Watson v. Buckhannon River Coal Co.

• Decision Date: 04 December 1923
• Citation: 95 W.Va. 164
• Court: West Virginia Supreme Court
• Parties: Alex R. Watson v. Buckhannon River Coal Co.

95 W.Va. 164

Alex R. Watson

v.Buckhannon River Coal Co.

Supreme Court of Appeals of West Virginia.

Submitted November 13, 1923.

Decided December 4, 1923.

1. Contracts Duty of Court to Construe Written Contract and Instruct Jury As to Finding Under its Construction.

It is the duty of the trial court to construe a written contract which is the basis of the suit, if it be susceptible to construction, and instruct the jury as to their finding under such construction, (p. 173).

2. Same Evidence Circumstances Surrounding Parties at Execution May Always be Shown; Unambiguous Written Con-

tract Cannot be Varied by Parol Evidence Changing Plain Expressed Intent; Practical Construction Will Not Change Clear Expressed Intent; Terms of Written Contract Cannot be Varied by Extraneous Evidence.

The circumstances surrounding the parties at the time of the making of a written contract may always be shown; but where the writing is plain, definite and unambiguous it cannot be varied by parol evidence showing facts which might have the effect of changing the plain intent expressed by the writing; nor will practical construction by the parties change the clear intent expressed by the writing. The writing is the repository of what the parties meant, and cannot be varied by extraneous evidence. (p. 173).

3. Same Must Always be Considered As a Whole; Written Contract Will be Construed to Give Effect to Its Main Purpose, Where Possible.

The writing must always be considered as a whole; and if possible it will be so construed as to give effect to the main general purpose. (p. 173).

4. Same Evidence Parol Evidence Admissible to Explain Uncertain and Ambiguous Writing; Where Parol Evidence Admissible to Explain Writing Not Conflicting, Construction for Court; Where Parol Evidence, Admissible to Explain Writing Conflicting on Material Point, Question for Jury.

While the general rule is that the construction of a writing is for the court; yet where the meaning is uncertain and ambiguous, parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given to the contract by the parties themselves either contemporaneously or subsequently. If the parol evidence be not in conflict, the court must construe the writing; but if it be conflicting on a material point necessary to interpretation of the writing, then the question of its meaning should be left to the jury under proper hypothetical instructions. (p. 180).

5. Evidence Parol Evidence Admissible to Explain Uncertain and Ambiguous Writing; Declarations, Conversations, and Interlocutions of Parties to Writing at or Before Execution Inadmissible.

Where the writing is ambiguous, oral evidence may be introduced as to the situation of the parties, surrounding circumstances and subsequent acts in carrying it out; but the declarations, conversations and interlocutions of the parties at or before the execution of the writing are not admissible. (p. 181).

6. Sales Measure of Damages for Breach of Contract of Sale and Delivery of Coal Stated.

In an action to recover damages for the breach of a contract of sale and delivery of coal, the contract and breach being established, the damages is the difference between the contract price and the market price at the time when the coal should have been delivered, to which the jury may add interest at the legal rate from the stipulated time for delivery. (p. 181).

Error to Circuit Court, Upshur County.

Action by Alex R. Watson against the Buckhannon River Coal Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

J. M. N. Downes, Lackey, Spurgeon & Lackey, and Poffen- barger, Blne & Dayton, for plaintiff in error.

Law & McCue, and Young & McWhorter, for defendant in error.

Lively, Judge:

This writ is to review a judgment for $25,244.37, rendered on September 27, 1922, in favor of plaintiff below.

The action is assumpsit for breach of a written contract of sale and purchase of coal executed the 29th of May, 1916, and modified or supplemented by a writing dated the 17th day of October, 1916. The proper construction of this original and supplemental contract is the question upon which practically all of the assignments of error are based. The lower court construed the contract as contended for by plaintiff, and at the conclusion of the evidence gave instructions to the jury which practically directed them to find a verdict for plaintiff in accordance with the court's construction of the contract, The coal company, defendant below, plaintiff in error, placed quite a different construction upon the contract from that given by the court; and insisted that its construction is the proper one; or, at least, that the meaning of the contract should have been left to the jury, in view of the situation of the parties and their practical interpretation thereof as developed by the evidence, and of the conflict in the evidence; and that they should have been properly instructed as to what the interpretation would be, based upon their finding of facts; in other words, the terms of the contract being indefinite as to the intention of the parties, the construction thereof depended upon the facts, and the court should have charged the jury telling them what would be the true construction of the instrument on the different state of facts which might be found by them from the evidence.

