Jackson Hill Coal and Coke Company v. Merchants Heat and Light Company
| Decision Date | 29 June 1923 |
| Docket Number | 23,734 |
| Citation | 140 N.E. 532,193 Ind. 422 |
| Parties | Jackson Hill Coal and Coke Company v. Merchants Heat and Light Company |
| Court | Indiana Supreme Court |
From Marion Circuit Court (30,506); Louis B. Ewbank, Judge.
Action by the Jackson Hill Coal and Coke Company against the Merchants Heat and Light Company, wherein defendant filed a counterclaim. From a judgment for the defendant on its counterclaim, the plaintiff appeals.
Affirmed.
F Winter, Hays & Hays and Miller & Dowling, for appellant.
J. W Fesler, Harvey J. Elam and Howard S. Young, for appellee.
Myers J. Townsend, J., absent. Ewbank, J., not participating.
Appellant, a coal operator, brought this action against appellee, a consumer, to recover for coal sold and delivered by it to appellee under an alleged written and oral contract. The leading issues were formed by a complaint in two paragraphs, a supplemental complaint, and various paragraphs of answer. There was also a set-off and counter-claim on the part of appellee, wherein it claimed overcharges for coal furnished by appellant. Moreover, that appellant had failed to perform its contract to furnish appellee its coal requirements, and had failed to deliver to appellee its fair proportion of coal on an equitable distribution of appellant's production between its contract customers, and demanded a substantial judgment. The necessary replies and additional answers were filed, completing the issues, which were submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee on its counterclaim in the sum of $ 58,000, and against appellant on its complaint. From this judgment appellant perfected an appeal to this court, and has assigned as errors the overruling of its motion to strike out certain interrogatories submitted to it by appellee, the sustaining of appellee's motion for a new trial, and the overruling of its motion for a new trial.
This appeal is from a judgment rendered upon the verdict of a jury upon a second trial of this cause. The first trial resulted in a verdict in favor of appellant, but, on appellee's motion, it was set aside and a new trial granted. This ruling will be the first to receive attention.
Each of the pleadings in this case asking affirmative relief was predicated upon a written contract which, omitting the signatures, reads as follows:
That part of the record pertaining exclusively to the first trial shows only the submission of the cause for trial, instructions given by the court, the instructions tendered by both plaintiff and defendant and the court's disposition thereof, the verdict of the jury, the defendant's motion for a new trial, containing all the grounds, legal and discretionary, usually assigned in motions of this character, being eighteen in number, and the court's ruling thereon, setting aside the verdict and ordering a new trial. Appellant fails to refer us to that part of the record upon which it relies to sustain its contention in this particular. It merely asserts generally that the first verdict was set aside on the theory that the jury misconstrued the written contract and disregarded the court's instructions. Furthermore, that the jury found that the deliveries to appellee had been reduced by causes beyond its control, and that it had made a fair apportionment of the coal among its contract customers. From anything appearing, these assertions are mere inferences drawn by appellant from the instructions given by the court and from the general verdict of the jury in its favor. Such a presentation must be disregarded for indefiniteness. The motion in question called for the opinion of the trial court as to the sufficiency of the evidence to sustain the verdict, a reconsideration of its rulings in giving and in refusing to give certain instructions, and in admitting and in refusing to admit certain evidence. Some of these questions, if not all, depend for their answer upon the evidence, which is not here. The ruling on the motion was general and hence we have no means of determining the particular cause or causes embraced in the motion which induced the court to sustain it. The granting of the new trial had the effect of expunging the record of the first trial and for further proceedings de novo. Compton v. Benham (1908), 44 Ind.App. 51, 61, 85 N.E. 365; 20 R. C. L. pp. 313, 317, §§ 97, 101.
After a careful examination of the record and briefs of counsel, we have reached the conclusion that many of the questions presented by this appeal have their inception in the different views of the contract. Appellant insists that the contract should be construed as one for screenings only, with the privilege to appellant of furnishing mine run; but, in case it furnished more than thirty per cent. of appellee's yearly requirements in mine run, such overplus was to be at the rate of $ 1.00 per ton, instead of $ 1.10 per ton. On the other hand, appellee contends that, under this contract, appellant obligated itself to furnish from certain of its mines, and appellee agreed to take from appellant, its entire coal requirements--screenings and mine run or both, preferably screenings--necessary in the operation of its business for the period therein named. It may be here noticed that the parties hereto, as we understand them, practically agree that this contract was entered into upon the basis of appellant's yearly production, which, if reduced by contingencies beyond its control, then a pro rata distribution of its entire production among all with whom it had contracts should be regarded as full performance.
It was the custom of operators to make contracts for one and two year periods covering the reasonable normal capacity of their mines. At this point, appellee's invitation to bidders addressed to appellant may be of interest. That part of it now pertinent is as follows: This invitation was dated February 23, 1916, and the above contract was dated April 1, 1916. This invitation, stating appellee's requirements at 300 and 800 tons per day was fixed as the probable quantity required by appellee for a period commencing April 1, 1916, and ending March 31, 1918. It appears that these estimated requirements were based upon appellee's coal consumption from April 1, 1915, to April 1, 1916, totaling 175,220.99 tons, or 9,779.01 tons less than the estimated requirements for each yearly period ending March 31, 1918. However this may be, the contract expressly fixed the quantity--appellee's entire requirements--of coal sold and purchased. The invitation to bidders furnished important information to the operator in determining the disposition of its probable coal production. This estimate totaled a yearly requirement of 185,000 tons, which according to appellant's figures show coal consumed by appellee (152,818 tons) for the year 1915, or 33,000 tons less than the yearly requirements for 1916 and 1917. These figures of appellant were taken from...
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Jackson Hill Coal & Coke Co. v. Merchants' Heat & Light Co.
... ... June 29, 1923 ... Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge. Action by the Jackson Hill Coal & Coke Company against the Merchants' Heat & Light Company, wherein defendant counterclaimed. From judgment for defendant, plaintiff appeals. Affirmed. [140 N.E ... ...