Summit Coal Co. v. Raleigh Smokeless Fuel Co.
| Decision Date | 21 April 1925 |
| Docket Number | 5075. |
| Citation | 128 S.E. 298,99 W.Va. 11 |
| Parties | SUMMIT COAL CO. v. RALEIGH SMOKELESS FUEL CO. |
| Court | West Virginia Supreme Court |
Submitted April 13, 1924.
Rehearing Denied with Modification June 10, 1925.
Syllabus by the Court.
The court will adopt the construction which the parties to an ambiguous contract, by their conduct and express agreements during performance, have placed upon it.
And where the original contract is unambiguous and certain in its terms, the parties may by a subsequent agreement, binding them, modify it or substitute therefor another contract.
If the evidence in a case is not sufficient to support a verdict for the plaintiff, the court should, on motion of the defendant direct a verdict for the latter.
Error to Circuit Court, Raleigh County.
Action by the Summit Coal Company against the Raleigh Smokeless Fuel Company. Judgment for defendant, and plaintiff brings error. Affirmed.
C. M Ward, of Beckley, and C. W. Dillon, of Fayetteville, for plaintiff in error.
Price Smith & Spilman, of Charleston, and McGinnis, Maxwell & McGinnis, Ashton File, and W. W. Goldsmith, all of Beckley for defendant in error.
This writ was awarded upon the application of the plaintiff to the judgment of the circuit court of Raleigh county on a directed verdict in favor of the defendant.
The plaintiff, Summit Coal Company, is a corporation operating a coal-producing plant at Metalton, Raleigh county. The defendant, Raleigh Smokeless Fuel Company, also a corporation, is engaged in the purchase and sale of coal upon its own account and as agent for others. With the view of selling coal to the Mathew Addy Steamship & Commerce Corporation of Cincinnati, Ohio, the defendant obtained from plaintiff and four other producing companies in Raleigh county separate offers in writing to sell certain amounts of coal, aggregating 120,000 tons, to be delivered between April 1, 1920, and April 1, 1921, at the rate of 10,000 tons per month. The offers were set forth in letters of identical form (except as to the amount of coal) addressed to the defendant. The body of the letter containing the offer of the plaintiff, dated January 2, 1920, follows:
Upon the faith of these offers, as outright proposals of sale to it, the defendant sold to the said Mathew Addy Steamship & Commerce Corporation, by written contract, January 9, 1920, 120,000 tons of coal at the price of $6,312 per ton f. o. b. piers at Hampton Roads, Va., such grades as would be acceptable in pools 1 and 2 of the Tidewater Coal Exchange for shipment between the 1st day of April, 1920, and the 1st day of April, 1921, at the rate of 10,000 tons per month. The price fixed, as it seems, is the equivalent of that contained in the offers, of $3.85 per net ton f. o. b. mines.
By letter dated January 8, 1920, and delivered to the plaintiff after the sale to the Mathew Addy Steamship & Commerce Corporation, the defendant accepted the plaintiff's offer of January 2d in the following language:
"Referring to your letter of the 2d instant, say that we have contracted for your account 2,000 gross tons pool 1 or 2 coal per month, beginning April 1, 1920, and ending March 31, 1921, at the price and upon the terms, and for delivery stated in your letter; and you will please accept this as notice of acceptance of the offer stated in your letter above mentioned, of which you will kindly acknowledge receipt."
Both parties treating the offer and acceptance in the two letters as a sale of the coal to the defendant, all shipments during the contract period were made by the plaintiff to the order of, and promptly paid for by, the defendant. Long after the performance of the contract the plaintiff set up claim that the coal had been delivered to the defendant as agent of the plaintiff, and that the defendant, having disposed of the same on its own account, was liable to the plaintiff for the difference between the contract price and the market value, amounting to a large sum of money. This is the only basis for the suit.
The action of the trial court, directing a verdict for the defendant and rendering judgment thereon, is fully supported by the record. Although the plaintiff treated the defendant as purchaser of the coal during the performance of the contract, it now assumes a changed attitude by claiming that it did not know the defendant had sold the coal on its own account to the steamship corporation until 1922, when its first correspondence with that corporation occurred.
The present position of the plaintiff is discounted by the very fact relied on to excuse delay in its assertion. It is unreasonable that the plaintiff would have continued for a year to ship large quantities of coal to a supposed purchaser without having some intercourse with such customer. The plaintiff proves that it did not know or even inquire the name of the purchaser to whom the defendant had sold the coal until several months after beginning shipments under the agreement. Is it reasonable that the plaintiff had been previously extending credit to an unknown purchaser? This is what its present contention means; for if the sale had been made by the defendant on behalf of the plaintiff, as is now claimed, then the plaintiff would have been compelled to look to the credit of the unknown purchaser alone in the absence of agreement by the defendant to guarantee payment.
August 2, 1920, the plaintiff as producer, party of the first part, the defendant, as agent, party of the second part and Matlack Coal & Iron Corporation, as purchaser, party of the third part, entered into a written agreement, whereby the defendant, as agent for the plaintiff, sold to the said Matlack Coal & Iron Corporation the entire output of coal from plaintiff's mines to the amount of 150,000 tons, "subject nevertheless to the prior sale made by the producer (plaintiff) to the agent (defendant) of 16,000 net tons of coal, to be supplied under said contract at the rate of 2,000 tons per month until the full amount of 16,000 net tons of coal shall have been furnished by the producer (plaintiff) to the agent (defendant)." The contract recites:
"Whereas it is understood between all parties to this agreement that the producer (Summit Coal Company) has heretofore by contract sold to the agent (Raleigh Smokeless Fuel Company) certain coal tonnage on which contract there remains undelivered 16,000 tons of coal, which, by the terms of said contract, is to be furnished and shipped by producer (Summit Coal Company) to the agent (Raleigh Smokeless Fuel Company) at the rate of 2,000 net tons per month from the date hereof; and it is understood and agreed between the parties hereto that this agreement is subject in all respects to said contract, and prior sale of said tonnage."
The plaintiff would repudiate those parts of the agreement here quoted upon the theory that they constitute mere recitals "furnishing a basis for the contract." It is quite true that the prior agreement between the plaintiff and defendant was necessarily considered in arriving at a basis for the new contract, and for that very reason it is presumed that the parties deliberately and correctly interpreted the same. They...
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