Fuel Distrib.s INC. v. Payne-Baber Coal Co. (Rehearing Denied ), (No. 6383)

• Court: Supreme Court of West Virginia
• Writing for the Court: WOODS, P.
• Citation: 107 W.Va. 465
• Parties: Fuel Distributors, Inc. v. Payne-Baber Coal Company(Rehearing Denied)
• Docket Number: (No. 6383)
• Decision Date: 07 May 1929

107 W.Va. 465

Fuel Distributors, Inc.
v.
Payne-Baber Coal Company
(Rehearing Denied
)

(No. 6383)

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1929.
Decided May 7, 1929.
July 17, 1929.

[107 W.Va. 465]

1. Contracts Dispute as to Terms of Oral Contract Presents Question for Jury.

Where there is a dispute between the plaintiff and defendant as to the terms of the oral contract sued on, the matter is a question for the jury. (p. 467).

2. Sales Measure of Damages Where Vendor Fails to Deliver Goods Generally is Difference Between Contract Price and Market Value at Time and Place for Delivery; Time of Delayed Delivery in Accordance With Agreement is to be Considered as Time for Comparison of Values in Determining Damages for Failure to Deliver Goods. Generally, the measure of damages where a vendor fails to deliver goods sold is the difference between the contract price and the market value at the time when and place where the goods should have been delivered; but if the time of delivery be postponed by agreement of the parties, express or implied, or by their acquiescence in such postponement to a subsequent date, the latter is to be considered as the time for the comparison of values. (p. 468).

3. Same Facts Held to Warrant Recovery of Damages for Vendor's Failure to Deliver Goods Based on Comparison Value as of Date of Delayed Delivery.

A case where the facts warrant the application of the latter rule. (p. 468).

Error to Circuit Court, Cabell County.

Notice of motion for judgment by the Fuel Distributors, Inc., against the Payne-Baber Coal Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

John T. Delaney, for plaintiff in error.

E. L. Hogsett and David F. Sheets, for defendant in error.

[107 W.Va. 466]

Woods, President:

The plaintiff filed its notice of motion for judgment by which it sought to recover damages from the defendant for the alleged breach of a contract to sell coal. Issue was joined on the counter-affidavit of the defendant and a jury trial had. The jury found for the plaintiff and defendant complains on the ground that the verdict was contrary to the law and the evidence.

The plaintiff's testimony was to the effect that the defendant entered into a contract whereby it agreed to sell plaintiff approximately five hundred tons (of ten carloads) of Elkhorn run of mine coal at the price of $2.00 per net ton f. o. b. mines to be shipped by way of the Chesapeake & Ohio Railway by the defendant from its mines located in Kentucky, to Lake & Export Coal Corporation, Newport News, Virginia, on the first day thereafter on which there was no embargo in effect on shipments to tidewater. At the time of this contract the defendant had notice that the plaintiff had a contract with the...