The defendant had undertaken to install in the Spalding Building at Portland, Or., then under construction, an electric power plant of three units, each unit to be composed of a generator and a gas engine. On May 25, 1910, the defendant entered into an agreement with the plaintiff whereby the latter agreed to deliver and erect on foundations in the basement of the building, three generators, the first generator to be shipped immediately from San Francisco, the other two to be built and sent from the plaintiff's factory at Pittsburg. The contract provided that the first generator with its gas engine was to be in operation by July 1, 1910, that payment in the amount of $1,500 should be made on the total contract price immediately upon the installation and acceptance of the first generator, or not later than July 15, 1910. As to the other generators it was agreed that delivery should be made from the factory in approximately 90 days from May 25, 1910, the date of receipt of order. The plaintiff in its complaint alleged that it was ready to comply with its contract as to the delivery and erection of the first generator, but that by reason of the fact that the building was not in readiness for the installation, and that the defendant failed to furnish proper appliances for operation, the plaintiff was prevented from furnishing, delivering and erecting said generator on or about July 1, 1910, but that as soon thereafter as the building was in readiness, and as soon as defendant complied with its contract as to appliances for operation, plaintiff furnished and delivered and erected said generator; that within approximately the 90 days stipulated in the contract the plaintiff was ready and able and willing to deliver the other two generators, and to comply with its contract as to the same; that the defendant failed and neglected and refused to pay the $1,500 agreed to be paid immediately upon installation and acceptance of the first unit, and still fails to pay the same; that on or about August 25, 1910, and before the time specified in the contract for the delivery of the second and third generators and apparatus, the defendant notified the plaintiff that it would not accept plaintiff's generator or any other part of plaintiff's machinery; and that the contract was void and of no effect. The plaintiff claimed damages in the sum of $3,100. The defendant answered denying its indebtedness to the plaintiff, or that the plaintiff had performed its contract, and alleging that the plaintiff failed and neglected to install the first unit by July 1, 1910, and neglected to deliver the other two generators within 90 days from the receipt of the order, or at all, and alleged that in consequence of the plaintiff's failure to keep and perform its contract, defendant was prevented from completing the installation of the electrical apparatus and appliances in the said building, according to its contract with the owner thereof, and was otherwise put to large cost and expense in attempting to perform said contract, and was thereby damaged in the sum of $7,693; that on September 6, 1910, the defendant notified the plaintiff that the owner of the building had by reason of plaintiff's failure to carry out its portion of the contract, rescinded his contract with the defendant, and that the defendant would hold the plaintiff liable for all loss and damage accruing therefrom, and that on September 12th the defendant rescinded its contract with the plaintiff. Upon the conclusion of the trial the jury returned a general verdict in favor of the defendant, and judgment was thereupon rendered for the defendant.

David L. Levy, Walter Shelton, and Campbell, Weaver, Shelton & Levy, all of San Francisco, Cal., for plaintiff in error.

Nathan H. Frank and Irving H. Frank, both of San Francisco, Cal., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1, 2] The plaintiff relies principally upon alleged errors in the instructions of the court to the jury on the subject of the plaintiff's claim for damages. It was agreed in the contract between the plaintiff and the

148 C.C.A.-3

defendant that no property in or title to any part of the apparatus furnished by the plaintiff, and no right to use the same, should pass to the defendant, but that all thereof should remain the personal property of the plaintiff until fully paid for, and that, on default of the defendant in making stipulated payments at the time specified, plaintiff should be entitled to immediate possession of the apparatus and free to enter upon premises wherever the same might be located and remove its property. The court, referring to this provision of the contract, said to the jury:

"If, therefore, you find for the plaintiff, it will not be entitled to recover for the value of the apparatus installed by plaintiff, or any part thereof, since it remains its property, and there is no evidence that it has been lost or injured, but it will only be entitled to recover such damages as it has sustained in the endeavor to carry out the contract, such as the expense of delivery and installation thereof, and the necessary steps to have it returned to it."

As to the plaintiff's claim for damages in connection with the second and third generators, the court charged the jury that if they found that the two generators which were not shipped, but were subsequently sold by the plaintiff, were sold for as much as the plaintiff would have realized for them under the contract, the plaintiff could not be allowed anything for the failure of the defendant to accept them. The plaintiff, while excepting to these instructions, requested the court to instruct the jury that, if they found for the plaintiff, its damages should be the whole contract price, $7,850, deducting therefrom, first, the market value of the second and third generators at Portland, Or., in September, 1910; second, the value of the component parts of the switchboard at Portland, if the jury found that they had no value as permanent switchboard, but only as dismantled articles; third, freight charges on the switchboard from Pittsburg to Portland, had it been shipped; fourth, cost of labor and material necessary to erect and install the second and third generators, permanent switchboard, and other apparatus.

