Pratt Consolidated Coal Co. v. Short, 68 So. 63

Pratt Consolidated Coal Co. v. Short

68 So. 63 | Ala. | 1914

Lead Opinion

MoCLELLAN, J.

(1) As stated in counts 1 and 2, this is an action for damages for breach of a contract with appellees to mine coal on and in the property of *385the appellant, defendant below. The presently material parts of those counts will appear in the report of the appeal. Under proper interpretation, these counts appear to us to affirmatively aver the contractual right of the appellees to mine all of the coal, within a reasonable time, in a certain area or territory in the mine of the appellant, and the correlative obligation on the appellant to accept and pay for the coal so mined and delivered by the appellees at the designated tipple of the appellant. With this state of substantial averment of right and obligation no real objection could be based on the idea of such uncertainty and indefiniteness, in respect of right and obligation, as would work the invalidity of the contract.

The plaintiffs relied upon their own testimony to establish the contract declared on. Thé defendant had a number of mines at and about the place where mine numbered 6 — that here involved — was located. William H. Short, one of the plaintiffs, testified: “I had nothing to do with supplying the railroad cars in which the coal was loaded. The railroad company put the cars up to the tipple for coal to be put in. Under the contract (i. e., that here in question), I was only to work token the mines worked. I suppose the custom is for the mines in this district when they have no orders for coal to wait until they get orders. They do as they like. i:' * * I know what the general custom is in reference to mining coal and delivering it at the mine by contractors when the company has no orders for coal. When the mines have no orders for coal, they shut down and cease work until they get orders. That same custom exists when they have no railroad cars to take care of the coal. Ordinarily coal diggers and contractors in the mines are both controlled by this custom.” ( Italics supplied.)

*386It is manifest that the effect of the testimony quoted —-with which there was none in conflict, aside from that of the defendant going to a denial of the contract in respect of its binding quality to allow appellees to-remove all the coal in the area or territory defined in counts 1 and 2 — was to interject into the contract, as. alleged in those counts, a most material element in immediate qualification of the unqualified engagement set forth in those counts. Reading the substance of the contractual element stated in the quoted testimony, in connection with the contract asserted in counts 1 and 2, it is obvious that a most material variance between allegation and proof intervened to- defeat plaintiff’s right to recover on those counts or either of them.—22 Encyc. Pl. & Pr., pp. 572, 573. The appellant was, hence, erroneously denied the general affirmative charge requested by it.

The judgment is reversed, and the cause is remanded

Reversed and remanded.

Anderson, C. J., and Mayfield and Somerville, J’J., concur.

Rehearing

ON REHEARING.

MoCLELLAN, J.

(2) As to the variance treated in the original opinion, ante: According to- the practice prevailing when this case was tried — though since September 1, 1913, a different rule has obtained (see 175 Ala. xxi, circuit court rule 31)- — the general affirmative charge requested by, and refused to, defendant (appellant) raised the question of variance vel non, which, if occurring with respect to a material matter, and if not waived in the court below or in this court on appeal, must lead to a reversal of the judgment.

*387(3-5) The contract as declared on imports an unqualified and unqualifiable right in the plaintiffs (appellees) to mine all the coal in a definite territory described therein without any right in the mine owner (defendant appellant) to suspend or hinder in any way or degree the plaintiffs’ opportunity to pursue the removal of the coal in the territory without- suspension or interruption by the mine owner. Stating it with the utmost favor of fact, inference, and implication to the plaintiffs, the evidence for the plaintiffs, as before quoted, is to the effect that the stated right of the plaintiffs was subject to the mine owner’s right to suspend the operation of its mine. Being a jury question as to what the terms of the engagement between the parties were, it was also a jury question — provided the plaintiffs’ version was accepted by the jury — whether the owner had left in it under the contract an uncontrollable discretion whether mine 6 should be “worked,” or whether, under the engagement' plaintiffs state, the right to mine the coal in the described territory depended upon the existence of “orders” for coal that were acceptable to, and were accepted by, the owner. If the terms of the engagement as plaintiffs assert them contemplated the unrestricted right in the owner to close the mine whenever it chose, then we have hodonbt that the doctrine of the Lambie Case, 118 Ala. 427, 24 South. 108, is applicable; for it was there ruled that a contract whereby the mine owner might, in his-discretion, control the daily- tonnage the miner might-remove, and thereby indefinitely prolong the process-, of removing the coal, was sufficient to impel the conclusion that the contractual intent was for an employment merely, and .that it was determinable, without breach, at the will of either party; else the miner would' be obligated to the wholly unreasonable éxtent of in*388definitely holding himself in readiness to mine whenever the owner desired him to mine, or to regulate the the amount of coal he would or did remove according to the owner’s ungoverned desires in the-premises. On the other hand, and assuming for the occasion only that the plaintiffs’ version was accepted by the jury, if the fact was found by the jury to be that the owner’s only right (aside from the absence of cars) was to suspend the mining by plaintiffs because there were no “orders” acceptable to, and then accepted by, the owner, and there were then accepted'“orders,” and the owner prevented the plaintiffs from mining the coal, the contract was breached; and, touching on this phase of the case, we find applicable value in these expressions from the opinion in Lambie’s Case, 118 Ala. 437, 24 South. 108: “It might be conceded for the purpose of this appeal that the agreement was an entire undertaking to mine all the coal in the mine, and also that, if appellee had any orders for coal to fill, appellants were entitled to furnish the coal necessary to fill them, and yet the complaint would not be aided by the concession. The first assignment of breach is that ‘defendant stopped plaintiffs from working in said B. mine, and defendants have ever since refused to allow plaintiffs to mine coal in said mine under said contract.’ Construed most strongly against the plaintiff, this does not show any breach of the contract, even under the construction contended for; since, if the defendant had no orders to fill, it had the right, as we have seen, to stop all work in the mine, and to refuse to allow any coal to be mined. The complaint does not aver that defendant had any orders to fill at the time it caused plaintiffs to cease mining coal, or has had such orders at any time since then. The language used is not equivalent to an averment that defendant had refused to-*389permit plaintiffs to perform their obligations in any respect, or that it has dispossessed, them, or taken charge of and operated the mine by itself or through others.”

