Eastern Coal Corp. v. McNally Pittsburg Mfg. Corp.

• Decision Date: 13 January 1960
• Docket Number: No. 13860.,13860.
• Citation: 274 F.2d 157
• Parties: EASTERN COAL CORPORATION, Appellant, v. McNALLY PITTSBURG MANUFACTURING CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F.2d 157 (1960)

EASTERN COAL CORPORATION, Appellant, v. McNALLY PITTSBURG MANUFACTURING CORPORATION, Appellee.

No. 13860.

United States Court of Appeals Sixth Circuit.

January 13, 1960.

George Richardson, Jr., Bluefield, W. Va., and Paul S. Hudgins, Huntington, W. Va.; J. Peyton Hobson, Jr., Pikeville, Ky., on the brief, for appellant.

C. Kilmer Combs, Prestonsburg, Ky., and Henry S. Willard, Wellston, Ohio; Combs & Combs, Prestonsburg, Ky., Reese & Willard, Wellston, Ohio, on the brief, for appellee.

Before McALLISTER, Chief Judge, and MARTIN and CECIL, Circuit Judges.

PER CURIAM.

Appellee contracted to design, fabricate, erect, and adjust for appellant, certain machinery, "entirely suitable" for cleaning coal. The contract was silent as to the time in which it was to be performed. However, the agreement provided that appellee reserved the right to make, at no cost to appellant, such changes in materials or arrangements, as in its judgment, were essential for the proper operation of the plant. It provided for shipment of the fabricated parts within four months of the execution of the contract, and "predicted" erection within six months thereafter. The erection was actually completed on April 21, 1956, which, appellant concedes, was compliance with the contract with regard to the requirement for erection.

A dispute arose as to whether the installation of a screen was necessary to the refuse system. This system had been designed to pump the refuse, suspended in water; and, although in operation this system resulted in the occurrence of some plugging, appellee was of the opinion that it could be substantially reduced and easily eliminated. However, appellant insisted upon the installation of a screen even though appellee advised against it. The question of payment therefor was left open. Whether this was a necessary revision, under the "Revision" provision in the contract, setting forth that appellee reserved the right to make such changes as, in its opinion, were necessary for the proper operation of the plant, was considered a question of fact for the jury. Under the contract, providing that appellee might make such necessary changes in the materials or arrangement in the exercise of its judgment, it implicitly appears that there was a provision for a period of trial operation. At least that was a question of fact for the jury.

It is a recognized rule that when the duration of a contract is indefinite, it is to be performed within a reasonable time. At the conclusion of the proofs, appellant requested the court to charge the jury that if appellee failed to design, deliver, and install such equipment within a reasonable period of adjustment, after April 23, 1956, then appellant would be entitled to damages, such as were directly and naturally suffered by it by reason thereof. Appellant further requested the court to instruct the jury that if appellee failed to place the plant in a suitable condition for cleaning the coal within a reasonable time after April 23, 1956, the jury should then find for appellant in such an amount...