2. Contracts (§ 147*)—Joint or Several Contracts—Intention. Whether a contract is joint or several or joint and several depends upon the intention of the parties ascertained therefrom, and such intention must prevail over the literal interpretation of detached words and clauses.
[Ed. Note.—For other eases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]
Error to Circuit Court of City of Norfolk.
Action by the Virginia Black Mountain Coal Company, Incorporated, against the Virginia-Lee Company, Incorporated, and others. Judgment sustaining a plea of abatement by the unnamed defendants, and plaintiff brings error. Affirmed.
The declaration is as follows:
"Virginia Black Mountain Coal Company, Incorporated, a corporation organized and existing under the laws of the state of Virginia, the plaintiff in this action, complains of the Virginia-Lee Company, Incorporated, a corporation organized and existing under the laws of the state of Virginia, Bondurant Coal & Coke Company, Incorporated, a corporation organized and existing under the laws of the state of Virginia, and the Black Mountain Mining Company, a corporation organized and existing under the laws of the state of Virginia, the defendants, of a plea of trespass on the case in assumpsit, for this, to wit: That heretofore, to wit, on the 29th day of November, A. D. 1909, the said defendants were indebted to the said plaintiff in the sum of seventy thousand dollars ($70,000) for the price and value of work before that time done by the plaintiff for the defendants at their special instance and request; and also in the sum of seventy thou
sand dollars ($70,000) for money before that time lent by the plaintiff to the defendants at their special instance and request; and also in the sum of seventy thousand dollars ($70,000) before that time paid by the plaintiff for the use of the defendants at their special instance and request; and also in the sum of seventy thousand dollars ($70,000) for money before that time had and received by the defendants to the use of the said plaintiff. And, being so indebted, the said defendants, in consideration thereof, afterwards, to wit, on the day and month and year aforesaid, undertook and faithfully promised the said plaintiff to pay it the said several sums of money in the above counts mentioned, when the said defendants should be thereunto afterwards requested.
"And for this, also, that heretofore, to wit, on the day, month, and year last aforesaid, the said defendants accounted with the said plaintiff of and concerning divers other sums of money before that time due and owing to the said plaintiff and then in arrears and unpaid; and, upon such accounting, the said defendants were found in arrears and indebted to the said plaintiff in the further sum of seventy thousand dollars ($70,000), and, being so found in arrear and indebted, they, the said defendants, in consideration thereof, undertook and then faithfully promised the said plaintiff to pay to it the said sum of money in this count last mentioned when they, the said defendants, should be thereunto afterwards requested.
"And for this, also, that heretofore, to wit, on a certain day, to wit, on the 11th day of March, A. D. 1909, the said defendant the Virginia-Lee Company with J. D. Palmerlee and C. K. Mount executed a certain paper writing, which said paper writing is in words and figures as follows, to wit:
" 'This agreement made and entered into (in duplicate) this the eleventh day of March, 1909, by and between Virginia-Lee Company, Incorporated, a corporation organized and existing under the laws of the state of Virginia, party of the first part, and J. D. Palmerlee and C. K. Mount, of Norfolk, Virginia, partners under the name of Black Mountain Coal Company, hereinafter referred to as party of the second part, witnesseth:
" 'That the parties to this agreement for and in consideration of the mutual covenants and agreements herein expressed and set forth, and for other good and valuable consideration, have respectively agreed as follows, to wit:
" 'First. That the party of the first part agrees to deliver, for sale, during the continuance of this agreement, to the party of the second part on railroad cars at the mines of the party of the first part all the coal produced by its said mines, located in the
[74 S.E. 178]
Black Mountain District, Lee county, Virginia, after deducting the amount of coal used for domestic and steam purposes in and about its own mines, and any coal that the said party of the first part may desire to use in making coke at its said mines, and after deducting any coal excepted in clause 12 of this agreement.
" 'Second. The party of the second part agrees to accept all the coal delivered to it by the party of the first part and to pay the party of the first part, on the 15th day of each month, the amount due for the coal delivered during the previous calendar month, which amount shall be determined as hereinafter set forth, less ten per cent. of the said amount, which is to be given to the party of the second part for its commission, costs and expenses of selling, which are accepted by it as in full of such.
" 'Third. The amount to be paid to the party of the first part by the party of the second part on the 15th day of each month to be ascertained as follows:
" 'The party of the second part is to average the prices which it has received per ton for each grade of coal and from each seam or vein separately, delivered to it by the party of the first part and all other mines having contracts identical with this one, and is to pay the party of the first part the net average prices obtained therefor, after deducting the said ten per cent. commission above provided for.
" 'Fourth. The party of the first part is to deliver to the party of the second part a clean and merchantable coal, free from slate, bone or other impurities, and to be thoroughly screened and prepared according to sizes ordered, and the standard of grade and inspection determined upon and adopted by the second party to govern. The party of the second part agrees to establish an office at St. Charles, Virginia, for receiving and shipping coal and to thoroughly inspect said coal prior to billing the same and shall issue a certificate to the party of the first part covering each car received, setting forth the grade and weight of such car, and the said certificate shall be final in settlement between the parties hereto. A competent inspector shall be appointed by the party of the second part, who shall be acceptable to a majority in interest of the mining companies entering into this and similar agreements; such majority to be determined in accordance with section nine hereof, and said inspector may be discharged at any time for cause, either by the party of the second part or by a majority in the interest of said mining companies, as aforesaid. One-half the salary of the said inspector shall be paid by the party of the second part and the other half shall be paid by the said mining companies. The proportion to be paid by each company is to be determined as aforesaid, in accordance with section nine thereof. The whole
salary to be paid by the said party of the second part and each company's proportion of said one-half to be deducted upon each monthly settlement.
" 'Fifth. In determining the rights and dues of the parties to this agreement, the weights as returned by the initial railroads are to be accepted as final, by both parties hereto, and a ton as used herein is to be construed to mean 2, 000 lbs.
" 'Sixth. The party of the second part shall endeavor, at all times, to secure a sufficient car supply, but In the event of a car shortage, the available supply shall be prorated among the several mines having identical contracts herewith with the party of the second part on a basis of their respective capacities, which capacities are to be determined as hereinafter set forth, in clause nine.
" 'Seventh. The party of the first part agrees to meet, from time to time, at the request of the party of the second part or any of the other mining companies entering into a similar contract with this one, with representatives of such other mining companies in the Black Mountain field, for the purpose of determining minimum prices at which coal may be sold for any stated period, and said party of the first part agrees to accept the prices so fixed by majority vote. The value of the vote of each representative to bear the same proportion to the total vote cast, that the capacity of such representative's mines bears to...
