Hazleton Coal Co. v. Buck Mountain Coal Co.

The opinion of the court was delivered, by Agnew, J. The true interpretation of the transportation clause in the contract between these parties, is the only important question in this case. It alone was argued and relied upon, and its decision is all that is required. The agreement was executed on the 4th of November 1862; but the transportation part of it was not to take effect until June 1863, when the road was to be finished. The substitution of A. Pardee & Co., in the mean time, on the 24th of December 1862, as lessees both of the mines and the transportation, whose interests would conflict with those of the plaintiffs, was the exercise of a power bearing on the question of interpretation. The leading features of the contract, on part of the plaintiffs, are these. They agreed to build the fixtures, to prepare and load their coal into the cars on the defendants’ railroad, “ to furnish for transportation all the coal they may mine until the quantity furnished shall amount to one million of tons,” “of which quantity not less than 600,000 tons shall be mined and offered for transportation within eight years from the time of the completion of the said railroad.” As a collateral security for the furnishing of the said 600,000 tons for transportation, by the Buck Mountain Coal Company, within the eight years as before mentioned,” they were to pay into the hands of the defendants a certain rate per ton, amounting to $9000, which the defendants were to “keep and appropriate,” “if the said Buck Mountain Coal Company fail to furnish the said 600,000 tons of coal for transportation, as-before mentioned.” As a further security, the plaintiffs were “ to take up all the iron from their old or present railroad between Rockport and Clifton, previous to the completion of the said railroad.” Now on these covenants, no one can doubt that the plaintiffs were bound to furnish to the defendants, for transportation, not less than 600,000 tons of coal in eight years, and had the right to furnish as much more as would make one million of tons. But this must be done according to the legal effect of the covenant, to wit, in the usual and ordinary course of mining operations. The plaintiffs being thus bound, the correlative duty of the defendants to transport the coal is not to be doubted, and, indeed, is conceded. Now this duty can be overcome only by a plain and express covenant which limits or qualifies it. Where, in this agreement, do we find any plainly and fairly expressed covenant which limits the duty to transport the coal thus mined and offered, and substitutes for it a pro ratd or percentage of transportation in the proportion that the product of the plaintiffs’ mines bears to the product of all the mines of that region sending coal over the defendants’ road? That no such express covenant as this can be found in the agreement is beyond dispute. Neither the number of cars nor the idea of proportion is expressed anywhere in the writing. If it'exists at all it must be found only in the following covenant: [313] “ The Hazelton Coal Company further agree to furnish the same transportation facilities, and charge them the same prices per ton for coal as they may or shall at the same time charge for tolls and transportation from the Lehigh Luzerne Junction to Penn Haven (the distance being about the same, say 10 miles).” What does this language fairly import ? What will fully and fairly satisfy the meaning of the words ? Now, it is a cardinal rule of the interpretation of mutual contracts, that you are not to abrogate or impair one part of a contract by another, when that other has an appropriate meaning which fully satisfies the words. To understand this covenant, we must remember that the branch road runs from the main stem to Clifton, and that the Lehigh Luzerne Junction lies west of the branch about as far as Clifton lies from the main road, while all of the other collieries lie beyond the junction. Now everything in the interpretation of this covenant rests upon the word “same.” The same as what? The same transportation facilities and the same charge for tolls and transportation between .Clifton and Penn Haven, as between the Lehigh Luzerne Junction and Penn Haven. Why? The agreement answers. The distance being about the same, say 10 miles. Clifton was omitted to be named, but the reference to the distance' plainly supposes it as the object of comparison. The reason was obvious; Clifton being about the same distance from Penn Haven as the junction, the junction was fixed upon as the measure of the rights of the plaintiffs under the covenant. The plaintiffs were therefore to have the same transportation facilities from Clifton to Penn Haven as the company used from the junction to Penn Haven. The cars were to run as often and as regularly from Clifton to Penn Haven as from the junction to Penn Haven. They shall be as timely to bring away and take back cars. The cars shall be as capacious and as serviceable; there, shall be the same kind of cars, canal and railroad. In short, the branch road to Clifton shall have the same transportation facilities as exist on the main road to the junction, and the same charges for tolls and transportation. ' Now here is a plain and clear meaning consistent with the words of the covenant, filling them' completely without impairing the duty arising out of the other part of the contract. The agreement does not undertake to regulate the number of the cars for the plain reason that the number was indefinable, being dependent on the quantity of coal to be mined in the usual course of operations, between the minimum and maximum fixed in the contract. But suppose we extend the meaning of the word “same” so that it shall' compare persons instead of places, and the covenant shall read, “ the same number of cars as we furnish any other party between the junction and Penn Haven,” what is gained ? According to every correct rule of interpretation of the covenant in favor [314] of the covenantee, this would give the plaintiffs the highest number of cars furnished to any other party, to wit, twenty-nine cars where they got but eleven, and twenty-five where they got but seven. In order to get below the highest number given to any other party, you must extend the meaning of “ same” still further, so as to introduce into it also the idea of proportion. But the idea of such a proportion is to be found nowhere in the contract, expressly or impliedly, and is both impracticable and unfair, as I shall now show. A pro raid is founded upon the productive capacity of all the mines of that region dependent on this road. This is to be ascertained either by measurement, or by actual results. Two weeks were spent in the endeavor to prove both, and with no satisfactory