Goldberg v. Ford

• Decision Date: 11 June 1947
• Docket Number: 150.
• Citation: Goldberg v. Ford, 188 Md. 658, 53 A.2d 665 (Md. 1947)
• Parties: GOLDBERG et al. v. FORD et al.
• Court: Maryland Court of Appeals

53 A.2d 665

188 Md. 658

GOLDBERG et al. v. FORD et al.

No. 150.

Court of Appeals of Maryland

June 11, 1947

Appeal from Circuit Court, Allegany County; William A. Huster, Chief Judge, and Walter C. Capper, Judge.

Suit by David N. Goldberg and others, partners, trading and doing business as Dorothy Coal Company, against James W. Ford trading and doing business as Ford Coal Company, and others for an injunction and to establish an equitable lien, wherein the Mt. Savage Refractories Company, a defendant, filed a cross-bill for injunctive relief against plaintiffs and named defendant. From a decree dismissing original complaint without prejudice to plaintiffs' right to pursue any remedy at law they might have against named defendant and granting the injunction prayed in cross-bill, plaintiffs appeal.

Decree affirmed.

Albert A. Doub, Jr., and John M. Robb, both of Cumberland, for appellants.

Horace P. Whitworth, Sr., of Westernport and Wilbur F. Galbraith, of Pittsburgh, Pa., for Mt. Savage Refractories Co.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

The Mount Savage Refractories Company owns a certain tract of land with an underlying coal deposit in Allegany County Maryland, near its brickmaking plant at Mt. Savage. It had never worked any of this coal, and had knowledge that it was of an inferior grade. However, due to an active export demand for low-grade coal, on March 22, 1946, it entered into a written lease agreement with James W. Ford and George E Ford, trading as the Ford Coal Company, whereby the latter acquired the right to strip-mine some thirty acres, upon payment of a royalty of 25¢ per ton. The agreement called for a minimum royalty of $750 per month, beginning May 1, 1946, whether coal was mined or not. It provided that the Ford Company should not assign or sublet, without the written assent of the lessor, that the lease should terminate upon violation of any covenant by the lessees, and that the lessees should furnish a surety bond for faithful performance, in the sum of $5,000.

Disputes arose between the parties, and no coal was mined under this original agreement.

On July 1, 1946, a supplementary agreement was executed. The original agreement was reaffirmed, with the following changes; the royalty payments were increased from 25¢ a ton to 29¢ a ton, beginning July 1, 1946, the lessor waiving past-due monthly payments for May and June, the minimum royalty was increased from $750 per month to $1,450 per month, and the performance bond was required to be given on or before July 8, and increased from $5,000 to $10,000 on or before September 1, 1946.

The Ford Company, in June, 1946, had negotiated with David N. Goldberg, Angelo Franciose and Ralph Franciose, trading as Dorothy Coal Company, to perform the work of stripmining the tract in question. On July 12, 1946, these parties entered into a written agreement, whereby the Dorothy Company, contractor, agreed to uncover the deposit and load the coal mined into trucks supplied by the Ford Company. The latter agreed to pay the contractor $2.08 per ton 'for all merchantable and marketable coal loaded on the trucks in the pit.' The Dorothy Company, during July and August, cleared about two acres of the tract, removing the surface to a depth of 10 or more feet, and began to load coal, but after only 289 tons had been loaded, the Ford Company failed to provide trucks, and on September 8, 1946 the operation came to a standstill. A few weeks later the contractor moved its equipment to other locations. On September 28, 1946, the Dorothy Company filed a bill of complaint in the Circuit Court for Allegany County, in Equity, against the Ford Company and The Mount Savage Company, alleging that they had uncovered about 8,000 tons of coal and incurred expenses of approximately $18,000 on the faith of their contract with the Ford Company, and to that extent had increased the value of the land and coal to the Mount Savage Company. They alleged that although able and willing to load coal they were prevented by the refusal of the Ford Company to furnish trucks. They alleged that the Mount Savage Company knew of the operations of the complainants and that these were carried on with its consent and approval; that they were credibly informed that the Mount Savage Company, working in conjunction with the Ford Company intended to cancel the lease and sell the coal to other parties. They prayed relief by way of injunction against both defendants, and that the Court declare the complainants entitled to an equitable lien upon the coal in place, belonging to the Mount Savage Company, for the value of their services in unconvering the coal and making it available for loading. The Ford Company filed a combined demurrer and answer to the bill. The Mount Savage Company answered, denying any collusion or combination with the Ford Company. On October 21, 1946, the Mount Savage Company filed a cross-bill against the Ford Company and the Dorothy Company, setting up various breaches of the lease agreement by the Ford Company, praying for a declaration of its rights in the premises, and praying that both cross-defendants be restrained from entering upon its premises and further mining its coal. Thereafter, both parties filed answers to the cross-bill.

In this state of the pleadings and with motions to dismiss the original injunctions against the Ford Company and the Mount Savage Company, and with a demurrer to the original bill still undisposed of, as well as the issues raised by the cross-bill, the court indicated that it would dispose of the whole case at one time. After hearing testimony and argument, the court passed a decree on November 30, 1946 dismissing the original bill of complaint, without prejudice to the Dorothy Company pursuing any remedy at law they might have against the Ford Company, and rescinding its restraining orders. The decree further declared the Mount Savage Company entitled to the relief prayed in its cross-bill, and issued an injunction against the cross-defendants. The case comes here on appeal by the partners of the Dorothy Company.

The appellants' sole contention is that the decree of the chancellor should not have been passed except upon condition that the Mount Savage Company pay to the complainants an equitable sum to reimburse them for the labor and improvements laid out by them upon the lessor's land. They claim a right to restitution, upon the theory of unjust enrichment, enforcible by way of an equitable lien upon the property.

It is clear from the record in the case that there was no foundation for the charge in the original bill of a conbination between the original defendants to work a cancellation of the lease and thus defeat the contract rights of the complainants. There was no evidence whatever that the Mount Savage Company attempted to impair or delay performance by the Ford Company, so far as mining and removing coal was concerned. The relief prayed in the cross-bill was...