CHARLESTON.

#### Fuel Distributors, *Inc. v.*Payne-Baber Coal Company

(No. 6383)

Submitted April 30, 1929.

Decided May 7, 1929.

(Rehearing Denied July 17, 1929.)

*John T. Delaney,*for plaintiff in error.

*E. L. Hogsett*and *David F. Sheets,*for defendant in error.

*466Woods, President:

Tbe plaintiff filed its notice of motion for judgment by which it sought to recover damages from the defendant for the alleged breach of-a contract to sell coal. Issue was joined on the counter-affidavit of the defendant and a jury trial had. The jury found for the plaintiff and defendant complains on the ground that the verdict was contrary to the law and the evidence.

The plaintiff’s testimony was to the effect that the defendant entered into a contract whereby it agreed to sell plaintiff approximately five hundred tons (of ten carloads) of Elkhorn run of mine coal at the price of $2.00 per net ton f. o. b. mines to be shipped by way of the Chesapeake & Ohio Railway by the defendant from its mines located in Kentucky, to Lake & Export Coal Corporation, Newport News, Virginia, on the first day thereafter on which there was no embargo in effect on shipments to tidewater. At the time of this contract the defendant had notice that the plaintiff had a contract with the Lake & Export Coal Corporation for the re-sale of the coal which was the subject matter of the contract.

The defendant, on the institution of this action, took the position that it sold and contracted to ship to the plaintiff the number of cars of coal loaded by it on September 30, 1926, and that on that day it loaded four cars only. It shipped three of the four cars loaded on that day, and to make up the fourth, according to defendant’s contention, it shipped two cars on October 14,1926, and two cars on October 28, 1926. In other words, the defendant claimed that it had fully performed its part of the contract — in fact shipped more coal than it had contracted to do.

The correspondence and telegrams between the parties were introduced in evidence. The case was submitted to the jury, without instructions, and the jury found for the plaintiff in the sum of $538.63, and upon the plaintiff remitting ten cents per ton on the undelivered tonnage to compensate the defendant for the freight differential favorable to it,- the motion to set aside the verdict and grant a new trial was overruled and judgment for the sum of $523.94 rendered in favor of the plaintiff.

*467Was tbe verdict supported by tbe evidence? After becoming advised tbat only three cars bad gone forward, tbe plaintiff, on October 7tb, wrote tbe defendant to ship tbe balance of tbe coal at tbe earliest date possible, and like demands were made from time to time. Some days prior to tbe shipment of tbe sixth and seventh cars, defendant reported three cars (which, if shipped, would raise tbe total to eight). Another request followed tbat report, asking tbat two cars be forwarded at once “to complete” tbe contract. In tbe meantime tbe shipment of tbe three cars was cancelled. Tbe sixth and seventh car then went forward, as defendant says, “to complete” tbe contract. Defendant argues tbat tbe request just mentioned clearly shows tbat tbe plaintiff did not understand tbe contract to be for ten ears. ■Such a position, as we see it, is untenable. It was not shown that- tbe plaintiff bad notice of tbe cancellation of tbe three cars at tbe time of their last request. These three ears (bad they been shipped) together with tbe sixth and seventh ears, when added to tbe five already delivered, would have made up tbe ten cars. Tbe order sent tbe defendant in confirmation of tbe oral contract on Sentem-ber 30, 1926, tbe date tbe embargo lifted, supports tbe theory tbat tbe agreement was for approximately five hundred tons, or ten cars. This shows tbe consistency of tbe plaintiff’s claim from the beginning. After tbe making of tbe contract to sell tbe coal at $2.00 per ton, tbe prices began to rise and at tbe time of tbe shipment of tbe last two loads of coal (cars six and seven) tbe defendant advised tbe plaintiff tbat they were getting $6.10 from everyone else for coal. It is a rule of universal application by tbe courts tbat tbe actions of parties under their contracts sometimes have a great deal of weight in showing what was meant by tbe terms thereof. They are far less liable to be mistaken as to tbe terms of their contract during a harmonious operation thereunder, than they are when subsequent differences impel them to resort to tbe law and one of them seeks to recover on tbe contract as be sees it. It is common sense tbat a company is not going to continue shipping coal to a purchaser when prices are soaring at a stipulated contract price, when it is not bound to do so. Tbe actions and communications of tbe controversialists all sup*468port the terms of the contract contended for by the plaintiff. It is a ease where “Actions speak louder than words.”

But the defendant further complains that conceding there was a breach of the contract, the proper measure of damages was not exacted by the jury. Generally, the measure of damages where a vendor fails to deliver goods sold is the difference between the contract price and the market value at the time when and the place where the goods should have been delivered; but if the time of delivery be postponed by agree-1 ment of the parties, express or implied, or by their aequies- | cence in such postponement to a subsequent date, the latter is [to be considered as the time for 'the comparison of values. 1 *News Publishing Co.*v. *Denison-Pratt Paper Co.,*94 W. Va. 236. The account sued on by the plaintiff in the instant case, proceeded on the latter theory. The facts in this case warranted this action. The jury, who were not instructed as to the measure of damages, returned a verdict in accordance with the claim of the plaintiff. The fact, therefore, that the Export Company went into the market on the latter date and bought coal to replace the shortage occurring through the legal dereliction of the defendant did not act to the detriment of the latter. It was liable in damages to the difference between the contract price and the market value of the coal at the time and place where the Export Company made such purchase. The fact then of whether notice was given to the defendant of the proposed purchase becomes immaterial.

In view of what has been said it follows that the judgment should be, and it accordingly is, affirmed.

*Affirmed.*