To the alleged error in the instructions and refusal to instruct the plaintiff cites authorities to the proposition that if, notwithstanding the reservation of the title of goods in the vendor, he elects to sue the vendee for the purchase price thereof, he waives his claim of title to the goods, and the title passes to the defendant. That proposition is not applicable here, for the reason that the plaintiff did not and could not under the facts sue for the purchase price. It set forth in its complaint the provision of the contract whereby the title was to remain in the plaintiff, and it sued in the first count for damages in the sum of $3,100 for the alleged failure of the defendant to carry out its contract, and in the second count it sued upon indebitatus assumpsit for goods sold and delivered and labor and material furnished, of the reasonable value of $3,100. To sue upon an indebitatus assumpsit is not to sue for the purchase price. Barrere v. Somps, 113 Cal. 97, 45 Pac. 177, 572. By the contract there was a single sum agreed upon as the total purchase price for all the machinery included therein. Before the action was begun, the plaintiff had sold to others the second and third generators. The plaintiff was no long

er in condition to waive its title to the property or to transfer the title to the defendant. It had elected to retain the title.

[3] Nor do we find that the instructions so given by the court were subject to the objection that the jury were thereby precluded from awarding the plaintiff damages for the expense of installation and removal of the first generator. The court elsewhere instructed the jury that, if they found for the plaintiff, it would be entitled to such damages as it sustained in its endeavor to carry out the contract, such as the expense of delivery and installation, and the necessary steps to have it returned, together with such profit as it would have reanzed on its sale, had the contract been fully executed.

The plaintiff contends that the evidence was insufficient to justify the verdict, and that it showed without conflict that the plaintiff performed the contract. There was no exception taken, and there is no assignment of error to present to this court any question of the evidence or the want of evidence. There was no request that the jury be instructed to return a verdict for the plaintiff, and the record suggests no error of law in any of the rulings of the trial court on the effect of the evidence. The trial court, in instructing the jury, said that the whole sum and substance of the case was, Who was responsible for the failure to have the contract carried out? and that as to that question the evidence was "more or less conflicting." With that statement we agree.

[4] The plaintiff contends that the court below erred in admitting testimony given by Head, the defendant's manager, as to a conversation between him and Spalding, the owner of the building. The defendant, in making out its case, relied upon the allegation that by the plaintiff's default it was prevented from carrying out its contract, and it alleged in its complaint that on September 6, 1910, it informed the plaintiff that Spalding had rescinded his contract with the defendant on account of the plaintiff's failure to perform its contract. Under the issues it was proper for Head to testify to the fact that Spalding gave notice that he canceled the contract. He testified that Spalding said:

"It is impossible to get power. I must have it. The only thing for me to do is to contract with the Electric Company. I will cancel your contract now, and you must take your things out."

It is impossible to see how the evidence could have prejudiced the plaintiff.

[5] Again, the admission of the evidence was not error for the reason that Wernicke, a witness for the plaintiff, had testified to a conversation with Head, in which Head had told him what Spalding had said to him on that occasion, and thereby the plaintiff had opened the way for the defendant to prove by Head what the conversation was. His version, however, did not differ materially from that of Wernicke.

We find no error. The judgment is affirmed.

(234 Fed. 20)

ALWART BROS. COAL CO. v. ROYAL COLLIERY CO.
(Circuit Court of Appeals, Seventh Circuit. April 18, 1916.)
No. 2313.

1. SALES 181(11)-BREACH OF CONTRACT-CANCELLATION AND RESCISSION. Evidence held sufficient to sustain a finding that buyer breached a contract for the sale and delivery of coal, by failing to order the amount of coal contracted for, and that seller was within its rights in canceling the contract.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 486, 487, 490; Dec. Dig. 181(11).]

Where buyer failed to order from defendant coal in quantities as contracted for, to be delivered monthly, and thereafter demanded monthly deliveries in excess of the contract requirements to make up the deficiency, and threatened suit for failure to deliver such deficiency, the seller was relieved from any obligation to make further deliveries as for want of proper order.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 357; Dec. Dig. 152.]

3. NEW TRIAL 165-ON MOTION OF BOTH PARTIES-VACATION ON MOTION OF ONE PARTY.

Where the court granted a new trial on motion of both plaintiff and defendant, a vacation of the order thereafter on motion of plaintiff held proper, since the evidence was not in dispute, and there had already been three nisi prius hearings.

[Ed. Note. Dig.

4. TRIAL

165.]

For other cases, see New Trial, Cent. Dig. §§ 334, 335; Dec.

251(4)-INSTRUCTIONS-CONFORMITY TO PLEADINGS.

In a suit upon contract, the court properly refused to submit the issue of an alleged agreement in modification or settlement of the original obligation; such agreement not being within the issues pleaded.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 591; Dec. Dig. 251(4).]

In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit by the Alwart Bros. Coal Company against the Royal Colliery Company. From a judgment for defendant, plaintiff brings error. Affirmed.

