Samuel H. Cottrell & Son v. Smokeless Fuel Co.

129 F. 174, 1904 U.S. App. LEXIS 4743

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: January 16, 1904
• Status: Published

Opinion

WADDILL, District Judge.

This case is now before the court upon a motion to set aside the verdict of the j'ury rendered herein on the 2d day of December, 1903, because, among other things, it is contrary to the law and the evidence, and unsupported by the evidence. After mature consideration of said motion, having carefully reviewed the evidence and heard the arguments of counsel thereon, the conclusion reached by the court is that the verdict rendered in favor of the plaintiffs should be set aside, because the same is unsupported by and contrary to the evidence. The crucial point involved is whether or not the conditions at the mines of the defendant during the continuance of the contract were such as to relieve it from the obligationof the same under the clause in the agreement known as the “strike clause.” In other respects the facts may be said to support the finding of the jury. That abnormal conditions prevailed during the fall of 1902 and the winter of 1902-3 is a matter of common knowledge, and forms a part of the history of the times; but reliance need not be- had upon this, as the evidence conclusively establishes that from the 7Ü1 of June, 1902, certainly for a period of four months, conditions at the mines were such that the ordinary and usual operation of them was out of the question. Indeed, out of 60 mines in the coal district, comparatively few were operated at all, and those few under the protection of a military force. Normal conditions were not resumed until about the 1st of March, 1903. This is established by the evidence of the plaintiffs’ own witness Mr. Morris O. Brooks, a gentleman of intelligence, who had ample opportunity of knowing the conditions existing, and who testified with such frankness, fairness, and clearness, and showed such familiarity with the entire situation, that none could fail to be impressed by his evidence; and as to the conditions mentioned he is fully sustained by the evidence of the defendant company. At an early stage of the strike little or no coal was mined, but the defendant never discontinued work entirely, though conducting its business by means of an armed force, employed as well at the mines as in the effort to transport coal therefrom. The output was comparatively small, and produced at greatly increased expense; so much so that the coal more than doubled in value. Even after the return to normal conditions, the cost of mining and the price of coal were never anything approximating those existing at the time of entering into the contract. The strike clause in the contract was manifestly inserted for the purpose that when conditions existed which placed it beyond the control of the party of the first part to the contract, the defendant here, to carry out the same, it should ■operate to relieve it from the provisions thereof. That such conditions did exist during the life of this contract which placed the mining and transportation of coal in the usual course of business beyond the defendant’s power, is too apparent to admit of serious doubt. Indeed, it is the one thing, in which the evidence of the plaintiffs and the defendant concur; and to allow the verdict of the jury to stand based upon the failure of the defendant to furnish coal during the strike would, in effect, be to annul that important qualification and condition in the contract, and to give to it no effect whatever. The language in reference to strikes is: “Deliveries * * * are subject to strikes, accidents, interruptions to transportation, and other causes beyond the ■control of the party of the first part, which may delay or prevent shipments.” The existence of the conditions do not avoid the contract, but only suspend the operation of the same during their pendency, which in this case was from the 7th of June, 1902, to the 1st of March, 1903. For the failure to deliver coal during that period, no recovery should be had, and the plaintiffs can only recover for such coal as they ■called for under their contract, after the restoration of normal conditions at the mines — that is, after the 1st of March, 1903, to the 17th of April, 1903 — which, according to the evidence, consisted of two car loads ordered by the plaintiffs on the 2d of March, 1903.

The court’s attention has been called to the case of Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 Fed. 256, 51 C. C. A. 213, which bears upon the general subject under consideration, but otherwise throws no special light on this case, as the same turns entirely upon the sufficiency of the evidence adduced to support the finding of the jury.

The verdict, as rendered, will therefore be set aside, and a new trial awarded herein.