202 Mass. 457 | Mass. | 1909
These are actions of contract and were tried and have been argued together. That by the coal company is to recover a balance alleged to be due for coal sold and delivered to the defendant. That by Billings is to recover damages for the alleged breach by the coal company of a written contract between him and it for the sale and delivery of coal by it to him. There was a verdict for the plaintiff in each case, though that for Billings was less than he claimed, and each case is here on exceptions by Billings to the admission of evidence, to the refusal of the presiding judge
The contract was contained in two letters, — one from the plaintiff to the defendant dated May 10, 1902, offering, subject to certain terms and conditions relating to strikes, interruption of transportation,
The questions at issue arise out of the “ strike clause ” so called in the contract, and the rights and obligations of the parties in reference thereto.
1. At the trial it was admitted that at all times from May 22, 1902, to November 1,1902, the Metropolitan Coal Company had in its possession in the city of Boston quantities of coal of the proper grades, equal to or greater than the amounts called for by its contract with Billings, and that at all times during that period it was fully equipped with teaming and transportation facilities sufficient for the transportation of such coal and its delivery at the premises of Billings.
The plaintiff offered evidence tending to show that from the middle of May, 1902, to November 26, 1902, because of strikes of miners at the coal mines in Pennsylvania from which its ordinary supplies of coal were obtained, its ordinary supplies of coal were wholly interrupted; that it did a business of about one million tons a year; that the requirements for its customers of the kind of coal called for by the contract during the time from May 22 to November 1 were about seventy-five thousand tons; that it had on hand and was able to obtain up to November 1 an amount of coal which was substantially thirty-one per cent of these requirements; that during those months in 1902 it apportioned all its available supplies of coal amongst its regular customers and those persons with whom it had contracts and gave
The defendant contended, and at the close of the evidence asked the judge to rule, that the strike did not operate to excuse the plaintiff for failure to deliver coal to the defendant which it was under obligation to deliver to him from May 22 to November 1,1902, if it had in its possession at Boston quantities of coal of the proper grades equal to or greater than the amounts it was under obligation to deliver to the defendant, and was fully equipped with teaming and transportation facilities sufficient to enable it to make such delivery. The judge refused to rule as thus requested and instructed the jury in substance and effect that, according to the contract, deliveries were to be made by the plaintiff from time to time from May 22 to November 1, and that, in entering into the contract as they did, the parties must be understood to have contemplated that the plaintiff would continue to carry on its business in the usual and ordinary manner with due regard to existing contracts and the demands of its regular customers; that the plaintiff was bound to make every reasonable effort to fulfil its contract, but that if, by reason of the strike, it was unable to do so, and apportioned its existing supply, and such supply as it reasonably expected to be able to procure, amongst those who had contracts at the time when the contract between the plaintiff and defendant was entered into and its regular customers, and the defendant had received his due proportion, then the strike would operate as an excuse for the non-performance of its contract by the plaintiff notwithstanding it had on hand at all times between May 22 and November 1 sufficient coal of the required grades to fill the contract between it and the defendant if that alone were to be taken into account. The judge also instructed the jury that as against the defendant the plaintiff would have no right to sell to new customers, and that any inability to fulfil its contract resulting
2. There was evidence tending to show that the plaintiff notified the defendant on October 31,1902, that for all coal delivered after November 1, 1902, it would charge him the market prices, and that it did so, as set out in the declaration. The defendant, as there was also evidence tending to show, at all times objected to this, and at the trial contended and asked the judge to rule and instruct the jury that the obligation of the coal company to deliver the full amount of coal called for by the contract continued after November 1, and that for coal delivered after November 1 the plaintiff could only charge the contract price except for such as was in excess of the amount originally called for by the contract.
The judge refused, and we think rightly, to rule and instruct as thus requested. The strike continued, as already stated, till November 26,1902. The contract expired on November 1. If coal that was delivered after November 1 was delivered and received as coal to which the plaintiff was entitled under the contract, then for such amount as was equal to that called for by the contract the plaintiff, as the jury must have understood from the charge, could only recover the contract price; but if, as the judge instructed the jury, the plaintiff gave the defendant notice
8. The judge instructed the jury that, if they found that the defendant was entitled to recover, the damages should be assessed
Exceptions overruled.
Wait, J.
The strike clause contained in the offer and accepted as a part of the contract was as follows:
“ Terms and conditions for the sale and delivery of coal.
All contracts are subject to these terms.
“Every reasonable effort will be made for the prompt and faithful fulfilment of contracts, but the seller will not be responsible for the delivery of the same if prevented by strikes or combinations of miners, laborers or teamsters, or interruption of transportation or navigation, or from any cause or any occurrence beyond his control. In such cases the obligation to deliver coal under such contracts is thereby cancelled to an extent corresponding to the duration of such interruption, and no liability shall be incurred by the seller for damages resulting therefrom.”
The instruction referred to was as follows: “If the coal company did not deliver to Mr. Billings his fair proportion, you are to determine how many more tons should have been delivered to him at the contract price, and then substract the contract price of those tons from the market prices charged; that is to say, in order to determine what his damages actually were.”