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TEXAS CO. v. BRILLIANT MFG. CO. In Error to the District Court of the (Circuit Court of Appeals, Third Circuit.

United States for the Eastern District of September 30, 1924. Rehearing De- Pennsylvania; Oliver B. Dickinson, Judge. pied December 1, 1924.) No. 3129.

Action at law by the Brilliant Manufac

turing Company against the Texas Com1. Trial 143—Direction of verdict not warranted where testimony, if credited, would

pany. Judgment for plaintiff, and defendsustain verdict for other party.

ant brings error. Affirmed. Where there is a sharp issue of fact on which the evidence is conflicting, and there is

T. K. Schmuck, of New York City, and substantial testimony which, if credited, would Albert Smith Faught, of Philadelphia, Pa., sustain a verdict for plaintiff, the question is for the jury, and direction of a verdict for de

for plaintiff in error. fendant would be error.

Murdoch Kendrick and Bell, Kendrick, 2. Evidence cm318(2)-Letter from third per.

Trinkle & Deeter, all of Philadelphia, Pa., son to party not competent as evidence against for defendant in error. such party.

A letter written by a third person to one Before WOOLLEY and DAVIS, Circuit of the parties held incompetent as evidence against such party.

Judges, and MORRIS, District Judge. 3. Evidence en 215(3)-Statements made by party in letter to third person may be com

DAVIS, Circuit Judge. The Brilliant petent evidence against the writer,

Manufacturing Company, hereinafter called Statements made in a letter written by a plaintiff, and the Texas Company, entered party to a third person, if material, may be competent evidence against the writer.

into three contracts, whereby the plaintiff 4. Appeal and error om 1057(1)-Exclusion of

was to manufacture for defendant certain letter held not prejudicial error.

advertising signs which were “42 inches in The exclusion of a letter written by plain- diameter, double faced, porcelain enamel.” tiff, stating undisputed fact that defendant had canceled contract, held not prejudicial error.

The first was dated May 20, 1922, and was

for 2,000 signs and brackets; the second 5. Appeal and error em 181, 248, 544(1)-Rulings not reviewable without bill of exceptions.

was dated December 18, 1922, and was for No point will be considered by an appel

2,075 signs and brackets; the third was late court unless objections are made and ex- dated January 11, 1923, and was for 2,180 ceptions taken to the ruling thereon during the trial and the exceptions embodied in a formal

signs and brackets. The price was $17.50 bill and presented to the judge for allowance for a sign and bracket. On February 21, at the same term or within a further time allowed by order, entered at that term or by a

1923, the defendant canceled the second and standing rule of court.

third contracts, and on March 23, 1923, it 6. Sales 384(6)-Measure of damages for

canceled the first one. The controversy bebreach of contract for goods to be manufac- tween the parties arose over these cancellatured by plaintiff.

tions. The plaintiff contends that they In an action for breach of contract to purchase advertising signs to be manufactured by

were breaches of the contracts, while the plaintiff, the jury may properly allow as dam- defendant says that the cancellations were ages the difference between the cost and what made in accordance with an oral agreement plaintiff was to receive under the contract, making reasonable deductions for the less time en- between them. The jury in the court below gaged and for release from the care, trouble, rendered a verdict for the plaintiff, and the risk, and responsibility attending full execution of the contract.

case is here on defendant's writ of error, 2 F.(20)-1

in which it contends that the court should sidering the reply first, we do not see any have directed a verdict for it.

