
    
      Opinion issued March 16, 1983
    
    WAYNE K. BAKER, d/b/a BAKER COAL COMPANY vs. DEPARTMENT OF HIGHWAYS
    (CC-80-405)
    
      Andrew Fusco, Attorney at Law, for claimant.
    
      Nancy J. Aliff, Attorney at Law, and Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   WALLACE, JUDGE:

In August 1980, severe rains caused flooding in Monongalia County, West Virginia, washing out a number of roads. The respondent used rocks to stabilize stream banks along many of these roads. On August 20, 1980, the claimant was requested to furnish rocks, which were a by-product of claimant’s strip mining operation. Rocks were loaded on respondent’s trucks between August 20 and October 6, 1980. The respondent has refused to pay for the rock supplied by the claimant and the claimant now seeks an award of $22,800.00 for the rock.

The evidence elicited at the hearing was in conflict on the question of whether the respondent was informed that payment would be requested for the rock. It was uncontroverted that the respondent took a quantity of rock, which the claimant estimated at 475 truckloads, of 16 tons each, at $3.00 a ton. No records were kept for the entire period. One of claimant’s employees kept an informal record for part of the time, but the record was lost.

It is clear from the evidence that the failure of the parties to make their intentions known has left the parties in an ironic position. The respondent could have received rock from another mine site for free, but went to Baker because it was closer. The claimant had a client to buy its rock for $3.00 a ton, but instead furnished the rock to the respondent. The respondent has received a commodity and for this, there is liability. As there was not adequate evidence produced to show that 475 loads of material was taken, the Court makes an award based on a figure of 187.5 loads. The Court has determined from the evidence that an average of one to five trucks hauling an average of one to five loads per day for a 30-day period, with 16 tons per load would total approximately 3000 tons of rock. Based upon the $3.00 a ton figure at which the claimant normally sold the rock, the Court hereby makes an award of $9,000.00.

Award of $9,000.00.  