Potts v. Mathieson Alkali Works

• Citation: 165 Va. 196
• Court: Virginia Supreme Court
• Decision Date: 19 September 1935
• Parties: E. W. POTTS, TRUSTEE IN BANKRUPTCY OF VIRGINIA BANNER COAL CORPORATION v. THE MATHIESON ALKALI WORKS.

Page 196

165 Va. 196

E. W. POTTS, TRUSTEE IN BANKRUPTCY OF VIRGINIA BANNER COAL CORPORATION v. THE MATHIESON ALKALI WORKS.

Supreme Court of Virginia, Staunton.

September 19, 1935.

Present, All the Justices.

1. CONTRACTS — Appeal and Error — Law of the Case — Decision on Former Appeal Construing Contract — Case at Bar. — The instant case was an action on a contract between the parties for the purchase by defendant of the annual coal requirements of its plant. When the cause was presented to the Supreme Court of Appeals on a former appeal for the purpose of having it define the issues in the case which should be submitted to a commissioner, the court construed the original contract between the parties and defined the issues in the cause.

Held: That that decision was the law of the case and binding alike upon the commissioner, the trial court and the Supreme Court of Appeals.

2. JUDGMENTS AND DECREES — Pleading Warranting Relief Sought Is Sine Qua Non of Every Judgment or Decree. — The basis of every right of recovery is a pleading setting forth facts, warranting the granting of the relief sought. It is the sine qua non of every judgment or decree.

3. JUDGMENTS AND DECREES — Decree Entered without Foundation in Pleadings Is Void. — A decree can not be entered in the absence of pleadings upon which to found the same, and if so entered it is void.

4. PLEADING — Every Litigant Entitled to Know Adversary's Ground of Complaint or Defense. — Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint or defense.

5. PLEADING — Issues Are Made by Pleadings and Not by Evidence. The issues in a case are made by the pleadings and not by the testimony of witnesses or other evidence.

6. SALES — Implied Contract — Pleading — Allegation of Quantity Sold Is Essential — Case at Bar. — In the instant case, a suit involving a contract between the parties for the purchase by defendant of the annual requirements of coal of its plant, complainant contended that a certain type of coal sold to defendant was not sold under the contract and that complainant was entitled to recover the reasonable value of said coal, without regard to the contract price. The pleadings nowhere alleged any facts showing the quantity or tonnage claimed to have been delivered.

Held: That an allegation of the quantity of coal claimed to have been so sold was an indispensable requisite to the right to recovery any amount therefor.

7. SALES — Sale of Coal to Meet Requirements of Defendant — Right of Defendant to Have "Lower Banner" Coal — Case at Bar. — In the instant case, a suit involving a contract between the parties for the purchase by defendant of the annual requirements of coal of its plant, complainant contended that Lower Banner coal sold to defendant was not sold under the contract and that complainant was entitled to recover the reasonable value of said coal, without regard to the contract price. The evidence showed the demand of defendant for Lower Banner coal from the time of beginning of deliveries under the contract and the recognition, by complainant, of defendant's right to Lower Banner coal under the contract, for more than two years and until after the beginning of the controversy.

Held: That under the evidence defendant had the right under the contract to have sufficient Lower Banner coal to meet its bona fide requirements and that the coal delivered from the Lower Banner seam was sold and delivered under the contract of the parties.

8. SALES — Failure to Pay Promptly Does Not Warrant Increase in Price. — An allegation that a purchaser did not pay the price of a commodity, when due, is not sufficient to warrant the increase of the price of such commodity.

9. SALES — Sale of Coal to Meet Requirements of Defendant — Failure to Pay Promptly Not Breach Warranting Increase in Price — Case at Bar. — In the instant case, a suit involving a contract between the parties for the purchase by defendant of the annual requirements of coal of its plant, complainant sought to recover in excess of the contract price for coal sold defendant, on the ground of breach of contract, and alleged that during a stated period defendant did not pay promptly and did not take the full production of complainant's mines.

Held: That no breach of the contract was alleged to have occurred during this period warranting an increase in the price of the coal delivered, over and above that fixed by the contract.