theory under the facts in this case on which [1] There is no dispute about the can- it was admissible. It was not under oath cellation of the contracts. The letters can- and not subject to cross-examination. The celing them are in evidence, and there can Beach Company was not a party to the be no denial of the facts. The only ques- suit, and what said could in no way bind tion is whether or not they were canceled the plaintiff any more than what plaintiff by agreement. In the letter of February said to the Beach Company could bind the 21, 1923, the defendant wrote: “Confirm- defendant. The testimony of the Beach ing our understanding arrived, at in the Company was available, and if the defendmeeting held this morning in Mr. C. E. ant desired in evidence the contents of the Woodbridge's office, I am hereby canceling letter, testimony should have been taken entirely" the second and third orders. In under oath in the usual way. The offer the defendant's letter of March 23, 1923, it was properly overruled. Illinois Central says: "In view of your failure to make Railroad Co. V. Cobb et al., 72 Ill. 148, deliveries in the manner and times specified 151; Capen v. DeSteiger Glass Co., 105 in our agreement with you of February 21, Ill. 185, 191. 1923, we hereby notify you that we cancel" [3] The letter of March 26, 1923, written the first contract. Mr. C. Paul Ray, Jr., by the plaintiff to the H. D. Beach Compresident of the plaintiff company, who pany, has a different status. A statement represented it in the transactions, testified or “confession of a party is indeed evidence that he had no "understanding" or "agree- without oath, because in its nature nothing ment” with the defendant as referred to in can be more satisfactory."

.” Longenecker v. those letters, and we think that under the Hyde, 6 Bin. (Pa.) 1. The plaintiff was evidence in this case he was not estopped, bound by this letter, and if it was material as contended by defendant, from denying and competent, it was error to overrule the the alleged "agreement." It is clear that offer. if Ray “testified to facts which, if credited [4] In that letter plaintiff said: and uncontradicted, would make out a case “We have received notice from the Texas upon which a verdict might be rested,” it Company that order NY-166155 has been would have been error to take the case from canceled and that they will not accept any the jury or to direct a verdict for defend- delivery under the same. We, therefore, reant. Rochford v. Pennsylvania Co., 174 quest that you return at once all brackets, F. 81, 98 C. C. A. 105; Dickinson v. attachments, etc., and also wish you would Scruggs, 242 F. 900, 155 C. C. A. 488. advise when it will be possible to have Mr. The testimony in the case at bar was flatly Beach come to Philadelphia and make arcontradictory. There was a sharp issue of rangements regarding loss on same.” fact which had to be determined upon the After a colloquy between the court and credibility of the witnesses, and this was counsel over the admission of the letters, the peculiarly a question for the jury. Erie following took place: Railroad Co. v. Kraft, 207 F. 293, 125 C. "The Court: Now, the March 26th letter C. A. 37. Where there is evidence of a sub- is of absolutely no value to anybody that I stantial character bearing upon the issue, can see. the question is for the jury even though

“Mr. Schmuck: It seems to be, as I say, the court may think that there is a prepon- that that contains an implied admission. derance of evidence for the party mo

moving “The Court: It merely contains the for a direction, City & Suburban Railway statement of a fact that is not disputed and v. Svedborg, 194 U. S. 201, 24 S. Ct. about which nobody has any question, so 656, 48 L. Ed. 935, and this is true even what does it amount to one way or the though the court, if called upon to find the other ?facts, would have decided in favor of the The subject was then dropped and did not moving party. The question of the breach arise again until all the letters were ofof the contracts was submitted to the jury fered, but mention was then not made of under proper instructions, and its verdict the letter of March 26, 1923, and the exin favor of the plaintiff determines the ception there allowed to defendant apparfacts.

ently referred only to the letters written by [2] Defendant further contends that the the Beach Company to the plaintiff. No trial judge erred in refusing to admit the exception was ever taken to the refusal to plaintiff's letter of March 26, 1923, to the admit that letter. Anyhow, we agree with H. D. Beach Company and its reply. Con- the District Judge that the letter did not 2 F.(20) 1 amount to anything one way or the other, exceptions is that it states what occurred and the overruling of the offer was harmless while the trial was going on. Any other error and therefore not ground for reversal. course would result in delays and inefficient

