xt70zp3vt865_283 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Ogle Coal Company v. Martin, G.R. [Part I] text Ogle Coal Company v. Martin, G.R. [Part I] 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_26/Folder_7/7204.pdf 1921-1930 1930 1921-1930 section false xt70zp3vt865_283 xt70zp3vt865 . n.3TtCK1 quZK LM .11.ALS,
Dc:c:1~11'zber it}. 11929.
‘ {if}. :ji‘n‘l cjf E"".:_ 1111312114., 141:: of
Tuinh ertinent to 157‘s: aw\r( 1‘1-£123:
‘ "T1“ 1:.; agree-xnmt, W_:d.€1 1 rntcred i1;.' 3 ‘3:: .1712}: Guy A
1 cf Er’m‘v’<:mi)cr 1.9.1211, by 21d hem-2:01“; (3. R. fiartirn 1332'? GIFT;3 39114-313.
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(:C.JL11’)L§,‘, Remix ’3 pm't‘; (.‘: /L‘§:2(= .1.’ir€:t part, 11.11;? U: 11 Can} (7111;432:127511,
cor wration c-rrsnizaeci ;‘r. (ifiijz‘oiné'; 1m: {11' “MC 1:21.15 01‘ the State
of Indiana, party 1i" the second part. h
"1111;116:312 h: T2121; 1;}1521’2‘1113, on 132:2:- 2,‘.E:‘1;Ei». (151;, of iiovcmber.
1921, J. N. flask, principal 0f the J. I!- 211-121; Coal Coxrz_g.»a,ny, V ..
721111113211 11110, J 01:11:;013 County Kt,’¥1t1-C}{y, made, executed. and 1.2.61-
ivcreai t1) the party 01" the second part, a con '1.:-1.1.01; for the output
qf the coal of 1:115 minés. :1 coy of contract hereto uttzmhed, and,
"1:.-hereus. the party of the. firut part 112.12.: rendered
:.:ervice to the party of the secqnd part herein, and 1111:; been . ,5

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instrumental in the securing oi solo coal. F
"New, in consideration of the contract «no further g
consideration of the services rendered by the said garty of the 3
first part in procuring «he execution and delivery of said con~ T
2;
tract, it is agreed by and between the parties hereto, as follows, ;
g
“to-tit: 5;
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”First - the arty of the second ‘ ; surges to pay to g
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the said party of the first wort for hTe services On or before %
the 15th day of each and every month tiring the lilo of this %
contract or any renewals thereOI, or, as long as th* sold farty
of the {86001210. part mm; “hand 1:) 221' _" 1:” the :3" .Li so" , Um." minimum ;
sum of five (So) cents per hJfl on $11 C’fil sold up to £3.50 oer 1
ton and. him (Jo, (nuts nor LC??? for «1.3, . 3 affix? on: ".:naii above
53.50 per ton, and aloe :.: 11h: :‘z‘ilmm‘t (In.,/v1 :;:-"5. :21]. other coal {
4"
which 1’11st be secured by i: ‘d c if "he first art.” 3
Through the e”“21as of the appellee, The Turner— ;
, l
Elkhorn Coal Company, a writte‘ contrwc: of date n March 10ml, 3
19:2, constituteu the appelloi its exclusive agent for the sale }
of the out- of its mix, For the period beginning .ith the date
oi tor: CLEJLIYiC : ‘ " a“ an; Edit}: the: éJ.si (is: of. it r<fl1, lséifi. It
;
stands admitted trot the Turner—Mlkkorn Coal Company renamed ;
this contract fo the period April 1st, 1923 to march 31st. 1924,
and again for the .criod Agril 1st, 1924 to March Elst. 1925, ”
but that the appellee had nothing to do pith these renewals and
indeed the first of them was made in spite of his efforts t: pron
vent such action on the part of the Turner~Elkaorn Ceal Company.
The appellant paid the appellee his commissions under his ems-
loyment contract of November 25, 1921, for the cool of the Turner ' A

