123 Ky. 520 | Ky. Ct. App. | 1906
Opinion by
Reversing.
On the 17th of December, 1900,. the Proctor Coal Company, by A. Gatliff, its president, made a written contract with David Strunk, by the terms of which said Strunk was to mine the coal within a certain area for a definite sum of money per ton, and was to comply generally with certain restrictions and regulations imposed by the agreement for the benefit of the Proctor Coal Company, Subsequently one H. F. Fenley succeeded Gatliff as president -of the company, and a new contract was entered into by and between the company and David Strunk, by the terms of which Strunk was to mine coal for the company in the same territory, but the contract was an annual contract. By the terms of the first contract 5 per cent.- of the contract price for mining' was reserved by the company until final settlement between the parties, 'which by the terms of the contract would have been when all the coal to be mined within the area specified in the contract had been taken out. By the terms of the second contract the same part of the cost of mining per ton was retained, but the settlements were to be made at the end of each year while the contract was ip force. This second contract required of the said Strunk a compliance with certain rules and regulations governing mining imposed for the mutual benefit of both parties to said contract. This second contract was entered into about the 9th of June, 1901. The defendant, Strunk, continued to operate the mine until
Appellant company complains that tbe trial court should have given to tbe jury a peremptory instruction at tbe conclusion of plaintiff’s testimony, as be entirely failed to establish either want of consideration for the second contract, or that tbe execution of it was procured through fraud and misrepresentations. Appellee contends that tbe execution of tbe second contract did not nulify tbe first contract, but was merely a modification of same. A careful examination of tbe two contracts discloses this fact, that tbe only material difference between tbe first and second contracts is that tbe first contract provided for tbe mining of all tbe coal within a given area, and tbe retention by the company of 5 per cent, of tbe cost of tbe mining until tbe contract bad been completed, be that 1, 5, or 10 years. Tbe second contract provided that a settlement should be bad at tbe end of each year, and that the contract might continue by mutual consent as an annual contract. Each contract contained certain stipulations and regulations as to tbe manner in which tbe mining should be done. In order to determine tbe question as to whether or not it was the intention of the parties that tbe second con
"We come, then, to the two vital questions in the case: (1) Was there any consideration for the execution of the second contract? (2) Was there any. fraud practiced by the company upon the plaintiff in . procuring its execution? By the terms of the second contract the company agreed to make an annual settlement with plaintiff, and to pay to him the amount of money which it had retained in its hands, to wit, 5 per cent, of the cost of all coal mined by him during that year. This clause of the second contract was more favorable to the plaintiff than was the provisions regulating the payment of this retain .in the original contract, and this was the chief consideration or benefit
The only remaining question is, was the execution of the second contract procured through fraud? We have carefully examined the testimony in this case, and fail to discover wherein, even in the slightest degree, it tends to support the contention of the appellee that the execution of the second contract was obtained through fraud or misrepresentation. The ■company’s president testifies that he talked the matter over fully with appellee, and that they agreed
For this reason the judgment is reversed, with instructions to the trial court to dismiss the petition.