Brent v. Chas. H. Lilly Co.

• Decision Date: 30 January 1913
• Docket Number: 1,760.
• Citation: 202 F. 335
• Parties: BRENT v. CHAS. H. LILLY CO.
• Court: U.S. District Court — Western District of Washington

202 F. 335

BRENT v. CHAS. H. LILLY CO.

No. 1,760.

United States District Court, W.D. Washington, Northern Division.

January 30, 1913

At Law. Action by N. Ford Brent, doing business under the firm name of Charles S. Brent & Bros., against the Charles H. Lilly Company. Petition for new trial denied.

See also, 174 F. 877.

Preston & Thorgrimson, of Seattle, Wash., for plaintiff.

J. H Allen, of Seattle, Wash., for defendant.

CUSHMAN District Judge.

This cause is before the court upon defendant's petition for a new trial. The plaintiff, a Kentucky seed dealer, sued to recover $3,024 for a shipment of Kentucky blue grass seed sold the defendant, a large seed dealer of Seattle, Wash. The contract is evidenced by certain letters and telegrams between the parties. These are set out in the former opinions in this case of the Circuit Court and the Circuit Court of Appeals. (C.C.) 174 F. 882; 186 F. 700, 108 C.C.A. 518.

The real dispute between the parties is whether, under the contract, the seed was to be measured at 14 pounds to the bushel, as claimed by the plaintiff, or 21 pounds, as claimed by the defendant. Upon the first trial, the court held that the written contract was not ambiguous, and that under it 14 pounds was to constitute a bushel, and instructed the jury to return a verdict accordingly. 174 F. 882.

Upon writ of error, the Court of Appeals held that the Circuit Court had erred, that one of the writings constituting the contract was ambiguous, and that its meaning, taken in connection with the balance of the correspondence, should have been left to the determination of the jury under appropriate instructions from the court. A second trial was had, and a verdict returned in accordance with plaintiff's contention. The trial judge having resigned without a ruling had upon the petition for a new trial, the same is now before the court.

The following authorities are relied upon by the plaintiff: Nelson v. Imper. Trad. Co. (Wash.) 125 P. 777; 22 Am. & Eng. Enc. of Law, p. 1339; Hamilton v. Schlitz Brewing Co., 129 Iowa, 172, 105 N.W. 438, 2 L.R.A. (N.S.) 1078; Clark v. Shannon & Mott Co., 117 Iowa, 645, 91 N.W. 923; Aerheart v. St. Louis, I.M. & S. Ry. Co., 99 F. 907, 40 C.C.A. 171; Doyle v. Union Pac. Ry. Co., 147 U.S. 413, 13 Sup.Ct. 333, 37 L.Ed. 223; Baltimore & P.R. Co. v. Baptist Church, 137 U.S. 568, 11 Sup.Ct. 185, 34 L.Ed. 784; Simmons v. U.S., 142 U.S. 148, 12 Sup.Ct. 171, 35 L.Ed. 968.

The defendant relies upon the following authorities: Portland Flouring Mills Co. v. British F. & M. Ins. Co., 130 F. 862, 65 C.C.A. 344; Phoenix Co. v. Humphrey-Ball, 58 Wash. 401, 108 P. 952; Hopkins v. Cowen, 90 Md. 152, 44 A. 1062, 47 L.R.A. 124; Treadwell v. Anglo American (C.C.) 13 F. 23, 5 Ann.Cas. 263; 22 Am. & Eng. Enc. of Law (2d Ed.) 1340; Dow v. Gould, 31 Cal. 629; Mead v. Dayton, 28 Conn. 33; Lewis v. McCabe, 49 Conn. 155, 44 Am.Rep. 217; Weil v. Golden, 141 Mass. 364, 6 N.E. 229; Camwell v. Sewell, 5 H. & N. 728; Rhode Island Locomotive Works v. South Eastern R. Co., 31 L.C.Jur. 86; G. A. Gray Co. v. Taylor Bros. Iron Works Co., 66 F. 686, 14 C.C.A. 56; Koster v. Merritt, 32 Conn. 248; Brinker v. Scheunemann, 43 Ill.App. 662; Diether v. Ferguson Lbr. Co., 9 Ind.App. 173, 35 N.E. 843, 36 N.E. 765; Fred Miller Brewing Co. v. De France, 90 Iowa, 395, 57 N.W. 959; Finch v. Mansfield, 97 Mass. 89; Kline v. Baker, 99 Mass. 253; Brockway v. Maloney, 102 Mass. 308; Dolan v. Green, 110 Mass. 322; Ames v. McCamber, 124 Mass. 85; Milliken v. Pratt, 125 Mass. 374, 28 Am.Rep. 241; Portsmouth Brewing Co. v. Smith, 155 Mass. 100, 28 N.E. 1130; Tarbox v. Childs, 165 Mass. 408, 43 N.E. 124; Orcutt v. Nelson, 1 Gray (Mass.) 536; Kling v. Fries, 33 Mich. 275; Sullivan v. Sullivan, 70 Mich. 583, 38 N.W. 472; Webber v. Howe, 36 Mich.

