Fuel Distrib.S Inc v. Paynebaber Coal Co, (No. 6383.)

• Court: Supreme Court of West Virginia
• Writing for the Court: WOODS
• Citation: 148 S.E. 854
• Parties: FUEL DISTRIBUTORS, Inc. v. PAYNEBABER COAL CO.
• Decision Date: 07 May 1929
• Docket Number: (No. 6383.)

148 S.E. 854

FUEL DISTRIBUTORS, Inc.
v.
PAYNEBABER COAL CO.

(No. 6383.)

Supreme Court of Appeals of West Virginia

May 7, 1929.

[148 S.E. 854]

Rehearing Denied July 17, 1929.

(Syllabus by the Court.)

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, of Huntington, for plaintiff in error.

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

WOODS, P. 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 500 tons (or 10 carloads) of Elkhorn run of mine coal at the price of $2 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, Va., 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 Lake & Export Coal Corporation for the resale of the coal which was the subject-matter of the contract.

The defendant, on the institution of this action, took the position that it sold and contracted to ship to the plaintiff the number of cars of coal loaded by it on September 30, 1926, and that on that day it loaded 4 cars only. It shipped 3 of the 4 cars loaded on that day, and to make up the fourth, according to defendant's contention, it shipped 2 cars on October 14, 1926, and 2 cars on October 28. 1926. In other words, the defendant claimed that it had fully performed its part of the contract—in fact, shipped more coal than it had contracted to do.

The correspondence and telegrams between the parties were introduced in evidence. The case was submitted to the jury, without instructions, and the jury found for the plaintiff in the sum of $538.63, and upon the plaintiff remitting 10 cents per ton on the undelivered tonnage to compensate the defendants for the freight...