Davy Pocahontas Coal Co v. Kaylor

• Decision Date: 13 January 1916
• Parties: DAVY POCAHONTAS COAL CO. v. KAYLOR.
• Court: Virginia Supreme Court

87 S.E. 549

118 Va. 296

DAVY POCAHONTAS COAL CO.

v.KAYLOR.

Supreme Court of Appeals of Virginia.

Jan. 13, 1916.

Error to Circuit Court of City of Norfolk.

Action by C. M. Kaylor against the Davy Pocahontas Coal Company. There was a judgment for plaintiff, and defendant brings error, while plaintiff assigns cross-error. Affirmed.

Loyall, Taylor & White, of Norfolk, for plaintiff in error.

Mann & Tyler, of Norfolk, for defendant in error.

KEITH, P. Kaylor brought this suit in October, 1913, claiming damages to the amount of $2,000, made up of $450 commissions on 9, 500 tons of coal sold to the West Virginia Pocahontas Sales Corporation, but not delivered by defendant, and the balance made up of commissions on coal which had been sold direct by the Davy Pocahontas Coal Company to certain parties in the territory for which Kaylor had been appointed exclusive agent. Kaylor was, by agreement entered into on the 14th day of October, 1911, between himself and the Davy Pocahontas Coal Company, appointed the exclusive agent of the company for the sale of its coal in that territory "that can be reached by shipments moving east and south over the Norfolk & Western Railway from the mines of the party of the first part. It is also understood that this will cover all shipments going through Hampton Roads for coastwise either north or south; also export and bunker coals." The questions here to be decided arise under sections 5 and 6 of that contract, which are as follows:

"(5) Tonnage to be furnished and delivered to the party of the second part is to be based upon 50 per cent. of the total output of commercial coal mined by said first party, but in the event that the party of the second part isunable to sell and dispose of 50 per cent. of the total output, and the said party of the first part can market that portion of said 50 per cent. which the party of the second part cannot dispose of, it shall have the right to do so in other territory free from any claim of commission of said party of the second part, and, if the said second party can sell and dispose of a greater percentage of said output than the said 50 per cent. thereof, and the first party is in a position to furnish the said increase, then the said first party agrees to do so, for which said second party shall receive the same commission as he is entitled to under this contract for the sale of coal of first party.

"(6) Commission and Payments. It is agreed that the party of the first part is to pay the party of the second part ten per cent. (10%) per ton on the price received f. o. b. mines for all shipments to the territory before mentioned, except for railroad fuel which is to be five cents (5c.) per ton; said commission to be paid to the party of the second part on the 20th of each month for all shipments made the previous month."

There was a verdict for the plaintiff, and both parties asked that it be set aside, and a new trial awarded, but the court overruled the motion and entered judgment. In this court the Davy Pocahontas Coal Company, the defendant in the court below, is the plaintiff in error, and Kaylor, the defendant in error, assigns cross-error under rule 8 of this court.

Kaylor contended in the lower court, and still contends under his cross-assignment of error, that, under a proper construction of the contract of October 14, 1911, he is entitled to recover 10 per cent. per ton on the price received by the defendant f. o. b. mines on all shipments of commercial coal made by the defendant into his territory, and five cents per ton on all railroad fuel...