68 W. Va. 716 | W. Va. | 1911
Andrew Belcher brought his suit in equity in the circuit court of McDowell county against the Big Four Coal & Coke Compaq, a corporation, John Stanilaus Brophy and James Francis Brophy, and the Cirrus Coal & Coke Company, a corporation, defendants, to recover an alleged balance of royalty due him, on coal mined pursuant to a coal lease executed by said Belcher and his wife to the company first above named, on the 15th day of August, 1899. The bill also prays for a discovery by the defendants of the respective amounts of coal mined by them during their several operations of the mine. The defendants demurred to, and answered, the bill. Plaintiff joined in the demurrers, and replied generally to the answers. The cause was finally heard on the 7th day of August, 1909, upon the
The lease, instead of providing a certain royalty per ton for coal mined, which is usual in coal leases, provides for the payment of, “the sum of one dollar and fifty cents for each and every railroad car, or its equal, of coal, dug, mined, hauled from or through the aforesaid premises, and used on the premises or shipped away from the tipple or works of the said lessee.” The suit grows out of the different constructions which the parties seek to give to the words, “railroad car, or its equal,” used in the lease. This is the only unit of measurement mentioned in the lease.
The Big Four Coal & Coke Company operated the mine until September 24, 1904, when it transferred its lease to the Brophys 'who operated it until December 31, 1904, and they then assigned it to their co-defendant, the Cirrus Coal & Coke Company.
The mine is located on the Norfolk and Western Bailroad in McDowell county and at the time of the execution of this lease the railroad company was using cars for the shipment of coal of 30,000, 40,000, 50,000, and 60,000 pounds capacity. And afterwards began to use larger engines and cars, some of which cars had a capacity of 100,000 pounds, and very much of the coal from this mine was shipped in the larger cars.
The record presents the following questions: (1) lias equity jurisdiction? and (2) What is the proper interpretation of the words, “railroad car, or its equal” used in the contract ?
Plaintiff alleges that what 'was intended by the words, railroad car, was a car of 40,000 pounds capacity. He also alleges that he does not know how many cars of that capacity, or their equivalent, have been mined, nor does he know how many tons of coal have been mined, and he prays for a discovery from each of the defendants of the number of tons of coal mined by them during their respective operations.
It is insisted that plaintiff has a complete and adequate rem
Did the parties have in mind a car of any particular capacity when they agreed upon a royalty of $1.50 per “railroad car, or its equal;” or, did they intend that only so' much roj^alty was to be paid per railroad car, regardless of the quantity of coal, that might be shipped in a car ? We think they evidently meant that a car of some definite size or capacity was to be taken as unit of measurement. This intention is manifest from the use of the words,- “or its equal,” which immediately follow the words, “railroad car.” They evidently knew that the coal would be shipped in railroad cars; what then could they have meant by the words, “or its equal?” They clearly relate to a definite quantity, to a certain unit of measurement, not to a variable one. Both the lessor and J. W. Booth, the agent of the lessee who procured the lease contract, knew that, at the date of the lease, cars of various capacities were used by the Norfolk & Western Eailroad Company for transporting coal from the vicinity of this mine. The railroad company was then using cars of 30,000, 40,000, 50,000, and 60,000 pounds capacity. Which size did they contemplate as the unit of measurement? In view of the fact that both contracting parties knew at the date of making the contract that cars differing in size were to be used, taken in connection 'with the words, “or its equal,” which were intended to qualify the words, “railroad car,” immediately preceding them, the contract is ambiguous in respect to the unit of measurement which they intended. They meant a car of some cer
“The term barrel as used in a contract for the sale of one thousand barrels of petroleum oil may mean either a quantity or vessel, and parol evidence is admissible to- show in what sense the parties used it.” Miller v. Stevens, (Mass.) 97 Am. Dec. 123.
“In an action on a contract for the purchase of six hundred casks of a certain kind of black lead, oral evidence of the size of the casks agreed on is admissible.” Keller v. Webb, 125 Mass. 88, 28 Am. Rep. 209.
“Where machinery sold is guaranteed in writing to take care of all the pulp produced by four Scott grinders, and it is shown that Scott grinders are of varying capacity, it may be shown by parol evidence that the guaranty was given on the representation of the purchaser that he had contracted for the'purchase of four Scott grinders of a stated capacity.” Bagley & Sewell Co. v. Saranac, &c. Co., 135 N. Y. 626 (32 N. E. 132.)
It is abundantly proven that before the lease was executed, Booth offered to give Belcher ten cents per ton, or $1.50 per railroad car as a royalty, and that Belcher chose to accept the latter, because, as he says, lie lived near the mine, and could see the cars as they were moved away from the mine, and could keep account
“A. Well, at that time I had calculated on sub-leasing it, and tried to lease the coal at ten cents per ton. I thought I could make two cents a ton profit on it myself, that’s the whole upshot of it.”