"It is a well-recognized rule that a judg- administration of justice and would also be ment will not be reversed or a verdict set unfair to the trial judge because it would aside because of error, when it appears, as not give him an opportunity to correct poshere, that no harm has resulted to the com- sible errors, if brought to his attention. plaining party.” Blashfield's Instructions Wyss-Thalman v. Maryland Casualty Co. to Juries (2d Ed.) 991; Board of Commis- of Baltimore, 193 F. 53, 113 C. C. A. sioners, etc., v. Keene Five-Cents Saving 383; Wear v. Imperial Window Glass Co., Bank, 108 F. 505, 515, 47 C. C. A. 464; 224 F. 60, 139 C. C. A. 622; Blisse v. Samulski v. Menasha Paper Co., 147 Wis. United States (C. C. A.) 263 F. 961; 285, 133 N. W. 142; Kutztown Foundry Walton v. United States, 9 Wheat. (22 U. & Machine Co. v. Sloss-Sheffield Steel & S.) 651, 657, 6 L. Ed. 182; Kerr v. ClamIron Co. (C. C. A.) 279 F. 627, 632. pitt, 95 U. S. 188, 24 L. Ed. 493; P., C.

[5] The court refused to charge certain & St. L. Railway Co. v. Heck, 102 U. S. points submitted by defendant to the effect 120, 26 L. Ed. 58; Michigan Insurance Co. that under the evidence the plaintiff could v. Eldred, 143 U. S. 293, 12 S. Ct. 450, not recover damages representing profits 36 L. Ed. 162; O'Connell v. United States, which he might have made had the contracts 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. not been breached and had he performed 827; Exporters, etc., v. Butterworth-Judson them.

Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. In the first place, there is no exception to Ed. 663. the refusal to charge these points. At the Notwithstanding these technical grounds, conclusion of the charge, the judge stated we think that under the evidence the questhat he had tried to cover in his charge all tion of the ability of the plaintiff to carry the points, “nearly a third of century of out the contract within a reasonable time them," and thought that he had done so, (no time being mentioned in the contracts and said, "So far as affirmed in the general for the delivery of the signs) was for the charge they are affirmed, and so far as dis- jury under proper instruction from the affirmed, they are disaffirmed, and excep- court. From the evidence reasonable men tions are allowed to the respective parties might easily draw different conclusions as accordingly. The rules of our Circuit Court to that fact. This question was properly of Appeals require that exceptions to the and fully submitted to the jury in the charge must be taken before the jury have charge and its verdict settles the fact. retired.” Thereupon Mr. Schmuck said: American Concrete Steel Co. v. Hart (C. "Your honor, I have no exceptions to the C. A.) 285 F. 322; Renick & Brand v. charge." In other words, the charge, with- Aronoff, 76 Pa. Super. Ct. 206; Knights out affirming the points in the specific lan- of Joseph Building & Loan v. Mechanics' guage submitted, was satisfactory to him, Fire Insurance Co., 66 Pa. Super. Ct. 90, and therefore he had no exceptions. Coun- 97; Dunn v. Mayo Mills, 134 F. 804, 67 sel politely declined what was offered to C. C. A. 450. him.

Plaintiff demanded damages as follows: By a uniform course of decision, no point Order No. 1, May 20, 1922. Loss. . . $15,000.00 will be considered by an appellate court un- Interest from March 23, 1923, to Noless objections are made and exceptions tak- Order No. 2, December 22, 1922.

vember 13, 1923, 230 days...

575.00 en to the ruling thereon at the trial. It is Loss

15,562.50 further necessary that the exceptions thus Interest from March 23, 1923, to No

vember 13, 1923, 230 days.

596.57 taken be embodied in a formal bill and be Order No. 3, January 11, 1923. Logs 16,350.00 presented to the judge for allowance at the Interest from March 23, 1923, to No

vember 13, 1923, 230 days....

615.25 same term or within a further time allowed by order entered at that term or by a stand- Total

.$48,699.32 ing rule of court. A trial court, in the ex- [6] The jury returned a verdict of $18,ercise of its discretion, may grant a new 612.17. How it arrived at the amount of trial, if convinced that it has erred during the verdict is speculation, but we cannot the trial

, even though its attention were not say that its verdict was “perverse and dicalled to the error at the trial; but the rectly violative of the charge of the court power of an appellate court is confined to and is wholly without evidence to support exceptions, based on objections, actually it.” Stetson v. Stindt (C. C. A.) 279 F. taken at the trial. The theory of a bill of 209, 23 A. L. R. 302.

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