101 Ala. 446 | Ala. | 1893
On August 30, 1887, the Hull Coal & Coke Company and the Sheffield Furnace Company executed the following writing: ‘ ‘ Hull Coal & Coke Company sell to Sheffield Furnace Company, and Sheffield Furnace Company buy from Hull Coal & Coke Company 3,900 cars Flat Top Coke at $5.10 per net ton (2,000 lbs.) f. o. b. cars Sheffield, Ala., provided Hull Coal & Coke Co. are able to induce the operators to build ovens, and make coke for 3,700 cars of the above amount. Sellers agree to furnish 200 cars of the above amount between September 20th and November 1st, 1887. On October 1st sellers are to advise buyers how much of the 350 cars they can furnish during the month of November, 1887. On November 1st sellers are to advise buyers how much of the 350 cars they can furnish in the month of December, 1887. December 1st 1887 sellers are to advise buyers how much they can furnish of the 750 cars during the first three months of 1888. February 1st sellers are to advise buyers how much they can furnish of the 750 cars the second three months of 1888. May 1st sellers are to advise buyers how much they can furnish of the 750 cars during the third three months of 1888. August 1st sellers are to advise buyers how much they can furnish of the 750 cars for the last three months of 1888. Deliveries to be made as near as possible proportionately during each period.
“These conditions of sale, binding the buyers to take
“The sellers undertake in good faith to use their best endeavors in inducing manufacturers of coke to provide ovens for the purpose of filling this contract. Norfolk & Western Railroad weights at usual point of weighing for these mines to govern. Buyers to remit on or before the 10th day of each month for all shipments made during the preceding month. In case of strikes, accidents, deficient transportation, or other cause unavoidably causing stoppage or partial stoppage of the works of the manufacturer of this coke or of its shipment, or in case of strikes, accidents, or other cause unavoidably causing stoppage or partial stoppage of the works of the buyer, deliveries herein contracted for may be suspended, or partially suspended, as the case may be, or at the option of the party not in default may be immediately cancelled during the continuance of such interruption by immediate notice to that effect given to the other party. Such interruption or cancellation, however, shall not invalidate the remainder of this contract, but on removal of the cause of interruption deliveries shall be continued at the specified rate, and if the delayed deliveries shall not have been cancelled they shall be made thereafter at the regular rate commencing when the contract would otherwise have ended. It is understood that Hull Coal & Coke Company have freight rates to Sheffield, Ala., on which the above price is based, but if during the time this contract is in force this rate should be advanced, then buyers have the option of taking any undelivered portion due on this contract, at the advance, or of cancelling it, provided sellers do not elect to stand said advance. ’ ’
A few days after this instrument was executed, Hull Coal & Coke Company used its “best endeavors in inducing manufacturers of coke to provide ovens for the purpose of filling this contract;” and succeeded. Said company was “able to induce” and did in fact induce operators — manufacturers of coke — to build ovens for the manufacture of 3,700 cars of coke of the kind specified
After this writing was executed there were some further deliveries of coke, beginning about May 1st and continuing for something over two months, and until five hundred and sixteen cars (including the sixty-six cars delivered prior to the writing of January 30th, 1888, and mentioned therein) of the 3,900 cai*s had been delivered ; but the deliveries after this second agreement were not of the full quantity originally contemplated by the parties and this deviation from the terms of the writings was had at defendant’s instance, who from time to time requested the partial or total suspension of shipments, being unprepared to use or store the full qantity of coke as called for by the writings. Upon these suspensions it became necessary for the plaintiff to make other dispositions of the coke it had contracted to take from the producers for the purpose of filling the contract with the defendant, or to induce the manufacturers to lessen their out-put for the time of such suspension. During the first part of the month of July, ls88, the plaintiff had suspended shipments at defendant’s request and had induced the producers to reduce their out-put so that the quantity manufactured was not more than the plaintiff could dispose of to third persons. To do this the ovens of the manufacturers had to be banked — the fires being put out — and it required several days to re-heat them sufficiently to make a good quality of coke. And as to so much of the out-put intended for this contract, as the plaintiff had diverted to third persons upon the suspension requested by defendant, it required some
“Montgomery, Ala., July 19, 1888.
