City of Covington v. Kanawha Coal & Coke Co.

• Citation: 121 Ky. 681
• Parties: City of Covington v. Kanawha Coal & Coke Co.
• Decision Date: 03 January 1905
• Court: Kentucky Court of Appeals

Page 681

121 Ky. 681

City of Covington v. Kanawha Coal & Coke Co.

Court of Appeals of Kentucky.

January 3, 1905.

Appeal from Kenton Circuit Court.

W. McD. SHAW Circuit Judge.

Judgment for defendant. Plaintiff appeals. Reversed.

F. J. HANLON, City Solicitor for appellant.

MARTIN M. DURRETT for appellee.

FRANK M. TRACY of Counsel.

OPINION BY CHIEF JUSTICE HOBSON — Reversing.

The Kanawha Coal & Coke Company made a contract with the city of Covington to furnish it coal from September 1, 1901, to September 1, 1902. The contract was in writing and is as follows:

                                      "Cincinnati, Ohio, Dec. 4, 1901
                

"The Waterworks Commissioners, Covington, Ky. — Gentlemen: We hereby propose to furnish you with what coal you may require from September 1, 1901, to September 1, 1902, as follows: Acme nut and slack at $1.45. Kanawha nut and slack at $1.35. All per ton of 2,000 pounds. The grade of coal to be furnished as requested by the superintendent of the waterworks, and same to be delivered at Covington pumping station, Ft. Thomas, Ky.

                               "The Kanawha Coal & Coke Co
                                     "T. S. GARRISON, Prest
                

"Accepted by waterworks commissioners Dec. 4, 1901.

                                        "D. B. BAYLESS
                                        "HENRY BRINKER
                                        "W. S. NOCK."
                

The coal company failed to furnish the city with coal as provided in the contract, and the city had to buy coal at a higher price. On July 2, 1903, the city brought this suit against the coal company to recover damages for its failure to comply with its contract. The coal company pleaded that there was a general custom among merchants in relation to the subject-matter of the contract, which prevailed in Covington, Ky., Cincinnati, Ohio, and the vicinity, and controlled such contracts, to the effect that the contract was made subject to a strike at the mines from which the coal contracted for was to be shipped, and all other causes beyond the seller's control whereby the seller would be prevented from obtaining the coal contracted for; that this custom was well known to the city, and it entered into the contract, agreeing that the custom should be a part of it; that the coal contracted for was to be obtained from coal mines in the State of West Virginia, in what is known as the "Kanawha District;" that on June 11, 1902, a general strike was declared and went into effect throughout the whole of the Kanawha district, rendering it impossible after that date for the defendant to obtain any of the coal contracted to plaintiff until the strike was ended on October 7, 1902; that the strike was wholly beyond its control; and that by reason of this alone it failed to furnish the coal. It also pleaded that the city recognizing the custom, and recognizing that the defendant was not bound to furnish it coal during the existence of the strike, paid it in full for all the coal it furnished, except one car, valued at $60, payment of which was refused on the ground that the coal was not received; that the city also requested it to purchase other coal for it in the open market; and that in accordance with this request it did during the continuance of the strike purchase for plaintiff a large amount of coal, which the city paid for without protest. The city demurred to this part of the answer. The demurrer was overruled.

Proof was introduced on the trial by the defendant tending to sustain the allegations of the answer, and at the conclusion of all the evidence the court instructed the jury that they should find for the plaintiff unless they believed from the evidence that there was a general strike in the Kanawha coal district, by reason of which the defendant was unable to supply the coal, and that it was a custom or usage in the vicinity where the contract was made, among persons engaged in buying and selling coal in carload lots, that all contracts with reference thereto are made subject to strikes beyond the control of the parties selling the coal, and that in this event the defendant was excused from carrying out its contract and they should find for it. The jury found for the defendant, and the city appeals.

The rule as to the admission of usage or custom to interpret or explain written contracts is thus stated in 2 Greenleaf on Evidence, Sec. 292: "Proof of usage is admitted, either to interpret the meaning of the language of the contract, or to ascertain the nature and extent of the contract, in the absence of express stipulations, and where the meaning is equivocal and obscure. Thus, upon a contract for a year's service, as it does not in terms bind the party for every day in the year, parol evidence is admissible to show a usage for servants to have certain holidays for themselves. So, where the contract was for performance as an actor in a theater for three years at a certain sum per week, parol evidence was...