The breach alleged was that after entering upon the performance of the agreement defendant stopped or prevented the plaintiffs from continuing performance thereof. In the light of these considerations it is manifest that the variance indicated was material, even though it was found as of fact that the absence of accepted orders (aside from the want of cars) was the only condition under which the owner might stop plaintiffs’ mining work in mine 6. The breach alleged could not have occurred unless there was an absence of accepted orders. Non constat, defendant’s asserted act of preventing the continued performance by the plaintiff might have been on that account, or because of the want of cars. So intimate a condition upon the plaintiff’s right to continue to mine in mine 6 could not be an immaterial matter when the breach charged may have been the result of action under the condition to the alleged infracted right under the contract.—4 Ency. Pl. & Pr., pp. 919, 920, and notes.'

(6) Under the rules of practice prevailing at the time of this trial and governing its review here, no waiver by appellant in the premises appears. The appellant insisted upon the assignment of error predicated of the trial court’s refusal of the affirmative charge; but not upon the ground of variance. The failure or omission to insist upon an assignment of error as upon a good ground or for a good reason and an insistence thereunto on an untenable ground or reason has not been held to operate a waiver of the good ground or reason for a pronouncement of error. The cases cited as being on this point of waiver on the brief for rehearing are *390without application. The quotations from them on the brief demonstrate their inapplication. That a different conclusion may obtain in cases tried under the new rules before cited is, of course, apparent.

So the judgment of reversal, on account of the variance, must stand.

The full bench has given exhaustive consideration to the engagement asserted by the evidence for the plaintiffs. In view of the retrial likely to occur, it is thought best to set down the conclusions- to follow, additional to and conditioned upon those already stated in this opinion.

(7) There is evidence for the plaintiffs tending to show that plaintiffs became entitled to the right to mine all the coal in a certain territory. The contract being silent as to the time in which it should be performed by the plaintiffs, the law presumes that the parties intended it should be performed by them within a reasonable time.—Griffin v. Ogletree, 114 Ala. 343, 21 South. 488; Bonifay v. Hassell, 100 Ala. 269, 14 South. 46; McFadden v. Henderson, 128 Ala. 221, 29 South. 640; 2 Parsons on Contracts, pp. (bottom) 687, 813.

(8) As drawn from the testimony for the plaintiffs only, the original engagement bore no stipulation or promise obligating the plaintiffs to mine all the coal in the defined territory, and hence was originally affected with a want of mutuality; and, if unaided by the acts to be noted, in further consequence effected to make a nudum pactum, because the promise of the defendant to the. plaintiffs to allow them the exclusive right to mine all of the coal in the territory defined was without the supporting consideration of a promise by the plaintiffs to mine all the coal therein, there being in the original engagement asserted by the plaintiffs *391no other consideration to support the mentioned promise of the defendant; but there is evidence tending to show Avork and outlay by the plaintiffs under and in accordance Avith the engagement they assert. If the party in whose favor a “unilateral promise is made accept its performance, or do any act in recognition of its implied or intended, though unexpressed, consideration, this supplies the element of mutuality, and gives a right of action.”- —Evans v. C. S. & M. Ry. Co., 78 Ala. 341, 345, 346; Sheffield Fur. Co. v. Hull Goal Co., 101 Ala. 446, 477, 14 South. 672; McIntyre Lumber Co. v. Jackson Lumber Co., 165 Ala. 268, 51 South. 767, 138 Am. St. Rep. 66.

(9) There was no error in the court’s declining to admit testimony tending to- show a general custom or usage in that mining district, the effect of which was that contracts of miners with operating companies for the removal of coal were subject to termination a.t the will of either party. Such matter could not tend to refute the plaintiffs’ contention with respect to the terms of the contract relied on. If the contract Avas as plaintiffs contend, then the only effect this proffered evidence could have was to- contradict the terms thereof. Evidence of a custom or usage is not admissible if it contradicts, expressly or by -implication, the terms of the contract.—Jones on Ev., § 465.

Our opinion is that-the solution of the inquiry Avhether Renshaw had authority to- make the contract asserted by plaintiffs was, under the evidence, a question for’ the jury.—United States Co. v. Lesser, 126 Ala. 568, 28 South. 646; Commercial Ins. Co. v. Morris, 105 Ala. 498, 18 South. 34.

(10) Under the allegations of plea 2, it was error for the court to deny defendant the benefit of the proffered testimony to the effect that there was a rule in *392force at the time prescribing when “shooting” in the mine should be done.

The application for rehearing is denied.

All the Justices concur in the conclusion and in the result. Anderson, C. J., and Somerville, Gardner, and Ti-iomas, JJ., concur in the entire opinion. Mayfield and Sayre, JJ., hold that, under the authority of Lam-tie’s Ease, 118 Ala. 427, 24 South. 108, the contract testified to by the plaintiffs was one of employment merely, and subject to termination at the will of the parties; and hence was not breached by the acts described in the complaint or the evidence.