Shipman v. Straitsville Central Mining Company

This was an action by the Straitsville Central Mining Company against Ozias W. Shipman. Judgment was rendered in the circuit court for the plaintiff. Defendant brings error.

This was a case originally instituted in the court of common pleas of Franklin county, Ohio, by the defendant in error, to recover a balance of $19,564.89, claimed to be due on account of goods sold and delivered. Upon the petition of Shipman, a citizen of Michigan, the case was removed into the circuit court of the United States, where an affidavit was filed, admitting payments by defendant, after the commencement of suit, aggregating $13,017.90, leaving still claimed the sum of $6,446.90, with interest thereon.

Defendant filed his answer, setting up a counterclaim, and alleging that the plaintiff had agreed to sell and deliver all the coal from its Sugar Creek lower vein, or so much as defendant should need for his Michigan trade for one year from the date of the contract, May 28, 1879, at certain prices; that defendant needed much more coal than was furnished during that period; and that the price of coal as charged exceeded the contract price by the sum of $4,991.64. The answer further alleged that, relying on this contract, he agreed to sell coal in Michigan at prices giving him but a small profit; that he informed plaintiff of these contracts, and plaintiff agreed to furnish enough coal to fill them, but failed to do so, by reason whereof defendant was obliged to purchase of other parties at higher prices than those at which plaintiff had agreed to sell, whereby he suffered damages in the sum of $10,000, in addition to the overpayment above mentioned.

Plaintiff replied to this answer, denying the counterclaims set up by the defendant, and admitting the payment of $13,017.90 since the commencement of suit.

Somewhat more than 18 months thereafter defendant filed an amended answer, reiterating his former defenses, and increasing the amount claimed for damages and counterclaim to $20,921.11.

Plaintiff filed a reply to this amended answer, claiming that on June 24, 1879, defendant entered into an agreement which abrogated the agreement of May 28, 1879, under which defendant claimed; that this agreement was entered into between Shipman on the one part, the Straitsville Coal Company, the Straitsville Central Mining Company, and J. S. Doe & Co. of the other part, and that it was understood thereby that this contract superseded all other contracts between the parties relating to the coal trade; that, by its terms, plaintiff was to furnish one-third of the coal called for, and no more, at the market price for such coal for the time being at its mines, except so far as the defendant's then present trade and orders were concerned, which were to be filled at the price to him of 70 cents per ton at the mines, each of the parties to the agreement furnishing one-third of the coal necessary therefor.

This contract, the construction of which is the material feature of this case, is as follows: 'O. W. Shipman, Straitsville Coal Co., Straitsville Central Mining Company, and J. S. Doe & Co. agree with each other as follows:

'Shipman agrees to represent the entire interests and sales of the coal of the other three parties aforesaid in the trade that may be denominated the Detroit trade by rail or by vessel to Detroit, or to and through Detroit, Michigan; that he will confine himself to the use and handing of their coal alone in all his sales of soft coal for whatever use or purpose or market, taking the same from them in equal quantities; that he will turn in all his present trade and orders on their coal at the price of seventy cents per ton at the mines, and that he will take care of all freights, and pay them for their coal by the 20th of the month next after each separate month's delivery to him at the mines of said other three parties, and that he will labor to improve the market price of said coal, giving to said parties the advantage of whatever improvement may be made in the market for said coal, asking no greater part of such increase himself than shall be his fair proportion thereof; and that he will keep his books, sales, and contracts of coal all open to their inspection at all times. Said other abovenamed parties agree to sell coal to no one to conflict with the interests of said Shipman under this agreement, and that they will aid and encourage the trade of said Shipman in all lawful ways in their power, so long as he shall confine his sales and operations in soft coal to the product of their mines.

'Given under our hands this 24th day of June, A. D. 1879.'

[Signed.]

By consent of parties in open court, an order was entered June 18, 1883, referring the case for trial to Richard A. Harrison, 'a master commissioner of this court,' who was directed to report the testimony, with his findings of fact and of law, separately stated, to the court.

In December, 1884, the referee made a finding of facts, and propounded to the court five questions of law upon such facts, viz.: (1) Whether the contract of June 24, 1879, superseded that of May 28th. (2) Whether such contract were joint or several. (3) As to the meaning of the clause 'that he will turn in all his present trade and orders on their coal at the price of seventy cents per ton at the mines.' (4) Whether the three companies were required to furnish defendant coal to fill contracts, made by him for future delivery, at the market price of coal in Detroit at the time defendant made such contracts, and not at the market price at the time such coal was actually delivered by the plaintiff to the defendant. (5) Whether the contract was terminable at the will of either party.

Answers were made to these questions by the court, and on May 23, 1886, the referee made his report, applying the law as declared by the court, and awarding the plaintiff the sum of $230.74, with interest from August 1, 1880. In the meantime defendant had filed a second amended answer, to which plaintiff replied, and to a portion of this reply defendant demurred.

Both parties excepted to the findings of the referee. The court passed upon the exceptions, reconsidered the questions of law submitted by the referee, reaffirming the answers given, except to the fourth question, declaring that the former answer to this question was wrong, giving a new answer, and recommitting the case to the referee.

December 13, 1889, the referee filed a supplemental report, applying the interpretation of the contract given by the court to the facts as found, and finding the amount due plaintiff to be $9,282.81. This report was approved and confirmed, and it was ordered that the findings of the master stand as the findings of the court. Thereupon the court gave judgment for the plaintiff in the sum of $9,282.81, with interest from December 3, 1889. Defendant subsequently procured a bill of exceptions to be settled, and sued out a writ of error from this court.

Alfred Russell and F. D. McKenney, for plaintiff in error.

J. Holdsworth Gordon, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.