Trenton Oil Cloth & Linoleum Co. v. Munroe

218 F. 370 | 2d Cir. | 1914

LACOMBE, Circuit Judge.

The material and important evidence in the cause, showing the contractual obligations entered into by the parties and their action under the contracts, consists of a long series of letters exchanged between them. This correspondence was exhaustively examined and carefully collated on the former appeal, and the conclusions were reached that two contracts were entered into whereby plaintiffs undertook to deliver monthly 150 tons under the first and 83 tons under the second, and that no modification or amendment of these contracts was agreed to. Also that the first actionable breach of the contract was by defendants’ failing to pay for the shipment due September 2, 1909.

A number of additional letters exchanged between the parties during the period in question have now been introduced, but they do not in any way materially alter the situation. Indeed the argument on this appeal is practically a reargument of the propositions advanced when the cause was here before. We do not find these additional letters persuasive to any different conclusions.

[1] Exceptions to the exclusion of certain testimony are made the basis of assignments of error. It is sufficient to say that the questions put to the witness Loog, another customer of plaintiffs, inquiring whether he had paid all his bills for cork delivered to him, whether the cork called for under his contract vías delivered to him and whether plaintiffs said anything to him as their ability or inability to receive cork from the other side of the Atlantic are obviously irrelevant.

[2] We find no error in the exclusion of questions put to plaintiffs’ treasurer as to place of storage, date of shipment, difficulties in obtaining cork, and contracts with other persons. The correspondence very clearly reveals the true condition of affairs.

As the amount alleged to be due was not disputed and the only reliance of defendants is on the recoupment, counterclaim, or set-off, verdict was properly directed.

Judgment affirmed.