 , if“ (it? - 3
‘ i
l
Elkiern eoal Company enieh it sold for the period ending March E
31, 1935, but dcelirro tn pay him for tie periods ending Sarah E
.'.
51, 1924 and March 31, 1925. whereupon appellee brought this ;
suit for $2482.50, whie. it is concedid appellant owes him if S
t,
eppellce is entitled to any commissions under his employment J
i
j , contract for the tee gerioda for 2313b it declined to pay him i
l :snyt‘i‘lihg. (in 11..': trial, t .:‘ :::;gtellce rec" _ .. reimlict for r
a l
: See «mount for xii-.:ieiz ‘Ee tugged :.nd from judmant "Le-Jed on i
% {Tart varh210t ‘thie 3% pee], in ;J¢03€ifl,tcdlv , §
5 The eantxxxzt of employnnnrt of rate Hovia r s5, lgal. l
i taut; rzrggratLia in it t;:rt:.e<;1; i.-w: zugygrc ‘ ‘,v'._" r. .3;‘» ii. ;L. 1:0 LLLRl , Elie ;
‘ ther: 5:51:21. r1711:3gge:r :J. ‘L‘::.:-* :23: 7) .13. 32’s.. ’.i‘hi :::.gwgicllec £13215; :2 t" at no '
i one was present during the regotigtiona bd' Hr. Ho dad ufifi l
i :imself. fir. Uwuare mam not acoduecn a; A Linnea: in date ease %
‘ .rri the ;,2 all fit went; to *QQHHl lifiaijt his; testixwwqrrand ‘filfilout ‘
i any camel int about his dtsenet. Hr. 3“ a. 9519, Vice President ,
‘ of the apycllaet. tentizied, >§2y6cr, that Le ans present during
; “he fiegotia‘ion: bctnetw fly. r rard out the appellee. chr the
l Dfigflllflflt'fi "~Ctiwns, h: appellce nae permitted to testifiy
2 /
; ttat the parties 3 the employment contract intended that the
? aspellcr should czeive tax Lemmiseiens pxovioed far by that
' contract on :11 o :1 wold b; tic Lpftllflni for coal companies
3 he matter when sold if the mppellre initially secured t.e agency
3 ior the epprllant and even tlough appellet played no dart thatu
; aver in «my subsequent renewal of such agencies. althouLh Ogle
testified that he was present during the nepotiations bateeen
' . Howard and the appellee. he tub net UHCStiOHCd as to that the
parties meant by their contract nor did he deny what the appellee