Hull Coal & Coke Co., Louisville, Ky.
Resume shipments of coke immediately. We make nó payment until the 10th of the succeeding month either for freight or coke. Our secretary telegraphs immediate resumption of coke shipments necessary to keep in blast. Answer quick Montgomery and Sheffield when shipments will be resumed.
Sheffield Furnace Co.,
By Alfred H. Moses, Pres.”
“July 19, 1888.
A.. H. Moses, Montgomery, Ala. Dispatch received. Hull and Lafferty both away. Hull is in New York. Matter will be referred to Lafferty to-mórrow.
[Signed] Hull Coal & Coke Co.”
“July 20th, 1888.
Impossible to resume shipments immediately. It will take from one to two weeks to heat ■ ovens sufficiently to draw good coke. If shipments can be stopped elsewhere that coke might be turned over to you. Will do best we can. Hull Coal & Coke Co.”
“Sheffield, Ala. July 21st, 1888,
Hull Coal & Coke Co., Louisville, Ky.
Have shipments of coke been resumed?
[Signed] Sheffield Furnace Co.”
“Louisville, Ky., July 21st, 1888..
Sheffield Furnace Co., Sheffield, Ala.
Shipments not resumed yet. We wired you, would
[Signed] Hull Coal & Coke Co.”
“Sheffield, Ala., July 23d, 1888. Hull Coal &.Coke Co.:
Have ovens been fired ? When ? What steps taken to expedite resumption shipments ? When will you assure resumption? Coke supply nearly exhausted. Unless assurance speedy resumption will be forced to bank or blowout. Answer.
[Signed] Sheffield Fuknace Co.”
“Louisville, Ky., July 23, 1888.
Sheffield Furnace Co., Sheffield, Ala.
Hope to be able to resume shipments to-morrow or next day.
[Signed] Hull Coal & Coke Co.”
“Louisville, Ky., July 23d, 1888.-
Sheffield Furnace Co., Sheffield, Ala.
Will suspend shipments to others and instruct shipments resumed at once provided you pay freight as heretofore. Answer.
[Signed] Hull Coal & Coke Co.”
“Louisville, Ky., July 23d, 1888.
Sheffield Furnace Co., Sheffield,. Ala-.,
Gentlemen : We wired you per the enclosed advising that we hope to be able to resume shipments tomorrow or next day. Since then have sent another dispatch per the enclosed letter,......you, we would suspend shipments to others and instruct shipments resumed to you at once provided you pay freight as heretofore, asking you to wire answer in reply to this. We shall await your reply, and if favorable will instruct shipments resumed immediately. Will arrange with others to wait for their coke until we can get new ovens heated up. You must recognize that it is impossible to hold ten cars of coke per day subject to orders of any one so we can begin shipments of this amount immediately. When customers order shipments stopped we must either place coke elsewhere or put ovens out, and it often takes a week or ten days to get ovens hot enough to make first class coke after it has once been banked. We shall expect to re
[Signed] Yours truly, Hull Coal & Coke Co.
Per H. D. Lafferty G. M.”
“Sheffield Ala., July 23d, 1888.
Hull Coal & Coke, Co., Louisville, Ky.
As you admit ability to ship coke immediately, but refuse unless we pay freight otherwise than is stipulated in the so called contract, you have violated the same and we are released therefrom, and will no longer be bound thereby.
[Signed] Sheffield, Furnace Co.”
“Sheffield, Ala., July 24, 1888.
Hull Coal & Coke C'o., Louisville, Ky.
If we withdraw claim of violation by you, will you resume shipments coke immediately, and concede our right of freight reduction? Answer quick as supply near exhausted, and we must blow out or bank this evening.
[Signed] Sheffield Furnace Co.”
“Louisville, Ky., July 24th, 1888.
Sheffield Furnace Co., Sheffield, Ala.
