Chicago Lumber Co. v. Comstock

JENKINS, Circuit Judge, upon the foregoing statement of the case, delivered the opinion of the court. ' The assignment of errors embraces 62 alleged errors. This would indicate one of two things, — either that the case was a complex and difficult one, or that counsel exercised a zeal not born of discretion. The case was simple. The principal contention at the trial was with respect to the introduction of certain evidence to prove, as is claimed, á contemporaneous independent parol agreement between the parties that Comstock would dress and load the lumber as ordered by the lumber company to the ’extent of 20 car loads per day. Some 32 of [479] the assignments of error present a like number of questions, in slightly different phraseology, seeking the same end. One question and one ruling would have sufficed to present the subject. We cannot commend this practice, and we may be permitted to say that we think the patience of the trial judge, however commendable in itself, w'as here exhibited to no good purpose. The rights of parties are not aided by a multitude of questions and rulings to the same point. In view of the congested condition of business at the circuit, counsel should not seek, and we suggest the court should not permit, the consumption of time and the incumbering of records unnecessarily. We have had occasion to consider the question with respect to parol agreements in connection with the written contracts of parties. In Union Stock-Yards & Transit Co. v. Western Land & Cattle Co., 18 U. S. App. 438, 7 C. C. A. 660, and 59 Fed. 49, we asserted the principle that “parol evidence may be received of the existence of an independent oral agreement, not inconsistent with the stipulations of the written contract, in respect to a matter to which the writing does not speak, but not to contradict the contract”; and this principle is reasserted in Gorrell v. Insurance Co., 24 U. S. App.-, 11 C. C. A. 240-246, and 63 Fed. 371-377, and in Union Nat. Bank of Oshkosh v. German Ins. Co. of Freeport (as yet officially unreported) 71 Fed. 473. We have nothing to add to what was there said, except to call attention to the cases of Engelhorn v. Reitlinger, 122 N. Y. 76, 25 N. E. 297; Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961; Naumberg v. Young, 44 N. J. Law, 331. These are well-considered cases. In the last case the principle is well stated as follows: “Where the written contract purports on its face to be a memorial of the transaction, it supersedes all prior negotiations and agreements, and oral testimony will not be admitted of prior or contemporaneous promises on a subject so closely connected with the principal transaction, with respect to which the parties are contracting, as to be a part of the transaction itself, without the adjustment of which the parties cannot be considered to have finished their negotiations, and finally concluded a contract.” In the two cases last named it was substantially held, in accord with the case of Hei v. Heller, 53 Wis. 415, 10 N. W. 620, that,to bring a case within the rule admitting parol evidence to complete the entire agreement of which the writing is only a part, two things are essential: First, the writing must not appear upon inspection to be a complete contract; second, the parol evidence must be consistent with, and not contrary to, the written instrument. We think the cases to which we have referred fully sustain the rule, so that it will not be difficult to properly classify the exceptions to the rule under the heads to which they are related. By this contract the lumber was to be dressed by Comstock under instructions from the lumber company, and by him loaded upon the cars. The law would imply that Comstock had a reasonable time, under the circumstances, after the receipt of the order, to dress this lumber, and to load it upon cars, if cars were furnished or obtainable. It is clear that he must comply with the instructions as to the dressing, as to the quantity, and as to the time, if a reasonable time should be stated by the company. It is claimed that the evidence of the [480] whole conversation during the negotiation prior to the contract should have been received as tending to fix the time of performance, namely, that Comstock would dress and load 20 car loads a day. We are relieved from the necessity of determining whether this would be in contradiction of the written agreement, because, upon the assumption that the evidence would be competent as indicating the agreement of the parties in respect to what was a reasonable time under the contract, we think that there was no such condition of things shown as rendered the evidence material. The record shows conclusively and without contradiction that any delay in delivery which prevented the lumber company from taking advantage of the low rate of freight was caused by inability to obtain cars for the shipment of lumber. There is no evidence that Comstock in any respect failed to dress the lumber promptly upon receipt of orders. The delay was occasioned by failure of the railway company to furnish cars. Com-stock, by his contract, did not agree to furnish the cars. His duty was fulfilled when he had dressed the lumber, and loaded it upon cars furnished to him for that purpose. It was the duty of the lumber company under the contract to see that cars were furnished. It is clear upon the whole record that Comstock was not liable to the lumber company for any delay in shipment. The letter of the company, under date of April 25th, absolves Comstock from all blame, and charges the delay to the neglect or inability of the railroad company to furnish the necessary cars. We have carefully examined the remaining assignments of error which refer to matters not affecting the principal questions involved. We find no reversible error. The case was fairly submitted to the jury. Indeed, if any criticism may be indulged with respect to the charge, it is that it was too favorable to the lumber company in submitting to the jury the question whether Comstock had failed in his undertaking to dress and ship the lumber, with liberty to award damages resulting from such supposed failure. A question is raised to the jurisdiction upon the allegation in the declaration of citizenship of the parties. The allegation is this: “Daniel F. Comstock, who is a citizen of the state of Michigan, and plaintiff in this suit, complains of the Chicago Dumber Company, who is a citizen of the state of Illinois, defendant in this suit, summoned, etc., of a plea of trespass in the case on promises.” It is objected that the description of the defendant is insufficient to show jurisdiction, because it is impossible for a corporation to be a “citizen” within the general signification of that term, and that, therefore, it was necessary to charge that the defendant was incorporated or organized under the laws of the state of Illinois, in order to show that it was a “citizen” within the meaning of the act of congress conferring jurisdiction. We are not impressed with the force of the contention. While, strictly speaking, it may be better to allege the incorporation of the company, we do not deem it indispensable. The use of the corporate name implies incorporation for the purpose of charging citizenship of the parties. The objection is technical, going to the pleading, and, to be availing, should have been raised by plea [481] in abatement. The suggestion that there was no proof at the trial of citizenship of either of the parties cannot be sustained. The declaration declared diverse citizenship, showing jurisdiction. There was no plea to the jurisdiction. There was therefore no issue requiring proof in that regard. The rule that, upon the removal of cases, the petition for removal must show citizenship existing at the time of the commencement of the action, as well as at the time of the filing of the petition for removal, is here sought to be applied, because the only allegation df citizenship is contained in the declaration, and that was filed four days after the filing of the praecipe for the writ. The objection is without merit. The declaration speaks from the commencement of the action. The judgment will be affirmed.