160 F. 34 | 6th Cir. | 1908
The plaintiff in this cause brought suit to recover the balance due from the defendants on a. contract for supplying them with slops from its distillery, for cattle feeding. The defendants admitted the execution of the contract, and that the slops had, in a way, been supplied; but advanced a counterclaim based on allegations that the plaintiff had not made such delivery as it was bound to do by the terms of the contract, and had otherwise failed to perform its stipulations; for which they demanded damages, to be offset against the demand of the plaintiff, to the extent of its demand, and a judgment for the overplus. This counterclaim was rested upon the ground that the plaintiff was to furnish the feeding lot with sheds, tanks, troughs, pipes, division fences, and other facilities for feeding cattle in it, which it had failed to do; and that in consequence of this neglect their cattle, to the number of about 1,100, had greatly suffered from hunger, exposure, and disease, from which many of them died, and the rest much diminished in weight and value from what they would have been if the feeding lot had been properly equipped. The plaintiff demurred to the counterclaim, and the demurrer was sustained. The defendants declining to plead further, final judgment was entered, and the defendants brought the record here for review on a writ of error. The judgment was reversed. 134 Fed. 168, 67 C. C. A. 74. The parties pleaded to issues on the merits. A trial thereon by a jury has been had, resulting in the establishment of the counterclaim by a verdict and judgment for the defendants for the sum of $7,000; and the case is now brought here by the plaintiff. Counsel for defendants make a preliminary objection to the bill of exceptions, and move to strike it from the record. The objection is a serious one, because the bill of exceptions is indispensable to any effective review of the rulings of the court below.
The facts on which the motion is made are these: A judgment in favor of the defendants for $7,000 was entered in the usual form on October 4,1905. On the following day, the court being still in session, the plaintiff entered a motion for a new trial, and the entry on the journal was “the court not being sufficiently advised on said motion takes
The contract and the pleadings are fully stated in the report of our former decision (134 Fed. 168, 67 C. C. A. 74), to which, to save time and space, we refer for details. Epitomized, the facts are that on November 18, 1902, the plaintiff had a distillery in Anderson county, Ky., the refuse from which it was intended, as is customary, to utilize by feeding it to cattle. The defendants owned a 30-acre lot adjacent to the distillery, and proposed to engage in cattle feeding. And on that day, and the day following, the parties — that is, the distillery company and the Rillards — made two written agreements. By one, the Lillards
“(1) There should have been a peremptory instruction in favor of the Kentucky Company, because the Lillard Bros, did not prove the existence of any custom or usage which required the Kentucky Company, to equip the feeding lot with pens, troughs, tanks, etc. (2) The damages are not sufficiently proven, are too speculative and remote, and the judgment is grossly excessive. (3) Billard Bros, did not use reasonable exertion to save themselves from the loss arising from the alleged breach of the contract, and therefore they cannot charge the Kentucky Company with damages which with reasonable expense and exertion they could have prevented.”
With regard to the first of these questions, it must be taken to be whether there was any evidence having substance and which might reasonably convince the jury of the fact that the alleged custom existed. Eor neither could the court below, nor could this court, in such circumstances, weigh the evidence in its own balance. If the testimony was pertinent and had significance the jury were the sole judges of its value. Mt. Adams, etc., R. Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596; Travelers’ Insurance Co. v. Randolph, 78 Fed. 24 C. C. A. 305; Minahan v. Grand Trunk Western Ry. Co., supra. To begin with, it appears that the ¡distilling company leased this lot “to be used as a cattle feeding lot,” and there was granted to it “the right
2. It is said that the damages were not sufficiently proven; that they are too speculative and remote; and that the judgment is grossly excessive. This contention is so groundless that it may be dismissed with a few words. There was evidence that 67 of the cattle died from starvation, and from crowding in great numbers around the few troughs, and of their value; that 1,340 failed to fatten, to the extent they might reasonably be expected to' do with the quantity of feed fed to them, and the extent was proved; that these cattle became thin and poor, and could not be sold for more than 75 cents per 100 pounds less than if they had attained the condition which would have reasonably been expected if the conditions had been proper; that extra time and labor became necessary and was bestowed; and that extra feed had to be supplied to keep up the failing animals and save them. From the testimony shown in the record, we think the jury might have given the defendants a larger verdict than they did. And the damages were not remote. They were the natural and probable result of conditions for which the plaintiff was responsible. If the damages seem large, they are not, so far as we are permitted to judge, out of proportion to the fault.
3. In substance, this allegation of error is that the defendants did not take measures to remedy the fault of the plaintiff by supplying the proper' furnishings themselves, and thereby mitigate the damages. The rule of law thus appealed'to is certainly well settled. Lawrence v. Porter, 63 Fed. 63, 11 C. C. A. 27, 26 L. R. A. 167; Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117. And the court gave it to the jury; but with the modification, which the evidence suggested, that if the failure of the defendants to take such action was fairly attributable to the circumstances that upon repeated requests the plaintiff promised from time to time -to remedy his neglect by putting in the furnishings, such facts would excuse the defendants so long' as they had ground for expecting the plaintiff would do its duty. This modification of the rule was also correct. But a party who grounds his complaint upon an allegation that the other party was at fault in confiding in his representations and promises is not entitled to much favor, and the burden is upon him to show, -at least, from what time the other should
The judgment should be affirmed, with costs.