Stoner & Co. v. Blocton Export Coar Co.

Anderson, J., delivered the opinion of the court. Appellants, Stoner & Co., sued appellee, Blocton Export Coal Company, a foreign corporation, in the chancery court of Leflore county, for damages in the sum of one thousand seven hundred and fifty-eight dollars and sixty cents claimed to have been suffered by appellants on account of an alleged breach of contract by appellee, by the terms of which appellee sold and agreed to ship to appellants during the spring and summer of 1922 a quantity of coal for household use. Appellee answered making its answer a crossbill, denying the material allegations of appellants ’ bill, and seeking to recover from appellants a balance due on open account for coal theretofore delivered to appellants under said contract. There was a trial on the pleadings and proofs, and a decree rendered dismissing appellants’ bill and awarding appel — 398 — lee a recovery for the amount claimed from appellants by said cross-bill, from which decree appellants prosecute this appeal. ■ In the view taken by the court it becomes necessary to dispose of only two questions discussed in the briefs of counsel representing the respective parties. They are: First, whether appellee was justified in failing to fulfill said contract, by a certain order of the Interstate Commerce Commission governing the coal-carrying railroads of the country, which order will be hereinafter specifically set out; second, if .appellee breached its contract, what is the measure of its liability to appellants? We mil discuss these questions in the order stated. The facts necessary to be understood in order to determine the first question are as follows: Appellee was. engaged in the coal business in Alabama, selling its customers in Mississippi and elsewhere. Appellants were engaged in the retail coal business at Greenwood, in this state. On the 5th of April, 1922, appellants and appellee entered into a written contract by the terms of which appellee agreed to sell and ship to appellants, as ordered, from fifteen to twenty-five cars of lump coal at prices named in said contract. These shipments were to be made during the spring and summer of 1922 as ordered by the appellants. Several carload shipments were made as ordered. Then shipments were ordered by appellants which were not made by appellee. This occurred after August 5, 1922, the date of the order of the Interstate Commerce Commission which appellee relied on as a justification for failing to make shipments as ordered. These orders from appellants thereafter continued, and appellee failed to comply therewith until the 21 st day of October, 1922, when appellants advised appellee that they were compelled to consider the contract as breached by appellee. The contract in question made no provision for failure to ship coal on account .of strike, car shortage, or other contingency. Notwithstanding that fact, however, appellee undertakes to justify its failure to make ship — 399 — ments as provided in said contract, by virtue of an amendment to car service order No. 23 by the Interstate Commerce Commission, which appellee claims had the force and effect of law, and that under which the coal-carrying railroads of the country were prohibited from furnishing cars for shipments of coal to retail dealers for household use, except subject to prior rights of certain consumers. The coal purchased by appellants from appellee was lump, bituminous coal which had passed over screens with openings of four inches, or larger, and was for household use. The order of the Interstate Commerce Commission relied on by appellee as justifying its failure to ship the coal in question, so far as necessary to consider, is in the following language: “It is ordered, that paragraph numbered 7 of the said service order No. 23 adopted. July 25, 1922, be, and it is hereby amended and supplemented to read as follows effective on and after August 5,1922: “(7) That in the supply of cars to mines upon the lines of any coal-loading carrier, such carrier is hereby authorized and directed, to place, furnish, and assign such coal mines with cars suitable for the loading and transportation of coal in succession as may be required for the following classes of purposes, and in following order of classes, namely: “Class 1. For such special purposes as may from time to time be specially designated by the Commission, or its agent therefor. In designating special purposes under this reservation, the Commission or its agent will designate the class of relative priority, as class 1, class 2, class 3, class 4, or class 5, which such special purpose or particular shipment or shipments shall receive. “And subject thereto in order of priority: “Class 2. (a) For fuel for railroad and other common carriers, and for bunkering ships and vessels; (h)- for public utilities which directly serve the general public under a franchise therefor, with street and interurban railways, electric power and light, gas, water, and sewer — 400 — works; ice plants which, directly serve the public generally with ice, or supply refrigeration for human food stuffs; hospitals; (c) for the United States, state, county, or municipal governments, and for their hospitals, schools, and for their other public institutions — all to the end that such common carriers, public utilities, quasi-public utilities, and governments may be kept supplied with coal for current use for such purposes, but not for storage, exchange, or sale; (d) bituminous coal which has passed over screens