Barren Fork Coal Co. v. Cogar Grain & Coal Co.

• Citation: 8 S.W.2d 399,225 Ky. 270
• Parties: BARREN FORK COAL CO. v. COGAR GRAIN & COAL CO.
• Decision Date: 27 June 1928
• Court: Court of Appeals of Kentucky

8 S.W.2d 399

225 Ky. 270

BARREN FORK COAL CO. v. COGAR GRAIN & COAL CO.

Court of Appeals of Kentucky

June 27, 1928

Appeal from Circuit Court, Mercer County.

Suit by the Barren Fork Coal Company against the Cogar Grain & Coal Company, wherein defendant filed a counterclaim. From the judgment, plaintiff appeals. Affirmed.

E. H Gaither, of Harrodsburg, for appellant.

C. E Rankin, of Harrodsburg, for appellee.

WILLIS J.

This controversy arises upon contracts for the sale of coal. The Barren Fork Coal Company is a producer and the Cogar Grain &amp Coal Company is a distributor of coal. In July, 1926, the parties entered into a contract by the terms of which the Barren Fork Coal Company sold to the Cogar Grain & Coal Company six to eight cars of coal at $2.10 per ton, for shipment during the month of August. Another contract for four cars of coal at $2.35 per ton was made on August 28 1926. The Cogar Grain & Coal Company exercised its option to take eight cars under the first contract, and during the month of August gave orders for the shipment of eight cars. The Barren Fork Coal Company delivered six cars on the first and three cars on the second contract, but failed to make further deliveries. Delivery was promised, however, until in November, when positive refusal to make further deliveries was admitted. The Cogar Company declined to pay a balance of $570.10 claimed to be due for the coal delivered, and this suit was instituted by the Barren Fork Coal Company to recover from the Cogar Company that balance, with interest. The answer denied the accuracy of the account, and in a counterclaim sought to recover damages from the Barren Fork Coal Company for failure to deliver two cars of coal under the July contract and one car of coal under the August contract. The Barren Fork Coal Company sought to be relieved from the July contract on the ground that it was obtained by fraud and misrepresentation, it being alleged that the Cogar Company represented that it desired the coal for the Mercer county public schools, thereby obtaining the contract at a lower rate than was quoted for general use. This defense was denied by appropriate pleading, and the case was tried by a jury. The price of coal had advanced so that when the deliveries were refused in November, the market price of coal was $5 per ton. The jury returned a verdict for the Cogar Company allowing damages sufficient to extinguish appellant's claim, but the court entered judgment for the plaintiff awarding it $28.50. The Barren Fork Coal Company prosecutes this appeal, contending that the contract was void because obtained by false...