Nicoll v. Pittsvein Coal Co.

• Decision Date: 15 December 1920
• Docket Number: 65.
• Citation: 269 F. 968
• Parties: NICOLL v. PITTSVEIN COAL CO.
• Court: U.S. Court of Appeals — Second Circuit

269 F. 968

NICOLL v. PITTSVEIN COAL CO.

No. 65.

United States Court of Appeals, Second Circuit.

December 15, 1920

Truesdale & Nicoll, of New York City (Courtlandt Nicoll, of New York City, of counsel), for plaintiff in error.

Allan McCulloh, of New York City (Clifton P. Williamson and James A. Stevenson, Jr., both of New York City, of counsel), for defendant in error.

Plaintiff below (herein called Pittsvein Company) mines and sells coal. The defendant Nicoll is a wholesale dealer in that commodity.

On November 30, 1915, Nicoll wrot to Pittsvein Company:

'This will confirm telephonic conversation of this morning in which we have bought from you and you have sold to us 50,000 gross tons of your Pittsvein Fairmount gas coal * * * to be shipped in equal monthly instalments during twelve months beginning December 30, 1916. * * * We await your letter confirming this sale.'

On the following day Pittsvein Company answered, agreeing (so far as is material to this case) to the above bargain.

Both of these letters were on the business letter paper of the respective parties, and Nicoll's paper contained the following, printed at the head thereof:

'All agreements are contingent upon strikes, accidents, delays of carriers and other causes beyond our control. Monthly settlements by actual railroad weights by scales nearest loading point.'

The Pittsvein paper was headed by the following notice printed in red ink:

'Quotations subject to change without notice. All orders and contracts subject to car supply, strikes, accidents and causes beyond our control. Railroad initial weights the basis of all settlements.'

A literal compliance with the written portion of the above paper writings would have meant the delivery to Nicoll of 4,166 tons of coal per month; but down to and including August, 1916, that amount of coal was never delivered in any month, but for what Nicoll did receive he paid.

During September-November, 1916, Pittsvein Company delivered to Nicoll, all told, no more than about 8,400 tons, and for somewhat more than one-half of that amount Nicoll refused to pay at all. Whereupon Pittsvein Company brought this action to recover the contract price of said coal so delivered and unpaid for.

The complaint states the matter as two causes of action: (1) Declaring simply as for goods sold and delivered; and (2) setting forth the delivery of the same coal at an agreed price and averring:

'That in the business or trade of mining and selling coal there is an established custom that all contracts or agreements for the sale or delivery of coal are subject to the contingency that the owner or operator of the mine or the seller upon the exercise of reasonable diligence can obtain sufficient railroad cars for the shipment of the full amount of the coal which he has contracted to deliver and that if sufficient cars cannot be obtained the coal shipped shall be apportioned pro rata among the holders of contracts with the owner or operator of the mine or the seller for delivery of coal so that each shall obtain a just and fair pro rata share of the coal shipped; that the said contract or agreement between the plaintiff and the defendant was intended by the parties to be and was subject to the said custom of the trade; that the said contract or agreement expressly provided that it was subject to car supply, delays of carriers and to causes beyond the control of the parties thereto.'

The second cause of action then further alleges performance of all conditions by Pittsvein Company except that during September-November, 1916:

'It became and was impossible for the plaintiff to secure sufficient railroad cars to ship the full amount of coal which the plaintiff had contracted to deliver. That at all such times the plaintiff made every reasonable effort to secure an adequate supply of cars, but during such period was unable to obtain an adequate supply of cars, and the plaintiff, in accordance with the said established custom of the business, apportioned the coal, shipped in the cars actually obtained, among the defendant and other holders of contracts for the plaintiff's coal, so that each should and did obtain his just and fair pro rata share of the coal which the plaintiff was able to ship from its mine.'

The above-quoted allegations of the existence of a custom and of fair compliance therewith, Nicoll in his answer specifically denied and served a counterclaim demanding, in substance, damages for the failure of Pittsvein Company to ship his full monthly quota of 4,166 tons during the period September-November, 1916.

Pittsvein Company by its reply defended against the counterclaim by reason of the custom aforesaid, which it pleaded in the same manner as in its complaint. At trial there was no contention as to the amount or times of shipment, quantity delivered, or price.

The trial judge substantially sent to the jury as the sole contentious matter for their determination (in his own language), 'What was really understood and entered upon between the parties as their contract? ' To assist the jurors in answering this question the court in effect recommended them to consider the notices or headings printed at the top of the letters, confessedly constituting the written contract or the written portion thereof; it also admitted evidence tending to show the practical construction of this contract during the months prior to September, 1916, to the effect that Nicoll had during that period acted as if in acquiescence to the custom of delivering to customers only so much coal as was their monthly quota of the amount for which the miner could procure carriage; finally the court admitted direct evidence from the trade of the existence of the general custom as above pleaded by the plaintiff.

Nicoll (as the court instructed the jury), contending 'that the written part only of the letters constituted entirely and wholly the contract between them,' duly objected, and excepted to the admission of the foregoing evidence, and all of it.

The jury rendered a general verdict for the full amount claimed by the plaintiff, and to judgment accordingly defendant below took this writ.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

We are presented with 82 assignments of error, a number exceeding in uselessness any yet observed in a civil cause. Both in quality and quantity they are open to the criticisms of Fitter v. United States, 258 Fed.at page 569, 169 C.C.A. 507. We shall notice only such as have been referred to in briefs, and not all of them.

This case presents with an interesting fullness some parts of the large question as to how far and in what manner a written document commonly called a contract, entered into between persons engaged in substantially the same business, couched in simple English words, and relating to matters easy of comprehension by men far removed from the actors in the transaction, can or may be affected by words not written in the contract, or acts not described therein.

Some matters, judicially discussed in reported decisions, may be laid aside, as either not material or concluded by verdict. There was nothing indistinct or hidden about the notices printed on the business paper of the parties; they were as plain and obvious to the eye as any script or typewriting on the sheet. The custom, or rather usage, exists, and plaintiff below lived up to it honestly and fairly; and in its nature it complies with the requirements of reasonableness, legality, etc., recently again enumerated in Eames v. Claflin, 239 F. 631, 152 C.C.A. 465; indeed its legality has before now been recognized, when stated in the body of a contract writing (McKeefrey v. Connellsville, etc., Co., 56 F. 212, 5 C.C.A. 482; Luhrig v. Jones, 141 F. 617, 72 C.C.A. 311). It may be added that defendant below knew of the custom asserted, though he heartily disapproved of it-- at least when sought to be enforced against him on a rising market-- but this is immaterial. Silverstein v. Michau, 221 F. 55,...