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he will pay to the party of the first part, in satisfaction of all damages, ten cents per cubic foot for any deficiency; and it is further agreed that any stone which may be delivered by the party of the second part in excess of the amount stipulated in this contract shall apply on the following month or months during the term of this contract.

“Eleventh. The party of the first part agrees to transport free of charge and promptly upon the railroad from the mill to the quarry any supplies or machinery required by the party of the second part; it being understood that the party of the second part assumes all responsibility for damage during said transportation, except when caused by gross negligence. It is further understood that not more than three tons shall be taken in one load.

"Seventeenth. It is understood that, in case the party of the second part strips more than the fifty thousand feet required in this contract, he will have the option of quarrying all the marble so stripped at the same price as is provided in this agreement; and it is further understood that, if the party of the first part operates the tunnel during the year succeeding the termination of this contract, the party of the second part will have the option of a contract for quarrying all marble to be taken out at the same price provided in this agreement.”

Other portions of said contract provided that defendant should furnish a certain water supply and a derrick. The jury having rendered a verdict for plaintiff for damages for defendant's failure to furnish the water and derrick, the court, on motion to set aside the verdict, found that these items of damage were not sufficiently supported by the evidence, and the claims therefor were remitted and are not involved herein. The jury rendered a special verdict in favor of plaintiff for damages, as follows: For not supplying water....

885 00 For not furnishing derrick...

600 00 For not transporting coal...

301 00 For refusing option on stripped block.

8,351 66

$10,137 66 The verdict for damages for defendant's failure to transport coal was justified by the evidence, and is not involved in the issues raised herein. The exceptions raise the question of the propriety of the action of the trial judge in awarding to plaintiff one-half of his damages by reason of defendant's denial of the option provided for in the seventeenth section of the contract.

It appeared on the trial that plaintiff failed to deliver the stipulated quantity at the end of each month, and that defendant had made deductions for such failure in accordance with the provisions of the seventh section. At the close of the season plaintiff had only furnished 43,707 feet of the 50,000 which he had agreed to deliver. There was on hand in the quarry at the close of the season some 26,640 feet of marble, which plaintiff had stripped or uncovered, under section 17 of the contract, in excess of the amount agreed to be delivered, and defendant claimed that he had the option of quarrying this marble at any time after the close of the season. Counsel for defendant requested the court to charge the jury that the contract gave plaintiff no option to quarry marble stripped under it after the expiration of the year. The court did not so charge, and the defendant duly excepted. The jury returned a verdict for plaintiff for $8,351.66 damages for defendant's refusal to allow plaintiff to exercise his option on said stripped blocks.

On motion to set aside said verdict, the court found that part of plaintiff's failure was due to defendant's breach of contract to supply coal. But the court found, and it is not disputed, that only 1,000 feet of the deficiency of 6,293 feet was due to said breach, and that in no event could the plaintiff have supplied the remaining deficiency within the season limit, which, it was agreed, so far as concerned the contract for the delivery of the 50,000 feet, terminated on December 31, 1901. The court, therefore, found that plaintiff made a substantial default in the fulfillment of the contract, and, therefore, was not entitled to the option provided for in section 17. The court held as follows:

"The uncovering was done with the concurrence of the defendant, and as it is necessary to the beneficial use of the quarry by the defendant in taking out the good marble, and the plaintiff cannot get any benefit from it otherwise, he seems to be entitled to recover that he has in that way benefited the plaintiff by increasing the value of the quarry. This, without question, upon the evidence, is about one-balf of the damages found for denying the option, The other one-half, and the damages for not transporting the coal, seem well enough founded to stand. If the plaintiff remits the rest, the motion should accordingly be overruled; if not, the verdict should be set aside."

The plaintiff remitted as provided by the court, and judgment was entered for the damages for not transporting coal and for onehalf of the damages found by the jury for denial of option.

