Franklin Sugar Refining Co. v. Luray Supply Co.

• Decision Date: 17 April 1925
• Docket Number: No. 2326.,2326.
• Citation: 6 F.2d 218
• Parties: FRANKLIN SUGAR REFINING CO. v. LURAY SUPPLY CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

6 F.2d 218 (1925)

FRANKLIN SUGAR REFINING CO. v. LURAY SUPPLY CO., Inc.

No. 2326.

Circuit Court of Appeals, Fourth Circuit.

April 17, 1925.

Irvin G. Craig and Thomas B. Gay, both of Richmond, Va., for plaintiff in error.

D. O. Dechart, of Harrisonburg, Va. (W. V. Ford, of Luray, Va., and John T. Harris, of Harrisonburg, Va., on the brief), for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge.

Plaintiff in error, hereinafter referred to as plaintiff, instituted its action at law in the United States District Court for the Western District of Virginia against the defendant in error, hereinafter called the defendant, to recover for an alleged breach of five certain contracts entered into between them for future delivery of sugar, as therein set out. The declaration consisted of five counts, each covering one of the contracts. At the November term, 1923, a verdict was rendered in favor of the plaintiff against the defendant upon the first four counts, and in favor of the defendant on the fifth count. Defendant thereupon moved the court to set aside the verdict on the first four counts, and plaintiff to set it aside as to the fifth count. The court sustained the latter motion, and set aside the verdict against the defendant under the fifth count, as it did also the verdict on the fourth count in favor of the plaintiff, and entered judgment in favor of the plaintiff against the defendant on counts 1, 2, and 3, from which decision the defendant sued out its writ of error to this court, which, at the present term, has rendered judgment affirming the District Court's decision. 6 F.(2d) 214.

The court set aside the judgment and awarded a new trial as to counts 4 and 5, and the case is now before us to review certain rulings of the District Court made on the new trial thus ordered.

The facts in the case, briefly, are that the plaintiff, with its principal place of business in Philadelphia, Pa., was engaged in the business of refining and selling sugar; and defendant had its principal place of business at Luray, Va., where it was engaged in the wholesale grocery business, and purchased large quantities of sugar from plaintiff. During the year 1920, in the months of May and June, the defendant, through plaintiff's agent, Beery, entered into the five contracts for the purchase of sugar, including that covered by the two counts, to wit, contract No. 180, dated May 28, 1920 (assortment June 14, 1920), for the equivalent of 114 barrels of sugar, at the base price of 22½ cents per pound, delivery during August, 1920, or as soon thereafter as possible, being the contract covered by the fourth count of the declaration, and contract No. 1990, dated June 4, 1920 (assortment June 14, 1920), for the equivalent of 114 barrels of sugar at the base price of 22½ cents per pound, delivery during September, 1920, or as soon thereafter as possible, being the contract covered by the fifth count. Deliveries under each of said counts were withheld at defendant's request, as claimed by plaintiff, such request being made under the fourth count on the 24th of August and the 20th of September, and under the fifth count on the 24th of August and 3d of September, 1920, with the result, as claimed by plaintiff, that the contract in each count was repudiated altogether by the defendant, causing loss, as claimed by plaintiff, to it of $3,307.71 under the fourth count, and the sum of $4,285.26 under the fifth count, for which defendant is liable.

The defendant's case, briefly, was that no request was ever made to withhold shipments under said contracts, and that, on the contrary, plaintiff was duly notified that defendant would comply with said contracts, and accept shipments thereunder, and that plaintiff failed entirely to make deliveries under the contracts.

This was the issue presented, and the conflict in the testimony was sharply drawn as to who was responsible for the alleged breaches of the contracts covered by said two counts, and upon whom the losses arising therefrom should fall. The jury returned a verdict in favor of the defendant, upon which the court entered judgment, from which this writ of error was sued out.

The assignments of error relate especially to the ruling of the court on the admission and exclusion of evidence, the court's failure to instruct a verdict in favor of the plaintiff, its error in giving and refusing instructions, and for entering judgment on the verdict. These will be considered in the order named.

First. The action of the trial court in the admission of evidence respecting the reputation of the defendant's witnesses Ford and Harnsberger, for truth and veracity, is most earnestly pressed as a reason for reversal of the decision of the District Court; the plaintiff's position being that nothing had occurred that warranted the introduction of testimony in support of the witnesses named, and, on the contrary, there was a mere conflict of testimony between them and plaintiff's witnesses, and that in such circumstances supporting evidence was not proper to be introduced, unless it could be shown that the statements of the witnesses sought to be sustained were disproved, with the direct object and purpose of impeaching their testimony.

The District Judge in his opinion briefly summarizes the conflict in testimony as follows:

"Mr. Frazier's appearance, his manner of testifying, and the statements made by him created a strong belief in his truthfulness. In addition to this was the undeniable fact that there was no earthly reason why the plaintiff did not ship a car in August and another in September, unless it was Frazier's belief that Ford and Harnsberger had asked, and he had granted, a delay in shipment until they should request it. Moreover, McLaurin's deposition had some tendency to corroborate Frazier's evidence. On the other hand, Ford and Harnsberger could by no reasonable possibility have been mistaken. They testified as to the one and only interview they had ever had with Frazier or with McLaurin. The matter of these interviews was of very great importance to Ford and Harnsberger. Forgetfulness on their part was simply beyond the range of reasonable possibility. As a practical necessity their testimony was either knowingly untrue, or was in strict accordance with the facts. The result is that the veracity of Ford and Harnsberger was as effectually put in issue by the contradictory testimony of Frazier and McLaurin as it could have been by any possible method of cross-examination. Because Ford and Harnsberger could by no reasonable possibility have been mistaken, the contradiction of their testimony by Frazier and McLaurin certainly bred some suspicion of their veracity, and a removal of such suspicion was a prerequisite to the possibility of a verdict for the defendant. If there can be such a thing as an attack on the character of witnesses for veracity by mere disproof of their statements by conflicting testimony by other witnesses, then there was such an attack at the trial of this case."

This presents for our consideration what is the rule in Virginia on the subject of the introduction of testimony of the character in question, and whether this court is not bound by and should follow the Virginia rule, whether it is or is not in harmony with the weight of authority. The highest court in Virginia, in its leading case on the subject, George v. Pilcher, 28 Grat. 299, 315, 26 Am. Rep. 350, speaking through Judge Burks, lays down the rule as follows; the several positions being numbered for convenience:

"We are not aware that the precise question passed upon by these decisions has ever come before this court for determination until now, and, in the conflict of authorities in other states, we are called upon to declare the true rule in Virginia; and we are of opinion that, whenever the character of a witness for truth is attacked, either (1) by direct evidence of want of truth, (2) or by cross-examination, or (3) by proof of contradictory statements in regard to the material facts, or (4) by disproving by other witnesses material facts stated by him in his examination, or (5) in general whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence of his general reputation for truth. The rule as we declare it has, we believe, been generally regarded as the true rule by the bench and the bar in this state, and has been generally followed in the practice."

The learned judge of the court below was convinced that he was bound by the ruling of the highest court of the state, and that, under it, the testimony of the witnesses offered in evidence to prove the good reputation of Ford and Harnsberger was properly admitted. In this conclusion, we fully concur.

Counsel for plaintiff earnestly insists that this is not the correct interpretation to be placed upon the decision in George v. Pilcher, and, on the contrary, that a fair interpretation is that evidence to support the veracity of witnesses can only be...