result. The number of slopes, gangways and breasts of a colliery being given, no certainty follows, for still its product depends upon the pitch of the vein, its thickness, hardness, intervals of slate and faults. Owing to these circumstances, the proof was that the daily product of a miner will vary from four to fifteen and even twenty tons. Then the hoisting power is often not in proportion to the productive capacity of the mine. One witness testified that in a given time in his mine six hundred mine cars could be sent from the breasts to the bottom of the slope, while the hoisting power could raise but three hundred in the same time. Then follows the hauling to the breaker, involving the elements of distance, inclination and power. After this the capacity of the breaker, pockets and chutes. Disproportions exist in every colliery, which must all be taken into account for actual measurement. Then come the length of the siding, and the standing room for the cars. ■ The effect of this is thus illustrated. We were blocked up (said a witness) with loaded cars when the engine did not come regularly. When the pockets were full we would lie idle. The men would not go into the mines for less than half a day’s work. Lost one day out of three from a want of cars and by being blocked up with full ears. The end is not yet; now come the deductions for unavoidable delays and interruptions incident to mining operations, such as accidents to the mines and machinery, and the refusal of the miners to work, caused by funerals, holidays and strikes. The testimony of Calvin Pardee on this point was that he counted forty weeks ■ as a year’s work. It is to these delays and interruptions the covenant applied to allow the plaintiffs credit for time lost out of the eight years in which the 600,000 tons of coal were to be furnished. It was not to the failure of the defendants to furnish transportation. That itself was a sufficient excuse, but the covenant for credits was for the benefit of the plaintiffs to prevent injury by these delays. When we consider these discordant elements, it will be seen that measurements of all the mines for a pro raid is practically a delusion. An attempt was made [315] at one time at what were termed trials to ascertain the, productive capacities of the mines, by giving them all the cars that could be furnished for a given space of time, but it proved abortive. The next resort was to actual shipments as shown by a table. But this was, if anything, more unsatisfactory, for the shipments depended on thepro ratd of cars supplied, of which every colliery complained. Markle, a brother-in-law of Pardee, who regulated the transportation, says, I don’t think two days passed without complaining, till I got tired of it. I don’t think an operator in the region complained with more bitter feeling, for I felt we were wronged. The effect of the pro ratd, when a sufficient number of cars was not supplied, was this, the breakers and pockets filled, the hoisting ceased at the slopes, the mine cars ceased to run, and the miners had to stop. The mines could not ship the coal they were able to produce, and hence a pro ratd founded on shipments was esteemed unfair. Of course if the plaintiffs bound themselves to accept a pro ratd they cannot complain; but this-is the very question, did they bind themselves to such a rule. Now in performing the mere legal duty to the public a pro ratd founded upon any reasonable data would be sufficient to justify the defendants in distributing their cars according to such a pro ratd. But here the question arises upon, a contract, and the question is whether it is reasonable to suppose the plaintiffs, having bound themselves to perform their covenants for a specific quantity of coal under a penalty, agreed to commit themselves to a pro ratd dependent upon the will of the opposite party, and that party a rival in the same trade. It is also unreasonable in another aspect; in subjecting the plaintiffs to a sliding scale constantly tending downward. This is proved by a pro ratd table from August 5th 1863, to October 29th 1866. Thus the pro ratd or percentage of the plaintiffs ran down from 11 to 7 per cent., while the defendants’ collieries ran down from 29 to only 25 per cent. East Sugar Loaf ran up from 14J to 15 per cent.; Ilarleigh from 5J to 6; Zeddo 14J to 16; Ebervale 5J to 9, and Milnesville 4J to 6. The idea of proportion not being found in the writing, it is, therefore, unjust to give to the word “same” this extended interpretation, when the word is fully satisfied by a proper and wholesome meaning not destructive of the duty cast upon the defendants by their contract. It submits the plaintiffs to the discretion of the defendants, it has no adequate means of ascertainment, it is a shifting rule, it diminishes the plaintiffs’ demands as certainly as new collieries are opened and others increased. It is not interpretation but addition to the writing to give it this meaning. But it is argued that to give the plaintiffs more than a pro ratd is illegal. This was answered by saying that the charter of the defendants was not compulsory. I think there is another answer. It is not unfair and therefore not illegal. The road to Clifton is [316] a new road, a branch. The right of the defendants to build it is not denied, while the terms of the contract to effect its construction belong to their own discretion. The purpose was beneficial to the covenantor and to themselves and warranted their covenant to furnish the necessary transportation upon it. If they had no right to divert any of the rolling-stock then on the road beyond the junction, they were bound to add to their stock a number sufficient to stock the branch. If they could divert to it no more than a pro ratd, they had a right to add still to this number so many as would make up the number required for this branch, and to appropriate to it exclusively this additional number. They werenotboundtoayro ratd over the whole road, founded upon the number thus added to the branch. The mixing of the cars is immaterial, as it is not the identity of the cars added to the branch, but the number sent there, which is the important matter. If the others still got their former pro ratd they could not interfere with the numberoadded to the branch, a new work. As to the alleged interpretation of the contract by the plaintiffs, it is sufficient to say that the question of fact was distinctly and fairly submitted to the jury on the whole evidence, and the plaintiffs’ right to a verdict made to turn on this fact. The jury found against it, and there was no motion for a new trial. The fact thus silenced by the verdict cannot now be permitted to speak for this alleged interpretation by the acts of the plaintiffs. The judgment is therefore affirmed.