Springton Coal Co. v. Bowling

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Springton Coal Co. v. Bowling, 228 Ky. 317, 14 S.W.2d 1082 (Ky. Ct. App. 1929)
• Decision Date: 08 March 1929
• Parties: SPRINGTON COAL CO. v. BOWLING et al.

14 S.W.2d 1082

228 Ky. 317

SPRINGTON COAL CO. v. BOWLING et al.

Court of Appeals of Kentucky

March 8, 1929

Appeal from Circuit Court, Harlan County.

Action by Ance Bowling and another against the Springton Coal Company. Judgment for plaintiffs, and defendant appeals. Reversed, with directions.

Forester & Carter, of Harlan, for appellant.

Pope &amp Huff, of Harlan, for appellees.

THOMAS J.

Appellees and plaintiffs below, Ance Bowling and G. C. Daniels, by their petition filed in the Harlan circuit court against appellant and defendant below, Springton Coal Company, sought judgment against it for damages for the alleged breaching of a contract with plaintiffs for the mining of coal from its mine, and fixed the amount thereof at $1,364. They succeeded in obtaining a verdict for $800, which the court declined to set aside on defendant's motion made therefor, and from the judgment rendered thereon it prosecutes this appeal.

Plaintiff's counsel in this court made a motion to strike the "Bill of Evidence" from the record, which was passed to a hearing on the merits and we will first dispose of it. The bill of evidence is certified to by the stenographer who made it, and it was approved by the presiding judge, and is marked "filed" by the clerk of the court at the same term at which the bill of exceptions was filed, which was within the time given by the order extending the time for that purpose, and which extension order recited: "And on its motion defendant is given until and including the 17th day of the next term of this court to prepare and file its bill of exceptions herein." As a basis for this motion, it is argued that the order of extension should have also extended the time for the filing of the "Bill of Evidence," and, not having done so, it could not be filed at the extended time for the filing of the bill of exceptions. In the first place, there were no objections or exceptions to the filing of the transcript of evidence at the time it was done, and for that reason alone the motion would have to be overruled. But there is no merit in the contention, if there had been objections and exceptions to the filing at the time it was made. The bill of exceptions referred to it, and made the evidence a part of it, and the order recites that both of them were filed at the same time and made a part of the record, and which is a substantial, if not a literal compliance with the Code provisions, and the universal practice on the subject. The motion therefore is overruled.

The petition, in alleging the contract for the violation of which damages were sought, said: "They state that on the 20th day of October, 1926, they entered into a contract with the defendant company, its agents and officers in charge, whereby the defendant company promised and agreed to pay to these plaintiffs the sum of 77 1/2 cents per ton of coal of 2000 pounds, for each and every ton they should remove on contract out of No. 4 Left Straight Entry and No. 4 Left Back Entry of said defendant's mine and place all of said coal on the side track, all of said work being robbing work." Further along in the same pleading this language is employed: "Plaintiffs say that they could and would have removed all the workable coal assigned to them in the said contract and agreement with defendant company within a period of 12 months from the day and date of the said contract as aforesaid."

Defendant's demurrer to that pleading was overruled with exceptions, and still relying upon the same defect, it moved for a peremptory instruction at the close of plaintiff's testimony, which was also overruled with exceptions, and that motion was repeated with like results at the close of all the testimony in the case. The testimony of plaintiffs was no more definite as to the terms of the contract than were the inserted allegations from the petition, and it cannot therefore be insisted that the verdict cured the defect in the petition, if any. It will be observed that the allegations we have taken from the petition (and which are all upon the subject) do not state any agreement upon the part of plaintiffs to mine any definite quantity of coal under their alleged contract, nor to take any specified quantity from any designated portion of defendant's mine, nor did...