257 F. 890 | 6th Cir. | 1919
Plaintiff in error in No. 3243 is a West Virginia coal-mining corporation. Having a contract for shipping coal to Toledo, Ohio (as stated in the brief of its counsel), it made with defendant iu error, on April 28, 1917, a written contract for the transportation of coal from M;ay 15, 1917, to May 15, 1918: by river barges, from Hugheston, W. Va., which is on the Kanawha river, to Pomeroy, Ohio, which is on the Ohio river, and for the loading of such coal into “such cars as may be furnished at Pomeroy, Ohio.” On August 15, 1917, defendant in error, hereafter styled plaintiff, brought this suit in a state court of Ohio for damages for
But this further situation is presented: The contract in suit was personally negotiated at Pomeroy, Ohio, between Hutchinson and plaintiff. It was executed at Charleston, W. Va.; Hutchinson signing for defendant as its general manager, his authority to do so being unchallenged. Hutchinson kept at the Cincinnati office a copy of the contract, the original being kept at defendant’s main office at Fairmount. At Cincinnati, while the contract was still subsisting, Hutchinson discussed with plaintiff its “meaning and intent.” From
The Plutchinson Coal Company, of which Plutchinson was the managing agent, “had the agency for the Empire Fuel Company.” Hutchinson was at Pomeroy on several occasions (apparently during the period covered by operations under the contract) “seeing that barges were unloaded and cared for.” Those barges were said to be “not involved in this suit,” whatever that may mean. While there was testimony that the Hutchinson Company’s “agent at the mines” was in charge of the unloading and hilling out of cars, and that Hutchinson merely went to Pomeroy with him, and while other testimony was susceptible of a construction that the Hutchinson Company bought all defendant’s output and itself sold it, the district judge states in his opinion that it was Hutchinson’s claim that the Hutchinson Company “as the defendant’s agent sells the defendant’s coal,” and defendant’s counsel does not dispute this interpretation. While it may
The question remains whether defendant should be regarded as still doing business in Ohio when service of process was made a few days later.*- The record permits a presumption of defendant’s intention, in the regular course of its business, to ship by water to Pomeroy and there load into cars and bill coal, as was contemplated and as was done under the contract with plaintiff, whenever there should be a shortage of railroad cars. We think the burden of proof was upon defendant to overcome that presumption, and that this has not clearly been done. Previous to the contract with plaintiff defendant had had “a river connection”- with other people for whom plaintiff was substituted; and the record introduced by defendant upon the hearing on the merits justifies the .inference that in September, when the supply of cars was less complete, a river connection was resumed with still a third party, and deliveries made thereunder, presumptively at Pomeroy, for the purpose of shipment from that place. “Doing business” within a state does not necessarily require that it be done persistently and continuously. New Haven Co. v. Downington (C. C.) 130 Fed. 605. No all-embracing rule as to what is “doing business” has 'been laid down. St. Louis S. W. Ry. v. Alexander, 227 U. S. 218, 227, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1914C, 77. The question whether defendant was doing business in Ohio is one of fact. Oakland Co. v. Wolf Co. (C. C. A. 6) 118 Fed. 239, 55 C. C. A. 93. It does not follow from the fact that the contract was made in West Virginia that all business done under it must be regarded as done in that state. Lumbermen’s Ins. Co. v. Meyer, 197 U. S. 407, 414, 25 Sup. Ct. 483, 49 L. Ed. 810. Even if no one of the things Hutchinson did for defendant in Ohio was enough to constitute doing business there, and while the question presented is a close one, we think the record, taken together, sustains the conclusion of the District Judge that defendant was doing business in Ohio. We think the case within the principle (although not within the facts) of such decisions as St. Louis S. W. Ry. v. Alexander, supra; Mutual Life Ins. Co. v. Spratley, 172 U. S. 603, 19 Sup. Ct. 308, 43 L. Ed. 569; Lumbermen’s Ins. Co. v. Meyer, supra. The instant case is in important features distinguishable from cases specially relied on by defendant.
(a) For the expressed consideration of $1 [“and the further consideration of the right to handle all of the coal of the Empire Fuel Company, except as*895 hereinafter provided, which is run over the river tipple to the Kanawha river at the Empire Enel Company’s mine at Hugheston ® * * which is hereby granted”] plaintiff bound himself “to furnish sufficient barges at the said mine in which to load not less than 350 tons of coal per day,” and further “to transport all such coal to 1’omeroy * * * by way of the Kanawha and Ohio rivers, and to load all such coal into such cars as may be furnished at Pomeroy, Ohio.”
