Cleveland & Western Coal Co. v. Main Island Creek Coal Co.

• Decision Date: 04 March 1924
• Docket Number: 3922.
• Citation: 297 F. 60
• Parties: CLEVELAND & WESTERN COAL CO. v. MAIN ISLAND CREEK COAL CO. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

297 F. 60

CLEVELAND & WESTERN COAL CO. v. MAIN ISLAND CREEK COAL CO. ^[1]

No. 3922.

United States Court of Appeals, Sixth Circuit.

March 4, 1924

C. F Taplin, of Cleveland, Ohio (E. L. Baker, of Cleveland, Ohio on the brief), for plaintiff in error.

Murray Seasongood, of Cincinnati, Ohio, and John H. Holt, of Huntington, W.Va. (E. L. Hogsett, of Huntington, W. Va., on the brief), for defendant in error.

Before KNAPPEN, MACK, and DONAHUE, Circuit Judges.

MACK Circuit Judge.

Defendant in error (hereinafter designated plaintiff) was the owner and operator of various coal mines located in Logan county, W. Va., and during the fall of 1920 was desirous of shipping as large a tonnage as possible to tidewater at Newport News, Va., for export. Plaintiff in error (hereinafter designated defendant) was engaged in the business of buying and selling coal, and during the same period controlled the output of certain mines located in Logan county, W. Va., which output was shipped inland and to ports of Lake Erie for lake shipment.

The Chesapeake & Ohio Railway Company, upon the lines of which the mines of the plaintiff and defendant were located, placed embargoes from time to time on shipments of coal to tidewater from the mines located on its line. Such embargoes were in effect from September 7, 1920, to September 20, 1920 inclusive; October 13, 1920, to October 21, 1920, inclusive, except that from October 18, 1920, to October 21, 1920, coal loaded into 70-ton cars was not embargoed; and also from October 26, 1920, to December 1, 1920, inclusive, 70-ton cars were permitted to go to tide.

During the times that these embargoes were in effect, the plaintiff, being prevented thereby from shipping its tonnage to tidewater, naturally sought to ship it inland for transshipment up the Lakes. Furthermore, effective July 26, 1920, the Interstate Commerce Commission had promulgated service order No. 10, which provided in substance, and so far as material to this case, that approximately 30 per cent. of the total output of coal mines in Logan county, W. Va., should be shipped to Lake Erie ports for transshipment by boats up the Lakes, and this service order remained in effect until October 27, 1920.

Moreover, plaintiff, desiring as much coal as possible at tidewater, was seeking to offset the requirements of service order No. 10 as far as possible; as by that order it was compelled to ship 30 per cent. of its entire output to the Lakes, it was able, when embargoes were off, to ship only 70 per cent. of its output to tide during the lake season. If, then, by arrangement with the defendant, when the embargo to tide was off, the defendant could be compelled to ship to it at tide the whole of its unrestricted output, the plaintiff would be able to get to tide the 30 per cent. it was compelled to ship to the Lakes, and perhaps more, dependent upon the capacity of the defendant's mines.

The defendant, on the other hand, wanted to get all the coal it could to the Lakes during the lake season, as deliveries after that period would do it no good. Shipments by the plaintiff to the Lakes would necessarily come to an end at the close of the lake season. As the defendant knew, the capacity and output of the plaintiff's mines were very much greater than the capacity and output of its own mines. The defendant could not, therefore, during the same period, ship as much coal to tide as the plaintiff could to the Lakes, and at the close of the lake season there would necessarily be a great balance of tonnage in favor of the plaintiff and chargeable to the defendant, if plaintiff shipped to the defendant its 30 per cent., required to be shipped to the Lakes under the service order, and its supply during tidewater embargo, up to 60,000 to 100,000 tons.

In this situation the parties concededly entered into an agreement for the exchange of coal, having a stipulated market value at the time of shipment of $6 a ton. Plaintiff contends that the agreed time for shipment by either party was limited to the 1920 season of lake navigation, which ended November 16, 1920, and that $6 per ton was the agreed price to be paid for the excess shipments; defendant contends that the parties contemplated approximately equal shipments, and that consequently defendant's shipments were not limited to the season of lake navigation, but might be made within a reasonable time thereafter; that, though $6 was the fair market value of coal during that season, this figure was agreed upon and so specified in the documents as a mere bookkeeping bill price.

As against plaintiff's claim for something over $400,000, the value at $6 a ton, and interest, of the 60,000-odd tons, concededly shipped by plaintiff in excess of defendant's shipments of some 8,500 tons during the lake navigation season, defendant claimed credit for some 3,100-odd tons actually shipped by it shortly thereafter (hereinafter referred to as the Panhandle shipment), and for the difference between $6 per ton and approximately $120,000 received by it for the 57,000-odd tons which it alleged it had mined, shipped, and sold at going market prices within a reasonable time after the close of lake navigation. It tendered, in its pleadings, some $90,000 being the balance of $119,000 conceded by it to be due plaintiff, less some $29,000 claimed by way of set-off as due from plaintiff to it on a 1919 transaction. Plaintiff denied the set-off, and contended that in any case the amount in question had been the subject of a complete accord and satisfaction, or voluntary payment by defendant, so as to bar recovery or set-off thereof.

The verdict awarded the plaintiff the full amount claimed, with interest; in answer to questions propounded at defendant's request, the jury specially found that defendant had specifically agreed to replace, on or before the close of lake navigation, the coal received by it, and that nothing was allowed defendant on its claim of set-off arising out of the 1919 transactions.

1. The question stressed in defendant's brief, that the verdict is against the weight of the evidence, cannot be considered in this court. Troxell v. Delaware, etc., R.R. Co., 227 U.S. 434, 445, 33 Sup.Ct. 274, 57 L.Ed. 586.

2. To raise the question in this court that there was no substantial evidence to support the verdict, defendant should first have directed the attention of the trial court thereto by motion for a directed verdict, and then have excepted to the overruling of the motion and assigned error thereon. Mercantile Trust Co. v. Hensey, 205 U.S. 298, 27 Sup.Ct. 535, 51 L.Ed. 811, 10 Ann.Cas. 572. None of these steps were taken.

3. A motion for a new trial on the grounds both of insufficient evidence and weight of evidence was overruled, the trial judge holding that the verdict was not against the weight of the evidence. Mere error in the disposition of such a motion is not reviewable; only an abuse of the court's discretion. Howard v. U.S. (C.C.A.) 271 F. 301, 302. If it clearly appeared that there was not only no preponderance of, but indeed no substantial, evidence to support the verdict, the action of the court might have been charged to be an abuse of discretion and as such assigned as error. Waiving the nonassignment of such error, it is apparent on this record that it cannot be sustained; there was no such...