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i
. §
§ testified in this regard. As the uole issue under the plead— 3
.1 - 3.
.i V ‘ ‘ 1 1 . _ - ‘ L
1 Lugs has xuethe1 the apne1lce was entltied to the comm1351ons g
1 53
i‘ ' ' | "i 1 ' ,‘. v . ‘
g ‘ he claimed under 116 aermu 01 this nontract m1 employment, -
§ appellput insists that it 1.1 err“? fur Lft court to uguit this
j Lestimcfiy of the eppellec an“ crrur for tie Court to Lila; the g
. jury o. itg instructiamm, as it iid, Lu unnui (r gucy Lgutimony I
a . . . . ., . , , ‘. . . . . . . , . . . ’-
5 1n arr1v1nb an an13 vuxu1ct. whe upggl aw; « qua tnafl 1t 1
i ,1
5 La: entitled La 1 perempnoxy infitruot'o . On LLQ “ 3;; u ad, é
‘ by ellea inmistfi L113 a pruper constrx tion 5f Lib employment 1
2 contract entitltfl him cw poreywtory utxuctior. nut that if 1
3 r
3 he 11 in errur AncuL Luis, E Vmw i"’ ” LHL 1111 L0 1133 um i
3 instructien bcoyuae L*c cvi: 3&1 comglu110d a: has grogerly E
i §
1‘ mhéi 1.1-(:11 1.1-1‘.}. 1% 11 1..(; 0!}. 1‘: {ii 3 " (.:.1, u . g
3 1301;};- »ILvL “5 1'; L'. 7 :.a- . i L c2121" <1 1:11: 1:1: ‘. .5;-g 1:111"; , the E
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I dcugrui 1u11 tguu wt cad ‘u Emimu; v. tquirc, 188 figa ?l£. '
1 . . =v
i 223 a“ I. 1101: h
i ”It 11 Blflfl ruur,'luw ,Eat 1L6 intentic: Cf the L
1 .
1 artiem in Lhc executl'. mi n“edm and aih r iik: ins,rumcuia
\ 1
3 \\.,//
i cinszwsls 1;;L: 0"15;1110Li(n1, :;n< 33u11 zuien ‘Lflt~ i:u;tr1uaer1t 1:1 3
i I .. fi/ . , . ’4
1 Lain on 1&5 1u0t =n- irtu 130m ambigUltj flhfilr lntantlon must i
, .
3 be éubbarcd from an inggcction or t>c insirument 1 self with»
i cut aha aim of ax' inmic evidence, gut if tfc inutrumsnt is so 3
ambiguous as to leave the mind in doubt as ta what the parties ;
intended, extrinsic evidsncc muy be r sorted to a: an ;id in g
’ . 1I.
the construction of tufi instrument, ultkough 10 (ffort in made %
to reform it on the ground of fraud or mistake." , 1
$0 the iflrgt ingestion \Azidh confrunts Lu; 3 :hether %
the contract of employment is so ambiguous as to leave the mind *
s
-4;
"W

 3

g

{11:30 - 5

' in «1012:..11. :3 1.0 11:31.1.E1Ii". ta:- gymrtivs intended. (in 51.. blush, the

‘ :0ut:ucL ugcm; to suaynrt the appellne in his conttniion as to 1

”1.1526- 5?:‘0546’1‘ ammtmtlction 3:31:10}: Should. be 3111”: u an it. 13‘ $0, 1‘-_

Lhfifl h: was entitled to a parcmptory inuttuction and appellant f

haw no just cause t0 campluin 0f the vergict 3nd Judgment. 5

But {firtncr gaudy 0f the contr:ct 6065 not make “ppullee'fi i

1 contention go manifest. Dig the pfOVi“; 1A L“ employment g

. 1/ .

contract as}; to the uh: 00:1.1 1'(5;;023:sibili'i,§,r I
of vmrclg arri n: at the proner intention of ita terms fully

juetiiied the lama: gourb in ndmizting the evidence he did i

.nd as it stead unconfirudicted, and ixe prOpGT construction %

30 b: Hat on the contr&ct being tle only igsue in the case. 5

uhfi lowey court mould have bean authorized to have instructed J

. I;
peremptorily to find for fine ugpcllee. The appellanfi mfly not

complain €43.92: Jim-t ”(13.5.0 case new. subunit: :1 1.0 t jury. 1.

'______________—————~--—, _ ' , 1,

 page .. 6
b‘indim m;- error I‘mudicie‘l to the :subst2:2.n‘b':;:l lights of the
7 £:,[w}_;}fi':‘.l€3,11t, the judgment :21” ’( low-«er court in :.:.fi‘irrned.

