280 F. 264 | 4th Cir. | 1922
During the months of July and August, 1920, the Ft. Dearborn Coal & Export Company, plaintiff below and herein so called, purchased from the Old Dominion Coal Corporation, on board cars at the mines of the Mud Dick Coal Company, at Stone, Ky., a quantity of run of mine coal, intended for export. A stipula
At the trial, rtf ter reading the stipulation in evidence, plaintiff’s president was allowed to testify, over repeated objection, that the aggregate price paid for the coal was $15,234.19, or a little under $17 per ton on board cars at the mines, and that tire Old Dominion Company had brought suit therefor in the circuit court of Kanawha county, W. Va., and recovered a judgment against plaintiff for the principal sum of $15",234.19, with $1,084.05 interest, or a total of $16,318.24, which judgment it had paid. There was no attempt to show the market value of coal at the point of shipment, at the place of confiscation, or at destination; the only proof of damages offered by plaintiff being the price it paid for the coal. On cross-examination the. witness testified that this coal was intended for export; that it was shipped under permits, and would have gone into pools 5 and 7 at Lamberts Point; that for coal so moving under permit, after it passed the Bluefield scales, defendant would arrange a credit to the consignee in the pool to which it was going; that the consignee would receive such credit before the coal arrived at destination; and that it then lost its identity. He was thereupon asked the following question:
“Then really what you lost, as I understand you, by the confiscation of tills coal, was the credit ¿or that amount of tons in the particular pool to which it was going V”
Plaintiff’s objection to this question was sustained, as were also its objections to a number of similar questions put to defendant’s witnesses showing or tending to show, as the avowals declare, that all coal shipped to tidewater over defendant’s lines during the months of July and August, 1920, was shipped to certain pools, under the articles of organization and rules of the Lamberts Point Coal Exchange, of which plaintiff was a member; that the coal in suit, if it had not been confiscated, would have gone into pool 5 or 7, and that plaintiff had no power to divert it to any other place or purpose; that this co3l, if it had not been confiscated, would have passed to the credit of plaintiff in the pool to which it was consigned, upon estimated weights made at Bluefield, which credit would have been available under ordinary circumstances, for loading into vessels, at least three days before arrival of the^coal at the pool; and that all coal to tide, during the months named had to.be shipped on permits of an agent of the Interstate Commerce Commission, as appeared from certified copies' of the Commission’s-orders tendered with the avowal in that regard.
Further discussion is not needed. It is enough to say that in our judgment the case was tried on an erroneous theory of liability, and therefore defendant is entitled to another day in court. On the record here presented the proper measure of damages is, as above stated, the value of the credit which plaintiff would have received, if its coal had not been confiscated; but this will not be controlling on a new trial, if the facts then disclosed are materially different from the avowals of defendant in connection with its rejected proofs.
Reversed,