The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-02-06
SYLLABUSES
Of Some Appeal Cases Recent
Iy Decided by the State
Supreme Court.

Syllabuses in some cases just de-
cided by the state supreme couft are
as follows:
Bare '. Victoria Coal 6 Coke Company
1. In an action by contractor
against the owner to recover damages
for breach Of a contract to mine coal
at stipulated price per ton and stip-
ulated sums per lineal yard in add
ton for driving entries and break
throughs, a declaration charging that
while plaintiff was engaged in per-
forming the contract on his part, and
according to the terms thereof, and
had furnished defendant a statement
of coal mined and the number Of
yards of entry work and break
throughs, and showing the amount
due him, defendant refused to pay him
for such yardage, or to carry out the
contract on its part, and SO conducted
itself in other ways as to prevent
plaintiff from further performing his
part, and counting for gains and prof
its Is good on demurrer, as stating a
breach by defendant of a material
part of the contract and emitting him
to treat the contract at an end, and to
take an immediate action for damages
sustained.
D. The general rule in such case
is that where one party repudiates
the contract and refuses longer to be
bound by It the injured party has an
election to pursue either OF three
remedies He may treat the contract
as rescinded, and recover on quantun
merit so far as he has performed; or
he may keep the contract alive for the
benefit Of both parties, being at all
times himself ready and able to per
form. and at the end Of the time spec
flied in the contract for performance.
Sar, -,
or he may treat the reputation as
putting an end to the contract for all
purposes of performance, and sue for
the profits. he would haVesrealized, re
he had not been proven ted. from per
forming. In the latter case, the con-
tract would be continued in force for
that purposS."
8. The general rule. however. is
that the reconciliation of the contract
by one party which will excused per
Torrance by the other must be un-
equivocaI and absolute, must deal with
the entire performance of the con
tract, or must relate to such material
part thereof as to prevent performance
by the other; slight breach, or a
breach OF an inmaterial part by one
party will not excuse performance by
the other.
A. Evidence taken down by shorts
| tilted by him and covered into a bill
CT exceptions or certificate of evidence
by the court, may, on the death of the
witnesses, be read as a deposition on
subsequent trial of the same case,
involving the same issues.
5. In an action by such contractor
1 to recover damages for breach by de-
i PENDANT of a contract to mine coal,
preventing further performance of the
! contract BY plaintiff, and counting for
\ gains and profits thereon, the meas
4 ure of damages, according to the gem
|. era1 rule, is the difference between the
\ cost of performance and the price
stipulated in the contract.
n 6. Where in such action plaintiff
counts for gains and profits he may
as an element of damages covered by
gains and profits, prove what he has
in good faith laid out and expended
on the faith of the contract. includinr
the value of his own services. If he
goes further than this he Will be sub
iect to the rules OF law as to the char
acter of the profits which may be then
claimed,
I. POINT OF the syllabus in Ban
Mister " Coal Co., SO w. Va, SOP, re-
afirmed and applied.
8. Where on special interrogatof-
les the jury makes separate bindings
OF items making up their general yer.
dict, some OF which are and others
are not recoverable in the action IN
less plaintfm enters q FemittitHf fol
such parts or items not recovered BILE
the court can not on motion OF de
fendant reduce the verdict by thu
amount thereof but on defend MT
: motion should set aside the aic