Wolf Creek Diamond Coal Co. v. Schultz

The opinion of the court was delivered, by Sharswood, J. The first assignment of error is, that after a witness of the plaintiffs below had said on his cross-examination: [185] “ I think I did tell Schultz & Company not to bring any more timber after July. I tried to get them to cancel the contract,” the learned judge before whom the cause was tried allowed the plaintiffs’ counsel to ask him to relate the whole of what was said at that time. It is elementary law, that when part of a conversation is given in evidence by one party, the opposite party is entitled to bring out the rest of it. The whole may be, and generally is, necessary for the proper understanding of all its parts: 1 Greenl. Ev. § 201. Nor can it make any difference whether the part is brought out by the direct examination of a party’s own witness or the cross-examination of the witness of his adversary. When the witness said: “ I tried to get them to cancel the contract,” leaving the inference that Schultz & Company had refused, if they gave any reason for their refusal, it was right that they should have the benefit of it in explanation of their conduct. The second assignment of error is, that the court permitted the plaintiffs below to prove that the defendants had a corporate seal. It matters not whether this was an error or not, or at what period of the trial the plaintiffs introduced the evidence, it did not harm the defendants below, who are the plaintiffs in error. This action was in form assumpsit. The declaration was special on a written contract set out in hceo verba. The instrument in evidence had an ink scroll opposite the name of the defendant — by their superintendent. It was also expressed in the body to be under the hands and seals of the parties. It may be, and there are cases which decide, that such a scroll may be adopted and used as a corporate seal: Angelí and Ames on Corpor., § 218. In this case, however, the instrument was declared'on as a parol contract, it was offered in evidence as such, and not having been objected to, because it was a specialty, it was admitted. This was a waiver, for certainly variance can only be taken advantage of when evidence is offered. If the defendants wished to raise the question of the form of action after that, it was incumbent on them to prove affirmatively that the scroll had been authorized or recognised as the seal of the corporation. Hence there was no evidence before the jury that this was not a parol contract as declared on, and no question could properly have been submitted to them upon that subject. This disposes also of the eighth, ninth, tenth, and thirteenth assignments. Those which remain relate directly or indirectly to the measure of damages. By the agreement the plaintiffs stipulated “to furnish and deliver” to the defendants “a good and sufficient supply of all kinds and sizes of sound timber,” such as might be required by them for all mining purposes for one year, and the defendants agreed to pay the plaintiffs the sum of eighteen cents on each and every ton mined, which should be mined and sent away from their colliery, and they also agreed, that should the tonnage not amount to seventy-five thousand tons, they would [186] pay “ the amount of difference between the number of tons actually shipped and seventy-five thousand tons, at the rate of eighteen cents per ton.” There was no dispute that the number of tons actually shipped was 29,030 19-20ths, and the plaintiffs had been paid for that amount. It is clear from the point presented by the plaintiffs, and which it is complained here that the court did not negative, that all that was claimed below was the difference between the amount of coal actually mined and seventy-five thousand tons, at the rate of eighteen cents a ton. This was the measure of compensation or price agreed upon by the parties for the fulfilment of the contract by the plaintiffs. The charge of the court is to be consti'ued accordingly, and could not have been otherwise understood by the jury. The terms of the agreement are perfectly plain, and indeed its construction is not in dispute. But it is contended that so far as it exceeds the amount of coal actually delivered it is a penalty, and that the plaintiffs should be limited to the damage actually suffered by them. But how is this to be ascertained with any degree of certainty ? Clearly the stipulation is neither in name or in substance a forfeiture or penalty, but a measure to determine what otherwise rvould be a loss or damage, uncertain and difficult to be ascertained. Whenever this is the case, it is held to be liquidated damages: Sedgwick on Dam. 449; Westerman v. Means, 2 Jones 97; Streeper v. Williams, 12 Wright 450. In Powell v. Burroughs, 4 P. F. Smith 329, just such a covenant in the lease of a coal-mine for the payment of rent was held to be liquidated damages to the extent of non-performance, and it is there said that “ the uncertainty as 4to the extent of the injury which may ensue is a criterion by which to determine whether it is a case of liquidated damages or a penalty.” Judgment affirmed.