Kawin & Co. v. American Colortype Co.

243 F. 317 | 7th Cir. | 1917

ARSCHULER, Circuit Judge

(after stating the facts as above), [ 1J Plaintiff moved to dismiss the writ of error herein upon the ground that, defendant having raised the question of the'jurisdiction of the District Court to render the judgment complained of, it follows that the case should have gone directly to the Supreme Court. We find no merit in the point. In United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87, it is said:

"If the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the whole case to the Circuit Court of Appeals, and the question of jurisdiction can be certified to by that court.”

This we deem to be the law at this time applicable to the present case. We therefore deny the motion to dismiss.

[2] Defendant raised, as a question going to the jurisdiction, that it does not appear that diversity of citizenship exists between the parties. The declaration sets out the diversity of citizenship, hut no evidence seems to have been taken on that matter. It is nowhere denied in terms, hut defendant insists it was traversed by the plea of general, issue. We regard this as without merit. The question was not raised by plea 'in abatement. In Illinois the common-law rules of practice prevail. There was no plea denying, the citizenship of the parties as alleged in the declaration. That allegation was for the purposes of the present motion prima facie proof of the fact, and unless it was traversed, and proof made to the contrary, it was established as by default. We held in Adams v. Shirk, 117 Fed. 801, 55 C. C. A. 25, that, even when raised by plea in abatement, defendant had the burden of proving the lack of diversity of citizenship, when the proper averment appeared in the pleading by the plaintiff. This is approved in Every Evening Printing Co. v. Butler, 144 Fed. 916, 75 C. C. A. 657; Hill v. Walker, 167 Fed. 241, 92 C. C. A. 633; Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. 521, 29 L. Ed. 725; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729; Pike County v. Spencer, 192 Fed. 11, 112 C. C. A. 433; Water Works v. Ryan, 181 U. S. 409, 21 Sup. Ct. 709, 45 L. Ed. 927. Moreover, it was charged by defendant in its second plea that plaintiff was a citizen of New Jersey. In the absence of any plea or evidence to the contrary, this amounted to an admission.

[31 The assignment of error on the part of the court in sustaining the demurrers to the fourth, fifth, and sixth pleas is not well taken. The pleas concede that plaintiff had duly qualified to do business in the state of Illinois and was still so qualified, hut allege that, after the contracts had been executed, the breaches thereof arisen, and the cause of action become complete, plaintiff had failed to file an annual report, which failure precluded it, under the terms of the statute of Illinois, from maintaining a suit, not only in the state, but also in the federal, court. The language of the statute, so far as pertinent, is, '‘No suit may he maintained either at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort in any court in this state” (Hurd’s Rev. St. 1915-16, c. 32, § 67g) unless the statute shall be complied with. It will be seen that the statute does not undertake to make the contract void, but simply provides the penalty of exclusion from the state courts. It appears that the contract was in force between the parties prior to the default alleged. Such default on the part of a corporation would not have retroactive effect. The contention of defendant has been many times denied by the courts. David Lupton’s Sons Co. v. Automobile Club, 225 U. S. 489, 32 Sup. Ct. 711, 56 L. Ed. 1177, Ann. Cas. 1914A, 699; Building & Roan Ass’n v. Bedford (C. C.) 88 Fed. 7; Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 58 C. C. A. 79; Groton Bridge Co. v. American Bridge Co. (C. C.) 151 Fed. 871; Johnson v. Breweries Co., 178 Fed. 513, 101 C. C. A. 639; Thomas v. Birmingham Ry. & Power Co. (D. C.) 195 Fed. 340; Cedar Works v. Buckner (C. C.) 181 Fed. 424; Loomis v. Peoples Const. Co., 211 Fed. 453, 128 C. C. A. 125; Bank v. Construction Co., 208 Fed. 976, 126 C. C. A. 64; Boatmen’s Bank v. Fritzlen, 221 Fed. 154, 137 C. C. A. 514; Dunlop v. Mercer, 156 Fed. 545, 86 C. C. A. 435; Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 Fed. 1, 84 C. C. A: 167.

[4-7] The error based on the admission of Exhibits M and M2 cannot avail. Exhibits M and M2 amounted only to an offer to pay an undisputed claim and get a full discharge. Exhibit R was competent to show a tender. There was no prejudicial error in allowing all of these to go in. evidence. When Exhibit Y was offered, the objection was general, and no ground of .objection was stated. The letter was admitted as a part of the cross-examination of Pincus Kawin, a stockholder of defendant. In such a case wide latitude is permissible. In the present case the reasons for defendant’s refusal to take the goods are not foreign to the cross-examination. The court had a wide discretion in the matter of the examination of an. adverse party. We are satisfied from the record that the introduction of the letter did not prejudice defendant’s case. It had a bearing also upon the alleged slump in the market price of these cards.

[8] We are not impressed with the assignment based on the admission of the testimony of the,witness Sheridan. His testimony as to the reasons why cards were not cut and packed before they were ordered was not a departure from the rule with regard to varying written contracts. It tended to show a usage of the trade, known to the parties, and in the light of which the contract was made, and did not serve to modify or vary the contract.

There was no error in refusing to instruct the jury to find for tlie defendant. The record discloses no situation which would have warranted- such a course.

[9-11] It is unnecessary to determine whether or not the contract is severable as to the Christmas and New Year cards, because of the waiver by defendants of any further delivery of New Year cards. The evidence of this waiver is so clear that the court was justified in declining to submit that issue to 'the- jury. There was no default on the part of the plaintiff in the performance, in substance, of the terms of the contract of sale. Clearly the contract did not contemplate that plaintiff tender the entire quantity on or before December 15th without orders from defendant; and, when the order of December 14th was given, plaintiff was entitled to a reasonable time within which to deliver. Alwart Bros. Coal Co. v. Royal Colliery Co., 211 Fed. 313, 127 C. C. A. 599; 234 Fed. 20, 148 C. C. A. 36.

