Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir. 1993) ("The question as to whether a contract is ambiguous is a question of law to be determined by the court.") The Court previously held that the Pine PSA is ambiguous with respect to whether production is required. When contract language is ambiguous, courts may consider extrinsic evidence to determine the intent of the parties. Estate of Tawney v. Columbia Natural Res., LLC, 633 S.E.2d 22, 30, footnote 5 (W. Va. 2006) (quoting from Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923)). When a contract is ambiguous, "parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given the contract by the parties themselves either contemporaneously or subsequently."
6. "'[W]here the meaning [of a writing] is uncertain and ambiguous, parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given to the contract by the parties themselves either contemporaneously or subsequently. . . .' Syl. Point 4, Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923)." Syllabus point 1, in part, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W. Va. 742, 338 S.E.2d 222 (1985).
If the parol evidence be not in conflict, the court must construe the writing; but, if it be conflicting on a material point necessary to interpretation of the writing, then the question of its meaning should be left to the jury under proper hypothetical instructions.’ Syllabus Point 4, Watson v. Buckhannon River Coal Co., 95 W.Va. 164, 120 S.E. 390 (1923)." Syl. Pt. 1, Lee Enterprises, Inc. v. Twentieth Century-Fox Film Corp., 172 W.Va. 63, 303 S.E.2d 702 (1983).
" Salisbury v. Brooks, 81 W. Va. 233, pt. 2 syl., 94 S.E. 117; Alderson v. Gauley Fuel Co., 116 W. Va. 95, pt. 1 syl., 178 S.E. 626. See also Petty v. United Fuel Gas Co., 76 W. Va. 268, pt. 1 syl., 85 S.E. 523; Watson v. Buckhannon River Coal Co., 95 W. Va. 164, pt. 2 syl., 120 S.E. 390. United Fuel contends that at the time of the making of the lease the universal custom of the natural gas industry in the Appalachian region was to base payments on all open end royalty clauses in gas leases on the wellhead price of gas; that the parties to the lease were charged with knowledge of this universal custom; that therefore it must have been within the contemplation of the parties when the lease was made; and that this custom should be employed by the Court in supplying the omission of the lease to state expressly the intent of the parties in this respect.
The proper measure of damages in this case is the difference between the contract price and the market value of the lumber at the time and the place of delivery called for by the contract. Reiser v. Lawrence, 96 W. Va. 82, 123 S.E. 451; Fuel Distributors v. Payne-Baber Coal Co., 107 W. Va. 465, 148 S.E. 854; Brooke County Court v. U.S. Fidelity Guaranty Co., 95 W. Va. 439, 121 S.E. 422; News Publishing Co. v. Denison-Pratt Paper Co., 94 W. Va. 236, 117 S.E. 920; Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390; Elias Brother v. Boone Timber Co., 85 W. Va. 508, 102 S.E. 488; 2 Williston on Sales (2d Ed.), paragraph 599; Sales, 24 R. C. L., paragraph 335. When there has been a breach of the contract by the seller, as here, the plaintiffs, the purchasers, were not required to go into the market and buy the lumber contracted for, but may sue for the damages represented by the profits which they would have received if the lumber had been delivered by the shipments at the time and the place designated in the contract, which shipments the defendant refused to make.
The ambiguity not being cleared by the legitimate evidence, the ambiguity remains, and, therefore, the court should not have construed it, but left its meaning to be ascertained by the jury under proper hypothetical instructions. Watson v. Buckhannon River Coal Company, 95 W. Va. 164. It was error to strike out all of defendants' evidence, and it was likewise error to give a peremptory instruction for plaintiff. The verdict and judgment will be set aside and a new trial awarded.
As "Lord Sugden once said: 'Tell me what the parties have done under a contract and I will tell you what the contract means.'" Watson v. Buckhannon River Coal Co., 120 S.E. 390, 394 (W. Va. 1923). PetroEdge's conduct shows that it read the Pine PSA as carrying no provision that terminates Section 5.7(b) upon assignment.
Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022; Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390, 394; Bullowa v. Thermoid Co., 114 N.J.L. 205, 176 A. 596, 599;
The writing is the repository of what the parties meant, and cannot be varied by extraneous evidence. Northern Assur. Co. v. Grand View Bldg. Ass'n, 183 U.S. 308, 22 S. Ct. 133, 46 L. Ed. 213; Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390; Smyth v. Brick Row Realty Co., 97 W. Va. 40, 124 S.E. 499; Good v. Dyer, 137 Va. 114, 119 S.E. 277; Warren v. Goodrich Strip Screen Co., 133 Va. 366, 112 S.E. 687. How should we construe Exhibit No. 3 hereinbefore quoted?
Where the evidence is not conflicting, a court must construe the contract. See Watson v. Buckhannon River Coal Co., 120 S.E. 390 (1923). Here, however, there is scant evidence as to the intent or construction given by the parties, and indeed, ambiguity was not explicitly raised.