J05». I). fittings, Wrestonsburég, Ky
For .i‘. i)£—‘.ll£.:,nt. ' \
Comm; and Allen , j 71" '301'1Liblil'é’; 2 Ky i
5, May and .xxilcn. " ’_
Fer 2>\;‘.2r;'2cll€c. ' ii
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KENTUCKX COURT OF APPEALS,
December 15, 1929.
OGLE COAL COMPANY APPELLANT
VS: APPEAL FROM FLOYD CIRCUIT COURT
G. R. MARTIN APPELLEE
OPINION OF THE COURT BY JUDGE DIETZMAN — - - ~ - — AFFIRMING:
On the 25th day of Norember, 1921, the appellant and
the appellee entered into a written contract, in the parts of
which pertinent to the present controversy read:
"This agreement, made and entered into this 25th day
of November, 1921, by and between G. R. Martin, Drift, Floyd
County, Kentucky, party of the first part, and Ogle Coal Company,
a corporation organized and existing under the laws of the State
of Indiana, party of the second part.
. V"Witnesceth: That whereas, on the 25th day of November,
' 1921, J. n. meek, principal of the J; N. Meek Coal Company,
Paintsville, Johnson County, Kentucky, made, executed and del-
ivered to the party of the second part, a contract for the output
of the coal of his mines, a copy of contract hereto attached, and,
"Whereas, the party of the first part has rendered
service to the party of the second part herein, and has been
HARRINS & HARKINS
, PRSZEO":::::Z,‘,§2;;‘ZM

 o ' .
page - 2
instrumental in the securing of said coal,

TNow, in consideration of the contract and further
consideration of the services rendered by the said party of the
first part in procuring the execution and delivery of said con-
tract, it is agreed by and between the parties hereto, as follows,
t 0 -w i t :

"First - the party of the second part agrees to pay to
the said party of the first part for his services, on or before
the 15th day of each and every month during the life of this
contract or any renewals thereof, or, as long as the said party
of the second part_may handle any of the said coal, the minimum
sum of five (5¢) cents per tOn on all coal sold up to $5.50 per
ton and ten (10¢) cents per ton for all coal sold over and above
$3.50 per ton, and also a like amount on anylgnd all other coal
which may be secured by said party of the first part."

Through the efforts of the appellee, The Turner-
Elkhorn Coal Company, b; a written contract of date - march 10th,
1922, constituted the appellant its exclusive agent for the sale
of the output of its mine for the period beginning with the date
of the contract and ending with the 51st day of march, 1923. .It
stands admitted that the Turner-Elkhorn Coal Company renewed
this contract for the period April lst, 1923 to Harch Elst, 1924, ,
and again for the period April lst, 1924 to March 31st, 1925,
but that the appellee had nothing to do with these renewals and
indeed the first of them was made in spite of his efforts to pre-
vent such action on the part of the Turner-Elkhorn Coal Company.
The appellant paid the appellee his commissions under his emp-
loyment contract of Revember 25, 1921, for the coal of the Turner '

HARKINS 8: HARRINS
PRESISZEEZLEJJZ

 o i '
page - 3
Elkhorn coal Company which it sold for the period ending march
51, 1925, but declined to pay him for the periods ending March
51, 1924 and march 51, 1925. Thereupon appellee brought this
suit for $2482.50, which it is conceded appellant owes him if
I appellee is entitled to any commissions under his employment
contract for the two periods for which it declined to pay him
anything. 0n the trial, the appellee recovered a verdict for
the amount for which he sued and from the judgment entered on
that verdict this appeal is prosecuted.

. The contract of employment of date November 25, 1921,
was negotiated between the appellee and Er. H. K. Howard, the
then sales manager of the appellant. The appellee says that no
one was present during the negotiations but ur. waard and
himself. mr. Howard was not produced as a witness in this case
and the appellant went to trial without his testimony and without

'V any complaint about his absence. mr. E. S. Ogle, Vice President
of the appellant, testified, however, that he was present during
the negotiations between mr. Reward and the appellee. Over the
appellant's objections, the appellee was permitted to testify
that the parties by the employment contract intended that the
appellee should receive the commissions provided for by that
contract on all coal sold by the appellant for coal companies
no matter when sold if the appellee initially secured the agency
for the appellant and even though appellee played no part what-
ever in any subsequent renewal of such agencies. Although Ogle
testified that he was present during the negotiations between
waard and the appellee, he was not questioned as to what the
parties meant by their contract nor did he deny what the appellee

