G. Amsinck & Co. v. Springfield Grocer Co.

Decision Date04 August 1925
Docket NumberNo. 6961.,6961.
Citation7 F.2d 855
PartiesG. AMSINCK & CO., Inc., v. SPRINGFIELD GROCER CO.
CourtU.S. Court of Appeals — Eighth Circuit

G. M. Sebree, of Springfield, Mo. (J. B. Fradenburg, of Omaha, Neb., P. H. Kunzig, of Philadelphia, Pa., and J. D. Redding, of San Francisco, Cal., on the brief), for plaintiff in error.

E. A. Barbour, of Springfield, Mo. (Barbour & McDavid and Mann & Mann, all of Springfield, Mo., and Wm. Ritchie, Jr., of Omaha, Neb., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and PHILLIPS, District Judge.

KENYON, Circuit Judge.

Plaintiff in error (herein designated as plaintiff) brought action in the United States District Court for the Southern Division of the Western District of Missouri against defendant in error (herein designated as defendant) to recover damages for the refusal of defendant to receive 80 tons of alleged Java white granulated sugar, which plaintiff claimed defendant had purchased by written agreement of date May 28, 1920, at the price of $22 per 100 pounds, to be delivered to defendant f. o. b. San Francisco upon arrival of boat from Java. Prior to arrival of the sugar at San Francisco, defendant notified plaintiff that it would not receive it. Plaintiff sold the same for the account of defendant realizing $15,149.49, which it credited to defendant. The amount plaintiff alleges defendant agreed to pay was $35,182.40. Plaintiff also expended for commissions, and loading and disposition of said sugar the sum of $185.20. The difference between the contract price and the market value thereof at the time and place of delivery was alleged to be $20,137.44. Defendant claimed that the contract as sued on, which was made by brokers, was not executed by it.

The parties entered into a written stipulation waiving a jury and submitting the issues to Van Valkenburgh, District Judge. The stipulation provided "that it is understood and agreed that, before a judgment is rendered, the said judge will make a written finding of facts covering all the material issues presented, which said finding of facts shall be filed as a part of the proceedings in said cause."

The terms of the United States District Court for the Southern Division of the Western District of Missouri are fixed by law, and commence on the first Monday of April and October, respectively. At the April term, 1922, some evidence was taken in the case, and it was continued to the October term, 1922, when the evidence was completed and the case submitted. At the April term, 1923, and on July second the District Judge sent to the clerk a paper entitled "Memorandum on Final Hearing." In this the court reviewed the evidence in the case specifically making one finding of fact as to a certain alleged provision claimed by defendant to have been made in the original offer; the balance of the memorandum as to facts being a résumé of the evidence and various conclusions thereon in the nature of a general opinion of the court. There are some conclusions of law set forth, and the memorandum concludes as follows: "I declare the law to be that this date, to wit, October 29, 1920, fixes the time basis upon which the damage is to be computed. There being no substantial dispute in the evidence as to the figures, if this ruling is the correct one, it must follow that the plaintiff is entitled to recover the amount claimed, to wit, $20,137.44, with interest thereon at 6 per cent, per annum from October 29, 1920. Judgment accordingly. Kansas City, Missouri, June 30, 1923. Signed Arba S. Van Valkenburgh, District Judge." This memorandum was recorded in book 3, volume 3, of the Law Record of the court.

At the October term, 1923, and on January 3, 1924, defendant filed a motion to set aside the submission of the cause and permit the introduction of further and newly discovered evidence. At the same term, on January 8, 1924, the court filed a memorandum entitled, "Memorandum upon Defendant's Motion to Set Aside the Submission of the Above-Entitled Cause and to Permit the Parties to Introduce Further Evidence." In this the court referred to the memorandum opinion theretofore filed upon the merits as then presented and said: "This memorandum failing to be brought to the attention of counsel, no judgment was entered therein, and the case stands as though under advisement." Further the court said: "Under the circumstances of the case, the application might have been made in the form of a motion for new trial; but inasmuch as judgment had not been entered, it is now presented, as originally contemplated, as a motion to reopen the case, before final judgment, for the introduction of evidence not before known to the defendant, and deemed to be essential to a just decision of the controversy." The application of defendant to reopen the case for further hearing was granted, and the further proceeding in the case was set for the next April term of the court.

