251 F. 13 | 7th Cir. | 1918
(after stating the facts as above).
We are of the opinion that the contract was obscure in the respects indicated by the trial court, and that the court was justified in receiving the evidence complained of. In doing so the contract was not modified. Nor was it essential that the customs and matters constituting the extraneous matters introduced be pleaded. The testimony was as to a general custom prevailing in the rosin trade, wherever located. The evidence was competent. Steidtmann v. Joseph Lay Co., 234 Ill. 84, 84 N. E. 640, in which it is said:
‘•The testimony of witnesses is admissible to explain not only technical words of art or science, but words or phrases having a local meaning or a*16 special meaning in a particular calling, trade, business, or profession. * * * A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. And this is so whether he knew of the custom or not.”
See Lowe v. Lehman, 15 Ohio St. 179; Collins Ice Cream Co. v. Stephens, 189 Ill. 200, 59 N. E. 524; Hewitt v. John Week Lumber Co., 77 Wis. 548, 46 N. W. 822; Colman v. Clements, 23 Cal. 245; Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593; Field v. Lelean, 6 H. & N. 617, 158 Eng. Rep. 255.
We do not find justification for the contention that the custom was inconsistent with the terms of tire contract.
The contention is, to say the least, novel. The évidence introduced was in no sense secondary. It was primary in its nature. There was no denial of it. It may be that defendant could have found in the production records some better data for cross-examination, or evidence more conclusive to its counsel’s mind, but the proposition that the rule requiring the production of the best evidence applies to circumstances and conditions such as here prevail does not commend itself to us. There seems to have been enough competent evidence adduced to satisfy the jury on that point, and we are not disposed to interfere. Whatever degrees of evidence existed in the trial were merely those as to the weight to be given to it and not as to its competency. No reason appears why defendant, had it desired, could not have procured access to the book, if there were one, in the usual way.
Under the circumstances of the case, we conclude that the right of possession was in plaintiff at the time of resale, and the sale properly made. Defendant makes no serious complaint as to the maimer of its carrying out. There is nothing in the record to impeach the fairness of plaintiff in making the sale. So far as we can gather from the facts shown, the burden cast by the law upon it was fully and fairly sustained. As above stated, we must at any rate assume such to be the case as the record now stands.
Defendant assigns as error that part of -the charge to the jury in which the court tells them they may include interest as damages in case they find for the plaintiff, the same to be figured from the commencement of the suit, since the time the contract was broken.
“This contention,” says the court, “overlooks the elementary distinction between interest as such and the use oil an interest calculation as an instrumentality in arriving at the amount of damage», to be awarded on the principal demand. As we have said, the recovery sought was not the price and interest thereon, but the sum of the damage resulting from eviction. All such damage was therefore the principal demand in controversy, although interest and price and other things may have constituted some of*18 the elements entering into the legal unit, the damage which the party was entitled to recover. Whether, therefore, the court below considered the interest as an instrument or means for ascertaining the amount of the principal demand is wholly immaterial, provided the principal demand as made and ascertained was within the jurisdiction of the court. Indeed, the confusion of thought which the assertion of want of jurisdiction involves is a failure to distinguish between a principal and an. accessory demand. The sum of the principal demand determines the question of jurisdiction; the accessory or the interest demand cannot be' computed for jurisdictional purposes. Here the entire damage claimed was the principal demand without reference to the constituent elements entering therein. This demand was predicated on a distinct cause of action — eviction from the property bought. Thus considered, the attack on the jurisdiction is manifestly unsound, since its premise is that a sum, which was an essential ingredient in the one principal claim, should be segregated therefrom, and be considered as a mere accessory thereto.”
So here the suit was brought to recover damages for failure to take and pay for 578 barrels of rosin, not for the value of the rosin and interest. The whole amount claimed sounded in damages, of which the sum computed, as though it were interest, formed a part, and should be treated as a part of the principal sum, and not as an accessory demand. The same ruling was had in Continental Casualty Co. v. Spradlin, 170 Fed. 322, 95 C. C. A. 112, in a suit brought to recover damages for breach of a contract of assurance. The action was in assumpsit, and the damages were laid at $3,000.
“The exception of the plaintiff in error,” says the court, “is upon the ground that the declaration discloses $2,000 as the principal demand, and that this should oust the jurisdiction; the further proposition being that (the) amount alleged and recovered above $2,000 was interest We do not agree to this proposition. There was no contract for interest in this policy. The action is in assumpsit for damages for failure to perform. The interest, therefore, was not a mere incident or necessary to the amount demanded, but constituted, together with the amount set out in the policy, aggregate damages for the breach. We think Brown v. Webster, 156 U. S. 328, 15 Sup. Ct. 377, 39 L. Ed. 440, settlfes this point.”
This doctrine is supported by numerous authorities, among others the following: Penn. Schuyl. V. R. Co. v. Ziemer, 124 Pa. 560, 571, 17 Atl. 187; Allegheny City v. Campbell, 107 Pa. 530, 52 Am. Rep. 478; Richards v. Citizens’ Natural Gas Co., 130 Pa. 37, 40, 18 Atl. 600; 1 Sedgwick on Damages, § 282 et seq.; 22 Cyc. 1495, 1496; Hubbard v. Callahan, 42 Conn. 524, 19 Am. Rep. 564.
“It is not, however, the amount that plaintiff is able to prove he is entitled to that determines the amount in dispute for the purpose of jurisdiction; for otherwise the. failure of the plaintiff to recover would oust the •court of jurisdiction. The amount in dispute, or matter in controversy, which determines the jurisdiction of the Circuit Court, in suits for the recovery •of money only, is the amount demanded by the plaintiff in good faith.”
The plaintiff, having, as we find from the record, brought suit in good faith for $4,500, is entitled to maintain its suit here. Armstrong v. Walters (D. C.) 219 Fed. 320; Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682; Schunk v. Moline, Milburn & Stoddard Co., 147 U. S. 500, 13 Sup. Ct. 416, 37 L. Ed. 255; Smithers v. Smith, 204 U. S. 632, 27 Sup. Ct. 297, 51 L. Ed. 656.
The court had jurisdiction and. in our opinion, rightly entered judgment in accordance with the verdict.
The judgment is therefore affirmed.