[12], Defendant assigns for error the fact that the trial court refused to instruct the jury, in effect, that there could be no recovery for the 320,000 cards delivered, but not accepted, or for the 832,000 tendered on December 18, 1911, but not accepted by defendant, or for the 933,000 cards ready for delivery. The contract was an Illinois contract. Under the decisions of that state (Bagley v. Findlay, 82 Ill. 524; Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869) plaintiff had-the option, under the facts of this case, to sue for the contract price-in effect, to vest defendant with title, notwithstanding his dissent. This the plaintiff did. The cards had all been appropriated to defendant. In Star Brewery Co. v. Horst, 120 Fed. 246, 58 C. C. A. 362, there had been no appropriation, or order for delivery, and the contracts of purchase differed in other respects. But, if this case were not distinguishable, we should nevertheless apply the principle laid down in the state court.

There is a strong conflict in the authorities as to the right to recover the contract price, instead of the difference between the contract price and the market value. Williston, Sales, § 562; Habeler v. Rogers, 131 Fed. 43, 65 C. C. A. 281; Leyner Co. v. Mohawk Consol. Leasing Co. (C. C.) 193 Fed. 745. Contra, Malcomson v. Reeves Pulley Co., 167 Fed. 939, 93 C. C. A. 339; Fisher v. Newark City Ice Co., 62 Fed. 569, 10 C. C. A. 546; Denver Engineering Wks. v. Elkins (C. C.) 179 Fed. 922; River Spinning Co. v. Atlantic Mills (C. C.) 155 Fed. 466. See, too, where goods are not readily resalable, or where specially manufactured, Manhattan City Ry. Co. v. General Electric Co., 226 Fed. 173, 141 C. C. A. 171; Kinkead v. Lynch (C. C.) 132 Fed. 692; Fisher Hydraulic Stone Co. v. Warner, 233 Fed. 527, 147 C. C. A. 413.

[13] Under the Illinois decisions, the basis of recovery, in our judgment, is that the vendor may at his option vest title in the vendee, despite the latter’s. repudiation; it is therefore the duty of a federal court, sitting in Illinois and adjudicating an Illinois agreement, to follow the state decisions on matters of personal as well as real property. Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; In re Richheimer, 221 Fed. 16, 23, 136 C. C. A. 542.

[14, 15] But, even if recovery of the purchase price were deemed in Illinois merely the proper measure of damages for breach of the contract, and if title vested, not on plaintiff’s exercise of the option, but only on satisfaction of a judgment, the federal courts, -while not bound to follow the state decisions, nevertheless, “for the sake of harmony and to avoid confusion, will lean towards an agreement of views with the state court, if the question seems to them balanced with doubt.” Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; Sin v. Edenborn, 242 U. S. 135, 37 Sup. Ct. 36, 61 L. Ed. 199. And for the reasons so well stated in Fisher Hydraulic Stone Co. v. Warner, 233 Fed. 527, 147 C. C. A. 413, we have no doubt that at least in such a case as this, in which the cards are at best marketable in any real sense only long after the breach, justice requires that the plaintiff be not compelled to keep them and to recover merely the difference between the contract price and a highly uncertain market value.

[16] There is no merit in defendant’s contention that the purchase price could not be recovered under the common counts. A¥hen a contract has been fully performed by a plaintiff “and nothing remains to be done under it but the payment of the compensation in money by the defendant, which is nothing more tiran the law will imply against him, the plaintiff may declare specially on the original contract, or generally in indebitatus assumpsit, at his election.” Throop v. Sherwood, 9 Ill. (4 Gilman) 92. To the same, effect are Lane v. Adams, 19 Ill. 167; Tunnison v. Field, 21 Ill. 108; Adlard v. Muldoon, 45 Ill. 193; Gibson v. O’Gara Coal Co., 151 Ill. App. 424; Shepard v. Mills, 173 Ill. 223, 50 N. E. 709.

[17] -It is insisted by defendant that it was .error to¡ reimpanel the jury after it had rendered a sealed verdict,' correct in substance, but irregular in form, for the purpose of correcting the technical irregularity of the first verdict. The jury made no change in the result of their verdict. The error, if such it might be called, was a mere for-, mality, and it did not furnish good ground for a new trial. Practically the same practice was approved in Moore v. Loan & Trust Co., 70 Ill. App. 210, and is supported by the citation of authorities to the text shown at page 1893, 38 Cyc., and also by Nolan v. East, 132 Ill. App. 634-636.

[18] Defendant insists that it was error for plaintiff to conclude its replication to defendant’s third plea to the country, instead of with a verification. The replication sets up no new matter by way of inducement. The matters set out in the inducement constitute merely an admission of the matters of inducement alleged in defendant’s third plea. Piad the replication concluded with a verification, defendant would have been required to file a rejoinder, which it could not have done without a departure from its plea or rejoining the same matter as alleged in the plea. In Chitty’s Pleading, *621, it is said:

“The conclusion must, before the recent rules, in general bare been with a verification unless where no new matter was stated by way of inducement, or where the traverse comprised the whole matter of the plea, in which case it might be to the country.”

This rule is reinforced by Mr. Sergeant Williams, 1 Saunders, 103, cited at *1211 of Chitty’s Pleading.

Finding no substantial error in the record, the judgment is affirmed.