(b) Should plaintiff “at any time, fail to furnish sufficient barges, beyond the necessary barges to load the said 350 tons per day, to load all of the said coal which the [defendant] is able to run to the river ® ® ® ” defendant was given “the right at any time to load such coal into other barges which” defendant “may he able to procure, at all times, however, giving I plaintiff] the preference as to such barges as [plaintiff] may have at the tipple at such time.”
(e) Defendant (1) assumed responsibility “for all barges” of plaintiff while being loaded and until removed by plaintiff, provided they be removed within a reasonable time after loading; (2) agreed to pay plaintiff “$1 per ton for all such coal transported and loaded as aforesaid, settlemefit therefor to be made by the 20th of each month for all coal shipped from said mine during the previous month” ; (3) agreed “to furnish billing for all coal so transported by [plaintiff]”; (4) agreed “to sell to [plaintiff] run of mino coal for fuel purposes not to exceed 28 tons per day at the rate of $1.50 per ton at the tipple.”
(d) The contract was declared “subject to all contingencies which might arise which are not within the control of either of the parties hereto.” (Brackets and paragraph letters are ours.)
The rail rate from Hugheston to Toledo was 25 cents per ton more than from Pomeroy to Toledo. Shipment under the contract in suit would thus cost defendant 75 cents per ton more than by all rail route. On the other hand, the United States had but a few months before entered the war; there was a great demand for coal and the price was very high; there was a marked shortage of cars, the allotment to defendant when the contract was made being but 32 per cent, of its production, which was then between 500 and 600 tons per day, and defendant hoped to increase the capacity by at least 100 tons per day. On June 4th defendant’s car allotment was increased to 100 per cent., and it stood at that figure almost constantly until October 8th; during the greater part of the remainder of the year it ranged from nothing to 100 per cent. This suit grew out of defendant’s refusal to furnish coal for plaintiff’s barges when it had sufficient cars.
Defendant contends that the contract clearly and unambiguously bound it to furnish plaintiff coal only when cars could not be had. If this contention is right, the judgment is wrong, and should be reversed; for it is a commonplace that the construction of “an unambiguous contract is for the court, notwithstanding the construction involves a consideration of attendant conditions and circumstances not in dispute. Plaintiff, however, contends that the contract required defendant to provide the stipulated tonnage, without regard to car supply. The trial court thought the contract ambiguous in this respect, and submitted its construction to the jury. The verdict sustains plaintiff’s construction. If that construction is right, defendant has nothing of substance to complain of, for all its assignments of error relating to the merits (except the sixth) are, in that event, concededly not well taken, and the sixth assignment is without apparent merit.
Without discussing in detail each of the considerations advanced pro and con, we think the language of the contract, giving effect to all of its terms, is ambiguous in the respect mentioned.
It is urged, however, that it is unreasonable that defendant should agree to pay 75 cents more per ton for river and rail than for all rail transportation, or that it should trust to the uncertainties of river navigation due to winter ice, as well as low water and floods. But we cannot say, as matter of law, that defendant might not reasonably have been willing to bind itself, under existing market prices, to transport one-half its output at an advanced rate of 75 cents per ton, rather than take its chances of the continuance of the then existing car shortage, or that it would be more unreasonable that defendant should take chances on river navigation as to one-half its output than that plaintiff should tie up his 14 barges, said to have a rental value of $40 per day each, as well as his steamer (and defendant presented evidence that all plaintiff’s equipment was required to transport 350 tons per day), on the chance of getting no coal to carry unless the car shortage should continue. Our conclusion is that the District Court was right in submitting to the jury the question of the actual intent of the contract.
But plaintiff does not ask to have the judgment in his favor set aside, except or unless for purpose of assessing additional damages; he apparently seeks to hold onto his present recovery, and, without jeopardizing that, to try to increase it. There may be cases where the recovery had is so palpably right so far as it goes, and yet so palpably insufficient in amount, as to justify the course asked here. We need not determine that question, for this case is not of that class in either of the two features mentioned.
The judgment of the District Court is affirmed. The defendants in error in the respective writs will recover costs thereunder