*1 JR., PRICE, THOMAS G. PRICE THOMAS G. Plaintiff-Appel- PIKEVILLE COAL COMPANY, d/b/a lant, v. CHEMICAL TENNESSEE PRODUCTS S.W.(2d) Defendant-Appellee. 385 CORPORATION, 301. May 18, 1964.
Middle Section. July 31,
Rehearing Denied 1964. by Supreme December 1964. Certiorari Denied Court *2 Raymond Chattanooga, Dietzen, and W. N. A. Graham Chattanooga, & of counsel, Graham Dietzen, Dietzen, appellant. McCullough Kelly, Pittsburg, Robert G.
A. A. South Lansden, Lansden Waller, Dortch, L. Nashville, and D. appellee. counsel, Nashville, *3 Price and Thomas Price, G. G. CHATTIN, Thomas J. doing partnership, as Pikeville Coal business Com- a Jr., brought pany, suit the Circuit Marion Court of a contract County, for the breach or a Tennessee, against mining Tennessee defendant, the Products lease Corporation. & Chemical alleged declaration had
It was agreement whereby February an entered into 2, 1959, plaintiff portion agreed sublease to a to defendant under lease the United had lands defendant Corporation; purpose that the Steel States auger strip plaintiff mine the would maps plaintiff at furnish would defendant land; that designate would the areas which months intervals six period ensuing during months and these six mined part become a maps attached to be were plaintiff its had moved prior to March 3,1961-, that lease; stripped auger leased equipment to area preparing designated and was move so the area mined Kelley’s to an area known as Creek wMck defendant had orally designated nest area to be mined, when plaintiff plaintiff defendant advised that conld not mine Kelley’s Creek; that W. J. Travis and MeFarlin, Carl Corporation, Jr., authorized officials of the defendant orally agreed plaintiff Kelley’s could mine plaintiff, relying agreement, pur- lands; that on the oral special equipment purpose chased these plaintiff lands; that reason of the breach lost profit plaintiff which would have realized if the area had been mined. pleas nonassumpsit,
Defendant filed nil debit, non perjuries factum, est the statute of frauds and in that the subsequent written lease and oral void were description for lack of a sufficient involved; lands upon by carry- breached the contract sued ing mining-; on substandard and that was not plaintiff’s to maintain entitled the suit because failure procure operate license mine in violation of privilege T.C.A. 58-117, secs. 58-116 and or a 58-115, provided by license sell coal as T.C.A. sec. 67-4202and 67-4203(25). T.C.A. sec. plaintiff’s proof, trial conclusion of court, motion for a directed
sustained defendant’s verdict suit. dismissed the *4 perfected appeal an has nature of a
Plaintiff assigned following: as error the writ of error has “ Agreement (1) within Mine not the Coal is The Frauds; Statute
“ (2) was written The area described instruments by signed Defendant; the
628
“ agreement parties incorpo- (3) The written of the by that described the recorded lease rated reference a by ; bounds area metes and question estopped
“(4) the The defendant validity it assured the contract because had the the Area it Plaintiff that could mine spend to thereafter thousands of induced Plaintiff the special equipment mine dollars for obligated was not which Plaintiff otherwise area, except for the and which it not have do would done of the Defendant.” and inducements assurance necessary in the most It we evidence review the light theory plaintiff’s we since the case favorable by following: are bound propriety considering the action of
“In Judge directing to look verdict, the Trial a we are evidence for evidence, all taire true the countervailing evidence, all take Plaintiff, to discard strongest legitimate for the of the evidence view from it all inferences to allow reasonable Plaintiff, if then conclude that verdict his we favor, evidence, warranted Plaintiff would have been peremptory should have instruction the motion for grant Judge in Trial been denied and the action Hayes ing error.” H. reversible T. motion, was Company, Stuyvesant 35, Insurance Tenn. v. Sons S.W.(2d) 7. this suit is based was exe- which February At the 1959. time cuted Tennessee defendant, Products, was its execution Corpora- United States Steel holder of lying Grundy in Marion, of land acres 24,075 tion some *5 Sequatchie map and Counties shown on as a attached provided thereto. This lease Tennessee Prodncts could mine all the coal the lands in accordance with the best practice industry. in that Tennessee Products re- quired approval projections submit to lessor for its operations mining showing of all pro- location of all posed openings, haulageways entries, other work sixty days prior proposed proceeding opera- with the provided tions. The lease further in the event Tennessee Products failed to mine coal satisfaction thirty days lessor after notice such lessor failure, the right would have the to terminate the lease. quote paragraph
We the first entered February into on 1959, think 2, since we pertinent it is to the issues for our determination.
