221 F. 603 | 6th Cir. | 1915
The contract made on March 15, 1910, with the Pickands-Magee Company by the plaintiff in error (who will hereinafter be called the defendant), obligated him as purchaser to accept weekly for the residue of the calendar year not less than 15 nor more than 20 cars of “selected 72-hour Ellen foundry coke,” delivered “f. o. b. cars at ovens of party of the first part.” Each month’s deliveries were to be treated as a separate and independent contract. The Pickands-Alagee Company is claimed by it and the defendant in error (who will hereinafter be called the plaintiff) to have acted as the sales agent of the defendant. Following the execution of the contract, the Pickands-Magee Company delivered it to the plaintiff. The defendant, for some time prior to the making of the contract, had engaged in the business of buying coke of producers of that article and selling it to consumers. In previous years he had dealt in coke of the kind mentioned in the contract. The plaintiff was at all times able, ready, and willing fully to perform its contract, but the defendant refused 369 car loads of the coke, all of which coke was sold by the plaintiff on the open market at a loss, excepting 44 car loads, which,
[8J Nor did the court err, as claimed by the defendant, in instructing the jury that plaintiff was entitled to recover the difference between the cost of production and the selling price of the coke which it could and would have produced, had the plaintiff not refused to receive it. Hinckley v. Pittsburgh Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; George Delker Co. v. Hess Spring & Axle Co., 138 Fed.
“The power of federal judges, as defined by the common law, in the submission of cases and the control of the deliberation of juries, still remains.”
A trial court should avoid instructing a jury in the absence of counsel for the respective parties, when it can conveniently do so, and especially where the supplemental charge covers propositions of law not dealt with by the original charge; but the rule which controls is thus stated by Mr. Justice Gray in Stewart v. Wyoming Ranch Co., 128 U. S. 383, 390, 9 Sup. Ct. 101, 104 (32 L. Ed. 439):
“The absence of counsel, while the court is in session, at any time between the impanelling of the jury and the return of the verdict, cannot limit the power and duty of the judge to instruct the jury in open court on the law of the case as occasion may require, nor dispense with the necessity of seasonably excepting to his rulings and instructions, nor give jurisdiction to a court of error to decide questions not appearing of record.”
See, also, Aerheart v. St. Louis, I. M. & S. Ry. Co., 99 Fed. 907, 910, 40 C. C. A. 171 (C. C. A. 8). The posture of the present case is the same as that of the Stewart Case, in which the objecting party did not except to the supplemental instruction at the time it was given or before the verdict was returned. His failure to do so was held to be a conclusive answer to his objection. A like holdiñg must necessarily follow here.
Other errors assigned have been considered, but need not be noticed. We find no substantial error.
The judgment of the trial court is affirmed.