87 W. Va. 570 | W. Va. | 1921
This is a suit in equity the object of which is to collect a sum of money claimed to be due to the plaintiff from one of the defendants, by virtue of a written contract.
The Boyal Block Coal Co. owned and operated a coal mining lease on 1100 acres of land on Big Horse Creek in Boone County and had constructed and was operating a railroad track extending from the main line of the Horse Creek-Branch of the C. & 0. By. Co. up a small stream a distance of 3,900 feet to a point near or above its. tipple on its 1100 acre lease. The Croft Land Co., the plaintiff, owned land adjoining the Boyal Block lease at a distance of about one mile up said small stream, consisting of 357 acres, which it had leased for mining purposes to one of the defendants, the White Ash Block Coal Co., which latter company, a very short time after the execution of the contract sued on, sold its mining lease on the 357 acre tract and all of its corporate assets to the defendant, Bich Block Coal Co., and went out of business. An agreement was entered' into,
Plaintiff filed its bill at May rules, 1919, against the Royal Block Coal Co., White Ash Block Coal Co. and Rich Block Coal Co., which 'last named company was successor to the White Ash Block Coal Co., setting up this contract and alleging that it had paid to the Royal Block Coal Co. the said sum of $1048.26, as agreed, and had put in operation the line extending from said coal tipple to the 357 acre tract, a distance of 6,500 'feet; that the White Ash Co. had sold its physical assets to the Rich Block Co. and had surrendered its charter and gone out of business; that the Royal Block Co. was and had been .using for a long time the railroad of the plaintiff for the purpose of shipping thereover material and cars necessary and convenient to the mining and marketing of its coal on the 1100 acre lease and for the storage of coal cars and for the convenient handling of the same and had caused a side track to be connected with the plaintiff’s railroad track at a point above its tipple so that the coal cars intended for the Royal Block Co’s, use could be placed on its track from complainant’s railroad; that the Royal Block had not paid, and refused to pay, the $1048.26, agreed to be paid in the contract, although often requested, alleging as a set off thereto that the Rich Block Coal Co. had not' paid its proportionate part of the upkeep of the Royal Block Co.’s railroad, for which the plaintiff was responsible to it; that plaintiff had attempted to get a settlement between the two mining companies so that its, plaintiff’s, liability, if any, might be determined, but that the two mining companies had not settled
The cause was referred to a commissioner and at the hearing before him in July, 1919, the Royal Block Coal Co. filed a demurrer to the bill; and also an answer thereto in which it admitted that it had been using a portion of complainant’s track, by connecting a side track therewith at a point above respondent company’s tipple so that the empty cars for use at the tipple could be more conveniently shifted so as not to interfere with the loading at the tipple, and that it has used only about 770 feet of the track of the complainant and for that purpose only; that it has never used any of complainant’s railroad for the purpose of shipping coal, coke or other materials thereover; . that its use of the small portion has been temporary and for convenience in handling its empty cars; and that it has not been using the complainant’s road within the sense, meaning or intent of the said contract, and is not liable for the said sum of $1048.26, under the terms of the contract, and is not liable to its co-defendant for its proportion of the maintenance and upkeep of the eútire track of the complainant of 6,500 feet, alleging that its use of the small portion of the track .for shifting its empty cars was by virtue of the license, consent and permission of the complainant. The answer, by a schedule • attached thereto, gives the amount of tonnage shipped over its road during all the time in question and'the amount expended for maintenance during that time. The answer also asks for affirmative relief against the White Ash Coal Co., the Rich Block Coal Co. and the Croft Land Co., alleging as a basis therefor that the White Ash Block Coal Co. had shipped large ton
The Rich Block Coal Co. answered, alleging that it had always been willing and ready to make settlement of its accounts with the Royal Block Coal Co., and stating the amount of tonnage which it has shipped over the Royal Block portion of the railroad and setting out the amount of money it has expended in maintaining its portion of the track. The Rich Block Coal Co. in answer to allegations for affirmative relief by the Royal Block Coal Co. says that it has always been ready and willing to settle its accounts under the contract and gives the amount of tonnage shipped and cost of maintenance as a basis for a settlement.