This allowance of one-half damages depends, necessarily, upon the conclusion that plaintiff was entitled to exercise his option after December 31, 1901, although without the fault of the defendant he had substantially failed to the extent of 5,293 feet to fulfill his contract to quarry and deliver not less than 50,000 feet of marble between January 1, 1901, and January 1, 1902. In this conclusion we think the learned judge was in error. The true construction of the contract seems to be that the plaintiff had the right to demand pay for all marble stripped by him, which he should quarry before January 1, 1902, provided he fulfilled in all respects the provisions of the contract binding upon him. That it was the understanding and agreement of the parties that this option did not extend beyond January 1, 1902, appears from the provision limiting plaintiff's right to quarry to said date, by the admitted custom and usages as to seasons in said quarries, by the manifest inconvenience to defendant of having plaintiff engaged in quarrying and removing such marble at plaintiff's pleasure during some other season, and by the provision in section 17 leaving the option of the disposition of the quarry to the defendant for the following year, which is as follows:

"That, if the party of the first part operates the tunnel during the year succeeding the termination of this contract, the party of the second part will have the option of a contract for quarrying all marble to be taken out at the same price provided in this agreement."

It follows that, as the court has rightly found that the failure to quarry the 50,000 feet was not through the fault of defendant, and as fulfillment of this agreement was a condition precedent to the right to exercise said option, and as said option, if exercised, must be exercised within the year fixed by the contract, no damages should have been allowed for the refusal of the option after the expiration of the season.

The judgment is reversed.

NEWPORT NEWS & OLD POINT RY. & ELECTRIC CO. V. YOUNT.

(Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)

No. 563.

1. ERROR-REVIEW OF INSTRUCTIONS-SUFFICIENCY OF BILL OF EXCEPTIONS.

Assignments of error based on the giving and refusal of instructions cannot be considered by the Circuit Court of Appeals, unless the bills of exceptions contain the evidence pertinent to the issues to which the in

structions relate, as required by the rules of the court. 2. SAME-MATTERS REVIEWABLE-ORDER DENYING NEW TRIAL.

The refusal of the court to set aside a verdict and grant a new trial is not reviewable in the federal courts.

In Error to the Circuit Court of the United States for the Eastern District of Virginia.

R. T. Thorp (S. Gordon Cumming, on the brief), for plaintiff in error.

Robert H. Talley (Miller & Coleman, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and BOYD, District Judge.

PRITCHARD, Circuit Judge. Defendant in error, on September 16, 1903, was a passenger on one of the open cars of the Newport News & Old Point Railway Company, which was propelled by electricity. While he was standing on what is commonly known as the "running board" of the car, he was struck by a pole which had been erected by the Hampton Telephone Company, alongside the road or right of way of the Newport News & Old Point Railway & Electric Company, by reason of which defendant in error instituted an action in the Circuit Court of the United States for the Eastern District of Virginia, alleging he was injured by the negligence of the plaintiff in error. A verdict and judgment was rendered for the defendant in error in the court below, from which judgment the plaintiff in error sued out this writ of error.

The assignments of error in the record relate to the refusal of the court to give 11 instructions requested by the plaintiff in error and to certain portions of the charge of the court to the jury. The bill of exceptions certifies the charge of the court to the jury, and also the instructions which were requested by the plaintiff in error and refused by the court. It does not contain nor certify any part of the evidence taken at the trial. The record discloses the fact that the bills of exceptions in this case were not prepared in accordance with the rules of this court. It has been uniformly held that bills of exceptions in

cases like the one now under consideration should not only contain the instructions which were refused and that portion of the charge to which exception is taken, but the evidence relating to the question sought to be raised in each bill of exceptions should be incorporated as a part thereof. Unless this requirement should be strictly complied with, it would be impossible for us to intelligently consider objections which might be raised to the charge of the court below or to its refusal to give instructions submitted by plaintiff in error.

In the case of Reed v. Gardner, 17 Wall. 411, 21 L. Ed. 665, Justice Hunt, in delivering the opinion of the court, said:

“It has been frequently held by this court that, in passing upon the questions presented in bill of exceptions, it will not look beyond the bill itself. The pleadings and the statements of the bill, the verdict, and the judgment, are the only matters that are properly before the court. Depositions, exhibits. or certificates, not contained in the bill, cannot be considered by the court.

