193 Ind. 422 | Ind. | 1923
Appellant, a coal operator, brought this action against appellee, a consumer, to recover for coal sold and delivered by it to appellee under an alleged written and oral contract. The leading issues were formed by a complaint in two paragraphs,- a supplemental complaint, and various paragraphs of answer. There was also a set-off and counter-claim on the part of appellee, wherein it claimed overcharges for coal furnished by appellant. Moreover, that appellant had failed to perform its contract to furnish appellee its coal requirements, and had failed to deliver to appellee
This appeal is from a judgment rendered upon the verdict of a jury upon a second trial of this cause. The first trial resulted in a verdict in favor of appellant, but, on appellee’s motion, it was set aside and a new trial granted. This ruling will be the first to receive attention.
Each of the pleadings in this case asking affirmative relief was predicated upon a written contract which, omitting the signatures, reads as follows:
“THE JACKSON HILL COAL AND COKE COMPANY, OF TERRE HAUTE, INDIANA, agrees to sell, .and THE MERCHANTS’ HEAT AND LIGHT COMPANY OF INDIANAPOLIS, INDIANA, agrees to buy, the following grade of coal at the prices and upon the terms herein below set forth:
“QUANTITY: Entire requirements.
“GRADE: Regula-tion 1-1/4" screenings and run of mine coal. From Jackson Hill Mines known as No. 2, No. 4, No. 5, No. 6.
“QUALITY: Screenings shall contain not less than 1L500 B. T. U. Diy; Run-of-Mine shall contain not less than 12,000 B. T. U. Dry.
*427 “PRICE: Screenings, $.85 .per net ton. Mine Run, $1.10 per net ton. Prices F. O. B. Cars Mines.
“PERCENTAGE SCREENINGS: The • seller agrees to furnish not less than seventy (70) per cent, screenings yearly. If Run-of-Mine coal is furnished in ex- ' cess of 30% of the yearly requirements, same shall be invoiced and paid for at $1.00 per net ton F. O. B. mines.
"ROUTE: As ordered.
“PAYMENTS: All coal shipped to be paid for on the twentieth of the month following shipment
“IN EFFECT FROM April 1, 1916, to April 1, 1918.
“EQUIPMENT: Drop bottom cars wherever possible.
“REMARKS: Jackson Hill Coal and Coke Company will specify on postal notice, from which mine the coal is shipped.
“Actual mine weights shall govern settlements.
“This contract is made subject to strikes, combinations of miners or laborers, lockouts, accidents and causes beyond the control of either party to this contract. i
“The buyer and seller, in entering into this contract, realize the uncertainties of deliveries, due to strikes, casualties and causes beyond the control of either party, and it is expressly agreed that the intent of this contract is not to make either party liable for any failure to perform due to matters beyond the control of the party in default, but that the material shall be shipped by the seller and accepted by the buyer pursuant to the terms hereof, so far as physical conditions and labor conditions at thé respective plants and the services rendered by common carriers will permit.
“And it is further understood and agreed that, in the event the buyer fails to comply with the terms and conditions of payment, or neglects to order or refuses to receive coal as specified herein, the seller may cancel this agreement, and shall not therefore be liable for any claims of damage of any nature whatsoever.
“(Signed in duplicate.)”
After a careful examination of the record and briefs of counsel, we have reached the conclusion that many of the questions presented by this appeal have their inception in the different views of the contract. Appellant insists that the contract should be construed as one for screenings only, with the privilege to appellant of furnishing mine run; but, in case it furnished more than thirty per cent, of appellee’s yearly requirements in mine run, such overplus was to be at the rate of $1.00 per ton, instead of $1.10 per ton. On the other hand, appellee contends that, under this contract, appellant obligated itself to furnish from certain of its mines, and appellee agreed to take from appellant, its entire coal requirements — screenings and mine run or both, preferably screenings — necessary in the operation of its business for the period therein named. It may' be here noticed that the parties hereto, as we understand them, practically agree that this contract was entered into upon the basis of appellant’s yearly production, which, if reduced by contingencies beyond its control, then a pro rata distribution of its entire production among all with whom it had contracts should be regarded as full performance.
