Sandusky Cement Co. v. A. R. Hamilton & Co.

DONAHUE, Circuit Judge (after stating the facts as above). It is insisted on the part of plaintiff in error that the trial court erred to its prejudice in giving these supplementary instructions! in the absence of counsel. The conclusion reached by the Supreme Court in Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 81, 39 Sup. Ct. 435, 63 L. Ed. 853, and cases there cited, make it unnecessary to discuss this question in detail. It is sufficient to say that it is not only error to instruct , a jury in the absence of counsel, and without affording them an opportunity to be present or to make timely objection to the instruction, but it is also a dangerous practice, calculated to cause a miscarriage of justice, and ought to find no favor with a reviewing court. It is insisted, however, that this error was not prejudicial, that the charge as given was correct, and that under the provisions of section 269 of the Judicial Code as amended February 26, 1919 (U. S. Compiled Statutes, 1919 Supplement, volume 1, § 1246), this court has no authority to reverse a judgment for technical errors, defects or exceptions which do not affect the substantial rights of the parties. This section of the Judicial Code as amended now reads, in part: “» * 8 On tbe hearing of any appeal, certiorari, writ of error, or motion for new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” This section was amended prior to the decision in the Fillippon Case, but it could not apply to that case for the reason that the supplementary charge as given was prejudicial. It is not claimed oh the part of plaintiff in error that this supplementary charge, given in this case in the absence of counsel, is, in and of itself, erroneous, but it is Insisted that it is so connected with and related to the part of the general charge in reference to the sale of mines Nos. 7 and 10, which plaintiff claims is erroneous, that the court should consider it in connection therewith. A careful examination of the supplementary charge, given in the absence of counsel, fails to sustain the plaintiff’s contention that it has relation to that particular part of the general charge. It is a specific charge in reference to a specific issue and is a clear and correct [612] statement of the law applicable thereto. There is nothing in this supplementary charge that changes, modifies, or adds to the charge as given. On the contrary, it is but a repetition of the general charge of the court upon the same subject-matter, and, though perhaps it is differently phrased, nevertheless it is substantially identical and could not have been prejudicial to either party. The trial court correctly charged in reference to the sale of mines Nos. 7 and 10. The defendant had a right to enter into contracts reasonably proportionate to the capacity of its mines. Had it been the intent and purpose of the defendant to retain mines Nos, 7 and 10, it would have had the right to enter into contracts approximating the capacity of all four of its mines. It is of no importance to plaintiff whether defendant contracted a reasonable proportion of the output of two mines or the output of four mines. The ratio would be the same. The capacity of the two mines retained by it was 40,000 tons a month. Whether contracts aggregating 32,000 tons a month were excessive for that capacity was a vital and one of the controlling questions in this case. It is urged that a coal operator should not be at liberty to enter into pro rata contracts of this type up to the theoretical capacity of his mine, when there is an established and long-standing condition of car shortage, and the continuance of which, for a substantial part of the contract period, he is bound to anticipate, nor be permitted to increase his contract obligation while such an established shortage continues and should be anticipated. No such question is presented hy the record in this case. It is also insisted that the court .erred to the prejudice of plaintiff in the rejection of evidence tending to prove special damages by reason of the enforced closing of its plant for lack of fuel. The contract between the parties did not contemplate requirements of any particular plant. On the contrary, the coal was to be shipped to Bay Ridge, Ohio, or Syracuse, Ind., upon the order of the plaintiff. If it were conceded that plaintiff’s profits could have been ascertained with such certainty that a jury’s estimate thereof, would not be merely speculative, yet there is nothing in this contract to indicate that either of the parties, at the time this contract was made, contemplated or reasonably should have contemplated that the natural and proximate result of a breach, thereof would cause the closing down of plaintiff’s plant. Globe Refining Co. v. Lands Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171; Howard v. Stillwell Mfg. Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147. It is also insisted that the court committed prejudicial error in instructing the jury that the defendant had the right to make a new contract with the Camden Coke Company on June 10, 1920, “at a time when the defendant was admittedly in default in the performance of' its contract.” When plaintiff and defendant entered into this contract the Camden Coke Company had a contract for the delivery of 8,000 tons per month to July 1, 1920. The Camden Coke Company was a regular customer of the defendant. When this contract expired the tonnage in the new contract was reduced to 4,000 tons per month. This change in the amount was largely to the advantage of [613] plaintiff. The contract made with the Camden Coke Company on June 10, 1920, extended for several months after the expiration of the plaintiff’s contract. While it is. claimed by the defendant that the conditions that obtained at the time his contract was renewed' prevented it from delivering the full amount of the contract coal each month, nevertheless these conditions might change for the better at any time within a week or a month thereafter.. From the facts and circumstances established'by the evidence in this case, the plaintiff had no right to expect that the regular customers of the defendant would be denied a renewal of their existing contracts. That course of conduct would be destructive of defendant’s business. It is true that, under the conditions that obtained shortly thereafter, this would have been to the temporary financial advantage of defendant, but eventually it would be disastrous. For the reasons stated, the judgment of the District Court is affirmed.