Alverson v. Oregon-Washington R. & Nav. Co.

236 F. 331 | 9th Cir. | 1916

HUNT, Circuit Judge

[1] (after stating the facts as above). The points urged by counsel for the plaintiff in error relating to the giving of certain instructions to the jury are not for consideration by this court. The record affirmatively shows that after the court had delivered the charge to the jury the judge inquired of counsel for both parties whether there was anything further to present, and that counsel for the plaintiff replied that he did not think of anything further. Counsel for the defendant, in accord with the proper practice, in the presence of the jury, and before the jury retired, took exceptions to certain instructions given by the court and to the refusal of the court to submit to the jury certain instructions requested by defendant. Plaintiff is not aided by the stipulation of May 1st, because not only did he fail to take exceptions to the instructions which the court gave before the jury retired, but his express statement to the court was to the effect that he had none to present. Under such circumstances the subsequent stipulation is to be construed as having been made with the purpose of giving to the parties, not a right to take exceptions as of the time when the jury was at the bar, but as affording the plaintiff such rights as might attach under the law and the practice of the federal courts, namely, drawing out the exceptions in form and presenting them for signature.

The question involved was squarely decided by this court before the present case was tried. Beatson Copper Company v. Pedrin, 217 Fed. 43, 133 C. C. A. 29. In that case there was a stipulation made in the presence of the jury, and before it retired, that plaintiff and defendant have until a certain time “to make and take exceptions to instructions given and refused”; but this court, citing the earlier cases of Arizona & New Mexico Railway Company v. Clark, 207 Fed. 817, 125 C. C. A. 305, and Western Union Telegraph Company v. Baker, 85 Fed. 690, 29 C. C. A. 392, declined to consider the assignments of error in respect to giving and refusing to give certain instructions, because exceptions were not taken in open court while the jury were at bar. In Star Company v. Madden, 188 Fed. 910, 110 C. C. A. 652, the Court of Appeals of the Second Circuit quoted the language of the Supreme Court in Phelps v. Mayer, 15 How. 160, 14 L. Ed. 643, holding that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the jury were at the bar. In Johnson v. Garber et al., 73 Fed. 523, 19 C. C. A. 556, Judge Taft, speaking for the Circuit Court of Appeals of the Sixth Circuit, held to the same effect and cited many decisions, going back to Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182, ruling that an exception to be of any avail must be taken at the trial, and that, although it may be reduced to form and signed afterwards, the fact that it was seasonably taken must appear affirmatively in the record or bill of exceptions duly allowed, or otherwise. The matter was regarded as one of law, notwithstanding the fact that a practice at variance with the rule had obtained and was recognized and acquiesced in by the trial judge. Greene et al. v. United States, 154 Fed. 401, 85 C. C. A. 251; Montana Mining Company v. St. Louis Mining & Milling Company, 147 Fed. 897, 78 C. C. A. 33; Merchants’ Exchange Bank v. McGraw, 76 Fed. 930, 22 C. C. A. 622; St. Louis, I. M. & S. Railway Company v. Spencer, 71 Fed. 93, 18 C. C. A. 114; Price v. Pankhurst et al., 53 Fed. 312, 3 C. C. A. 551.

[2] Paragraph 4 of the agreement made between Caughren, Boynton & Co., designated in the agreement as the “railroad company,” and Alverson & Koeper, which may be called Alverson’s contract, provided that if the contractor, in the opinion of the engineer, communicated in writing by the engineer to the contractor, should fail to comply with the provisions of the contract to be performed by the contractor, or should neglect to prosecute the work with a sufficient force to insure completion within the time specified, the railroad company, at its option, could, “after the expiration of 10 days from the mailing of such notice to the contractor at his post office address, cancel this contract and declare the same void, and a notice in writing mailed to the contractor at his post office address, signed by the railroad company, shall be sufficient for that purpose.” It was further provided that in the event the contract was canceled, as therein provided, the contractor should have no claim against the railroad company for damages, and the compensation or percentage unpaid should be retained, etc., “and the railroad company may, at its option, employ other parties to complete said work, or any part thereof, and any loss occasioned by reason of such default to be chargeable against the contractor, the amount of such loss to be estimated by the engineer, whose decision shall be final and binding on the parties hereto.”

The argument of plaintiff is that a full compliance by the railroad company with the requirements of this provision of the contract was necessary as a condition precedent to a rescission by the railroad company, even had Alverson given sufficient cause for a declaration of forfeiture, and it is urged that, inasmuch as the railroad company did not give, the required notice nor pretend to, its failure in that regard shows that its officers fully understood that no sufficient grounds for forfeiture existed, and that letting the work to other contractors was done with full knowledge and a deliberate violation of the rights of Alverson. But as the bill of exceptions nowhere shows that plaintiff requested the District Court to charge the jury in respect to the effect of paragraph 4 'of Alverson’s contract, or that plaintiff asked the attention of the trial court to the point now urged, and as no error was assigned in respect to the matter, there is no ground for complaint. Phœnix Railway Company v. Landis, 231 U. S. 578, 34 Sup. Ct. 179, 58 L. Ed. 377; Humes v. United States, 170 U. S. 210, 18 Sup. Ct. 602, 42 L. Ed. 1011; Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343; Isaacs v. United States, 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Texas & Pacific Railway Company v. Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78; Schultz v. United States, 200 Fed. 234, 118 C. C. A. 420. We do not look upon the point as presenting an instance of “plain error” which, under rule 11 of the court (150 Fed. xxvii, 79 C. C. A. xxvii), may be noticed at the option of the court.

Finding no reason to disturb the action of the District Court, its judgment is affirmed.