of four inches or larger opening, coke, and anthracite coal, to be shipped to retail dealers for household use. “Note. — It is not intended by this paragraph to give any priority as between classes a, b, c, and d hereof. “And subject thereto in order of priority: . “Class 3. (As to each coal-loading carrier which reaches mines in Pennsylvania, Ohio, West Virginia, Kentucky, Tennessee, and Alabama.) For bituminous coal consigned to any Lake Erie port for transhipment by water to ports upon Lake Superior. “And subject thereto in order of priority: “Class 4. (As to all such common carriers by railroad.) Coal for the production and manufacture of foodstuffs and medicines and for the manufacture of containers therefor, for daily use but not for storage, exchange, or sale. “And subject thereto in order of priority: “Class 5. Other purposes. “No coal embraced in classes 1, 2, 3, or 4 shall be subject to reconsignment or diversion except for some purpose in the same class or a superior class in the order of priority herein prescribed.” Before proceeding further with a discussion of this question, it will probably be well to have in mind the following principles: Legislation by Congress under the commerce clause of the Constitution (article 1, section 8, cl. 3) is the law of the land. It is controlling both on the state and federal courts. The same is true of all — 401 — administrative orders for the regulation of interstate carriers, passed by the Interstate Commerce Commission in pursuance of such legislation by Congress. The above ear service. order is that character of administrative order, and therefore both state and federal courts are bound to enforce it. And if because of said car service order of the Interstate Commerce Commission appellee was prevented from shipping the coal in question to appellants, then appellee had a complete defense to this action, because, as held by this court, which is in line with the authorities generally, that even though it be not provided for in the contract, still if a subsequent change is made in the law whereby performance of the contract becomes unlawful, its performance is excused. Piaggio v. Somerville, 119 Miss. 6, 80 So. 342. The sharp difference between appellants and appellee is as to the meaning of the car service order in question. Appellants contend that said order provides for five classes of coal shipments, and preference is given to each class in the order named as follows: Class 1 has preference over four classes following it; class 2 is next in preference with priority over all classes following it; and the same is true of class 3 and class 4, class 5 being subject to preference in favor of all four classes preceding it. That the language in said service order following each class, namely, “And subject thereto in the order of priority, ’ ’ means simply that the five classes are to have priority in the order named. Furthermore, appellants contend that this is made plain by the note following class 2, in said order, which class 2 -covers the character of coal here involved, which note is in the following language: “Note. — It is not intended by this paragraph to give any priority as between clauses a, b, c, and d hereof.” Clause d of class 2 covers the character of the coal involved in this cause, to-wit, bituminous lump coal shipped to retail dealers for household use. — 402 — Appellants’ contention is that all four of the clauses in class 2 of this order, which are listed a, b, c, and d, are on a parity; that no one has preference over the others. On the other hand, appellee contends that said three subdivisions or clauses of class 2 of said order constitutes three distinct sub-classes, each in the order stated having preference over those following. The trouble, however, with the' contention of appellee is the plain unambiguous language of the note attached to class 2 above quoted. This note, which is a part of said order, simply says in so many words that there is to be no priority' as between clauses a, b, c, and d of said class. The coal involved here- came within clause d of said class 2. Furthermore, appellants’ construction of the order is borne out by the fact that it is more reasonable than that of appellee. We hold that there is no preference between said clauses; that the language at the conclusion of each of the said classes, “And subject thereto in order of priority, ’ ’ means that each class stated in said order is to be given priority over those classes following in numerical order, and that the note attached to class 2 is controlling. The question as to the measure of damages which appellant may be entitled to recover seems simple of solution. In fact, there is little, if any, controversy between the parties as to this proposition. Appellants in order to recover for the loss suffered were not required to go into market and supply themselves with the coal which appellee had failed to ship them, but had the right to treat the contract as breached by appellee, and the measure of their damages is the difference between the contract price of the coal and the market price at the time and place of delivery. Eaves & Co. v. Harris, 95 Miss. 607, 49 So. 258; Sussman, Warmser & Co. v. Seafood Co., 127 Miss. 420, 90 So. 116; 24 R. C. L. section 335. The record with reference to the damages appellants may be entitled to recover is in such state of uncertainty — 403 — that we think the case should go back to the chancery • court to ascertain what damages, if any, appellants suffered. Reversed and remanded.