202 F. 335 | W.D. Wash. | 1913
This cause is before the court upon defendant’s petition for a new trial. The plaintiff, a Kentucky seed
The real dispute between the parties is whether, under the contract, the seed was to be measured at 14 pounds to the bushel, as claimed by the plaintiff, or 21 pounds, as claimed by the defendant. Upon the first trial, the court held that the written contract was not ambiguous, and that under it 14 pounds was to constitute a bushel, and instructed the jury to return a verdict accordingly. 174 Fed. 882.
Upon writ of error, the Court of Appeals held that the Circuit Court had erred, that one of the writings constituting the contract was ambiguous, and that its meaning, taken in connection with the balance of the correspondence, should have been left to the determination of the jury under appropriate instructions from the court. A second trial was had, and a verdict returned in accordance with plaintiff’s contention. The trial judge having resigned without a ruling had upon the petition for a new trial, the same is now before the court.
The following authorities are relied upon by the plaintiff: Nelson v. Imper. Trad. Co. (Wash.) 125 Pac. 777; 22 Am. & Eng. Enc. of Law, p. 1339; Hamilton v. Schlitz Brewing Co., 129 Iowa, 172, 105 N. W. 438, 2 L. R. A. (N. S.) 1078; Clark v. Shannon & Mott Co., 117 Iowa, 645, 91 N. W. 923; Aerheart v. St. Louis, I. M. & S. Ry. Co., 99 Fed. 907, 40 C. C. A. 171; Doyle v. Union Pac. Ry. Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223; Baltimore & P. R. Co. v. Baptist Church, 137 U. S. 568, 11 Sup. Ct. 185, 34 L. Ed. 784; Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968.
The defendant relies upon the following authorities: Portland Flouring Mills Co. v. British F. & M. Ins. Co., 130 Fed. 862, 65 C. C. A. 344; Phœnix Co. v. Humphrey-Ball, 58 Wash. 401, 108 Pac. 952; Hopkins v. Cowen, 90 Md. 152, 44 Atl. 1062, 47 L. R. A. 124; Treadwell v. Anglo American (C. C.) 13 Fed. 23, 5 Ann. Cas. 263; 22 Am. & Eng. Enc. of Law (2d Ed.) 1340; Dow v. Gould, 31 Cal. 629; Mead v. Dayton, 28 Conn. 33; Lewis v. McCabe, 49 Conn. 155, 44 Am. Rep. 217; Weil v. Golden, 141 Mass. 364, 6 N. E. 229; Camwell v. Sewell, 5 H. & N. 728; Rhode Island Locomotive Works v. South Eastern R. Co., 31 L. C. Jur. 86; G. A. Gray Co. v. Taylor Bros. Iron Works Co., 66 Fed. 686, 14 C. C. A. 56; Koster v. Merritt, 32 Conn. 248; Brinker v. Scheunemann, 43 Ill. App. 662; Diether v. Ferguson Lbr. Co., 9 Ind. App. 173, 35 N. E. 843, 36 N. E. 765; Fred Miller Brewing Co., v. De France, 90 Iowa, 395, 57 N. W. 959; Finch v. Mansfield, 97 Mass. 89; Kline v. Baker, 99 Mass. 253; Brockway v. Maloney, 102 Mass. 308; Dolan v. Green, 110 Mass. 322; Ames v. McCamber, 124 Mass. 85; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Portsmouth Brewing Co. v. Smith, 155 Mass. 100, 28 N. E. 1130; Tarbox v. Childs, 165 Mass. 408, 43 N. E. 124; Orcutt v. Nelson, 1 Gray (Mass.) 536; Kling v. Fries, 33 Mich. 275; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472; Webber v. Howe, 36 Mich.
The defendant, in its answer, pleaded the general issue, as well as an affirmative defense, in which latter the real nature of the differences between the parties, as afterward developed by the evidence, Was disclosed. It is considered that, other questions apart, this general denial, putting in issue_ plaintiff’s right to recover, would show the jurisdictional amount to be in controversy, for by that denial plaintiff’s right to recover anything was disputed.
4 “The only ground for the admission of such evidence was that it might aid in the true construction of the contract. If needed for that purpose, it was clearly a matter for the jury, since the evidence upon the subject was conflicting; and such could only have been the theory upon which the alleged custom was set up in the complaint.”
The cause was remanded for the jury to determine the meaning of the ambiguous writing, “in view of all the facts and circumstances of the case.” The materiality of this testimony is, therefore, no longer an open question in this case.
Kentucky is recognized as the leading market and producing section for blue grass seed, and, in the absence of an .established custom at the place of sale, in case of doubt concerning the meaning of the parties to a contract in this particular, evidence of the custom in Kentucky would be admissible, provided the jury found that the defendant knew of the custom and contracted with reference to it, all of which questions were submitted to the jury under appropriate instructions, to which no exception was taken.
A large number of other errors are assigned — over 70. These relate to rulings made upon the admission and rejection of evidence, and remarks by the court in the presence of the jury, alleged to have been prejudicial to the defendant. Error is also assigned upon various of the court’s instructions. These assignments are too great in number to receive separate mention, but an examination fails to disclose any deemed to have.prejudiced the defendant. None of the comments of the court' concerning the evidence exceeded the latitude allowed in such cases. Aerheart v. St. Louis, I. M. & S. Ry. Co., 99 Fed. 907, 40 C. C. A. 171; Doyle v. Union Pac. Ry. Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223; Baltimore & P. R. Co. v. Baptist Church, 137 U. S. 568, 11 Sup. Ct. 185, 34 L. Ed. 784; Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968.
In the court’s charge to the jury they were told:
“In calling your attention to the particular features of the evidence, you will bear in mind that I am simply doing that to illustrate and make plain the points I am going over, and not as in any way controlling you in your judgment upon any question of fact.”
“Exceptions to a charge to a jury, or to a refusal to give as a part of such charge instructions requested in writing, may be taken by any party by-stating to the court, after the jury have retired to consider of their verdict, and if practicable before the verdict has been returned, that such party excepts to the same, specifying by numbers of paragraphs or in any other convenient manner the parts.of the charge excepted to, and the requested instructions the refusal to give which is excepted to; whereupon the judge shall note such exceptions in the minutes of the trial or cause the reporter (if one is ⅛ attendance) so to note the same.”
Nothing appears in the record or upon the argument to take this case out of the rule. The defendant contends that this matter is controlled by rule numbered 75, and not by rule 58; but it is clear that rule 75 applies to bills of exception generally and their settlement, and has no application to the announcement or taking of exceptions to the charge to the jury.
Petition for a new trial denied.