See, also, 211 Fed. 313, 127 C. C. A. 599.

For the purpose of enabling it to fill its contract with the board of education of the city of Chicago, plaintiff in error, termed plaintiff herein, entered into a written agreement with defendant in error, termed defendant, whereby defendant undertook to sell and deliver to plaintiff in approximately equal monthly quantities between July 25, 1911, and March 31, 1912, as ordered by purchaser, four-sevenths of the requirements for the schools of certain districts mentioned, approximately 20,000 tons of coal as specified in the contract, at the price of $1.07% per ton at the mine in Virden, Ill. Both contracts contained a certain clause L, by which the board of education should charge back to plaintiff coal that it necessarily purchased in the market to supply the schools during such times as plaintiff failed to supply the prescribed amount of coal, as to which defendant in its turn agreed to indemnify plaintiff for any such loss as might be ascribed to its failure to comply with the contract. Plaintiff was required to pay defendant on or before the 20th of each month 50 per cent. of the value of all coal shipped during the previous month. The

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

remaining 50 per cent. was to be paid on or before the 10th day of the second succeeding month. If payments were not made within the agreed time, the seller could suspend further shipments, on five days' notice, until payment, or could treat the contract as broken by plaintiff. The present demand covers only the right of plaintiff under said contract for the months of January, February, and March, 1912. Other contentions between the parties were disposed of by this court in Alwart Bros. Coal Co. v. Royal Colliery Co., 211 Fed. 313, 127 C. C. A. 599.

From the evidence it appears that plaintiff ordered and received on the contract less than 6,000 tons of coal up to January 1, 1912. During January, 1912, plaintiff ordered 2,500 tons and received but 1,690. During February, 1912, plaintiff likewise ordered 2,500 tons and received but 1,570 up to February 20, 1912. On February 17, 1912, plaintiff demanded that defendant deliver between that date and March 31, 1912, 7,500 tons of coal not ordered or delivered prior to January 1, 1912, in addition to the 2,500 tons, which coal plaintiff was entitled to have had delivered, had it been ordered, prior to January 1, 1912. On February 19, 1912, plaintiff threatened suit if defendant did not deliver 12,000 tons of coal, to apply upon the 20,000 tons covered by the contract, before April 1, 1912. In the meantime the price of coal had advanced materially. Paul J. Alwart and Frederick W. Alwart, of the plaintiff company, testify that on February 19, 1912, they called upon defendant, asking for more coal, and that Maloney, representing the defendant company, promised, "1 will give you 6,000 tons in two weeks." This promise was not declared on.

On February 20, 1912, plaintiff wrote to defendant as follows: "We tried to get you on the phone this morning. Since talking with you yesterday, we have found the school supply is very low. In order that there may be no misunderstanding, we thought it well to write you confirming what our Mr. Alwart said in his interview with you Saturday, and to let you know our needs in the matter of delivery of coal under our contract with you. Although this contract calls for 20,000 tons of coal, we had received only about 6,000 to February 1st. For the month of January we gave orders for 5,000 tons of coal, but received only 1,600 tons. The loss on this in money actually paid out or now due is not less than $3,000, and it is probable that will not nearly cover our loss. For the next two weeks we will require 6,000 tons of coal under our contract, and would ask you to commence delivering it at once at the rate of 8 to 10 cars a day. Between now and April 1st we want you to deliver the balance of our 20,000 tons. Please let us hear from you, and let us know what we may expect in the way of immediate deliveries. Your early reply will greatly oblige. Referring to the question of releasing you on part of your deliveries, we decided to wait till we see what effort you make to supply us between now and April 1st."

To this defendant replied on February 21, 1912: "Your letter of February 20th received. You have failed to comply with the terms of your contract in important respects, and we have elected to rescind the contract, and accordingly hereby so notify you. As stated to you orally, we have been willing to ship the coal which the schools will consume during the remainder of this month and the next month, notwithstanding the fact that you have deprived us of all benefit of the contract by failure to take the coal in monthly installments as provided, and notwithstanding this notice, we stand ready to help you out to any reasonable extent. We offer to ship, under the same terms and conditions provided in the contract, the coal which the schools will consume during the remainder of this month and next month."

On February 22, 1912, plaintiff wrote to defendant: "This is to confirm conversation had between your Mr. Maloney and our Mr. Alwart to-day. Our understanding is that if you deliver us 8,000 tons of coal of the kind required by our contract with you, between now and April 1st, commencing shipments promptly and continuing at the rate of about 300 tons per day for 10 days, and thereafter approximately equal daily deliveries, so as to make the 8,000 tons by April 1st, we will release you from further liabilities on your contract with us dated July 25, 1911. If we do not receive the full 8,000 tons as specified in this letter, you will not be released from any of your obligations under the contract of July 25th."