Kepeated your dispatch to Mr. Hull at U. S. National Bank, New York, asking him to wire direct.
[Signed] Hull Coal & Coke Co.”
“Sheffield, Ala., July 24th, 1888.
Hull Coal & Coke Co., Louisville, Ky.
Answer our morning telegram. Highly important as we must notify labor on next turn. Have not heard from Mr. Hull, six fifty-five o’clock.
[Signed] Sheffield Furnace Co. ”
“New York, July 25th, 1888.
Sheffield Furnace Co., Sheffield, Ala.:
We have made no failure and violated no contract, but are and have been ready to comply with all its terms. We claim you have refused to carry out terms of contract by stopping shipments of coke, and by refusing to continue payment of freight as heretofore, but to save you from going out of blast or from annoyances, we will consent to pay freight ourselves and continue to deliver the coke, you paying for it five dollars and ten cents per ton, the price stated in the contract, or we will consent
[Signed] Hull Coal & Coke Co.,
By Geo. H. Hull, Pres’t.”
“Sheffield, Ala., July 25th, 1888.
Hull Coal & Coke Co., Geo. H. Hull, Pres’t, Care U.
S. National Bank, New York :
Telegram received too late to avoid banking furnace. We deny violation , and insist you violated so-called contract. If we ratify and reinstate it, will' you resume shipments immediately prepaying freight and we paying on 10th of succeeding month whatever the instrument may require under its proper construction. Answer quick, as we must consult absent parties before ratifying or reinstating, and must instruct ore shippers. If reinstated we must stand consequences if courts decide we are not entitled to freight reductions, now ninety cents. [Signed] Sheffield Furnace Co
“New York, July 26th, 1888.
Sheffield Furnace Co., Sheffield, Ala.
Replying to your telegram of yesterday : We stand on our offers of yesterday. Answer whether you accept either of them. [Signed] Hull Coal & Coice Co.,
By Geo. H. Hull, Pres’t.”
“Sheffield, Ala., July 26th, 1888.
Geo. H. Hull, P’t. Hull Coal & Coke Co., New York.
Answer yesterday’s telegram, oi’e shippers demand instructions from us." We must instruct, or they will sell to others, in which event we can not get ore to go into blast before Jan’y. [Signed] Sheffield Furnace Co . ”
“Sheffield, Ala., July 26th, 1888.
Dear Sir : — Not hearing from you in reply to our telegram of yesterday, we have just answered you ‘Answer yesterday’s telegram, oi’e shippers demand instructions from us. We must instruct, or’they will sell to others,
Very truly yours,
[Signed] Alfjíed H. Moses, Pres’t,
For Sheffield Furnace Oo.
Geo. H. Hull, Esq., Pres’t Hull Coal & Colee Co., care of U. S. Nat’l Bank, New York.”
In the foregoing correspondence are mentioned the two points of difference and contention between the parties, which had arisen between them up to the time at which, it is claimed by each, the other put an end to the contract by violating its terms, or refusing to carry it out according to its tenor and effect. As appears from this and other parts of the voluminous correspondence that passed between the furnace company and the coke company, it was, in the first place, and this as early as the fall of 1887, soon after the commencement of deliveries under the contract, insisted by the furnace company, that by the terms of the contract the coke company was to pay all freight charges on the coke as and when delivered, and such charges were to be refunded to it, as and constituting a part of the gross price per ton which the furnace company was to pay the coke company on the 10th day of the month succeeding that of the deliveries settled for. On the other hand, the coke company contended that the contract, as interpreted in the light of a general usage of the coke trade devolved upon the furnace company the duty of paying the freight charges to the carrier on receipt of the several shipments, and that the amounts so paid during a given month should go as a credit on a settlement for the gross price of the coke made on the 10th of the succeeding month. Upon the furnace company’s contention in this regard being first brought forward on October 12th, 1887, by its bookkeeper, at the suggestion of one Chas. D. Woodson, who was a director of the company, and who, with the company’s general manager, had constituted the committee on the part of that company to make this contract with the coke company, the latter replied that, under the terms of the writing, taken in connection with said custom, it was the duty of the furnace company to pay the freight charges and have the amount thereof credited to it on the succeeding monthly settlement; and to this Woodson responded for the company on October 22;
The preseut action by Hull Coal & Coke Company against the Sheffield Furnace Company proceeds on the theory that the writings set out above, taken in connection with the facts we have stated, constituted a binding contract of sale by the plaintiff to the defendant of 3,900 car loads of coke, that the defendant wrongfully refused to accept and receive the coke it had contracted to receive, and thus violated its contract, and that this breach damnified the plaintiff in the sum of $100,000, which is the amount claimed in the complaint. There was verdict and judgment for plaintiff for $35,000.