150, 24 Am.Rep. 590; In re Kahn, 55 Minn. 509, 57 N.W. 154; Lynch v. Stott, 67 N.H. 589, 30 A. 420; French v. Hall, 9 N.H. 137, 32 Am.Dec. 341; Sessions v. Little, 9 N.H. 271; Lauten v. Rowman, 59 N.H. 215; Fuller v. Leet, 59 N.H. 163; Backman v. Jenks, 55 Barb. (N.Y.) 468; D'Ivernois v. Leavitt, 23 Barb. (N.Y.) 63; Jaffray v. Wolf, 4 Okl. 303, 47 P. 496; Born v. Show, 29 Pa. 288, 72 Am.Dec. 633; Baltimore & O.R. Co. v. Hoge, 34 Pa. 214; Henry v. Philadelphia Warehouse Co., 81 Pa. 76; Braunn v. Keally, 146 Pa. 519, 23 A. 389, 28 Am.St.Rep. 811; Perlman v. Sartorius. 162 Pa. 325, 29 A. 852, 42 Am.St.Rep. 834; Arnold v. Shade, 3 Phila. (Pa.) 82, 15 Leg.Int. 75; Lowrey v. Ulmer, 1 Pa.Super.Ct. 425; Whiting Mfg. Co. v. Fourth St. Nat. Bank, 15 Pa.Super.Ct. 419; Mack v. Lee, 13 R.I. 293; Beverwick Brewing Co. v. Oliver, 69 Vt. 323, 37 A. 1110; State v. O'Neil, 58 Vt. 140, 2 A. 586, 56 Am.Rep. 557.

There was a full stenographic report of the proceedings of the trial, the notes of which have now been extended. The defendant is therefore not entitled, on account of the resignation of the trial judge prior to the ruling on the motion for a new trial and settlement of the bill of exceptions, to a new trial as a matter of right. Act June 5, 1900, c. 717, 31 Stat.at Large, 270, 4 Fed.Stat.Ann. 594, Sec. 953 (U.S. Comp. St. 1901, p. 696); Penn Mut. Life Ins. Co. v. Ashe, 145 F. 593, 76 C.C.A. 283, 7 Ann.Cas. 491.

Defendant contends that, the effect of the dispute between the parties being the difference between the price of the seed at 14 pounds to the bushel and 21 pounds to the bushel, which difference would amount to $1,008, therefore the amount in controversy is not sufficient to give the court jurisdiction. This error was urged before the Court of Appeals, but not sustained. The defendant, though admitting it owed the plaintiff $2,016, an amount in excess of that then required to give the court jurisdiction, did not pay the amount, and suit was brought to recover $3,024. The jurisdiction is fixed by the amount sought, in good faith, to be recovered by the complaint. Under the pleadings there could be, and was, a judgment recovered in excess of the jurisdictional amount. Nothing more is required. Vance v. W. A. Vandercook, 170 U.S. 468, at 472, 18 Sup.Ct. 645, 42 L.Ed. 1111.

The defendant, in its answer, pleaded the general issue, as well as an affirmative defense, in which latter the real nature of the differences between the parties, as afterward developed by the evidence, was disclosed. It is considered that, other questions apart, this general denial, putting in issue plaintiff's right to recover, would show the jurisdictional amount to be in controversy, for by that denial plaintiff's right to recover anything was disputed.

The defendant further contends that the court erred in admitting evidence tending to show that in Kentucky there was a custom that 14 pounds of blue grass seed constituted a bushel. This evidence was admitted on the first trial, over defendant's objection-- an objection noted, but not sustained, by the appellate court on the writ of error. The objection then made by the defendant was that the written contract was not ambiguous, and that, therefore, evidence of the custom in Kentucky was inadmissible. The appellate court held that the contract was ambiguous, and said concerning the evidence as to the alleged custom:

'The only ground for the admission of such evidence was that it might aid in the true construction of the contract. If needed for that purpose, it was clearly a matter for the jury, since the evidence upon the subject was conflicting; and such could only have been the theory upon which the alleged custom was set up in the complaint.'

The cause was remanded for the jury to determine the meaning of the ambiguous writing, 'in view of all the facts and circumstances of the case. ' The materiality of this testimony is, therefore, no longer an open question in this case.

As a part of this contention, the defendant claims that, in the sale, title passed at Seattle, and not at Paris, Ky.; that, therefore, the custom of Washington and neighboring states was alone material. Without deciding whether the sale took place at Seattle or Paris-- a point not covered by the instructions-- the evidence is, in either event, material. In Washington, and the West generally, blue grass and other seeds and grains are sold by the pound, or 100 pounds, and there cannot be said to be an established custom here as to the number of pounds constituting a bushel.

Kentucky is recognized as the leading market and producing section for blue grass seed, and, in the absence of an established custom at the place of sale, in case of doubt concerning the meaning of the parties to a contract in this particular, evidence of the custom in Kentucky would be admissible, provided the jury found that the defendant knew of the custom and contracted with reference to it, all of which questions were submitted to the jury under appropriate instructions, to which no exception was taken.

A large number of other errors are assigned-- over 70. These relate to rulings made upon the admission and rejection of evidence and remarks by the court in the presence of the...