Virginia Black Mountain Coal Co. v. Virginia-Lee Co., 113 Va. 395

Virginia Black Mountain Coal Co. v. Virginia-Lee Co.

113 Va. 395 | Va. | 1912

Keith, P.,

delivered the opinion of the court.

The Virginia Black Mountain Coal Company brought an action of assumpsit against the Virginia-Lee Comapny, the Bondurant Coal and Coke Company, and the Black Mountain Mining Company, to recover damages for a breach of contract. The Virginia-Lee Company appeared and pleaded the general issue; the other defendants appeared and filed pleas in abatement, in each of which it is averred that the supposed cause of action arose upon a several *407and not upon a joint agreement. The question was submitted to the court, which, having considered the questions of law and fact arising upon these pleas, was of opinion that the law was with the defendants, sustained the pleas, and abated the suit as to the Black Mountain Mining Company and the Bondurant Coal and Coke Company; and thereupon the Virginia Black Mountain Coal Company applied for and obtained a writ of error.

At the threshold it is to be observed that there were three contracts entered into and set forth in the declaration. In the first contract the Virginia-Lee Company is named as party of the first part, in the second the Black Mountain Mining Company is the party of the first part, and in the third the Bondurant Coal and Coke Company is the party of the first part. In all of them the Virginia Black Mountain Coal Company is named as the party of the second part. There is no single paper writing containing the contract executed by all the parties, but, while the contracts are identical in terms, they are in form wholly separate and distinct, the one from the other.

The incorporated companies named as parties of the first part owned and operated coal mines in one of the coal fields of Wise county. Their ownership of these mines was wholly separate and distinct. There was no joint, no common, interest, and the contracts seem to have been entered into merely for the purpose of controlling and marketing the output, upon an equitable basis promotive of the interests of all, and to prevent injurious competition. There was a certain community of interest which was to be subserved, and to this end the contracts were entered into, and a common agent appointed to superintend their execution. The contracts entered into were intended not only to regulate the duties and obligations of the parties as between the agent and the mining companies, but also the duties and obligations of the mining companies inter se, so that no advantage might be taken the one of the other, and their general interests promoted and subserved.

The contracts, which, as we have said, are identical, consist of seventeen paragraphs of sections, many of which plainly contemplate individual action, and are seemingly inconsistent with the idea of j oint obligation. In the second paragraph, for instance, *408it is provided that the party of the second part agrees to accept all the coal delivered to it by the party of the first part, and to pay the party of the first part, on the 15th day of each month, the amount due for the coal delivered during the previous calendar month. Suppose the party of the second part had paid to one of the coal companies its share of the proceeds of coal delivered, but had not settled satisfactorily, or had not settled at all, with one or both of the other companies. Can it be contended that the three companies must have united in a suit to compel a settlement? Or, conversely, suppose one or two of the companies had delivered coal in accordance with the contract. Can it be maintained that the company which had settled in accordance with the terms of its contract would have been suable and compelled to make good the delinquency of the defaulting company or companies?

The coal companies, under the fourth clause, were to deliver clean and merchantable coal, free from slate or other impurities, and suppose one of the companies, fraudulently or negligently, failed in the performance of this duty?

Take the sixth paragraph, where the party of the second part, the plaintiff in error here, undertakes to secure a sufficient car supply, and so discharges that function as to be satisfactory to one or more of the companies. Should a suit for a violation of that duty be instituted by the party which was satisfied and sustained no injury, as well as by that which had been wronged?

Take the eleventh paragraph, where the party of the second part, the plaintiff in error here, guarantees to the party of the first part the payment in full for all coal delivered to it under the terms of this agreement, and if a full settlement is not made by the party of the second part within thirty days from the time the same is due, the party of the first part may, at its option, cancel the agreement. Two of the coal companies may have been satisfied; two of them may have been willing to condone the default; but the third would still have the arbitrary right to cancel the contract if it saw fit.

Whether a contract is joint or several, or joint and several “depends upon the intention of the parties, as ascertained from the contract, by the ordinary rules of construction.” Page on Contracts, sec. 1132.

*409In. section 672 of Beach on Modern Law of Contracts, it is said: “Whether the contract is joint or several, or joint and •several, is one of intention. The contract must be considered as a whole, and if, upon such consideration, the intention of the parties becomes apparent, it must prevail over the literal interpretation of detached words, phrases, and clauses. A contract which is plainly meant to be several is not to be treated as joint merely because several persons have signed it on one side or the other. When persons engage for the performance of distinct and several duties, mere words of plurality, such as ‘we bind •ourselves,’ will not make the contract joint.”

In Shipman v. Straitsville Cent. Mining Co., 158 U. S. 356, 39 L. Ed. 1015, 15 Sup. Ct. 886, Shipman was the sales agent for the coal of three mining companies. The agency contract was evidenced by one contract, in which all united, instead of three separate agreements as in the case before us, between the agent and the principals. There were a number of mutual duties, similar to those in this case. Shipman, the sales agent, committed a breach of his contract, and each of the three mining companies brought separate actions against him for damages, and he raised the point that it was a joint contract, and there could be only one suit, in which the three companies must be joint plaintiffs. Mr. Justice Brown said: “There is nothing in the contract indicating that the three parties were connected in any way, except that each was to furnish an equal quantity óf coal. They are spoken of in the contract as ‘the other three parties,’ as if it were intended that each of them should stand for himself. If •either of them had failed to furnish his quota of coal, Shipman might have brought an action against him; but it is clear that, if he had sued them jointly for such default, the two others might .answer that they had done all that they agreed to do, and could not be held hable for the default of the third. These parties did not agree to furnish any definite amount of coal, but merely that they would ship the defendant the product of their mines in equal quantities. * * * If Shipman had settled with' plaintiff according to the account rendered by it in this case, it •seems to us that it could not be seriously contended that the other *410parties could not sue him for the coal furnished by them without joining the plaintiff.”

In that case the contract was evidenced by one instrument of writing. Here there are three instruments, identical, it is true,, in terms, in each of which the producing company is described, as the party of the first part and the sales agent as the party of the second part.

It is true that by paragraph seventeen it is declared that “this agreement is to be construed as though all the parties to said agreements had executed one and the same agreement”; but that language is insufficient to convert into a joint agreement what, in its nature, appears plainly to be a several undertaking. It cannot be that language of doubtful import would have been employed when, if such had been the purpose, it could have been accomplished by simply declaring that the parties intended to-enter into a joint obligation.

We are of opinion that there is no error in the judgment, and. it is affirmed.

Affirmed.