"This suit was instituted in 1921. In 1927 complainant, Virginia Banner Coal Corporation was adjudged bankrupt. By an order entered in this cause on July 16, 1929, E. W. Potts, trustee in said bank-ruptcy proceeding, was permitted to intervene as complainant in this suit, in the place of said bankrupt.
"The suit arises out of and is based upon a certain contract, between complainant, Virginia Banner Coal Corporation, and others, and defendant, Mathieson Alkali Works, Incorporated, dated September 1, 1917. This said contract has been construed by the Supreme Court of Appeals, as reported in this decision, found in 147 Va. 125, 136 S. E. 673. The cause was thereafter referred to Hon. S. Bruce Jones, commissioner, to report upon the issues in this case. Said commissioner filed his report herein on the 27th day of March, 1933. This report complainant asks be confirmed, and to this report defendant has filed numerous exceptions. The issue now before this court is whether said report shall be confirmed in all respects as requested by complainant, or whether it shall be overruled upon any or all of the exceptions of defendant thereto.
"While there are complainants in this suit other than Virginia Banner Coal Corporation, and defendants other than Mathieson Alkali Works, Incorporated, the controversies upon the issues now raised are wholly between the trustee in bankruptcy, representing the claims of Virginia Banner Coal Corporation, on the one side, and defendant, Mathieson Alkali Works, on the other side. For convenience, the words "complainant" and "defendant, " as herein used, will be understood to mean Virginia Banner Coal Corporation and Mathieson Alkali Works, Incorporated, respectively, unless otherwise indicated, and the word "contract" will be understood as referring to the contract of September 1, 1917, unless otherwise indicated and the words, "standard cost, " will be understood to mean standard cost as defined in said contract, plus 25 cents per ton.
"Numerous claims have been asserted in this case by the said complainant and numerous cross-claims have been asserted by the defendant, totaling in the aggregate more than $3,000, 000. But at the hearing before the commissioner complainant waived or abandoned all of the claims which it had asserted against the defendant in this cause except two, and the defendant, then and there, waived all the cross-claims which it had asserted against the complainant in this cause, except three.
"The complainant, before the commissioner, asserted a claim of $100,607.66
with interest, being a balance alleged to be due complainant from defendant, for coal sold and delivered to defendant, at alleged cost plus 25 cents per ton; and also a claim for the sum of $4,975, being alleged profits of 25 cts. per ton on certain coal claimed to have been wrongfully purchased by defendant from Island Creek Coal Company, and which it is contended defendant was required to take from complainant. The commissioner allowed, as asserted, complainant's claim for the sum of $100,607.66, with interest, and wholly rejected complainant's claim for $4,975.00.
"The defendant, before the commissioner, asserted a claim for $148,582.40, with interest, being the alleged overpayment by defendant to complainant, on account of coal sold and delivered to defendant by complainant, and for which complainant was paid said amount, in excess of 'Standard Cost.' Defendant, before the commissioner, also asserted that complainant, under the contract of September 1st, 1917, was required to furnish defendant its requirements of coal, of the quality and kind in said contract specified, at a price not in excess of 'Standard Cost'; that complainant wrongfully failed to do this; that, by reason thereof, defendant was obliged to purchase a certain portion of its coal from others, for which said coal defendant was compelled to pay the sum of $163,565.30 in excess of 'Standard Cost.' Both of the aforesaid claims of defendant were rejected and wholly disallowed by the commissioner. The defendant also asserted a third claim before the commissioner for the sum of $9,467.76, on account of amounts paid by defendant, as demurrage on certain cars of coal shipped to it by complainant, which it contends it rightfully rejected. This claim was allowed, by the commissioner, as asserted.
"Complainant has filed no exceptions to the commissioner's report, but on the other hand has expressly requested that it be confirmed as made. Defendant's exceptions challenge the correctness of the commissioner's report in allowing complainant's claim for $100,607.66 with interest, or any part thereof, and in refusing to allow defendant's claims for $148,582.40 and $163,565.30, respectively. There is therefore no objection from either party to the rejection of complainant's claim for $4,975 nor to the allowance of defendant's claim for $9,467.76 with interest. Consideration will now be given to defendant's excep-tions to the allowance by the commissioner of complainant's claim for $100,607.66.
"As the record now stands, complainant's said claim, allowed by the commissioner, presents the sole question of the price to which complainant is entitled for the coal sold and delivered to the defendant. It is not and cannot be contended that complainant is entitled to recover anything on any other account. It is not contended that complainant is entitled to recover anything on this account, if the proper price for said coal was and is 'Standard Cost, ' plus 25 cents per ton. On the other hand, it is asserted by defendant, is understood to be conceded by complainant, and the evidence clearly shows, that defendant has already paid to complainant sums in excess of what complainant would be entitled to, for said coal, at 'Standard Cost, ' plus 25 cents per ion.
"While the commissioner's report allowing complainant's said claim is excepted to by the defendant for several reasons, including the contentions that the evidence offered in support of it was not the best evidence; that it was seasonably objected to on this account and therefore cannot be considered; that the amount allowed embraces charges for coal, which the commissioner, at the same time, held defendant rightfully rejected; that it allowed complainant to recover in excess of 'Standard Cost' for coal sold and delivered during periods when complainant admittedly was unable to furnish defendant's requirements, that is, during periods when complainant claimed to have been excused by exempting cause and when defendant was ready, able, and willing to take same; and it also excepts to said report because it contends complainant is not, in any view of the case, entitled to recover in excess of 'Standard Cost' for any of the coal sold and delivered. This is obviously an all-inclusive issue, in so far as complainant's claim is concerned. For, if complainant is not entitled to recover in excess of 'Standard Cost' for any of the coal sold and delivered to defendant, then it is not entitled to recover anything in this cause.
"This case has already been before the Supreme Court of Appeals of Virginia four times. In only one of these appeals, however, did the court express any views affecting the merits of the controversy. That was upon the last appeal, the decision of which appears in 147 Va. 125, 136 S. E. 673. It then construed the contract
of September 1, 1917, as well as certain
