Hesser v. Chicago & Welleston Coal Co.

BAKER, Circuit Judge, after stating the facts, delivered the opinion of the court. Defendant was a retailer of coal at Chicago; plaintiff, a jobber, with offices at Cincinnati and Chicago; and the companies for which Dixon signed as manager were miners of coal in the New River district. The construction of the contracts was matter of law for the court. Therein defendant is identified as buyer, plaintiff as seller, and the Dixon collieries as producers and shippers of the,coal which defendant was binding itself to take. That the subject-matter of the contracts was New River coal from the Dixon collieries is the result, whether the bare contracts be taken as expressive of the mutual agreements of parties negotiating with each other at Chicago on August 28th, or the oral testimony also be considered which shows that defendant signed at Chicago, plaintiff at Cincinnati, and Dixon at the mines, and that before signing defendant and plaintiff’s Chicagó agent agreed that the Dixon collieries should become the producing and shipping parties to the contracts. Plaintiff, basing his conduct on the first contract, tendered defendant at Chicago 12 cars of New River coal, only a few of which came from the Dixon collieries. The record demonstrates beyond cavil that plaintiff took and continually held the position that the contracts required defendant to accept New River coal from any of the mines in that district. And, since plaintiff never separated out the Dixon coal and tendered that, nór offered to go on with the contract by furnishing Dixon coal exclusively, the breach can be predicated on nothing less than defendant’s refusal to accede to plaintiff’s contention. Plaintiff first insists that the contract only calls for New River coal generally. That was a question of law which, in our judgment, th,e court rightly ruled against him. This is followed by the proposition that a tender of any New River coal was a substantial compliance with the contract as the court construed it. Plaintiff introduced evidence that New River coal from the other collieries was substantially the same in quality and value as that-from the Dixon collieries. Defendant’s evidence denied this. So here was a disputed question to go to the jury, if plaintiff was right in claiming that defendant was bound to accept something just as good. But if “just as good” is the test, why not coal from anywhere that is substantially the same? And, if a seller may insist that a jury decide the “just as good” question, what becomes of the buyer’s right of selection and his right to incorporate that in the contract? Substantial compliance might be a question for the jury in a case like this, if defendant had rejected Dixon coal on the ground that it did not come up to contract; but here it was for the defendant, not the jury, to say whether a substitute was acceptable. Waiver or estoppel is relied on. Passing the question whether, under an issue framed by a special count on a contract and a general denial, plaintiff could prove an enlarged or substituted contract, the burden is on plaintiff to point out evidence which would have justified the jury in drawing the inference that defendant accepted the asserted new contract. Without rehearsing the. evidence, it is enough to say [214] that an. éxámination of the entire record satisfies us that the-only-permissible inference was quite the contrary. ,. No coal was shipped under the second contract. Plaintiff testified that he “was able and willing to ship seventy-five tons a day of New River run of. mine coal to the defendant from the 1st day of November, 1903, to the 31st day of March, 1904.” This sufficiently illustrates plaintiff’s theory of the case, ,and it accords with his attitude throughout, that the furnishing of any New River coal of substantially the same quality and value as that from the Dixon collieries would be a compliance with the contract. The judgment is affirmed.