to recover damages for breach of a contract to mine coal at a stipulated price per ton and stipulated sums per lineal yard in addition for driving entries and break-throughs, a declaration charging that while plaintiff was engaged in performing the contract on his part, and according to the terms thereof, and had furnished defendant a statement of coal mined and the number of yards of entry work and breakthroughs, and showing the amount due him, defendant refused to pay him for such yardage, or to carry out the contract on its part, and so conducted itself in other ways as to prevent plaintiff from further performing his part, and counting for gains and profits, is good on demurrer, as stating a breach by defendant of a material part of the contract and entitling him to treat the contract as at an end, and to an immediate action for damages sustained.

[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. § 214; Dec. Dig. § 109.*]

2. Contracts (§ 321*)—Breach—Election of Remedies.

The general rule in such cases is "that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies. He may treat the contract as rescinded, and recover on quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized, if he had not been prevented from performing. In the latter case, the contract would be continued in force for that purpose."

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1508-1527; Dec. Dig. § 321.*]

3. Contracts (§ 313*)—Breach—Excuse for Nonperformance.

The general rule, however, is that the renunciation of the contract by one party, which will excuse performance by the other, must be unequivocal and absolute, must deal with the entire performance of the contract, or must relate to such material part thereof as to prevent performance by the other; a slight breach, or a breach of an immaterial part by one party will not excuse performance by the other.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1279; Cent. Dig. § 313.*]

4. Evidence (§ 582*)—Admissibility—Testimony Taken on Former Trial.

Evidence taken down by a shorthand reporter on one trial and certified by him and covered into a bill of exceptions or certificate of evidence by the court, may, on the death of the witnesses, be read as a deposition on a subsequent trial of the same case, involving the same issues.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2419-2423; Dec. Dig. § 582.*]

5. Damages (§ 124*)—Measure—Breach of Contract to Mine Coal.

In an action by such contractor to recover damages for breach by defendant of a contract to mine coal, preventing further performance of the contract by plaintiff, and counting for gains and profits thereon, the measure of damages, according to the general rule, is the difference between the cost of performance and the price stipulated in the contract.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 326-338; Dec. Dig. § 124.*]

6. Damages (§ 159*)—Breach of Contract to Mine Coal—Evidence—Expenditures.

Where in such action plaintiff counts for gains and profits he may, as an element of damages, covered by gains and profits, prove what he has in good faith laid out and expended on the faith of the contract, including the value of his own services. If he goes further than this he will be subject to the rules of law as to the character of the profits which may be then claimed.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 429-438, 440-444, 447, 449-453; Dec. Dig. § 159.*]

7. Contracts (§ 313*)—Breach of Contract —Right of Action.

Point 8 of the syllabus in Bannister v. Coal Co., 63 W. Va. 502, 61 S. E. 338, re-affirmed and applied.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1279; Dec. Dig. § 313.*]

8. New Trial (§ 162*)—Grounds—Erroneous Findings.

Where on special interrogatories the jury makes separate findings of items making up their general verdict, some of which are and others are not recoverable in the action, unless plaintiff enters a remittitur for such parts or items not recoverable, the court cannot on motion of defendant reduce the verdict by the amount thereof, but on defendant's motion should set aside the verdict and award him a new trial.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*]

Error to Circuit Court, Fayette County.

Action by B. E. Bare, administrator, etc., against the Victoria Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

C. R. Summerfield and Dillon & Nuckolls, all of Fayetteville, for plaintiff in error.

MILLER, P. This is the same case, but upon an amended declaration, which we had in Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S. E. 338. The substance of the original declaration, and of the several counts thereof, is set forth in the opinion in that case. The contract there pleaded was an alleged modified one with mutual promises for mining coal by plaintiff for defendant The breach, by defendant, alleged, as excusing complete performance by plaintiff, was "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 to 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 from the mining of said coal from the area of land above described under the terms of the agreement."

As the contract pleaded contained no agreement to provide the kind of yardage, a breach of which was so alleged, and the general charge in connection with the specific one, that defendant prevented performance by plaintiff, was so indefinite and uncertain as by the rule of good pleading was insufficient to give notice to defendant, we were obliged to hold, and did hold, the fourth or special count of the declaration bad on demurrer.

Said fourth count as amended charges the breach by defendant, excusing further performance by plaintiff, as follows, "that while the plaintiff was engaged in performing said contract on his part according to the terms thereof, to-wit, on the ——day of December, 1901, and had furnished the defendant a statement of work done under said contract, and coal mined, and also a statement of the number of lineal yards of entry work, and also of break-through or lateral entry work, showing the amounts due from the said defendant to the said plaintiff according to the terms of said contract, that the said defendant refused to pay the amounts so shown to be due by it to the said plaintiff, for work done in driving entries and break-throughs or lateral entry work or any part thereof, and denied its liability to pay the same under the terms of said contract, and refused to carry out said contract on its part, and so conducted itself in other ways as to prevent the plaintiff from carrying out said contract on his behalf whereby the plaintiff hath lost and been deprived of divers gains and profits which might and otherwise would have arisen and accrued to him from the mining of said coal from the area of land above described under the terms of the agreement aforesaid."

It is apparent that the "yardage" of the original declaration is a very different kind of "yardage" from that covered by the amended declaration. In the original declaration it was a place of storage for the coal mined; in the amended count it is the price per lineal yard for entry work and break-throughs or lateral entry work, for which, by the modified contract both the original and amended declarations allege defendant promised to pay plaintiff at the rate of "$1.50 per lineal yard for entry work, and 60 cents per yard for break-through or lateral entry work."

On the demurrer to the amended declaration and each count thereof, we hold, the general counts, the same as in the original declaration, good, as formerly. As to the fourth or special count, we have the new question presented, namely: Was plaintiff, on his election, discharged from complete performance of the contract on his part, by the breach of defendant to comply with its promise to pay him for the "yardage" as alleged? If he was, this count is good, otherwise it is not, and it also would be bad on demurrer.

The rule, which seems well established by judicial decisions, and adopted by text writers, is "that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies. He may treat the contract as rescinded, and recover on quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all...