“AGREEMENT made and entered into this the day February, 2nd 1959, between TENNESSEE PRODUCTS CHEMICAL Ten- CORPORATION, corporation, principal nessee with office at Nashville, Party, First and PIKEVILLE COAL COMPANY, composed partnership of Thomas G. Price and Thomas principal place Price, with Jr., G. business Pike- Kentucky, Party, ville, Second Party First
“WHEREAS, is the holder of a lease day January, the 7th dated under terms of Corpora- has leased which it United States Steel purpose, among things, certain lands tion other therefrom said lease is now in full Party authorizes First force effect sublease any lands; of said Party engaged Second
“WHEREAS, the busi- strip mining angering and coal and ness has ade- equipment machinery purpose; quate such agreed mutually it is “NOW, THEREFORE, follows: Party hereby Party,
“1. First sub- leases Second *6 ject provisions terms, and conditions hereinafter subject condi- set forth and further terms and underlying tions of the aforesaid lease United Party, Corporation portion Steel to First 'States map hereto, marked of the land red attached open auger purpose strip pit mining or for the of and mining. Party mine the shown on said
“Second shall area engineer map designated by order the chief Party only portions of said First and shall mine such upon agreed and as are an attached sheet area listed by incorporated upon in this reference. and during Party six months’ intervals “First designate to be sufficient area lease shall time this during Party by the next six months and mined Second designation become a and shall be attached hereto such Party strip not or part shall lease, Second Party designated auger First will area. of said outside maps duplicate, expense scaled its section furnish at = crop covering line for six to be mined 100' each 1" skipped any showing period, areas be months’ maps required by or State purpose, furnish will authorities.” Federal may remaining parts sum- agreed mine the Plaintiff follows:
marized depending auger which was strip method, or perform such time; and to economical at most manner order to and workmanlike effectual most merchantable coal. Plain- greatest amount recover agreed comply tiff also with the laws of this State regulating management Federal Government operation of coal “in mines accord with the terms Party conditions lease between First Corporation, Steel United States which lease is ref- part made a hereof.” erence agreed pay
Plaintiff defendant the market value of any by mining operations. timber removed its agreed necessary
Plaintiff construct roads from the public highways operations. to the site of its agreed pay royalty eighty
Plaintiff lessor a cents per coal mined. ton represented machinery
Plaintiff that it owned sufficient *7 equipment produce twenty a minimum of and thou- per sand tons of coal month; and, the event the ma- chinery, agreement, in the as listed was insufficient to quantity produce plaintiff of that coal a month, would necessary acquire machinery equip- the additional and ment. produced agreed plaintiff by to haul
Defendant the production tipple area of its from the or Whitwell to be cost same done at of not the cause more than per pounds. of eighty-five ton two cents thousand agreement agreed would It the take was effect Valley of an award the notification the Tennessee Requisition plaintiff; Authority 23 No. under and that years agreement for would continue the effect three or agreements future or until the had been performed. of the time the at execution Travis, J. of
Mr. W. the man- plaintiff defendant, the between contract properties ager of the defendant. mines the of the execution tbe time was, Mr. C. J. engineer defendant. for the chief the contract, the deposition he Mr. his that stated in Mr. Travis and went with the Prices contract discussed prior properties them execution with over the Subsequently, was executed the contract contract. defendant. at the Nashville office map contract execution of a He stated after showing property defend- all was furnished Corpo- United Steel from the States had under ant ration. with discussed contract he had testified
He further proper & Iron Com- Tennessee Coal officials Corpora- subsidiary pany, Steel United States proper company official had and that tion, authorizing defendant the execution written letter strip between defendant the contract properties; provided mining auger of the leased virgin coal areas future left under- were corridors projection maps operations ground were fur- Company showing &Coal Iron nished Tennessee virgin strips areas and corridors to be be mined mining. underground future left for began mining operations *8 plaintiff its He stated Subsequent- as April, in an known area Pocket. plaintiff area known as ly, to an Griffith moved Creek designated or known as Woodcock an area Gulf. later showing portion map each of these He testified by plaintiff provided furnished mined was to be areas lease. or by contract prior
He further testified that about six months plaintiff completing operations mining in Woodcock Gulf Kelley orally agreed plaintiff Mr. he and J. C. had could mining operations Kelley move its to an area known as virgin Creek which area contained coal. some time But Company later the Tennessee Coal Iron notified de- & permit plaintiff Kelley it fendant would not to mine the conveyed Kelley Both he Mr. area. C. J. this Company plaintiff decision of Tennessee &Coal Iron plaintiff carrying operations while was still on its Woodcock Gulf area.