Did the court properly construe the contract? This is the storm center of the case. By the contract of May 29, 1916, the coal company sold to Watson 50, 000 tons of its Adrian three-quarter screened coal for delivery between June 1, 1916, and January 1, 1917, at 95 cents per gross ton; the shipments to be equally distributed throughout the period for delivery. Watson was to pay on the 15th of each month for coal shipped in the previous month; the coal was to be consigned by instructions from Watson, the seller not to be liable in any way for the coal or freight after the coal left the mine. During the period of delivery Watson was to have the refusal of the nut or slack coal which defendant had to offer at the price of 90 cents per ton f. o. b. mines. The agreement for the purchase of slack is practically eliminated from consideration, and has an incidental bearing only. The agreement was made subject to car supply, classification facilities, strikes, accidents, and delays beyond the control of either party. On June 26, 1916, Watson contracted with Indian Run Coal Company by which he sold it 25, 000 tons of 1 1/2 inch lump coal to be shipped from the mines at Adrian at $1.15 per net ton, shipments to be made of approximately 5, 000 tons per month as long as the contract was in force, the buyer to designate the delivery and equipment and routing. This contract was to remain in force until December 1, 1916, and if any of the coal had not been shipped at that time it would be taken by the buyer at its election. The contract was made subject to strikes, accidents, car supply, etc., same as set out in the above contract of May 29th between the parties litigant. The existence of this contract was known to defendant, and accounts for the clause "western shipment" in the October 17th contract (below set out) and has an important bearing upon the interpretation of the contract.

The price of coal began to rise about the first of July. On October 17, 1916, the coal company had delivered 19, 997.18 tons of lump coal and 2, 141.01 tons of slack. It became apparent from shortage of car supply and other causes that the 50, 000 tons could not be delivered at that rate before January 1st. There remained 30, 002.82 tons and at the rate of delivery up to that time about 11, 000 would be delivered, leaving 20, 000 tons, in round numbers, not delivered on January 1, 1917.

The coal company had a prior contract or contracts on which it was shipping some of its coal, of which Watson had notice at the time of the first contract, and on which it was receiving an average price of about 80 cents per ton. This, with car shortage, lessened the tonnage delivered. Of this 19, 997.18 tons of coal delivered, Watson had applied 9, 071.78 tons to the Indian Run contract, denominated in the record as "western shipment," leaving 15, 928.22 tons to be delivered by him before December 1, 1916, or at the option of the Indian Run Coal Company to take, after that date. Watson was urging delivery of more coal on his contract. This being the situation on October 17, 1916, Watson met with the directors of the coal company and talked over this situation, the unexpected rise in price, and the supplemental contract was then made, afterwards reduced to writing by the president of the company, T. S. Lackey. That agreement in full is as follows:

"Supplemental Memoranda of Agreement between the Buckhannon River Coal Company and Alex R. Watson relative to the sale of 50, 000 tons of coal.

At a meeting of the Board of Directors of the Buckhannon River Coal Company held at the office of T. S. Lackey, 52 East Main St., Uniontown, Pa., October 17th, 1916, Mr. Alex R. Watson being present, the following was agreed to:

1st. That the tonnage undelivered at this date of a certain contract for 25, 000 tons lump coal sold by Mr. Watson for western shipment shall be delivered at the contract price of 95c per ton.

2nd. The company also to furnish 1, 000 tons of slack at 95c per ton. All slack delivered to Watson to count on the contract tonnage.

3rd. The balance of the 50, 000 tons not already delivered at this date to be sold by Watson, the Company to receive therefor 95c per ton, the contract price; Watson to receive 5c per ton if sold at $1.00 per ton and the company and Watson to share equally the difference between the said $1.00 per ton and the net price for which said coal is sold.

4th. Said contract subject to the above memorandum is to remain in full force and effect until the full 50, 000 tons have been delivered to the said ...