Producers Coal Co. v. Mifflin Coal Mining Co.

• Decision Date: 23 April 1918
• Citation: 82 W.Va. 311
• Parties: Producers Coal Co. v. Mifflin Coal Mining Co.
• Court: West Virginia Supreme Court

82 W.Va. 311

Producers Coal Co.

v.Mifflin Coal Mining Co.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1918.

Decided April 23, 1918.

1. Corporations Authority of General Manager Contracts "General Agent."

The general manager of a coal mining corporation is a general agent, and has implied authority to bind his principal by such contracts and modifications thereof as are reasonably necessary in conducting the business of mining and selling coal. (p. 314).

2. Principal and Agent Authority of General Agent Question for Jury.

Where a general agent has such implied power to bind his principal it is error to submit to the jury the question of his authority, (p. 311).

3. Trial Instructions Consistency Cure of Instructions. Instructions should be consistent; a bad instruction is not cured by a good one; and the giving of conflicting instructions is generally presumed to prejudice the party complaining. (p. 315).

4. Contracts Consideration Modification of Original Contract.

Where a controversy, whether of law or fact, arises between parties under an existing contract, and they adjust it by making a new contract, such new or modified contract is not without consideration, and it is not admissible to go behind it to ascertain which party was right in his contention. (p. 317).

5. Witnesses Credibility.

Where it is controverted whether or not an oral contract was actually made abrogating a pre-existing written one, and the testimony of interested witnesses on the point is conflicting, any fact or circumstance tending to show interest or motive in either making, or refusing to make such oral contract, is proper to go to the jury as affecting the credibility of such interested witnesses, (p.'317).

Error to Circuit Court, Logan County.

Suit by the Producers Coal Company against the Mifflin Coal Mining Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Wilkinson &; Wilkinson, Headley, Wood & Sawyer, and French & Easley, for plaintiff in error.

Campbell, Brown & Davis, and Davis, Davis & Hall, for defendant in error.

Williams, Judge:

Plaintiff, a coal selling company, sued defendant, a coal producing company, to recover damages for the breach of an alleged contract of sale to plaintiff of the output of defendant's coal mine for a year, beginning April 1, 1916, and ending April 1, 1917, at the net price of $1.00 per ton, run of mine. Defendant is successor in title to the Mifflin Coal Company, and took over its contracts and assumed its obligations on the 1st of January, 1916. At that time a written contract existed between plaintiff and defendant's predecessor, bearing date August 26, 1912, whereby the latter company employed the former as its sole sales agent to sell the entire output of its mine on the Coal River Branch of the Chesapeake & Ohio Railway, near the town of Clothier, for the period of four years and seven months, beginning September 1, 1912, and ending March 31, 1917, and in consideration of its selling and shipping the coal and guaranteeing the accounts, it was to pay it a commission of ten per cent, of the gross sums realized on all sales. That contract continued in force until April 1, 1916, when, as plaintiff contends, it was abrogated by the contract now sued on, which is also in writing and bears date April 26, 1916, and recites that it is confirmatory of an oral contract made in Huntington on the 13th of April, and is to take effect as of April 1st. It is signed by plaintiff company by D. II. Jenks its general manager, and by defendant company by Levi Deal its general manager. Defendant, refused to furnish plaintiff any more coal under that contract after the 1st of November, 1916, and denied the authority of its general manager Deal to make the contract and claimed it was not bound thereby. On the trial of the case the jury found for defendant, and the court, after overruling plaintiff's motion to set aside the verdict, rendered a judgment of nil capiat and that plaintiff pay defendant its costs, and it prosecutes this writ of error.

Defendant's evidence presents two grounds of defense: First, that Deal, its general manager, had no authority to substitute the contract of April, 1916, for the one of August, 1912; and, second, that even if the contract made by Deal and Jenks was valid and binding on the defendant, it was thereafter itself abrogated and the original contract of 1912 restored to take effect on the 1st of November, 1916, by mutual agreement made on the 25th and 27th days of September. 1916, between said Jenks, acting for plaintiff, and M. E. Eakin, A. M. Christley and R. M. Cross, constituting a committee appointed by the directors of defendant company, with express authority to close down its mine if plaintiff should refuse to handle its coal on a basis of 10% commissions, according to the terms of the contract of 1912. That the parties named were duly appointed such committee at a special meeting of the board of directors, of which they themselves were members, by a resolution duly passed and entered upon the minutes, is fully proven and not denied. The agreement, if any was made at Huntington in September, was not reduced to writing, and plaintiff denies that any agreement was then made to reinstate the contract of 1912, and insists that the sale to it of the coal at $1.00 per ton, made in April, 1916, was a binding contract and continued in force. Eakin, Christley and Cross all swear positively that it was then agreed that, after November 1, 1916, and continuing until April 1, 1917, plaintiff was to sell defendant's coal on the open market, at the best prices obtainable, according to the terms of the original contract, and agreed to accompany its orders for shipments with a statement of the price it was getting, so that defendant might know it was receiving the market price for its coal. On the other hand, Jenks, the only witness for plaintiff on this point, although admitting the conference between himself and the aforesaid committee, held in Huntington at the Frederick Hotel on the dates above named, is just as positive in his denial that any agreement was then made. This was a fact which the jury had to determine. Plaintiff insists, however, that even if the jury believed the agreement which defend- ant's evidence tends to prove was in fact made, it was not a binding contract for want of a consideration.

The first question is, did Deal have authority to bind his company by the contract of April, 1916"? Defendant insists he had not, and that its directors never ratified the contract, because, it is contended, they first learned of its existence early in the following September, and the president shortly thereafter called them together for the purpose of taking some action concerning it, and also to provide some more satisfactory way of disposing of its coal. Deal himself was a director of defendant company, as well as its general manager, and had been since its organization. He was also a practical coal operator, and was interested in coal mines in Pennsylvania, where he and all the other directors resided, though not all in the same place. Deal employed a superintendent of the mine, put him in charge of its operation and did not visit the mine himself oftener than once a month, or perhaps not so often, during his term as general manager. Still, was it not a part of his duty as general manager to sell, or provide for selling the coal produced at the mine, and was not the contract which he made with plaintiff company within the scope of his duties? A corporation acts only by and through its officers and agents, and Deal Avas an agent of defendant, held out by it to the public, by virtue of his position, as representing it in the general management of its business, one important feature of which was the sale of the product of its coal mine. Coal producing companies do not store their coal, but usually sell it before it is mined and to be delivered at a future time, and sometimes on contracts covering long periods of time. Defendant took over a contract, made by its predecessor, which provided for the sale of all its coal to be produced during a period of four years and seven months. For three months next prior to April, 1916, defendant had received much less than $1.00, as the average price per ton, for its coal sold under the 1912 contract, and Deal no doubt thought, in view of the prices then prevailing in the market, that it would be more advantageous to his...