125 F. 916 | 8th Cir. | 1903
This case was before this court on a former occasion on a writ of error which was sued out by the H. D.
On the present occasion the plaintiff in error complains principally of the refusal of one of four instructions which it requested the trial court to give. An inspection of the record discloses, however, that it did not take an exception on the trial to the refusal of the particular instruction which it now insists should have been given, but that it took an exception in gross to the refusal of the four instructions. This court has held on at least two occasions that an exception taken in gross to the refusal of numerous instructions will not be noticed on appeal if some of the instructions so refused were erroneous or superfluous. The same reasons which have influenced the courts to hold that they will not notice an exception taken in gross to an entire charge or to a long excerpt from a charge embodying several propositions of law, if any of the propositions are sound, applies' with equal if not greater force when a long list of instructions enunciating different propositions of law are asked and refused, some of which are unsound or superfluous, and an exception is taken in gross to the refusal of all. Hodge v. Chicago & Alton Railway Company, 121 Fed. 48, 52, 57 C. C. A. 388; Railway Company v. Spencer, 18 C. C. A. 114, 71 Fed. 93; New England Furniture & Carpet Company v. Catholican Company, 24 C. C. A. 595, 79 Fed. 294; Price v. Pankhurst, 3 C. C. A. 551, 53 Fed. 312; Association v. Lyman, 9 C. C. A. 104, 60 Fed. 498. When counsel, on the trial of a case, merely say, as in the present instance, that they except to the court’s action in refusing a series of instructions, they assert in substance that all of the instructions were proper and ought to have been given. The only question, therefore, which such an exception fairly presents on appeal is whether such contention, that all of the instructions asked ought to have been given, is well founded. We are of opinion that counsel should challenge the attention of the trial judge to each separate proposition of law which they see fit to submit, when numerous declarations of law are requested, and that they should obtain a distinct ruling on each proposition, as well as the allowance of an exception with respect to such action as may be taken, provided they intend to take advantage of such action on appeal. The practice that is sometimes pursued, of tendering a long list of instructions to a trial judge, and, after they are refused, saying, “we except to the court’s action,” without pointing out to the trial judge the particular propositions of law that are deemed important, and securing an express ruling thereon, tends to occasion error that might otherwise
“The court instructs you that, under the agreement between the plaintiffs and the defendant, the defendant was not obliged to furnish the plaintiffs with all of the barrels which they needed for their business during the year 1899, but only with the new barrels which plaintiffs needed, and that the burden of proving the number of new barrels which the plaintiffs needed is upon them, and, if they have failed to prove the number of new barrels as distinguished from the number of secondhand barrels needed and used by them after the defendant refused to make further deliveries, your verdict must be for defendant.”
The contract, for the breach of which this action was brought against the cooperage company, bound it to furnish the plaintiffs below with their “entire requirements * * * for new barrels during the year 1899.” It had been the usual practice'of the plaintiffs, when they sold barrels containing oil, to repurchase the barrels, when they were emptied, from their customers, although the latter, as it seems, were under no obligation to sell them to the plaintiffs if they saw fit to use them themselves or sell them to other persons. The instruction in question enunciated the proposition that 'the plaintiffs could not recover if they had failed to prove the number of “new barrels needed and used by them” after the cooperage company had refused to furnish barrels as ordered. Counsel for the cooperage company contend that the plaintiffs had no right, under the contract, to call on it to furnish them with new barrels simply because the price of new barrels, as fixed in the contract, became less than the price demanded by their customers for secondhand barrels. They further urge, in substance, that, to entitle plaintiffs to recover, it was their duty to show how many secondhand barrels they might have obtained by paying the enhanced price, and that they were only entitled to recover damages on account of the new barrels in excess of the number of secondhand barrels that might have been bought, which they “needed or used.” We cannot assent to the foregoing proposition. Aside from the fact, heretofore mentioned, that a proper exception was not taken to the refusal of the aforesaid instruction, we think that it was properly refused. In its .charge the trial court instructed the jury that, if they found the cooperage company was guilty of a breach of contract as charged in the complaint, they should assess the plaintiffs’ damages “at that amount or sum of money that you find they were reasonably and necessarily required to expend, over and above the contract price as fixed in the contract read to you, in order to secure either new barrels, or others of no greater value than the new barrels contracted for, to meet their reasonable business requirements during the term of the contract in question.” We are of opinion that this instruction was founded upon a correct view of the contract, and that it prescribed the correct
We find no occasion to reverse the second judgment in favor of the plaintiffs in this case, and it is accordingly affirmed.