On May 14, 1924, defendant filed a second amended answer, which set out the new matter referred to in its motion, viz. that the sugar which plaintiff claims it sold to defendant as Java white granulated sugar was not such sugar. Plaintiff moved to strike out this provision of defendant's second amended answer, claiming that the evidence showed that defendant had refused to receive the sugar contracted for wholly on the ground and for the reason that it had no contract with plaintiff for the purchase thereof, and having based its reason for its conduct on that ground, was not entitled to litigate the new question raised by said second amended answer. This was overruled by the court, and both parties proceeded with the trial and introduced considerable evidence on this issue.

June 6, 1924, the court filed a document entitled "Memorandum on Final Hearing upon Reopening of the Case," and also "Additional Findings of Fact and Conclusions of Law," in which it found that by the contract plaintiff obligated itself to sell to defendant Java white granulated sugar; that the sugar actually imported by plaintiff for delivery to the defendant, and sold for defendant's account, was not granulated sugar, and was not of the character and quality defined by the term "granulated," and was therefore not the commodity named in said contract. The conclusion of law of the court was that the plaintiff had failed to comply with the terms of the contract and was not entitled to recover.

On June 25, 1924, judgment was rendered, dismissing plaintiff's petition with prejudice and giving to the defendant judgment against plaintiff for costs expended. A stipulation was entered into when the case was originally submitted to the court, in which it was agreed by counsel that the sugar contracted for was Java white granulated sugar. This was done to avoid an extended period of trial. At that time counsel for defendant had no knowledge of the facts as to the nature of the sugar; the same having been produced in Java and having been unloaded and sold at San Francisco. The court held that under these circumstances counsel for defendant was not estopped by the stipulation, entered into in good faith and in large measure in reliance upon statements emanating from plaintiff's counsel which statements it is conceded were entirely in good faith.

Both parties agree that the cause is reduced to two propositions, viz.: (1) Was the memorandum of the court, sent to the clerk and filed July 2, 1923, and copied into the record containing judgments, a final judgment? (2) Was defendant, after giving as a reason for its refusal to accept the sugar that there was no contract, entitled, after litigation was commenced and the case submitted, to change its ground, and put its refusal upon another and different consideration?

I. If the memorandum was a final judgment, the court had no power to set it aside after the expiration of the April term, 1923, unless the proceeding therefor was commenced during that term, or unless so permitted by some statute, neither of which is claimed here. United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129; Wetmore v. Karrick, 205 U. S. 141, 27 S. Ct. 434, 51 L. Ed. 745; In re Metropolitan Trust Co., 218 U. S. 312, 31 S. Ct. 18, 54 L. Ed. 1051; Greyerbiehl v. Hughes Electric Co. (C. C. A.) 294 F. 802.

If it was not a final judgment, then the case remained on the docket, and the court would have the power at the next term, in the exercise of its judicial discretion, to reopen the case for the purpose of receiving newly discovered evidence, or any other purpose consonant with justice and a correct decision, and unless there was clear abuse of such discretion the appellate court will not interfere. 4 Corpus Juris, p. 835; 2 R. C. L. p. 217, § 182; Omaha Real Estate & Trust Co. v. Reiter et al., 47 Neb. 592, 66 N. W. 658; State v. Cray, 31 N. D. 67, 153 N. W. 425; McIntyre v. Modern Woodmen of America, 200 F. 1, 121 C. C. A. 1.

At the close of its original memorandum opinion the court said, "Judgment accordingly," and these are the words relied on by plaintiff to show a final determination of the matter. The trial court evidently did not understand its original memorandum to be a judgment, for in its memorandum on defendant's motion to set aside submission of the case it said: "This case was heard at a previous term of this court, and a memorandum opinion filed, ruling upon the merits as then presented. This memorandum failing to be brought to the attention of counsel, no judgment was entered therein, and the case stands as though under advisement." Nor did the parties consider the memorandum as a judgment. In the stipulation for submission to the court, it is provided that before a judgment is rendered the judge will make a written finding of facts, etc.

A judgment is the final sentence of the law upon the matter at issue in the cause as presented by the record. It is the final determination of the rights of the parties in an action. In re Moseley et al., 17 Fed....

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