Tradewater Coal Co. v. Lee

• Decision Date: 15 May 1902
• Citation: 68 S.W. 400
• Parties: TRADEWATER COAL CO. v. LEE et al. [1]
• Court: Kentucky Court of Appeals

68 S.W. 400

TRADEWATER COAL CO. v. LEE et al. ^[1]

Court of Appeals of Kentucky.

May 15, 1902

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by the Tradewater Coal Company against W. H. Lee and another to recover the price of coal sold. Judgment for defendants on their counterclaim, and plaintiff appeals. Affirmed.

Clay &amp Clay, for appellant.

Montgomery Merritt, for appellees.

BURNAM J.

This action was brought by the appellant, the Tradewater Coal Company, to recover of the appellees, Lee & Sights, $322.18 for coal sold and delivered to them pursuant to a written contract made on the 1st of September, 1899. The contract provides that the company will sell and deliver to appellees all the coal which they can sell in Henderson from the 1st of September, 1899, to the 1st of September, 1900, at a certain fixed price, free on board cars at the mine, and they also agree not to sell coal to any other dealer in the city of Henderson for domestic use during the existence of the contract, whilst appellees agreed to purchase all the coal handled by them during this period from the coal company. There is a stipulation in the contract that the coal company shall be released from their undertaking in the event of a strike of their employés, or any accident, casualty, or cause, which they cannot control, which prevents them from complying with their undertaking. The appellees, in their answer, say that they ordered from appellants 306 cars of coal under their contract, but that the defendants only shipped to them 85 cars so ordered by them, that they could have sold all the coal ordered, at a profit; and that they had been damaged by reason of appellants' violation of the contract in the sum of $3,000. Appellants replied that the coal was not shipped as ordered because of their inability to obtain cars from the railroad company, and that for this reason they were exonerated from liability to appellees' under the contract. The appellees, in their rejoinder, denied that the coal was not shipped by appellants because of their inability to procure cars from the railroad company, and allege that, instead of shipping coal to them they used the cars furnished by the railroad to ship coal to other parties, for which they received a higher price than appellees were required by the contract to pay. A jury trial resulted in a verdict and judgment for appellants for the amount of their debt, with interest. A motion for a new trial was sustained, and the verdict set aside, to which appellants excepted, and prepared a bill of exceptions, which was made a part of the record. A second trial resulted in a verdict and judgment in favor of appellees upon their counterclaim against appellants for $1,088.33. Motion for a new trial having been overruled, this appeal is prosecuted to reverse the judgment entered upon the last verdict, and to have the first verdict and judgment substituted therefor, upon the ground that the trial court erred in granting the defendants a new trial, and also because of erroneous instructions given to the jury.

The testimony on both trials demonstrated conclusively that appellants did not fill the orders of appellees for coal as ordered, and that in consequence thereof they were subjected to serious loss and inconvenience in the conduct of their business. We think it is also conclusively shown by the testimony that the railroad company did not furnish to appellants as many cars for the transportation of their coal as the business of the company required. In fact, it is not controverted that they had a standing order with the railroad company for an average of 20 cars a day, and that the railroad failed...