The rule is admirably stated by Judge Goff, in an opinion of this court in the case of S. W. Va. Imp. Co. v. Frari, 58 Fed. 172, 7 C. C. A. 149, in which, among other things, it is said:

"No part of the evidence considered by the jury was certified in either one of the bills of exceptions, and therefore we cannot pass on the questions of law raised by the instructions given and refused, as there is nothing before us showing that they have any relation to the issue that was submitted to the jury. In the preparation of the bills of exceptions and the assignments of error there was an utter disregard of the rules of this court, and of the practice in cases of this character as established by the decisions of the Supreme Court of the United States. The rules and practice so instituted have been frequently announced, and the reason for the enforcement of the same so often given, that we do not deem it necessary to again set forth the one or explain the other.” Insurance Co. v. Raddin, 120. U. S. 183, 7 Sup. Ct. 500. 30 L. Ed. 644; Mining Syndicate Co. v. Frazier, 130 U. S. 611, 9 Sup. Ct. 663, 32 L. Ed. 1031; Block v. Darling, 140 U. S. 234, 11 Sup. Ct. 832, 35 L. Ed. 476.

It is contended by the plaintiff in error that the evidence bearing on the different questions raised by the several bills of exceptions appears elsewhere in the transcript of the record. To print the evidence relating to the points sought to be raised by the bills of exceptions is not a substantial compliance with the rules of the court, which require that such evidence be incorporated as a part of each bill of exceptions. An assignment of error based on the refusal of the court to set aside a verdict of the jury and grant a new trial is not reviewable. S. W. Va. Imp. Co. v. Frari, 58 Fed. 172, 7 C. C. A. 149; Insurance Co. v. Barton, 13 Wall. 603, 20 L. Ed. 708; Kerr v. Clampitt, 95 U. S. 188, 21 L. Ed. 493; Fishburn v. Railway Co., 137 U. S. 60, 11 Sup. Ct. 8, 34 L. Ed. 585; Ayers v. Watson, 137 U. S. 584, 11 Sup. Ct. 201, 34 L. Ed. 803; Railway Company v. Heck, 102 U. S. 120, 26 L. Ed. 58.

For the reasons stated, the judgment of the Circuit Court is affirmed.

SUN PRINTING & PUBLISHING ASS'N v. EDWARDS.

(Circuit Court of Appeals, Second Circuit. February 28, 1905.) 1 MASTER AND SERVANT_WRONGFUL DISCHARGE-EFFICIENCY.

Where, in an action for alleged wrongful discharge, it appeared that plaintiff was employed in defendant's office as superintendent of printing, with control of all of defendant's printing and mechanical departments, during a strike, and that during the 10 days of his employment the delay in getting out defendant's morning and evening papers was materially cut down, with a reduced force, and that plaintiff worked nearly 16 hours a day, and the only reason given for his discharge was that the matter bad gotten beyond defendant's manager, and that the men would not work with plaintiff, the question of his efficiency was properly submitted in an instruction that if he fulfilled his duties efficiently, and was improp

erly discharged, he was entitled to recover, otherwise not. 2. SAME-EVIDENCE.

Where, in an action for a servant's wrongful discharge, defendant's witnesses claimed that plaintiff had done nothing in the line of his employment, a pay roll made up by plaintiff during such employment was

admissible in rebuttal. In Error to the Circuit Court of the United States for the Southern District of New York.

This cause comes here by defendant's writ of error from a judgment entered against it in the court below upon the verdict of a jury in an action brought to recover damages for breach of contract. The facts in the case are sufficiently stated in the opinion of this court on a former hearing. 113 Fed. 445, 51 C. C. A. 279.

Franklin Bartlett, for plaintiff in error.
Thomas F. Bayard, for defendant in error.
Before TOWNSEND, Circuit Judge, and HOLT, District Judge.

TOWNSEND, Circuit Judge. The single question argued on the exceptions is as to the propriety of the action of the court below in refusing to direct a verdict in favor of the defendant. The motion for such direction was made under a claim that the uncontradicted evidence showed that plaintiff was discharged because he was incompetent, inefficient, and negligent. The plaintiff was engaged, during a strike in defendant's office, as superintendent of printing—to have entire control of all defendant's printing and mechanical departments. During the period of his employment, which lasted 10 days, the delay in getting out the morning and evening papers at the regular time was cut down, with a reduced force, from an hour and a half or two hours to a period of from fifteen to twentyfive minutes. There was evidence from which the jury were justified in finding that plaintiff was discharging the duties of superintendent at the Sun establishment from half past 6 or 7 o'clock in the morning, with an interval for dinner, only, until 10 or 11 o'clock at night; that the success in getting the paper out was due to his efforts; and that he was fully qualified for the duties of the position, and discharged those duties efficiently and successfully. It appeared that he was summarily discharged, without previous complaint or warning, and no explanation of his dismissal was given;

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