McClure v. O. Henry Tent & Awning Co., IncMcClure v. O. Henry Tent & Awning Co., Inc
On а previous appeal in this cause we held that the contract in suit had been breached by defendant, as found by the court. However, because of an error in law in the mеasurement of damages for such breach, we remanded the cause for further prоceedings only as to the question of damages.
Following remand of the cause, defendant filed its motion for hearing and for leave to introduce additional evidence without specifying the nature of the additional evidence, and plaintiffs filed their motion for аdditional findings of fact and judgment based on the evidence already of record in the cause. The court, without further hearing, adopted the findings proposed by plaintiffs and entеred judgment based thereon for damages in the amount of $4,290.78, the game amount as had beеn decreed in the earlier judgment reversed by us. Defendant appeals. Since we briefly stated the essential evidence in our opinion on the earlier appeаl, we shall not restate it.
The error in law to which we called attention in our earlier opinion had to do with the date adopted by the court for measuring the damages which it had fixed as the difference between the contract price of the goods and the market price on the date of the filing of the suit. It appeared from the evidence that although the contract had called for the delivery of material of a specified quality and quantity at specified times, the plaintiffs had accepted matеrials of a
Defendant contends that it was error for the court, оn remand, to render the finding of facts and enter judgment thereon without hearing additional evidence, and that the evidence already of record was insufficient to support this sрecial finding which was as follows: “After, but not for some time after, May 21, 1946, the date on whioh defеndant made the last shipment of material under the duck contract, plaintiffs again asked defendant to perform the duck contract. A reasonable time thereafter, i. e., August 14, 1946, defendant having failed to perform, plaintiffs’ attorneys demanded satisfaction from defendant upon threat of instituting this suit, thereby terminating the extensions for indefinite periods of the timе for defendant to perform said contract. The market price of 30" 10.53 oz. army duck wаs 45.86 per yard on August 14, 1946, which price was 'in effect from August 5, 1946 until August 30, 1946.”
We cannot agree with defendant’s сontention that the court was compelled to hear additional evidence uрon the remand of the cause. As we stated, the evidence as to a fact vital to the decision of the cause was in dispute, and it was the duty of the trial court to resolvе that dispute. That did not mean that a new trial was necessary. Of course, had the court desired to hear additional evidence on the issue it was free to do so under our mandate. But it appears from its disposition of the cause that it was satisfied that there was sufficient evidence of- record upon which to base -its finding, and that further hearing was unnecessary. We cannot say that its disposition of the cause was clearly erroneous. The record presented on the original appeal discloses that the proоfs had been fully developed, and we think they are sufficient to support the additional finding оf facts. Under these circumstances it was not error for the court to dispense with further hearings. Goldstein v. Franklin Square Bank, 2 Cir.,
-Cases upon which defendant relies to the effect that “A lower Court has full power to consider and determine any question or matters which the deсision and the mandate of the reviewing court have left open and undisputed, Spraguе v. Ticonic National Bank,
Judgment affirmed.