Phillips v. Pilling

Opinion by

Mr. Justice Elkin,

The question raised by this appeal must be determined by a proper construction of the contract entered into between the parlies. It is in writing, and provides for the sale and delivery of 14,000 gross tons of coal of a particular kind therein specified at a particular place therein named. The railroad scale weights at point of shipment were to govern the settlement of accounts between the contracting parties. The coal was to be delivered in cars on the piers of the Pennsylvania Railroad Company at South Amboy. The contract itself named Nonpareil bituminous coal, but it was shown at the trial, and conceded here, that the use of this term was a mistake, Sonman shaft coal being intended. We must therefore accept this as an established fact in the consideration of the case. It is further provided in the contract that the seller will not be responsible for delay in deliveries if prevented by strikes, combinations of miners, accidents in the mines, interruptions of transportation, or other causes therein mentioned. These specific matters need not be considered because appellees do not attempt to excuse their nonperformance of the entire contract on account of the conditions herein above stated. They do set up the following covenant as a justification of their failure to make full deliveries, to wit: “ It is understood and agreed that if there should be a shortage of cars, shipment will be divided from time to time in fair proportion on all orders.” The evidence clearly shows that there was a shortage of cars during the period covered by the contract by reason of which appellees fell several thousand tons short in making the required shipments. This suit was instituted to recover for breach of the contract. The court below held that the contract referred to a particular kind of coal at a designated mine, and that the clause relating to car supply meant a shortage of cars at the mine from which the coal was produced. The correctness or incorrectness of this ruling is the pivotal point in the case.

Appellants contend that it was the duty of appellees to deliver them 14,000 gross tons of coal of the same general quality as that named in the contract, and that it made no difference whether it was Clearfield coal, or Sonman Shaft coal, or Son-man coal, or any other coal of a similar character. We cannot accept this contention as sound, because it is otherwise written in the contract. The vendors sold and the vendees bought Sornnan Shaft coal. This coal is only mined at one place, and by one company. It was to be weighed on the railroad scales at the mines. It was to be transported by the Pennsylvania Railroad Company and delivered to consignees on the railroad piers at South Amboy. The contract is not susceptible of any other interpretation. It was a proper contract to make. It is customary as between the buyer and seller of coal to designate the particular kind to be delivered. Bituminous coal varies in quality even in the mines on adjoining properties. The constituent elements upon which the quality of coal depends are fixed carbon, volatile matter, sulphur, ash and phosphorus. The proportions in which these elements are found in a seam of coal determine its value for the use intended. Some coal is high in fixed carbon and volatile matter, and low in sulphur, ash and phosphorus. In other seams these conditions may be reversed, and in no two mines are they exactly the same. For these reasons some coal is adapted to the making of coke, some for steam, some for foundry use, and some for manufacturing purposes generally. The buyer has these conditions in mind when he makes his contract for future supply. Nature did not fix these proportions with any degree of uniformity. It is safe to assume that in no two mines in the bituminous district of our state do the analyses show the proportions of the constituent elements to be exactly the same. The purchaser in making a contract has in mind two things, the use for which the coal is intended and the quality adapted to that use. He makes his contract upon this basis, and has a right to insist upon the performance of the covenant relating thereto. It is to be assumed that appellants had a customer familiar with the quality of Sonman Shaft coal which was suited to his purpose, and that the contract was entered into with this understanding. It will not do to say that the purpose of the contract can be defeated in furnishing any quality of coal when a particular kind is designated. If the seller in this case had undertaken to deliver Tearing Run, or Bear Run, or Clearfield coal, the buyer could have refused to accept it because it was not a performance of the covenant to furnish the particular kind of coal specified in the contract. The rule should wmrk both ways. The whole question was submitted to the jury in a careful and well-considered charge by the learned court below, with instructions that if the testimony satisfied them that the shortage of cars prevented appellees from completing full deliveries, and that a fair proportion of the coal mined had been furnished appellants, there could be no recovery. The jury found these facts in favor of appellees, and we see no reason to disturb their finding.

Assignments of error overruled and judgment affirmed.