Mr. Thomas G. Jr., testified he Price, and his father, properties G. were shown the Thomas Price, of defendant Kelley prior signing Mr. and Mr. Travis C. J. lease. objection mining He stated defendant made no to their operations in the Pocket, Griffith Creek, Woodcock mining Gulf areas. That while the Woodcock Gulf plaintiff told area was officials of the de- Kelley, fendant, Travis and Creek area would plaintiff the next area to be mined. Later was notified Company permit Coal Iron Tennessee would not plaintiff mine area. relying testified, He further the oral assurance of the defendant officials Creek area completing would be the next area to be mined after plaintiff purchased area, the Woodcock Gulf mining equipment to mine that area. additional He stated equipment of $100,000.00 cost excess equity acquired equipment what had lost agreement. breach due to the substantially Price testified
Mr. Thomas G. as his son question made of the manner that no and methods *9 operations. plaintiff’s mining Nor did defendant
used operations plaintiff’s insist were substandard. ever orally through, its officials stated defendant He also plaintiff agreed Creek mine the area could operation completing Gulf the Woodcock after agreement; and that refuted oral later area but equipment purchased plaintiff which cost about had anticipation mining $90,000.00 area. selling testified coal was at time further
He per producing ton of and the cost ton, $5.08 delivering purchaser it was $3.95. President of the defend- McFarlin, Jr.,
Mr. Vice Carl charge Corporation, he the affairs testified was ant Corporation with when contract was executed. satisfactory operations were
He stated the complaint and no for substandard to defendant plaintiff by communicated defendant. ever April defendant on 30, He testified entered 1959, also with Gibbs haul all coal Paul mined into contract Company under the contract Coal with Pikeville ramp haul it Whitwell, defendant’s defendant quote only parts of the contract which We Tennessee. pertinent to-wit: issues, are think we made and entered “This contract April and between into Tennessee 30th, Corporation, Whitwell, Products Chemical Ten- Party, First called Gibbs, hereinafter Paul nessee, City, Tracy Tennessee, hereinafter called Second Party,
WITNESSETH: Party “Whereas, heretofore First has entered into Company a contract with Pikeville Coal re- *10 by of moval coal from certain of its lands leasehold strip anger mining method; and, and ' necessary by it is ‘Whereas, that said coal mined so Company transported said shall Coal from Pikeville production points points the various sites and of delivery Party; to First and, position Party equipped Second is in
“Whereas, and with sufficient trucks to haul and deliver all Company: so mined said Coal Pikeville “Now, this contract is now and therefore, made entered into and between the hereto provisions terms, and follows: conditions as Party agrees during “1st. Second times that, all keep, possess the life of contract will or own, he use, sufficient number of trucks and drivers to produced haul and all deliver coal mined at the points operations various or sites of said Pikeville Company, keep Coal said coal loaded collected, transport delay so as or cause no cessation operations by Company. said Coal Pikeville loading, hauling, collection, “2nd. For the deliver- ing points unloading said various coal, points origin Party First various destination, pay tonnage agrees Party unto Second rates follows: POINTS
POINTS OF PRICE OF PER TON DESTINATION ORIGIN (a) Point Victoria Area between Floyd and North Hollow end ramp Whitwell $0.85 (b) Mine Area between No. 1 and Griffith’s ramp $0.65 Creek to Whitwell (c) Griffith’s Area between ramp Kelly’s $0.80 to Whitwell Creek and Creek Kelly’s (d) Area between Creek ramp Daus $0.75” Gulf and Woodcock 1No. area between further The witness testified Creek between Griffith Creek, and Griffith Mine area Kelley and the area between Creek, outcrop of the inclnde all woold Woodcock Golf from United under lease to defendant Creek area Corporation. Steel States engi- professional Roy Crawford, Jr.,
Mr. *11 outcrop in coal he testified measured entire neer, the 80,150 it and found to measure the Creek area outcrop foot of would stated each lineal linear feet. He produce nine of coal. at least tons map portion undisputed in is that a with a
