C. G. Blake Co. v. W. R. Smith & Son, Ltd.

133 S.E. 685, 147 Va. 960, 1926 Va. LEXIS 298
CourtCourt of Appeals of Virginia
DecidedJune 10, 1926
StatusPublished
Cited by22 cases

This text of 133 S.E. 685 (C. G. Blake Co. v. W. R. Smith & Son, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C. G. Blake Co. v. W. R. Smith & Son, Ltd., 133 S.E. 685, 147 Va. 960, 1926 Va. LEXIS 298 (Va. Ct. App. 1926).

Opinion

Ckump, P.,

delivered the opinion of the court.

This is a writ of error from a judgment against the defendant in a proceeding instituted in the circuit court by a petition in foreign attachment in which the principal defendant appeared and a trial was had before a jury. There was a verdict for $28,000.00, which, on motion of the plaintiff, was set aside as inadequate, and the court being of opinion that the evidence plainly showed that the plaintiff would be entitled to at least $98,345.00, rendered judgment for that amount. The plaintiff in error here, C. G. Blake Company, Inc., was the defendant on the trial and W. R. Smith & Son, Ltd., was the plaintiff on the trial. The parties in this opinion will be referred to in the positions they occupied on the trial, and therefore W. R. Smith & [965]*965Son will be referred to as plaintiff. The petition set out that the defendant had agreed to furnish bunker coal for steamers managed and controlled by the plaintiff, and which should be bunkered at Newport News, Sewall’s Point or Lambert’s Point in Virginia. A copy of the contract is filed with the petition and in order for a clear understanding of the ease it is now transcribed and is as follows:

“New Yokk, N. Y., February 24, 1920.
“Memorandum of Agreement between W. R. Smith & Sons, Ltd., of Cardiff, Wales, hereinafter called the buyers, of the one part, and the C. G. Blake Company, Inc., of the other part.
“The C. G. Blake Company, Inc., agrees to supply the coal required at the undermentioned ports for customary replenishment of bunkers of steamers of which buyers are registered managing owners, the coal not being for account or use of time-charters of buyer’s steamers, and the buyers agree to take coal exclusively from the suppliers at such ports.
“Steamers to lie at customary anchorages, provide a free side and give free use of winches, tackle and winch-men, and to load in the customary turn and manner in accordance with the practice of each respective port, subject to weather conditions. Coaling to be done during customary hours. Extra expenses, if any, incurred for Sundays, holidays, night work and for coaling in quarantine shall be for steamer’s account.
“Prices to be as stated herein.
“Newport News, Va. Blake New
River Coal.....................
“Sewall’s Point, Norfolk, Va. Blake
New River Coal................
‘ ‘ Lambert’s Point. Pocahontas Coal.
16.20 per ton of 2240 lbs. delivered at chutes.
[966]*966. “The dumping and trimming charge as assessed by railroad company per ton of 2240 lbs. will be made upon total quantity taken.
• “Terminal or port charges, docking, undocking, running of lines, agency, stevedoring, war tax, etc., to be paid by buyer, price inserted is based upon government fixed price and subject to any revision. Any extra duties, taxes, change in railway rates, port charges and other charges, either at the country of origin or of supply levied on coal after signing this contract shall be for buyers account.
■' “Payment for coal supplies and disbursements is to be made as follows: In cash, at port of shipment or at suppliers’ option by honor of captain’s draft in sterling, at- current rate of exchange on managing owners, at 30 days sight, payable in London, without right of set-off1 or counter-claim. In the event of failure to honor any draft for coal or other necessaries, this and any similar contracts in force with the C. G. Blake Company, Inc., shall be subject to cancellation by the C. G. Blake Company, Inc., without notice.
“The suppliers shall not come under any liability for complete or partial nondelivery or delay in delivery of coal resulting from inability to supply arising from the act of God, perils of the seas, ice, war, hostilities, riot, arrest and restraint of princes, rulers and peoples, political disturbances, or impediments, epidemics, quarantine, fire, pestilence, accidents in mines from which coals contracted for are intended to be drawn, or in docks, obstructions on railways, shortage of trucks, strikes, lock-outs, whether general or partial, stoppage of pit-men, trimmers or other labor difficulties at home or abroad, or from circumstances, hindrances or accidents of any kind whatsoever beyond suppliers control, whereby the working of the business is affected.
[967]*967“This agreement comes into force February 24, 1920, and is binding until January 1, 1921, only upon the suppliers when accepted by them and covers steamships listed on back hereof.
“Buyers, W. R. Smith & Sons, Ltd.
“By W. G. Liley
“St. Just Steamship Co., Ltd.
“Leeds Shipping Co., Ltd.
“CORNBOROUGH SHIPPING Co., Ltd.
“Accepted:
“The C. G. Blake, Company, Inc.
“By F. S. Walden, eastern manager.
“If service not satisfactory, owners at any time to be at liberty to cancel this contract.”

It was alleged in the petition that up to about July 14, 1920, the defendant supplied bunker coal for steamers that were bunkered at the three several ports mentioned, but that on that date the defendant notified the petitioner that it would not supply any more bunkers for the petitioner’s steamers at the said three ports, and in consequence of the defendant’s refusal to comply with the undertaking, the petitioner was obliged to purchase and did purchase from others coal for the customary replenishment of the bunkers of its steamers. The plaintiff claimed that by reason of breach of contract so stated, it was entitled to recover the difference between the contract price of $6.20 per ton and the price which the plaintiff paid for the coal bought for the necessary bunkers of its steamers at the said ports after July 14, 1920, up to the termination of the agreement between the parties, January 1, 1921, the agreement having gone into effect on February 24, [968]*9681920. The defendant appeared and answered the petition, denying the allegations therein contained. When the jury brought in their verdict for $28,000.00, two motions were made; the defendant moving to set the verdict aside as contrary to the law and the evidence, and the plaintiff moving to set aside the verdict on the ground that the jury had found for the plaintiff upon the merits and that undisputed evidence necessitated a recovery for the larger amount above mentioned, whereupon the court overruled the motion of the defendant, allowed the motion of the plaintiff, and entered a judgment for $98,345.75. The plaintiff petitioner was a corporation organized under the laws of Great Britain and the defendant corporation was organized under the laws of the State of Ohio, both concerns having offices and agents in New York and Norfolk. Several parties were made co-defendants to the petition, and they appeared and filed answers as to their indebtedness to the principal defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
133 S.E. 685, 147 Va. 960, 1926 Va. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-g-blake-co-v-w-r-smith-son-ltd-vactapp-1926.