The difference between a royalty of $1.50 per 40,000 pound car, and ten cents a ton, is two and a half cents per ton. Therefore, this statement by Booth shows that he must have had in mind a car of about that capacity, at the time he got the lease. It thus appears that the minds of the contracting parties had then met on the unit of measurement. C. W. Elliott, another witness for plaintiff, who at the time of the execution of the lease was in -the service of Booth, says that he heard Booth talking about the lease, and heard him say that he had made a deal with Belcher for $1.50 a car; that he and the witness were figuring on it to see how much difference there was between $1.50 a ear and ten cents per ton royalty. He says: “The difference was the way we figured it, it would cost seven to eight and a half cents, and he said if he could get in some large cars it would make it a little better.”
The 'whole of the testimony, read iii the light of all the surrounding circumstances, - clearly proves that both the lessor and the lessee meant, by the use of the words “railroad car, or its equal,” a car of 40,000 pounds capacity. Such a car at $1.50 is equivalent to a royalty of seven and a half cents per ton.
Since October, 1903, much of the coal has been shipped in cars of 80,000 and 100,000 pounds capacity, and since April, 1905, nearly all of it is shown to have been shipped in the 100,000 pounds cars. There is no reason whatever to suppose that the parties contracted with reference- to these larger cars, for they were not then in use by the Norfolk & Western Railroad Company, over whose line the coal had to be shipped. The construction of the contract contended for by appellants is unreasonable, and if' such were in fact the construction which the
In addition to the testimony which proves that the parties contracted with reference to a railroad car of 40,000 pounds capacity, there is still another reason deducible from the facts which shows that they must have had reference to a car of that size, and that is, that a car of that size appears to be an average of the cars then in use by the railroad company. When the lease was made the railroad company was using 30,000, 40,000, 50,000 and 60,000 pound cars; and the proof is that the sixties were very rarely used in hauling coal from the small mines. A forty car would, therefore, appear to be an average' car. We can come to no other conclusion, from the proof, than that the words, "railroad car, or its equal,” used in the contract, mean a railroad car of the capacity of 40,000 pounds.
It is insisted that by his continuing to accept $1.50 per ear in weekly, or bi-weekly, payments for so many years after the lease, and by his long delay in bringing his suit, Belcher has thereby acquiesced in the construction which appellants seek to have placed upon the contract; that such conduct proves a practical construction which has become binding on him; and Crislip v. Cain, 19 W. Va. 438; Titchenell v. Jackson, 26 W. Va. 460; Heatherly v. Bank, 31 W. Va. 70; and Caperton v. Caperton, 36 W. Va. 479, are cited in support of this contention. All that plaintiff did was to receive the money when it was sent to him. He was not even required to receipt for it. He has performed no act under the contract; he was not required to do anything; as to him it -was an executed contract; no further duty rested upon him to give efficacy and completeness to the lease. He had fully performed his obligation when he executed the lease; all the things to be done thereafter had to be performed by the lessee. Does his receiving the money, when it was sent to him, prove his acquiescence? We think not necessarily. He was generally paid by checks drawn by the president of the coal company, and mailed to its agent who was in charge of
The lower court found the unit of measurement to be a car of 50,000 pounds. We fail to see how the court could have arrived at this conclusion in view of the evidence herein recited. The court has erred to the prejudice of appellee, and there is cross-assignment of it' in brief of his counsel. Consequently, we will reverse so much of the decree as interprets, the words of the contract, “railroad car, or its equal, of coal” to mean a car of coal of the weight of 50,000 pounds, and also so much of the decree as decrees in favor of plaintiff against the several defendants certain sums of money as balance of royalties due from them, respective^-, to him; and instead thereof we will enter a decree in this Court interpreting the words in the lease “railroad car, or its equal, of coal,” to mean a railroad car of 40,000 pounds capacity; and instead of the several sums of money found to be due the plaintiff by the court below, we find that there is due to the plaintiff from the several defendants the following sums, as of the 7th day of August, 1909, viz.: Rrom the Big Rour Coal & Coke Company, four thousand three hundred and fifty-nine ($4,359.20) dollars and twenty cents; from John Stanilaus Brophy and James Rrancis Brophy, four hundred and sixty-one ($461.43) dollars and forty-three cents; and from the Cirrus Coal & Coke Company, seven thousand four hundred and forty ($7,440.57) dollars and fifty-seven cents; and we will enter a decree in favor of plaintiff against said defendants severally for said sums of money, with interest on each of said sums from the 7th day of August, 1909, until paid. In all other respects the decree will be affirmed.
Affirmed.