It marked mined to the be was never attached to land to red denote lease. the ques- presents assignment the
Plaintiff’s first error merely the was a lease or a tion of whether contract mine coal for defendant. contract to agreement is insists a contract to mine Plaintiff the lease; therefore, and not a and, for defendant coal application. has no statute of frauds agree. think it is are We obvious But we unable writing gives plaintiff agreement is a lease. The right provides and sell it. It also mine the coal opera- necessary may plaintiff remove timber to its 637 pay tions, it, sell defendant the market valne provides plaintiff may timber. The contract construct necessary property. all roads agree
Furthermore, with the of de insistence we plaintiff estopped is fendant, insist Court contract is an for mine The defendant. record shows it was the the trial insistence of at the contract At no did insist was lease. time a plaintiff’s otherwise trial In a court. motion for judge. new no trial such insistence was made the trial brought up appellate is re cause “When party view, cannot assume an attitude inconsistent or different him with, from, that taken the trial, theory and is restricted to the which cause was prosecuted or Accord defended court below. ly, parties particular theory where both act on a they permitted depart cause of will not action, brought up appellate therefrom when the case governs review. same rule where act particular opposition theory on a or of defense Appeal page 4 thereto.” and Error, 241, C.J.S. sec. Zager, Tenn.App. (2d) 719; Turner v. S.W. 512.
Accordingly, assignment first overrule the wé error. By plaintiff’s assignment second of error it is insisted failing judge the trial error the lease hold *12 Corporation from the United States Steel and the con- sufficiently between defendant and tract described Gibbs Kelley thereby Creek area the the and furnished neces- description sary writing. lands to mined in of the be required by it is “the memorandum true the
While may papers” signed by be or more statute of frauds two 638 Tenn.App. party charged. 4 Buntin,
the be Williams v. any “may executed the And, 340. memorandum also, ’’ v. Hudson time after contract and action. the before the King, “the 49 it must Tenn. 560. be remembered Yet meaning a cer- is to contracts the statute reduce tainty, perjury one hand and in on the order to avoid this in both Court other, and, therefore, fraud on the an where the the common law, courts certainty, has reduced to such substance been part, complied material statute has been with upon.” v. the forms insisted Welford have never been Langford, Beasley, 503; 190 Tenn. 3 Atk. Cobble v. S.W.(2d) 194. except the matters contract is certain all The toas description portion mined. all lands to be of the Corporation lease from States The the United Steel Kelley bounds. describes the metes and Creek area not does contract between Gibbs defendant and specifically Kelley shown but it is describe the Creek area by parol areas evidence this area is embraced within the Creek, No. Mine Creek between and Griffith Griffith Kelley Kelley Creek Woodcock Gulf Creek, contract. set out description Kelley
But we do think not area as set forth in these two or instruments either plain it since statute, them satisfies the contemplated by it not record was entire contrary Creek area was to be but mined, portions map only of the land marked red on the such are listed an attached “as sheet and attached incorporated agreed upon in this reference.” descriptions in two instruments referred Thus, portions not locate Creek area to do
639
agree
with
be mined in
lease and the
the-
oral
accordance
descriptions
ment, and,
are
therefore, the
insufficient to
satisfy
Stamps,
the statute of frauds. Shield v.
34 Tenn.
Kellogg,
Campbell
54
172;
v.
Tenn.
264;
Johnson
262,
Co-op.
S.W.(2d)
202 Tenn.
v. Moore,
215,
Farmers
303
S.W.(2d)
735;
Hall,
Parsons v.
By assignment plaintiff third error, insists the judge failing was trial error to submit the issue estopped plead of whether defendant was statute jury proof of frauds to the since there material purchased plaintiff mining equipment additional record promise plaintiff pursuant oral could mine the Kelley Creek area.