10. SALES — "Requirements" Contract — Failure of Purchaser to Take Estimated Amount Not Breach of Contract — Case at Bar. — In the instant case, a suit involving a contract whereby defendant agreed to purchase from complainant the annual requirements of coal of its plant, complainant sought to recover in excess of the contract price for coal sold defendant, on the ground of breach of contract alleging that because of defendant's failure during two years of the contract to take annually the amount estimated in the contract as its annual requirement the contract price was inapplicable. It was nowhere alleged that the quantity taken during this period was insufficient to supply the actual bona fide wants of defendant.

Held: That complainant's allegation was not an allegation of any breach of the contract.

11. SALES — "Requirements" Contract — Supplementary Contract — Decision on Former Appeal that No Supplementary Contract Existed — Case at Bar. — In the instant case, a suit involving a contract whereby defendant agreed to purchase from complainant the annual requirements of coal of defendant's plant, complainant sought to recover in excess of the contract price for coal sold defendant during the last fifteen months of the contract, based on a so-called "Supplementary Agreement." On a former appeal the Supreme Court of Appeals had decided that there was no contract or agreement subsequent to the original contract.

Held: That for the purpose of the instant case, the so-called "Supplementary Agreement" never had any existence.

12. SALES — "Requirements" Contract — Construction — Defendant Not Required to Specify Annual Requirements in Advance — Case at Bar. — In the instant case, an action on a contract whereby defendant agreed to purchase from complainant the annual requirements of coal of defendant's plant, complainant contended that defendant was required to periodically, in advance, specify its annual requirements and to take the specific amount in approximately equal monthly installments. On a former appeal the Supreme Court of Appeals held that defendant was required by contract to take from complainant coal sufficient to meet its annual bona fide actual requirements and that the requirement provision of the contract was its dominant provision.

Held: That defendant was not required to specify its annual requirements in advance and take the specified amount in approximately equal monthly installments, but that the meaning of the contract provision was that defendant was required to take its annual requirements, in approximately equal monthly installments, in so far as its existing facilities would reasonably permit and in so far as consistent with its bona fide actual requirements and that defendant reserved the right to specify its requirements at such reasonable times as circumstances would permit.

13. MASTER IN CHANCERY — Report of Commissioner — Presumption of Correctness — A commissioner's report is presumed to be correct as to the principles determined and to be supported by the evidence, and it is the duty of the court to confirm it.

14. FRAUD AND DECEIT — Fraud Must Be Clearly and Expressly Charged. — Fraud, when it is to be relied upon, must be expressly and clearly charged.

15. CONTRACTS — Rescission — Fraud — Necessity for Prompt Action. — One who intends to repudiate a contract upon the ground of fraud must act promptly.

16. SALES — "Requirements" Contract — Action to Recover in Excess of Contract Price — Fraud — Complainant Declaring upon Contract Could Not Thereafter Repudiate It — Case at Bar. — In the instant case, an action on a contract whereby defendant agreed to purchase from complainant the annual requirements of coal of defendant's plant, complainant alleged that it was entitled to recover in excess of the contract price for coal sold defendant, on the ground of breach of contract. Complainant insisted in argument that it was entitled to recover in excess of the contract price because such price was induced by defendant's misrepresentation that it would take approximately 200,000 tons of coal per year.

Held: That complainant had declared upon the contract and sought to recover under it, and could not thereafter repudiate it.

17. WAIVER — Burden of Proof. — A party asserting and relying upon a waiver must establish it by evidence, and must show the waiver claimed to have been made with full knowledge by the party against whom it is claimed.

18. SALES — "Requirements" Contract — Action to Recover in Excess of Contract Price — Waiver — Case at Bar. — In the instant case, an action on a contract to sell defendant its annual requirements of coal, complainant sought to recover in excess of the contract price for coal sold to defendant, on the ground of breach of contract. Complainant insisted, in argument, that it was entitled to recover in excess of the contract price because of defendant's waiver of such price by receiving without objection complainant's bill of actual cost plus twenty-five cents per ton. The evidence showed that defendant at first assumed that complainant was acting in accordance with the contract in rendering its bill and that as soon as defendant learned it was being charged in excess of the contract price it protested, and asserted its right to have the coal delivered at the contract price.

Held: That complainant's contention of waiver was without evidence to support it.

19. PLEADING — Recovery Cannot Be Had for Breach of Duty Not Alleged in...