HARRINS & HARKINS
PRESIOTSSEZEZJT‘L“

 c U '
page — 4
testified in this regard. As the sole issue under the plead-
ings was whether the appellee was entitled to the commissions
he claimed under the terms of this contract of employment, ,
appellant insists that it was error for the court to admit this
testimony of the appellee and error for the court to allow the
jury by its instructions, as it did, to consider such testimony
in arriving at their verdict. The appellant insists that it
was entitled to a peremptory instruction. On the other hand,
appellee insists that a proper construction of his employment
contract entitled him to a peremptory instruction, but that if
he is in error about this, he was still entitled to such an
instruction because the evidence complained of was prOperly
. admitted and was uncontradicted.
Both parties to this suit concede as they must, the
. general rule thus stated in Hudson v. MbGuire, 188 Ky. 712.
' ' 225 S. W) 1101:
"It is elementary law that the intention of the
‘parties in the execution of deeds and other like instruments
controls the construction, and that when the instrument is
fair on its face and free from ambiguity their intention must
‘ be gathered from an inspection of the instrument itself with-
» out the aid of extrinsic evidence, but if the instrument is so
' ) ambiguous as to leave the mind in doubt as to what the parties
. intended, extrinsic evidence may be resorted to as an aid in
the construction of the instrument, although no effort is made
to reform it on the ground of fraud or mistake."
So the first questiOn which confronts us is whether
the‘contract of employment is so ambiguous as to leave the mind
HARKINS 8: HARKINS
PREZE’O"::;SEZ?;Z;£.ZM '

 ‘9 o _ '
page - 5
in doubt as to what the parties intended. On first blush, the ‘
contract seems to support the appellee in his contention as to
the preper construction which should be put upon it. If so,
then he was entitled to a peremptory instruction and appellant
has no just cause to complain of the verdict and judgment.
But further study of the contract does not make appellee's
contention so manifest. Did the provision in the employment V
contract as to the meek coal reading, "as long as the said party
of the second part may handle any of said coal", refer to the
coal, the contract for which appellee had secured or any coal
of the week Company? Did the provision in the employment con~
tract reading, "also a like amount on any and all other coal
which may be secured by said party of the first part", mean
by the phrase, "a like amount", the rate of commission to be
paid for the mock Goal, i.e. five cents, etc. per ton, or the
amount calculated as in the Meek case by the rate times the
tonnage, the tonnage depending on whether the Meek tonnage was
to be confined to the contract secured by the appellee or was to
cover any mack tonnage thereafter handled by the appellant.
This statement of the difficulties in the prOper construction
to be put on this employment contract and the impossibility
of surely arriving at the proper intention of its terms fully
justified the lower court in admitting the evidence he did
and as it stood uncontradicted, and the pr0per construction
to be put on the contract being the only issue in the case,
the lower court would have been authorized to have instructed
peremptorily to find for the appellee. The appellant may not
complain then that the case was submitted to the jury.
HARKINS 8.- HARKINS
PRESL'L‘SSSZZXJSJZH

 w I -
V page - 6
Finding no error prejudicial to the substantial rights of the
appellant, the judgment of the lower court is affirmed.
Joe. D. Harkins, Prestonsburg, Ky
For Appellant.
combs and Allen, Prestonsburg, Ky
lay and Allen, I!
For Appellee.
. i
\
3'
HARKle & HARIx'INS
PR:S°:ON::::::.BI:I:1\:l:KY ,