Conceding, deciding, not there but is material testimony jury from in the record which could find plaintiff had established elements doctrine of estoppel preclude plea by which would such a defendant, plaintiff protect does not seek that doctrine to its rights subsequent agreement. under the and the oral contrary, plaintiff right by To seeks to create a that doctrine. plaintiff’s theory,
It both in the declaration and proof support thereof, was entitled damages profits the measure of which was the loss of deposit entire Creek area. protect plaintiff’s right did Thus, not seek to portions mine Creek lands or to recover damages right, in lieu of that but seeks to create right damages profits plaintiff may to recover loss removing have realized all the coal in estoppel. that area doctrine 640 urged protect estoppel may
The doctrine of he right, Henry County but never to one. Stand v. create Company, S.W.(2d) 683, ard Oil 167 Tenn. App. 335, A.L.R. Melton 32 Tenn. 1483; Anderson, v. *14 S.W.(2d) Tenn.App. 222 35 666; 464, Couch v. Couch, (2d) 248 S.W. 327. always remedy applied promote
“This so as to is justice. only protection, is it can- It available weapon accomplishes of assault. It used a not be ought man which between man, that to done beyond permitted go that.” Dickerson v. not to Colgrove, 25 580, 618; 100 581, U.S. L.Ed. Evans 578, Company, 92 21 348, Land Tenn. S.W. 670. v. Belmont judge eminently opinion the trial are of We directing in this a verdict case. correct foregoing Having conclusions, we do not reached necessary defendant’s insistence for us discuss think it this suit not maintain because could operate procure a license to a or sell had failed mine prior institution of suit. Sate this judg- assignments and the of error are overruled All with costs. trial affirmed court is ment of the Humphreys, concur. JJ., Shriver and Rehear
On Petition petition Appellant a rehear has filed CHATTIN, J. holding complaining instrument sued of our plaintiff could not lease; and that was a in this case estoppel right create to recover doctrine invoke the plaintiff may profits realized have damages for loss Creek area since the coal all provided subsequent oral the lease portions area. only of that mine plaintiff could
641 gave holding our reasons for We the contract awas original opinion. our support phase petition
In of the able argument, only Counsel an earnest but it is make re- argument of matters made them considered and point any determined It us. not does out new matter reargues things lawof or fact but overlooked, which say improperly Counsel we decided. petition
“The office of a
to rehear is to call the
attention
court
not
overlooked,
matters
things
supposes
improp
those
which the counsel
were
’’
erly decided after full
consideration. Louisville N.
Company
Fidelity
Railroad
v. United States
& Guar
anty Company, 125
It next insisted we were in interpretation our instrument as the written areas to be mined. right convinced we were in our inter-
However, we are quoted pretation. page original opinion On five of our we unambiguous from the written instrument in which states designate portions that terms defendant to skipped mined to be “areas to be the lands for purpose.” any page opinion seven of our we set forth testi-
On mony plaintiff’s who stated it witness, W. J. Travis, virgin to be was understood corridors were left mining operations. underground for future areas virgin proof was a shows the area coal area page eight opinion. our we so stated requests to reverse us In the alternative “might' his suit plaintiff, amend so remand case writing to court to seek reformation the trial showing maps the list attach the include and mined, so as to be one of the areas Creek area as damages would it for such as sue in alternative to portions only to to if allowed mine be entitled designate, reasonably as so defendant should equity if defendant suit take a nonsuit and file the in law to suit the amended should demur choose writing.” reform the power author- argued this under do we have the
It is provides: ity which 27-329, of T.C.A. sec. in its where, cases, in all also, court shall
“The complete justice opinion, reason had cannot be parties, proper or want of some the record, defect negligence, culpable oversight remand the without proceedings, with further court below for cause rights proper order, to effectuate the directions ’’ may right. upon deemed such terms deliberately agree. elected cannot We Counsel seeking profits have first without sue loss judge trial shows the reformed. The record contract suggested a nonsuit. should to Counsel take plaintiff’s to sue dam election insisted Counsel electing By can ages. we circumstances, so under these oversight.. it an can now insist was how not see Counsel *16 power to reverse have do think we Nor we sue to amend or leave with remand case contract; equity reformation as to seek a so right deny its to the defendant same and,' time, rely as a defense. of election remedies doctrine petition to rehear is denied with costs. Petition denied. Humphreys,
Shriver and concur. JJ.,