The main defenses relied on at the trial were three. First, it is insisted that the writings executed by the parties impose no contractual obligations upon the defendant because of a want of mutuality, there being, it is said, the assumption of no enforceable obligation on the part of Hull Coal & Coke Co., and hence, it is argued, the formal assumption of obligation on the part of the furnace company is formal only, and without efficacy. Again, it is contended that the duty to pay freight was upon the coke company, and that its failure and refusal so to do was a breach of its contract which authorized the furnace company to wholly repudiate it: And it is further insisted, that the contract secured to the defendant the benefit, in the way of credit on the agreed price
Was the agreement evidenced by the writings unilateral, involving a mere option on the part of the coke company to deliver the specified quantity of coke to the furnace company, and for this reason, as is argued, not binding on either party? The contention that the agreement is of this class has for its basis certain provisions in the first four clauses of the writing executed August 30, 18s7. Thus, in the first clause, the instrument evidences a sale by the coke company to the furnace company of 3,900 cars of coke provided the seller is able to induce operators to build ovens and make coke for 3,700 of said cars. Following this are stipulations which require the seller to advise the buyer at various dates mentioned how much coke can be supplied during certain subsequent periods, as, for instance, on "December 1st, 1887, the sellers are to advise buyers how much they can furnish of the 750 cars during the first three months of 1888. ’ ’ The third clause of the writing is as follows : ‘ ‘These conditions [those referred to above] of sale binding the buyers to take the coke as specified above from September 20th, 1887, to December 31st, 1888, [and?] giving sellers option of furnishing for said time, are entered into for the purpose of enabling the sellers to induce the operators to put up more ovens by promising them a certain sale of the product of these ovens at a fixed price." And it is further stipulated, that "the sellers undertake in good faith to use their best endeavors in inducing manufacturers of coke to provide ovens for the purpose of filling this contract."
Considering the agreement of August 30, 1887, apart from the writing of January 30, 1888, and taking hold of it immediately upon its execution, that is, before the coke company induced the erection of additional ovens sufficient in number to manufacture the requisite quantity of coke to fill the contract, it may be conceded that
That the parties themselves understood and treated this agreement, after this condition had been met and filled, as a mutually binding contract is manifested by the supplementary agreement of January 30th, 1888, wherein it is recited and stated, “that there is now a contract in existence between the parties hereto, of date August 30th, 1887, whereby the party of the first part is to deliver to the party of the second part, and the party of the second part is to take of the party of the first part 3,834 cars of Flat Top Coke (66 cars having already been delivered out of the 3,900 cars secured to the party of the second part under said contract), and which contract is hereby referred to as a part hereof/' &c. Here is an express and direct recognition and declaration by the parties of the absolute and unconditional character imparted to the agreement of August 30, 1887, by the performance by the plaintiff of the condition therein stipulated, upon the performance of which the sale and delivery of the coke to the defendant was to cease to be optional with the coke company. And this construction put on the original agreement by the parties themselves
But the writing of January 30, 1888, is more than a mere construction of the previous agreement; it is itself an undertaking, absolute in form and substance, on the part of the coke company to sell and deliver, and on tho part of the furnace company to take and pay for, all of the 3,900 cars of coke mentioned in the first paper, except 66 cars which had previously been delivered. It is therein unconditionally stipulated that the deliveries contracted for in the writing of August 30 should be postponed for a certain time, and that said deliveries should again commence about the first day of May, 1888, and thence continue at the rate of about ten cars per day until the whole quantity — 3,900 cars, less the 66 cars previously delivered — should be delivered. We do not hesitate to declare, upon the considerations to which we have adverted, that there was an existing and mutually obligatory contract between the parties at the time of the alleged violation of it by the defendant, in July, 1888, for the sale and delivery of the specified quantity of coke.
