Cub Fork Coal Co. v. Fairmount Glass Works

• Decision Date: 18 July 1929
• Docket Number: No. 4109.,4109.
• Citation: 33 F.2d 420
• Parties: CUB FORK COAL CO. et al. v. FAIRMOUNT GLASS WORKS.
• Court: U.S. Court of Appeals — Seventh Circuit

33 F.2d 420 (1929)

CUB FORK COAL CO. et al. v. FAIRMOUNT GLASS WORKS.

No. 4109.

Circuit Court of Appeals, Seventh Circuit.

June 12, 1929.

Rehearing Denied July 18, 1929.

Connor Hall, of Huntington, W. Va., for appellants.

Kurt F. Pantzer, of Indianapolis, Ind., for appellee.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

This action was brought to recover damages for breach of a written contract for the sale of 17,500 tons of coal. Judgment was for the defendant dismissing the action following a general verdict in its favor.

Appellants assign errors which challenge (a) the court's ruling upon their motion for a directed verdict and (b) the soundness of certain instructions given by the court to the jury. Appellee, on the other hand, while not assigning error, insists that appellants were not prejudiced by any instructions given because, under the most favorable view of the testimony, plaintiffs had not presented a single issue which called for its submission to the jury.

The same case was before us on a previous appeal. 19 F.(2d) 273.

The contract provided, among other things:

"Fairmount Glass Works, Indianapolis, Ind., has this day bought of the W. E. Deegans Coal Company, Huntington, W. Va. Quantity: 17,500 tons. Price: $6.50 per net ton fob mines.

"Shipments made by the Seller to the Buyer during any one month shall constitute fulfillment (of this contract for that month) and the tonnage herein contracted shall be cumulated only for such one-month period, except by mutual agreement.

"(d) It is expressly understood that the price or prices named herein are based on existing rates of pay for all mine labor and the price or prices will be subject to readjustment in event existing rates of pay are changed."

Plaintiffs proved the execution of the contract, the delivery of coal thereunder, the giving of notice by defendant to cease further deliveries, and damages. Upon this showing, they contend they were entitled to a directed verdict. They assert that they offered to accept the lowest amount recoverable under the testimony and thereby avoided the only issue that could have been properly submitted to the jury.

Defendant advances three reasons for rejecting appellants' argument:

(1) The contract was never breached by it.

(2) It insists that it never contracted with plaintiffs. Moreover, it asserts it made its position clear when entering into the contract that it would not deal with the agent or broker. Plaintiffs reply by contending: (a) That the seller, W. E. Deegan Coal Company, was plaintiffs' agent in selling the coal and that immediately upon the execution of the contract plaintiffs accepted it and obligated themselves to deliver the coal as by the contract specified. (b) They also urge that the contract and cause of action against defendant was duly assigned to them prior to the commencement of the suit. (c) Defendant, with full knowledge that the Deegan Coal Company was only an agent of plaintiffs, ratified the contract and called for its fulfillment according to its terms.

(3) Defendant contends that the agreement was terminated by the contingency provided for in paragraph (d) of the contract. The failure of the parties to make a readjustment as provided in the agreement relieved defendant of its obligation to accept further deliveries.

Breach of Contract. — The evidence on this issue does not rise to the dignity of a conflict or dispute. On December 4th defendant wired seller: "Stop all shipments to us until further notice. See Letter." The letter contained the following:

"We wired you today as follows: `Stop all shipments to us until further notice. See letter.' This will also give you a chance to consider whether you will be able to revise your prices to the market price, prevailing at present. We have been offered good gas Coal today, Mine Run at $4.25 per ton at the Mines and we look for it to come down still lower. There is plenty of Coal to be had now and while you have a contract with us at $6.50 for Egg Coal, you have not lived up to same, and we have a right to ask you to reduce your price."

In its letter of December 1st, defendant wrote: "We are figuring on curtailing production for the next month or so and we now have a good supply of Coal on hand. While you were not shipping us sufficient Coal to operate, we had to go out and buy about 30 cars and some of it is coming in now. We are buying some of this Coal as low as $4.40 for first-class Eastern Kentucky Gas Coal and we are buying W. Virginia Gas Coal for $5.00. We think you should come down on your price and meet the prevailing prices now being offered. There is plenty of Coal in the market and we look for Coal, in the next week or two, to go down to as low as $4.00. Please let us know whether you intend to cut our price."

Subsequent to this correspondence, seller addressed to defendant an invoice of four cars of coal dated December 9th. Defendant replied refusing to accept the coal. We quote from the letter: "We received invoice this morning covering four cars of coal after we had notified you by wire and letter on December 4th to ship no more coal. * * * You had no right to ship these four cars of coal as we had notified you to discontinue shipments. We will refuse the four cars shipped December 9th. We wired you December 4th to stop all shipments. We ask that you kindly give disposition of this coal promptly."

On the same day seller wrote defendant to the effect that three of these four cars did not move to them. Defendant subsequently unloaded the one car that arrived and paid for it. On December 30th, seller wrote defendant to ascertain whether defendant would take any coal during the month of January, and on January 1st defendant replied: "We were left with quite a stock of raw material on our hands and we are trying to work it up and just as soon as we need more coal we will take the matter up with you relative to shipments and adjusting prices."

This represents all of the documentary testimony on this issue. The oral testimony which supplements it is limited to an alleged interview between representatives of the two concerns the obvious purpose of which was to adjust differences. Defendant's president testified that the conversation was about prices — "getting lower prices" — and that "he told plaintiffs that when they needed more coal they would have them to ship it."

Upon this evidence, no jury question was presented as to this issue. Brown-Crummer Inv. Co. v. Koss Const. Co. (C. C. A.) 4 F.(2d) 682; Empire Plow Co. v. Berthold & Jennings Lumber Co. (Mo. App.) 237 S. W. 137; Smith v. United Traction & Electric Co., 168 N. Y. 597, 61 N. E. 1134; Hixson Map Co. v. Nebraska Post Co., 5 Neb. (Unof.) 388, 98 N. W. 872; Avgikos v. Lowry, 54 Utah, 217, 179 P. 988.

The contract specified the price and fixed the dates of delivery. Defendant had no right to make its...