223 F. 969 | 4th Cir. | 1915
This is a writ of error to the judgment of the United States District Court for the Northern District of West Virginia, rendered 14th of May, 1914, in an action at law pending in said court, wherein the plaintiff in error (hereinafter called the defendant) was defendant, and the defendant in error (hereinafter called the plaintiff) was plaintiff.
The cause of action arose out of a breach of a contract entered into on the 12th day of September, 1910, whereby the defendant purchased from the plaintiff 5,000- barrels of White Satin flour in bulk, at the price of $5.20 per barrel, the same to be delivered as called for by the defendant. Defendant was to furnish sacks in which the flour was to be shipped under its trade-name of Royal Blue flour, being a brand for which it had secured an extensive trade. Sacks were furnished, and shipments made from time to time, between September, 1910, and the 10th ofi March, 1911, when the' defendant, after having called for shipments aggregating 1,650 barrels, running through the months of September, October, November, and December, 191Q, and January, February, and March, 1911, declined to accept the balance of the flour, and countermanded its order for the residue of 3,350 barrels, on the alleged ground that the flour did not prove satisfactory to its customers. At the time of the attempted cancellation of this contract, the price of flour had fallen on the market from $5.20 to $4.60, a difference of 60 cents per barrel, amounting to $2,100. This action of assumpsit was thereupon instituted to> recover this balance claimed to be due on account of the breach of. contract, with interest from March 10, 1911.
The defendant denied liability for the indebtedness, and in addition set up by two special pleas the defense (1) that it had been damaged in a sum equal to the amount of plaintiff’s claim, by losses sustained to its business because of the failure of the plaintiff to furnish flour equal to that of the Royal Blue standard theretofore sold by the defend
Upon these pleadings the case was tried in the court below by a jury, a large number of witnesses on the opposing sides introduced, and a verdict rendered for the full amount claimed, with interest, in favor of the plaintiff, from which this writ of error is sued out. _ The assignments of error relate to the ruling of the court below in the admission of certain testimony hereinafter mentioned, over the objection of the defendant, to the refusal of the court to give three instructions asked for by the defendant, to the charge as given by the court, and to the entry of judgment on the verdict of the jury against the defendant. These assignments will be considered in the order named.
This testimony in rebuttal was manifestly proper, as controverting the questions of fact thus raised by the defendant, with a view of showing that there had been no deterioration in the quality of the flour, either by reason of the change in employés, or because of the quality of the wheat used; and the fact that the complaints were confined to this particular customer was material from another point of view, as tending to throw light on whether the decline in the price of wheat at and about the time in question may not have influenced the action of the defendant in seeking to avoid its con tract,'rather than the lower quality of the flour furnished. Ames v. Quimby, 106 U. S. 342, 347, 348, 1 Sup. Ct. 116, 27 L. Ed. 100; Mayes v. McCormick Harvester Machine Co., 110 Ga. 545, 35 S. E. 714; Pike v. Fay, 101 Mass. 134.
The defendant, after thus ordering the flour under its contract, and continuously for some months receiving the same thereunder, ought not in good faith and fair dealing, having partly performed the contract, to be permitted to rescind the same at its option, because of the alleged defect in the quality of some of the flour furnished. Its remedy, if any, under such circumstances, would be by way of offset or recoupment from the purchase money, or a suit for damages for breach of the contract. Lyon v. Bertram, 20 How. 149, 15 L. Ed. 847; Clark v. Wheeling Steel Works, 53 Fed. 494, 3 C. C. A. 600; Harding, Whitman & Co. v. York Knitting Mills (C. C.) 142 Fed. 228; McDonald v. Kansas City Bolt & Nut Co., 149 Fed. 360, 79 C. C. A. 298, 8 L. R. A. (N. S.) 1110; J. W. Ellison & Co. v. Flat Top Grocery Co., 69 W. Va. 380, 71 S. E. 391, 38 L. R. A. (N. S.) 539.
We find no error in the ruling of the lower court, either in the admission of testimony, or in its rulings upon the instructions, and the case having been fairly submitted to the jury upon testimony, much of which was conflicting, the verdict in favor of the plaintiff was fully and amply sustained by the testimony, and should not be disturbed.
The lower court’s action will therefore he affirmed, at the cost of the plaintiff in error.