Bowen v. Chenoa-Hignite Coal Co.

• Decision Date: 18 February 1916
• Citation: 182 S.W. 635,168 Ky. 588
• Parties: BOWEN v. CHENOA-HIGNITE COAL CO.
• Court: Kentucky Court of Appeals

182 S.W. 635

168 Ky. 588

BOWEN v. CHENOA-HIGNITE COAL CO.

Court of Appeals of Kentucky.

February 18, 1916

Appeal from Circuit Court, Bell County.

Action by M. S. Bowen against the Chenoa-Hignite Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Patterson & Ingram, of Pineville, for appellant.

William E. Cabell, of Middlesboro, for appellee.

SETTLE J.

The purpose of the appellant, M. S. Bowen, in bringing this action in the court below was to recover of the appellee Chenoa-Hignite Coal Company, a corporation engaged in mining and selling coal, damages for the violation of an alleged contract whereby, as averred in the petition, it employed him to serve it as superintendent and foreman of its coal mine for the term of one year beginning October 1, 1914, "at a salary of $150 per month, with residence and coal for his private use furnished free of cost, and with the privilege of buying his goods in the store at a discount of 15 per cent. off of store prices during his term of office." It was further alleged in the petition that, after rendering appellant three months' service as mine superintendent under the contract referred to, appellee was wrongfully discharged by it. The petition contains the admissions that appellant's discharge resulted from a reorganization of the appellee company and change in its officers, and that for and during the time he served appellee appellant was paid by it a salary of $150 per month, furnished a residence and coal for his use, and allowed the 15 per cent. discount on all merchandise purchased at its store.

Appellee filed a general demurrer to the petition as amended, which the circuit court sustained. Though given leave to further amend, appellant refused to do so. Thereupon the court dismissed his petition, and from the judgment manifesting these rulings, he has appealed.

The writing relied on as evidencing the alleged contract in question was filed with and made a part of the petition. It is a copy of the entire minutes of a meeting of appellee's board of directors held September 12, 1914 and is in words and figures as follows:

"Minutes of a called meeting of the board of directors of the Chenoa-Hignite Coal Company held on Saturday, September 12, 1914, at 9:30 a. m., at the office of Wm. Ayres, in Pineville, Ky. pursuant to notice.

Following were present at said meeting: W. H. Hollingsworth, F. G. Burnette, Wm. Ayres, P. T. Cairns, and J. R. Justice--the above being all of the directors, and also all of the stockholders. Said meeting was called to order by the president, F. G. Burnette.

The affairs of the company having been discussed at some length, Mr. W. H. Hollingsworth resigned his position as general manager, to take effect October 1, 1914, which resignation, on vote of the board of directors, was accepted.

On motion of J. R. Justice, duly seconded and carried by vote of the board, it was ordered that a superintendent and mine foreman of the company be appointed at a salary of $150 per month, with residence and coal for his private use furnished free of costs, and with the privilege of buying his goods in the store at a discount of 15 per cent. off of store prices during his term of office. The president was authorized to negotiate with W. L. Stallsworth or other suitable or competent men who shall be satisfactory to the board of directors to serve as superintendent and mine foreman of the company's mining operations on the above terms of compensation, or less, if same can be agreed upon, and the superintendent and mine foreman so selected to enter upon his duties on October 1, 1914, or as soon thereafter as possible.

On motion of Mr. Justice, duly seconded and carried, it was ordered that the superintendent and mine foreman shall have complete charge of the active mining operation and all the men employed in connection with same, including the mining of coal and loading same on board the railroad cars, and general supervision of the mines and all work connected therewith.

It is also ordered that the president submit to the board for its approval any contract or agreement that he may negotiate with said Stallsworth or other person for services as superintendent and mine foreman as soon as the same can be practically done.

On motion duly seconded and carried it was also ordered that the superintendent and mine foreman shall have the authority to employ and discharge all men engaged in mining operations under his direction, or in any other work about the mines, and fix their rate of pay, subject to the approval of the president in case of any raise in wages over the present rate, and also shall have authority to order in behalf of the company such necessary mine supplies or repairs as the current business may demand, but this authority shall not extend to the purchase of new machinery or rails or the making of any permanent improvements or incurring any considerable indebtedness without first obtaining the approval of the president or board of directors.

The superintendent and mine foreman shall have all authority necessary to enable him to comply with the laws of the state, and, in addition to all reports required to be made by the superintendent to the officers of the state, he shall file with the secretary of this company duplicates of all such reports, and shall also make reports and file same with the secretary of this company from time to time of the operation of the mine and other property under his control.

Upon motion of J. R. Justice and carried by the board it is also ordered that W. H. Hollingsworth be appointed engineer of the company at a salary of $25 per month, and as such engineer he shall keep up the centers and prepare from time to time all maps required by the lease and the laws of the state of Kentucky and deliver them to the proper parties as required thereby.

There being no further business to come before this meeting, the same was adjourned subject to the call of the president.

F. G. Burnette, President.

Attest: P. T. Cairns, Secretary."

Appearing on the back of the paper containing the above minutes are these words:

"Copy of Minutes of Board Meeting for M. S. Bowen."

Allowing the foregoing paper to speak for itself, it means nothing more than its language clearly expresses, viz., authority to the president of the board of directors to employ a mine superintendent or mine foreman upon the terms therein stated, and defines the powers and duties to be exercised and performed by the latter under the employment, when made, but is indefinite-- indeed silent--as to the time the employment would continue or end. It does not even name appellant as the person to be employed. It will further be observed that the paper contains a provision requiring that the president submit to the board for its approval such contract as he might make, under the authority therein conferred, with any person employed by him as superintendent and mine foreman; but it does not show that he ever reported the making of such a contract, or its approval by the board of directors.

"A contract may be formed by accepting a paper containing terms. If the offer is made by delivering to another a paper containing the terms of a proposed contract, and the paper is accepted, the acceptor is bound by its terms; and this is true, as a rule, whether he reads the paper or not." 9 Cyc. 260.

But the paper here relied on is not in the form of a contract proposed by appellee to appellant and submitted for the latter's acceptance.

It merely shows authority to appellee's president to make a contract upon the terms mentioned therein, and requires him to report the contract when made to appellee's board of directors, and that it be approved by the board. The paper shows no making of a contract by the president upon the terms authorized, nor does it show the acceptance of such a contract by appellant, or that, following its acceptance by the latter, it was reported by the president to the board or approved by it. It is our...