McKeever, Cook & Co. v. Canonsburg Iron Co.

OPINION,

Mb. Chief Justice Gobdon :

This case is all wrong, and must be reversed. The following seems to be the contract under which the parties contestant operated:

[Here the contract of November 8, 1882, was copied.]

From this it is obvious, that no limit was, by the contract, put upon the discretion of the defendants' as to the amount of coal they were to use in the mill. It might be much, little, or none at all. What coal was necessary for consumption in their works they must take from the plaintiffs. This was all they were bound to do, and all the plaintiffs were bound to furnish them; and it was of no consequence whether the falling off in that consumption was occasioned by the contraction of their business, or by the introduction of gas. In either case, less coal was necessary for the defendants’ manufactory, and they were not obliged to pay for what they did not require.

The judgment is reversed.

Attention having been called to the fact that the defendants had not taken from McKeever, Cook & Co. “ what coal was necessary for consumption in their works,” which did not clearly appear as the case was presented in the Supreme Court, a venire facias de novo was subsequently awarded.

At the second trial, on December 13, 1889, a case was made out on the evidence in substance the same as on the former trial, and at the close thereof, the court, McIlvaiNE, P. J., instructed the jury, answering certain of the points presented as follows:

The plaintiffs ask us to charge you as follows :

1. If the jury fmd from the evidence that there has been a breach of the contract on the part of the defendants, the proper measure of damages is the difference between the value of the coal which the jury may find the defendants would have required had they complied with their contract, at the contract price per bushel, and the value of that quantity of coal in place, with the cost of mining and delivery added.

Answer: This is affirmed, unless the jury find from the evidence that the coal, which the defendants were bound to take under the contract, was sold or could have been sold in the market by the plaintiffs at their place of business. If the coal was left in place, and left unsold solely by reason of defendants’ breach of contract, then the measure of damages is as ' stated in this point.

The defendants ask us to charge you as follows:

1. That by the writing upon which this suit is brought, the defendant company was not bound to purchase coal from the plaintiffs, but had the right to obtain its supply of coal wherever it saw proper, and only became liable to pay the plaintiffs, at the rate fixed by the contract, for the coal it afterward ordered to be delivered at its mills, and the verdict of the jury should be for the defendants.

Answer: Refused.1

2. That by the true construction of the writing dated November 8, 1882, the defendant company was not bound to take all the coal it used from the plaintiffs, but was only bound to take what coal it saw fit to order, at the prices named; and no liability arises on the part of the defendant company, except for coal so ordered.

Answer: Refused.8

7. That “ nut coal ” not being specified or contracted for in the writing upon which this suit is brought, the defendant company had the right to purchase this grade of coal wliere-ever it saw proper, without any liability to the plaintiffs for breach of contract.

Mr. John B. Braden (with him Mr. J. W. Bonnan and Mr. Alvan Bonnan), for the appellants.

Counsel cited: Reaney v. Culbertson, 21 Pa. 507; Miller v. Fichthorn, 31 Pa. 252; Adams v. Betz, 1 W. 425; Miller v. Cresson, 5 W. & S. 284; Mitchell v. Insurance Co., 51 Pa. 410.

Mr. John L. Grow, Mr. JR. W. Irwin, Mr. JE. JE. Orumrine and Mr. Boyd Orumrine, for the appellee, were not heard.

That the court was not bound to answer, without qualification, abstract propositions, or propositions which met but a single view of the evidence when it admitted of another, the brief filed cited: Rider v. Maul, 70 Pa. 15; McKnight v. Ratcliff, 44 Pa. 165; Graham v. Moore, 4 S. & R. 467; Irish v. Smith, 8 S. & R. 573; Hughes v. Boyer, 9 W. 556.

Answer: Affirmed, if the jury find under tbe evidence that nut coal is not included in the kinds of coal specified and contracted for in the writing upon which this suit is brought, and was used for a different purpose.3

—The jury returned a verdict for the plaintiffs for $1,494.85. Judgment having been entered, the defendants took the appeal to No. 35 October Term 1890, Sup. Ct., assigning for error:

1-3. The answers to the defendants’ points.1 to 3

Per Curiam:

The contract upon which this suit was brought received a construction when the case was here before. It was then said by GoedON, C. J.: “ What coal was necessary for consumption in their (Canonsburg Iron Company’s) works they must take from the plaintiffs. This is all they were bound to do, and all the plaintiffs were bound to furnish them; and it was of no consequence whether the falling off in the consumption was occasioned by the contraction of their business, or by the introduction of gas. In either case, less coal was necessary for the defendants’ manufactory, and they were not obliged to pay for what they did not require. ” Upon the present trial below the defendants attempted to ignore the above ruling. This clearly appears by their second point, in which the court below was asked to instruct the jury “ that, by the true construction of the writing dated November 8, 1882, the defendant company was not bound to' take all the coal it used from the plaintiffs, but was only bound to take what coal it saw fit to order, at the prices named; and no liability arises on the part of the defendant company except for coal so ordered.” This instruction the learned judge very properly refused, as it was right in the face of our former ruling. Nor is error perceived in the answer of the court to the defendants’ seventh point. See third assignment. This point was affirmed, with a qualification which was justifiable under the circumstances. It is true, nut coal was not specifically named as such in the contract, but said contract called for all the coal used, and there was evidence that nut coal took the place of the slack; in other words, that the slack included nut coal.

Judgment affirmed.