Hocking v. Hamilton

• Decision Date: 30 October 1893
• Docket Number: 147
• Citation: 27 A. 836,158 Pa. 107
• Parties: Hocking v. Hamilton et al., Appellants
• Court: Pennsylvania Supreme Court

27 A. 836

158 Pa. 107

Hocking v. Hamilton et al., Appellants

No. 147

Supreme Court of Pennsylvania

October 30, 1893

Argued October 12, 1893

Appeal, No. 147, Oct. T., 1893, by defendants, S. M. Hamilton et al., trading as S.M. Hamilton & Co., from judgment of C.P Somerset Co., Feb. T., 1890, No. 98, on report of referee in favor of plaintiffs, John T. Hocking et al., trading as the Hocking Coal Co.

Assumpsit for breach of contract to purchase coal.

The case was referred to H. L. Baer, Esq., as referee.

The material portions of the contract, signed and sealed by the parties named, were as follows:

"This agreement, made and entered into this third day of December eighteen hundred and eighty-seven, between S. Marland Hamilton, of the city of Baltimore, and state of Maryland, of the first part, and Hocking Coal Co., John T. Hocking, of Meyersdale, and state of Pennsylvania, of the second part, witnesseth:

"1st. The party of the first part agrees to buy and take from the party of the second part fifty thousand tons of coal mined at the mine known as the Hocking mine and shipped as hereinafter specified from the date hereof to Jan. 1, 1889. Said quantity of coal to be shipped in monthly installments of about four thousand tons per month, and the party of the second part hereby agrees to mine and ship to said party of the first part said quantity of fifty thousand tons as aforesaid. And it is further agreed that the party of the second part shall not, during the continuance of this contract, sell, give, deliver or ship to any person or corporation other than the party of the first part, any coal except upon the written order of said party of the first part, and in case party of the second part should sell, give, deliver or ship any coal to any person or corporation other than party of the first part or on his written order, then the party of the second part shall owe and pay to the party of the first part the sum of one thousand dollars for every such shipment or sale, as liquidated damages for the breach of this stipulation. The party of the second part, however, shall be at liberty to supply what is known as the farm and home trade by deliveries in wagons or carts at the mine, said trade not to be supplied by shipments by rail, except on the written authority of the party of the first part. In case the party of the second part shall be able to mine and ship more than the above mentioned quantity of fifty thousand tons of coal, then the party of the first part shall be entitled to purchase all or a part of such excess at the same price and on the same terms as is hereinafter named for said fifty thousand tons, but it is understood that no coal mined in excess of said fifty thousand tons shall be sold by party of the second part to any person or corporation other than party of the first part. Party of the second part, however, has the right to sell to Balto. & Ohio R.R. Co. for its own use.

"2d. It is agreed that the price to be paid party of the second part by party of the first part shall be for all good clean marketable coal free on board railroad cars at tipple, as follows, that is to say, in hoppers and gondolas for run of mine coal sixty-eight (68) cents per ton of 2240 lbs.

"3d. Weight to be taken in settlement for coal to be Balto. & Ohio R.R. Co. Sand Patch weight. It being fully understood and agreed that party of the second part shall place on each car a weight of coal not less than the capacity as marked on said car.

"4th. Settlement for coal shipped shall be made monthly; that is to say between the 10th and 18th of each month, party of the first part is to remit check to party of the second part for all coal shipped party of the first part by party of the second part in the previous month.

"7th. In the event of miners' strikes, labor difficulties, accidents or stoppage of supply of cars from any cause other than that party of the first part having too heavy stock of coal in cars at Locust Pt., the quantity of coal to be shipped by the party of the second part to be taken by the party of the first part shall be reduced in proportion to the time during which such strike or other obstructions shall continue to exist.

"9th. It is understood and agreed that the party of the second part shall mine and ship only good clean black coal ordinarily free of rust and slate, and for each and every car of coal shipped that contains a quantity of rust or slate to affect its marketable appearance or value party of the first part has the right to reject same at destination and charge party of the second part all expenses of transportation on such car or cars of coal, or should the inferior quality of the coal not be noticeable till car is being unloaded, then the party of the second part shall accept a reduced price for such inferior coal."

