VIRGINIA IRON, COAL & COKE CO. v. WOODSIDE COTTON MILLS CO., 6 F.2d 442

WOODS, Circuit Judge. This action was ■for the recovery of the purchase price of coal sold by plaintiff, Virginia Iron, Coal & Coke Company, to the defendant, Woodside Cotton Mills Company. Defendant admitted liability for the price of coal delivered, but set up a counterclaim for damages arising from the alleged breach by plaintiff of its contract to deliver coal. The only matters in issue on the trial were the validity and amount of the counterclaim. The trial was conducted in the usual way before the judge and jury until the evidence had all been taken.

At that point both sides moved for a directed verdict, and agreed in open court but not in writing that the case be withdrawn from the jury and submitted to the court. The ease was then taken from the jury, and thereafter the district judge filed a written opinion sustaining the counterclaim for damages for breach of the contract, and ordered judgment to be entered in favor of the plaintiff for the amount claimed, less defendafit’s damages for the coal -undelivered. There was no instruction by the judge to find a verdict and no verdict by the jury.

The testimony was Avithdrawn from the jury and submitted to the judge for.his decision. We see no escape from the conclusion that in reality the district judge tried the ease by oral agreement without a jury. A trial under such an oral agreement is in the nature of an arbitration and the findings of law and fact made by the judge are conclusive and not subject to review in the appellate court. Campbell v. United States, 224 U. S. 99, 32 S. Ct. 398, 56 L. Ed. 684.

As there may be doubt as to the correctness pf this view of the agreement to submit the issues to the judge, wé consider the ease under the construction of the agreement most favorable to the plaintiff, namely, that the agreement was intended to be a request for a directed verdict from both sides, and amounted to a submission of the questions of fact only to the final decision of the judge. If this view be taken, the parties are concluded by the findings of fact by the district judge, but his conclusions of law are reviewable by this court. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654; Sena v.

American Turquoise Co., 220 U. S. 497, 31 S. Ct. 488, 55 L. Ed. 559. The contracts were in Avriting, and the parol evidence made no serious issue of fact. The decision depended on the construction of the written agreements. The first contract of April 27, 1922, was for the sale by the coal company to the cotton mill of the mill’s estimated requirements of 9,000 tons of coal, to be delivered from its Linden and Tom’s Creek mines in approximate equal monthly installments, beginning May 1,1922, and ending April 30, 1923.

The contract provided for increase and decrease of price in proportion to any increase or decrease in mine wages. It also promded that deliveries should be subject to delays caused by ear shortage or other causes beyond control of the seller. Owing to alleged ear shortage at the mines mentioned, the coal company in September, 1922, had fallen behind in its deliveries of coal.

By correspondence beginning with the letter of the cotton mill dated September 28, 1922, and ending with the letter of the coal company dated October 18, 1922, the cotton mill agreed to pay an increase of price of 79 cents a ton on account of the increase of price of mine labor; and the coal company agreed, subject to ear shortage, to deliver to the cotton mill its full tonnage including past shortage, and 70 cars of coal in addition, using if necessary coal from its other mines.

This correspondence clearly proved a new contract that the coal company would supply the entire contract coal from all its mines, subject only to ear sbortgage at all its mines. There was undisputed proof of car shortage after this time at Linden and Tom’s Creek, the mines, mentioned, in the original contract, but no proof of car shortage at the other mines of the coal company.

The district judge therefore correctly held as a conclusion of law that the plaintiff had not made the proof necessary under the new contract to relieve it of the obligation to furnish all the coal called for by the original contract and the

U) ears additional. This shortage of coal was to be shipped as soon as possible if desired and requested by the cotton mills. The cotton mills made the request from time to time. As no definite time of delivery was stipulated, a reasonable time will be implied after the request or demand of the cotton mill.

Allowing that the shortage of coal should have been delivered at reasonable intervals after the request of the cotton mill, there was no injustice in measuring the damages for breach of the contract by the difference between the contract price and the average market price for the months of October, November, and December, 1922, and January, 1923, during which months the plaintiff failed to meet the defendant’s calls for coal at reasonable intervals. By parity of reasoning, we find no error in the measure of damages for the failure to ship domestic coal.

The issue of waiver of defendant’s claim to domestic coal was decided in favor of the > defendant, and is not reviewable here. Affirmed.