Evidence was taken before the commissioner on behalf of the mining companies for the purpose of showing the tonnage so shipped by each of them and the amount of money spent in the maintenance of their respective portions of the road; also evidence on behalf of the Royal Block Co. showing what use it had' made of that portion of the Croft Land Co’s, road- above its
The evidence by the two mining companies on the amount of tonnage shipped by each and the amount expended for maintenance simply corroborated or proved the amounts stated in the respective answers on these two particular points. The commissioner filed his report, which is very meager, and found that the cost of maintenance of the Royal Block Coal Co’s, part of the road since it was used by the co-defendant mining companies was $1150.04; that the cost of maintenance of the Croft Land Co. road since use of the same began by the Royal Block Co. was $809.30; that the tonnage of the Royal Block shipped over its road was 91,490 tons; tonnage of the Rich Block Co. 24,677.34 tons; and by the White Ash Co. 103.4 tons; that the tonnage shipped over the Croft Land Co. road by the White Ash Block Coal C'o. and the Rich Block Coal Co. is the same as that given above; and in the next paragraph of the report the commissioner states that there was no tonnage shipped over the Croft Land Co. line by the Royal Block Coal Co. The report finds that the Royal Block Co. owes to the Rich Block Co. for maintenance $391.70. It finds the amount due the Croft Land Co. from the Royal Block Co. as $1090.19, being $1048.26 with interest thereon for 8 months. This report was completed on the 17th day of November, 1919, and notice given of the completion on that day, and on the 10th day of December, following, a decree was entered confirming the report and rendering judgment agaist the Royal Block Coal Co. in favor of the Croft Land Co. for $1090.19 and judgment in favor of the Rich Block Coal Co. for $391.70. The decree provided that unless the Royal
This summary of the pleadings and statement of the facts at more length than is usual, is made in order to show the exact character of the casé, in view of the disposition of the same which wo have concluded to make.
We are met at the threshold with a demurrer to the bill; and the question is immediately presented as to whether or not this is a case for equity jurisdiction. It is apparent that there was no difficulty in ascertaining the amount of tonnage which had been shipped by the two co-defendants over the two portions of this continuous line owned and operated in part by the Royal Block Coal C'o. and in part by the Croft Land Co.; the same is true'as to the ascertainment of the amount of money expended by each for maintenance. It is not necessary to have a bill of discovery for these amounts. They could have easily been obtained in a court of law. The evidence taken on these two items simply substantiated the amounts set out in the answers of each of the co-defendant companies. The real controversy is between the Croft Land Co. and the Royal Block Coal Co. as to the payment of the sum of $1048.26, agreed to be paid by the latter company when it began using the line constructed by the former company, for the purpose of shipping thereon and thereover the coal and coke from the 1100 acre lease, together with such other material as was necessary or useful in carrying on the coal operation and in mining and marketing the coal. The settlement of accounts between the co-defendants, arising from the use of the road and from the maintenance thereof, is a side light to the main issue. It is evident that the Croft Land Co. claimed that the $1048.26 was due
Under the allegations of the bill, and under the facts after-wards developed, the settlement of accounts between the co-defendants, arising from tonnage shipped and maintenance cost, is of little consequence to the plaintiff. The plaintiff was only liable for its part of the upkeep of the Royal Block Co’s, road in the event that it was not paid by its lessee, the White Ash Coal Co. or its assigns, the Rich Block Coal Co. There is no allegation in the bill that its lessees have refused to pay, but simply that no settlements have been made and that the plaintiff does not know its liability for that reason. It is not charged that its lessee will refuse to pay when settlement is made or that it is insolvent and 'cannot pay its just obligation. The contract exhibited with the bill shows that the lessee of plaintiff’s 357 acre tract had agreed with plaintiff to pay for this maintenance, and it was only in the event the lessees failed, that plaintiff would assist in the maintenance. The1 liability of the plaintiff in that regard is consequential. If its lessee is financially responsible then no obligation would rest upen the plaintiff, ■ and in its replication to the answer of the Royal Block Co. asking affirmative relief because of failure of plaintiff’s
Equity jurisdiction in this state for the settlement of accounts is not clearly defined. No precise rule can be laid down which would govern each particular case, and it may he safely affirmed that a court of equity can not take cognisance of every transaction between individuals in which hd account between them is to be adjusted. Fowls v. Lawrason, 5 Peters 495; Lafever v. Billmeyer et al., 5 W. Va. 33; County Court v. Cottle, 81 W. Va. 475. The rule is generally stated that equity will take jurisdiction: (1) Where there are mutual demands and, a fortiori, when complicated; (2) when the accounts are on one side, and a discovery is sought that is material to relief; (3) equity, having taken jurisdiction for discovery, to avoid multiplicity of suits, will administer suitable relief. Equity will decline jurisdiction: (1) Where the demands are all on one side and no discovery is claimed or is necessary; (2) where on one side there are demands and on the other mere payments or sets oif and no discovery is sought or required. “While these propositions are in the main, generally correct, sjtill they do not embrace all the cases as to matters of account, in which equity should not take, jurisdiction. It seems that no general rule embracing all cases as to matters of account, in which equity will or will not take jurisdiction, can wi;h propriety be safely laid down.” Petty v. Fogle, 16 W. Va. 197; White v. Cook, 51 W. Va. 219. But, as above stated, the mutuality of accounts in this suit is between the co-defendan; mining com-nanies and could be easily adjusted between, them, and both
These principles and considerations will apply with equal force to the allegations contained in the answer seeking affirmative relief by the Royal Block Coal Co., which answer was excepted to by the plaintiff because it showed no reason for equitable relief.
We have concluded that the plaintiff has an adequate remedy at law for asserting its claim of $1048.26 against the defendant, Royal Block Coal Co., and that the bill does not show substantial grounds for relief in equity; and therefore set aside and annul the judgment and decree of the circuit court, rendered on the 10th day of December, 1919, and dismiss the bilí.
Reversed; bill dismissed.