S. Marland Hamilton was at the time of making this agreement and now is a member of the firm of S.M. Hamilton & Co., composed of the following persons, namely: Silas M. Hamilton, Benj. Wallis and S. Marland Hamilton. Their place of business was in the city of Baltimore, and they were then and now are engaged in the business of shipping coal to different points along the Atlantic seaboard and elsewhere. Plaintiff was engaged in the business of mining and shipping coal in the Elklick coal region in Somerset county, Pennsylvania, under the name of the Hocking Coal Company.

Prior to the making of the agreement, defendants sent out circulars to different operators in this region, proposing to make contracts with them, and these different operators were met by S. Marland Hamilton.

Under the agreement defendants from time to time ordered coal from plaintiff, always designating the kind of cars to be used and the place to which the coal was to be sent. For the coal thus shipped, monthly remittances were made by checks of the firm. On March 18, 1888, plaintiff wrote to defendants, claiming $815.80 shortage by reason of deficiency in tonnage up to that time, to which defendants replied under date of 22d of same month that the claim was erroneous. In July, 1888, defendants in their correspondence commenced to complain about the price of coal, and requesting a reduction in the price to 65 cents per ton.

There was evidence to the effect that defendants agreed to and did order the cars of the railroad.

On Aug. 13, 1888, defendants notified plaintiff that they would decline to receive any more coal under the contract, and plaintiff could therefore sell to other parties, but if they needed coal from him they would order from time to time.

On Aug. 30, 1888, S. Marland Hamilton wrote plaintiff: "Please take note that I do not recognize any contract or agreement with you, and have and will continue to authorize S.M.H. & Co. to buy wherever they can buy the cheapest the best coal and get prompt shipment."

On Sept. 1, 1888, he wrote: "We can take care of all the hoppers you can load next week for Locust Pt. Nothing but best Hocking Mine coal, bear in mind, and price 68c."

Defendants did at various times subsequently order coal from plaintiff, for all of which they paid, except the shipments of December, 1888.

This action was brought Jan. 8, 1889, to recover the amount due plaintiff for coal shipped in December, 1888, and for damages for shortage under the written agreement.

The referee found that defendants ratified the contract and that it was terminated before suit brought. He found in favor of plaintiff for $5,287.51.

Exceptions by defendants to the referee's findings were dismissed by the court, LONGENECKER, P.J., and judgment entered. Defendants thereupon appealed.

Errors assigned were dismissal of exceptions, quoting them.

As the contract was that of appellants, and as, by their refusal to perform, appellee was entitled to recover, as the damages as found by the master were warranted by the evidence, and as the right of action had accrued at the time when the suit was brought, this judgment is affirmed.

W. H. Koontz, H. S. Endsley with him, for appellants. -- "If an agent sign and seal a deed in his own name, it does not bind his principal, though it purport to be made between the other party and the principal by such agent, nor will any confirmation by the principal short of sealing the deed render him liable on it; and as the one party is not bound, so neither is the other:" Bellas v. Hays, 5 S. & R. 427; Heffernan v. Addams, 7 Watts, 116; Stone v. Wood, 17 Am. Dec. 529; Clealand v. Walker, 46 Am. Dec. 238; Strichfield v. Little, 10 Am. Dec. 238; Merchants' Bank v. Central Bank, 44 Am. Dec. 665; Locke v. Alexander, 11 Am. Dec. 750; Brinley v. Mann, 48 Am. Dec. 669; Fisher v. Salmon, 54 Am. Dec. 297; Henderson v. Martin, 70 Am. Dec. 606; City of Providence v. Miller, 23 Am. R. 453.

The contract expressly puts upon plaintiff the duty of "mining and shipping." This includes necessarily the furnishing of cars.

In Kunkle v. Mitchell, 56 Pa. 100, the point of delivery was Indiana station, but in this case, the point of delivery was such points as would be designated by Hamilton. The settlement was to be according to the weight at Sand Patch station. So, also, in Dwight v. Eckert, 117 Pa. 508, the delivery was to be free on board the cars.

This case is analogous to a time note, on which suit cannot be brought until the time for payment has elapsed, or to a case of suit on a policy of insurance which cannot be maintained until the time fixed for payment: Ins. Co. v. Hocking, 115 Pa. 407.

Where neither party has insisted on a strict performance of a continuing contract, it is not competent for one of them to rescind without notice of an intention to insist on a literal compliance: Forsyth v. North Am. Oil Co., 53 Pa 168; McDowell's Ap., 123 Pa. 381; Ins. Co. v. McAden, 109 Pa....