2. We are equally free from doubt to the conclusion that there is no question of agency between the coke company and the furnace company in this transaction. It is manifest, we think, as well upon the words of the writings, as from the situation and course of dealings between these companies, that the coke company was in no sense the agent of the furnace company to purchase coke from the operators for the latter, but was itself the séller on its own account of the coke to the furnace company. And we deem it unnecessary to further discuss this feature of the case.
3. As has been indicated, one of the prominent questions on the trial below was as to whether, under the contract, the duty of paying freight on deliveries of coke at Sheffield was upon the furnace company or the coke' company ; the former contending that it was not required to make any payment whatever until the 10th of the
4. Whether the contract was changed in the respect considered above by a subsequent binding agreement between the parties is a different question, which was for the determination of the jury upon the evidence and instructions of the court. There was evidence tending to show that Woodson, subsequent to the making of the contract, agreed to pay freight on shipments as received, that he represented the furnace company in this regard, and that said company thereafter paid freight for a considerable period, several months, and upon all the coke which was delivered to it, amounting to 516 cars, without further objection. But we can not know what conclusion the jury would have reached or did reach on this part of the case, nor indeed that they reached any conclusion in this regard, and hence we, of course, can not say that the errors committed by the court in respect of
5. It is next to be considered whether by the terms of the written contract the furnace company was entitled to the benefits of reductions in freight rates occurring after the contract was executed, and while it was being performed. We will repeat here the only provision of the writings which bears upon this point: “It is understood that Hull Coal & Coke Co. have freight rates to Sheffield, Ala., on which the above price is based; but if during the time this contract is in force this rate should be advanced, then buyers have the option of taking any undelivered portion due on this contract at the advance, or of cancelling it, provided sellers do not elect to stand said advance.” Without this provision there was, as we have held, an absolute liability resting on the furnace company to take and pay for 8,900 cars of coke at the rate of $5.10 per net ton. Of course the mere fact here recited that the sellers have freight rates to Sheffield, upon which this price is based, can add nothing to nor take anything from, nor in any manner change, the absolute liability of the furnace company to pay this price. And so far as the fact itself goes, not depending on the recital for its existence, the contract is now the same as if it had not contained the recital at all. But the recital of the fact, aside from its existence, was actuated by a purpose which clearly appears by what follows it. This purpose was to provide what should be the rights of the respective parties in relation to abandoning, or continuing under, the contract in the event and only in the event there should be an advance in the existing freight rates to which the recital referred, the provision being that in such event the furnace company should have the option of taking the then undelivered portion of the coke contracted for by paying
The inquiry whether there was a subsequent parol agreement between the parties by the terms of which the defendant was to have the benefit of freight reductions was properly submitted to the jury on the trial.
6. It appears from that part of the correspondence we have copied that on July 23d, 1888, the furnace company notified the coke company that it would no longer be bound by the contract, claiming that the refusal of the latter company to deliver coke, unless the former
Many exceptions were reserved to the rulings of the circuit court on the admissiou of testimony. These went for the most part to the correspondence between the parties through their respective officers and agents. The only plausible exception taken in this connection had reference to certain communications sent by one Wood-son, on the theory that he was not authorized to speak for the furnace company. We think the evidence as to his relations to the company and to the matters about which he assumed to speak in the company’s behalf, was sufficient to show, prima facie, at least, that he acted with authority, and that the evidence of what he did was properly allowed to go to the jury. The remaining exceptions to the admission of testimony are without merit, except those which are covered by what is said in the foregoing opinion.
For the errors adverted to the judgment of the circuit court must be reversed. The cause will be remanded.
Reversed and remanded.