 I f
« COURT OF A??EALS DE KEHTUGKY. f
I
. f;
OGLE COAL COMPANY, A: lhhhdw. f
VS. NOTICE. . x
2 ‘ '
o . F; . mm" 11:, A .33 . ‘
3 The uniorsiened oeuueel for apgellent in the
1 abovmghiifigu . L n n '
i above hereby-eeeegtsflreeeipt 01 a true copy 0L appellee s , .
’ motion to strike the petition for rehearing ano statement in ‘
; support thereof. a
. J
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OCL“ CO‘L CRTTLUY, AFDELLAHT. r
3
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mnhnnn - 3
3
IOFIOT TO sfliihfi FETEElOE 3
“O; fidiflfiil“fi. 3
3
The appellee, O. R. martin, now comes and moves 3
the court that appellautgs petition for rehearing be stricken 3
from the file in this cane, because there was not attached to 3
the frcnt of the said petition for rohozrinw a concise statement 3
or any statement or classification of the questions therein E
discussed, nor authorities relied upon to sustain the same as 3
, 3
3 required by Rule 5, Sec. 2 of the rules of this Court. ;
.3.
. ,.3
JERREFORE, &C., 3
. 33
ALL milifl Y b ...: 6 i A L' .1. SEE {all}: g 3
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E:

 ,, COUBT O? tUPEALS OR KENTUCKY. E
j 001;: can. no ""AE-S'Y, AE?2?.‘:;LLANT . é.
,- i . . . i,
“7 V“: . E‘ibyu antiwar? .
i m . .“.-, M 1‘
f" . :3 . _ fig ,5 A :’ ‘."iJLJJEEo ,-
4 . i
5 ,:.? 2? o CL‘ :::.»3531; FOR
1 i ’:. ,1: :31; ’3‘?OT:-.’i‘ 0.12794 Hit;
. 77(wj1 =r m, vp.‘ aw ',17; ‘n ' vi :1
int". .': 1 ,3 ,:.C :x ”.‘. ilk-‘1 .3../311' 1 (1» ,3 r
.B‘Ué’. RECiZSJ-..‘2ifé’i}. ~ i;
Rule 5, ace“ 3 cf the rules of this court reads t
as follows: : 3,
3
"finer c 7:31:14, ll 22:23 or: pa, 21;] every
_ brief, attached to the front r
. thereof, a concise statement or E
classification of the questions E
discussed; and each question a
' or principle of law for which f
f contention is made shall be i
j separately and clearly stated ’ ;
_ with the authorities relied upon, 3
: subjoined. The page or pages ‘
f of the brief on which each f
= separate question is discussed g
1 must be indicated in the ’ i
classification. In the argumentof {
; facts in the body of the brief 4
shall be.cited the page or pages 1
= of the bill of evidence on which n
g may he found_the supporting §
‘ . testimony”. Q
_ ' Rule 5, Sec. 4, of the rules provides as follows: Q
{ “Briefs not conforming to fl
; this“rule will be stricken, h
‘ with cost”. i
.2 .’J 4
F W
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Q g petition for rehearing‘ia undoubtefily a brief
7 within the meaninr of thege rules. Lgyellant fiifl not comply '
with sub-Section R abave dunked in thifi, fihufi he aid not 3
V accompany his petition with any statement or classification ‘
i‘ 'fihatever of the nuaationfi fiificuggeé, nor evan with a ligt of *
’ the authorities relied upgn.
§ 39, tharefere, submit that fine getition ghoulé
be stricken with cast as provided in fieetian 4 of Rule 5 2
above 2'=?..:0‘~563C"2.
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‘ Dear Sim-
Furtheriz phone convermtions of yesterday afternoon and
waning. " ' '- to advise that l nan Lit Combs atmut 8 2']. E.:. and gave
him my Mal: for the: costs in the case filed. against you
, in win" , the limit Collieries was tarnisheed, and secured his signs.» L
ture . an order (11 barging; the attachment and gzrrnisément, and dis-
P, miss {1: he case. .,_fj»;
Tin: Lunmmt of '16: costs was 1233.95, and 3’. will appreciate refund.
L van er oov raring; tie sate
\ . {my 0, the ord- .‘ ' - ad by 111?. Combs. am the effect 01’ which 1 ft"
in mi red :1, is enclo M‘ iii . "
I . ~ a vur st that 131:. have not already done- so, that you 5%
should at a e.