It was the custom of operators to make contracts for one and two year periods covering the reasonable normal capacity of their mines. At this point, appellee’s invitation to bidders addressed to appellant may be of interest. That part of it now pertinent is as follows:. “We wish to contract for our supply of fuel and will be pleased to receive a proposition from you for our requirements in Mine Run and' regulation 1-1/4" screenings. Period: For a period of one or two years, commencing April 1, 1916. Requirements: Our requirements are approximately 300
If appellant’s construction of the contract is to obtain, then the trial court erred in requiring appellant to answer appellee’s interrogatories; also in giving and refusing to give to the jury certain instructions, and in admitting certain evidence. On the other hand, if appellee’s interpretation of the contract is correct, then the trial court did not commit reversible error in any of these particulars. The contract was for appellee’s entire requirements for a certain period at stipulated prices, and therefore not void for uncertainty and want of mutuality. Burstein v. Phillips (1913), 154 Wis. 591, 143 N. W. 679; Walker Mfg. Co. v. Swift & Co. (1912), 200 Fed. 529, 119 C. C. A. 27, 43 L. R. A. (N. S.) 730; C. W. Hull Co. v. Westerfield (1922), 107 Nebr. 705, 186 N. W. 992; Minnesota Lumber Co. v. Whitebreast Coal Co. (1895), 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529; Scott v. T. W. Stevenson Co. (1915), 130 Minn. 151, 153 N. W. 316; Hickey v. O’Brien (1900), 123 Mich. 611, 82 N. W. 241,
Appellant- insists that appellee was under no obliga
Appellant complains of instructions Nos. 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20; 21, 22, 29, 32, 34 and 35, and in refusing to give instructions Nos. 1,4 and 8 tendered by appellant. Appellant asserts that instruction No. 2, given by the court on its own motion, was erroneous in that it prescribed the wrong rule for the burden of proof. The point made against the instruction is that it placed the burden on appellant to prove the material allegations of each paragraph of its answer to defendant’s counterclaim, when one of its answers was a general denial. This instruction first referred to each of plaintiff’s affirmative pleadings, and told the jury that the burden was upon plaintiff to prove the material allegations of each paragraph thereof, and of each paragraph of its answer to defendant’s counterclaim by like proof. The jury could not have inferred that plaintiff must disprove appellee’s affirmatives, for it was expressly told in this same instruction that the burden of proof was upon the defendant to prove the material allegations of each of its various affirmative pleadings by a fair preponderance of the evidence, and explaining properly what was meant by the expression “a fair preponderance of the evidence.” - While conceding that the instruction might be technically construed as appellant suggests, and therefore not strictly accurate, yet we would hesitate to say that a jury of ordinary intelligence would be misled into giving the instruction the interpretation placed upon it by appellant.
Our conclusion as to the meaning of the contract is not different from that of the trial court, as evidenced by instructions Nos. 3, 11, 20, 21, 22 and 29, given to the jury upon its own motion. Ap
Instructions Nos. 8 and 34 are challenged on the ground that they required proof that appellee knew why the twenty-five cent and forty-five cent advanees were made in the contract prices of coal, and that instruction No. 17 was erroneous for the reason it prevented the jury from finding an implied agreement to pay the twenty-five cent and forty-
The objections urged to instructions Nos. 9 and 10 are that: “they injected into the case, without warrant, the question of fraud and misrepresentation on appellant’s part, no such issue being raised by the pleadings or proof; and mis-stated the rule on what constitutes an involuntary payment.” Instruction No. 9 had reference to an oral contract entered into between appellant and appellee whereby appellant was to purchase in the open market, for appellee’s ac
Appellant insists that instruction No. 14 invaded the province of the jury by telling it that certain stated facts and acts of defendant would not justify it in finding an estoppel against appellee in making payments of excessive prices. The instruction follows : “The fact, if it be a fact, that the plaintiff sent postal card notices to the defendant, showing shipments of so-called purchased coal, and the further fact, if it be a fact, that the defendant made payment of the amounts of specific invoices of such purchased coal, is not sufficient to estop the defendant from now asserting that the plaintiff was bound under its contract to have delivered such coal, or the amount thereof, to the defendant under the contract, and to have charged for it at the contract price. Neither is the fact, if it be a fact, that after April 8, 1917, the plaintiff invoiced coal delivered to the plaintiff at twenty-five cents in excess of the contract price, and at a latter date invoiced coal to the defendant at seventy cents per ton in excess of the contract price, and that the defendant paid such invoices at such increased prices, sufficient to estop the defendant from now asserting that it did not agree to pay such increased prices.” We see no objection to this instruction.
Instructions Nos. 15 and 32 may be considered together, as the same objection is urged to both. It is claimed that these instructions permitted appellee to recover on the basis of its alleged loss in making up its entire requirements from pur
We have examined instruction No. 35, and have reached the conclusion that no reversible error intervened in so instructing the jury.
Appellant’s requested instructions Nos. 1, 4 and 8 had reference to a construction of the written contract, and were properly refused.
It is next insisted that the amount of recovery was too large, also that the verdict of the jury was not sustained by sufficient evidence, and therefore contrary to law. Neither of these insistences can be sustained, for the reason that the evidence, under our theory of the contract, is abundantly sufficient to sustain the verdict of the jury.
Judgment affirmed.
Townsend, J., absent.
Ewbank, J., not participating.