Pratt Consolidated Coal Co. v. Short

MoCLELLAN, J. (1) As stated in counts 1 and 2, this is an action for damages for breach of a contract with appellees to mine coal on and in the property of [385] the appellant, defendant below. The presently material parts of those counts will appear in the report of the appeal. Under proper interpretation, these counts appear to us to affirmatively aver the contractual right of the appellees to mine all of the coal, within a reasonable time, in a certain area or territory in the mine of the appellant, and the correlative obligation on the appellant to accept and pay for the coal so mined and delivered by the appellees at the designated tipple of the appellant. With this state of substantial averment of right and obligation no real objection could be based on the idea of such uncertainty and indefiniteness, in respect of right and obligation, as would work the invalidity of the contract. The plaintiffs relied upon their own testimony to establish the contract declared on. Thé defendant had a number of mines at and about the place where mine numbered 6 — that here involved — was located. William H. Short, one of the plaintiffs, testified: “I had nothing to do with supplying the railroad cars in which the coal was loaded. The railroad company put the cars up to the tipple for coal to be put in. Under the contract (i. e., that here in question), I was only to work token the mines worked. I suppose the custom is for the mines in this district when they have no orders for coal to wait until they get orders. They do as they like. i:' * * I know what the general custom is in reference to mining coal and delivering it at the mine by contractors when the company has no orders for coal. When the mines have no orders for coal, they shut down and cease work until they get orders. That same custom exists when they have no railroad cars to take care of the coal. Ordinarily coal diggers and contractors in the mines are both controlled by this custom.” ( Italics supplied.) [386] It is manifest that the effect of the testimony quoted —-with which there was none in conflict, aside from that of the defendant going to a denial of the contract in respect of its binding quality to allow appellees to-remove all the coal in the area or territory defined in counts 1 and 2 — was to interject into the contract, as. alleged in those counts, a most material element in immediate qualification of the unqualified engagement set forth in those counts. Reading the substance of the contractual element stated in the quoted testimony, in connection with the contract asserted in counts 1 and 2, it is obvious that a most material variance between allegation and proof intervened to- defeat plaintiff’s right to recover on those counts or either of them.—22 Encyc. Pl. & Pr., pp. 572, 573. The appellant was, hence, erroneously denied the general affirmative charge requested by it. The judgment is reversed, and the cause is remanded Reversed and remanded. Anderson, C. J., and Mayfield and Somerville, J’J., concur.