Alwart Bros. Coal Co. v. Royal Colliery Co.

SEAMAN, Circuit Judge (after stating the facts as above). [1] The main controversy between the parties, in both of these suits upon the contract of purchase and sale of coal, rests on an interpretation of the contract terms, with the facts in reference to performance and nonperformance respectively undisputed. Upon that inquiry we believe the contract to be plain in its provisions that the purchaser was to have and take approximately 2,500 tons of coal in each month of the eight calendar months embraced in the contract—unless excuse arose, as specified—thus making each monthly requirement severable for performance, as construed by the trial court in the submission of the'issues in the original suit, No. 1999. This interpretation of the contract is applicable as well for determination of the issues in the other suit. [2, 3] 1. No. 1999 is the suit of the Colliery Company, as seller, [317] upon the alleged causes of action: (a) For the purchase price of coal delivered in January and February, 1912, and (b) for damages for failure of the purchaser to take the agreed amounts of coal in each of the prior months embraced in the contract. The verdict awarding recovery upon both of these grounds is supported by facts in evidence, and we believe the assignments of error present no cause for reversal, under the contract obligations as above interpreted. Error is variously assigned for overruling motions for a new trial, although it is well settled that error is not assignable thereupon. Several assignments are directed to various portions of the instructions given to the jury and for remarks of the trial judge “in the presence of the jury,” but each is without force for the reason that no adequate exceptions are preserved for review thereof, and were it assumed (without so intimating) that any of such rulings were objectionable, no review is authorized. The only assignments of error entitled to consideration, therefore, are those designated as third, eleventh, and twelfth, in the transcript of record. [4, 5] (1) The third assignment relates to the admission of evidence of sales of coal made by the Colliery Company to the 'Coal Company, during the period covered by the contract, which were not within the contract sales in suit, and other items of evidence, all alleged to be “not material to any issue before the jury” and tending “to confuse the jury” and induce an “excessive verdict.” It is contended on behalf of the defendant in error that the items of evidence referred to were admissible to disprove a credit claimed by the Coal Company in the case at bar for a payment' of $1,100, which was not applicable to the contract in suit, but to these other sales; and the record appears to support its reception on that ground. If immaterial in any measure, however, we understand the verdict to be in accord with undisputed facts in evidence, so that error in such reception cannot be deemed prejudicial, and in either view the assignment must be overruled. [6, 7] (2) The eleventh assignment is for denial of instructions requested, in substance: (a) That no breach of the contract was committed by the Coal Company in its failure to order “approximately 2,500 tons of coal per month” unless tenders of such amounts were made by the Colliery Company “during the months previous to January 1, 1912”; and (b) that the Colliery Company “consented to and acquiesced in the manner of performance” on the part of the Coal Company “and thereby waived its right to insist on the, defendant taking the regular monthly amount of coal under the contract.” We understand th'e first-mentioned proposition of law to be untenable, and that the last-mentioned request was neither supported by evidence nor in accord with the undisputed facts. * [8] (3) In the twelfth assignment error is predicated on' denial of an instruction as requested, in substance, that consent on the part of the Colliery Company to delay in shipments amounted to a waiver of' its right to insist on the taking by the purchaser of “the regular monthly amount of approximately 2,500 tons during the months up to January 1, 1912,” and that, if such waiver appeared, it became the duty of the Colliery Company to deliver “after January 1, 1912, such amount of coal as, with the amount shipped previous to that date, would make [318] up the full amount of approximately 20,000 tons.” Neither this assignment nor the request referred to is discussed or mentioned in the brief for plaintiff in error, and we are not advised of its assumed bearing upon the issues in No. 1999, nor whether it is relied upon for reversal; but, whatever may have been contemplated as making the requested instruction applicable, we believe no error was committed in its rejection, as it was, on any theory, inconsistent with the foregoing interpretation of the contract. All of the assignments of error are therefore overruled, and various other propositions which are set forth in the argument of counsel, not embraced in these assignments, are not involved for consideration. It may justly be remarked, however, that the verdict appears to be supported by the evidence, under the pleadings. [9] 2. In No. 2022, removed from the municipal court of Chicago, the issue involved was a claim of the Coal Company for • damages against the Colliery Company, for alleged failure to make cofiiplete deliveries of coal, as provided by’the contract, in January, February, and March, 1912. While a large portion of this' claim was disproved by the evidence under the foregoing interpretation of the contract, it nevertheless appears in evidence that orders placed by the Coal Company between January 1st and February 20th were not supplied at the rate and extent of 2,500 tons per month as required by the contract, and that the shortage therein presented an issue of default on the part of the seller. If not excused by inability to obtain cars for shipment or other cause within the contract terms, the Colliery Company became liable for damages for such nondeliveries up to February 20th, as above mentioned, and the issue thereupon was for determination by the jury. Evidence was offered by the plaintiff in error and excluded by the court tending to prove the fact and amount of damages thus caused, and we believe error to be well assigned, both upon such exclusion of evidence and upon the final direction of a verdict therein in favor of the defendant below. Neither the fact that the plaintiff below placed orders in excess of 2,500 tons per month during such period, nor the subsequent disagreement of the parties as to the contract requirements, can-serve to defeat such right to have the above-mentioned issue of fact submitted to the jury. In conformity with the foregoing opinion, the first-mentioned judgment, in No. 1999, is affirmed; and the judgment in No. 2022 is reversed, and the cause so designated is -remanded to the District Court, with direction to grant a new trial.